Cadit Quaestio

Literal Meaning

Question falls/ argument collapses

Origin

Latin

Explanation

The above maxim is derived from two Latin words “cadit” means to fall and “quaestio” means question. It means that there is no further argument or discussion which is used to refer to a situation where a legal dispute has been settled. In general, cadit quaestio is used to indicate that a dispute or an issue is no longer in question.

Case Laws

In Foss vs. Harbottle, the court observed that the proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favor of what has been done, then cadit quaestio. No wrong had been done to the company or association and there is nothing in respect of which anyone can sue. If, on the other hand, a simple majority of members of the company or the association is against what has been done, then there is no valid reason why the company or association itself should not sue. In my judgment, it is implicit in the rule that the matter relied on as constituting the cause of action should be a cause of action properly belonging to the general body of corporators or members of the company or association as opposed to a cause of action which some individual member can assert in his own right.”

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To forbid or to stop. It is popularly known as ‘Stay Order’.

Explanation

A writ of prohibition is issued primarily by a superior court to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued to inferior courts from usurping a jurisdiction with which it was not legally vested. In other words, the writ compels the inferior courts to keep within the limits of their jurisdiction.

The Writ of Prohibition is issued when a lower court or the body tries to transgress the limits or powers vested in it. It is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. It is an extraordinary writ of preventive nature that prevents courts, tribunal, quasi-judicial bodies, and other officers from exercising their power beyond their jurisdiction or exercising those powers that are not vested on them.

Case Laws

In Brij Khandelwal vs. India, the Delhi High Court refused to issue prohibition to the Central Government to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against government discharging executive functions and that prohibition is intended to control quasi-judicial and not executive, functions.

But this view is no longer tenable with the expansion of the concept of natural justice, and the emergence of the concept of fairness even in administrative functions, the rigidity about prohibition has also been relaxed. The writ can now be issued to anybody, irrespective of the nature of the function discharged by it if any of the grounds on which the writ is issued is present. Prohibition is now regarded as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights.

In S. Govind Menon vs. Union of India, it was held that prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal’s proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and another superior one by which the latter, by virtue of its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited.

In Calcutta Discount Co. Ltd. Vs. ITO, Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.

In the case of Mannusamappa and Sons vs. Custodian Evacuee Property, the custodian, after accepting the petitioners as tenants of the evacuee property and after accepting rent for five months, purported to proceed against them as if they were in permissive possession. Prohibition was issued to forbid him from proceeding further.

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From without, from the outside

Origin

Latin

Explanation

The knowledge obtained from external sources refers to Ab Extra. This maxim deals with the situation in which, aside from the real source of it the source of something is. Where there is any documentation or any information provided by a third party (a person other than the parties to the case), this shall be treated as ab extra.

Illustration

When a party to the case may have received some information from a third party. This information by a third party is considered as ab extra.

Case Laws

In Manjula S. Deshmukh vs. Sjresh Deshmukh, the court accepted the evidence of the wife which showed that the semen might have encountered the vagina of the woman and caused a pregnancy without penetration or ordinary intercourse as it is properly understood. The birth of the child was due to an accident freak of fecundation ab extra during an abortive attempt to consummate. The decree of nullity of marriage has been confirmed.

In T. Rangaswami vs. T. Aravindammal, J. Ramaswami stated in the judgment that the birth of a child is not conclusive evidence, the marriage has been consummated as it is well established that fecundation ‘ab extra’ can take place.

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By means of menaces or threats

Origin

Latin

Explanation

When a person is forced to enter into a contract by threats or menaces, it can be called per minas. When a person fears death or any mayhem on not acting according to the threat, the person may act as instructed. Nevertheless, the acts performed in compulsion may be changed by the person afterward. The courts only require that the individual was compelled to act by threat and that the threat was not one that could have been resolved by a strong and fair man’s mind and will.

In other words, when another person persuades someone, by uttering threats, to commit a criminal act which he would not have committed but for the threats, a man acts under pressure, it is referred to as Per Minas. Threats are threats of personal abuse aimed either at himself or at others with whom he has a near relationship with his family. Threats to harm a stranger or even anyone, such as a sovereign, who is under a public obligation to protect the victim, are not included.

Case Laws

In Brown v. Pierce, 74 US 205 (1868), the honorable court mentioned that Text-writers usually divide the subject into two classes, namely, duress per minas and duress of imprisonment, and that classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts to the present time. And Second class, duress per minas as defined at common law, is where the party enters into a contract (1) For fear of loss of life; (2) For fear of loss of limb; (3) For fear of mayhem; (4) For fear of imprisonment; and many modern decisions of the courts of that country still restrict the operations of the rule within those limits.

In Nandini Satpathy vs Dani (P.L), 1978 AIR 1025, 1978 SCR (3) 608, the court mentioned that ‘Duress is where a man is compelled to do an act by injury, beating, or unlawful imprisonment (sometimes called duress in a strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per minas). Duress also includes threatening, beating, or imprisonment of the wife, parent, or child of a person.

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Person not welcome

Origin

Latin

Explanation

This maxim has evolved in the field of diplomatic relations and such a declaration means that the foreign diplomat is unwelcome in that country; he is not permitted to enter or continue to stay in a particular country. Just as the principle of diplomatic immunity provides protection to the State sending the diplomat, this principle of persona non grata safeguards the interests of the receiving State. Such a statement could be given either before the diplomat even arrives at the receiving state, or after he has started carrying out his functions. Therefore, not every statement results in the diplomat’s expulsion, but if it does, it has to be in conformity with Article 41 of the Vienna Convention, 1961.

Illustration

State X sends a diplomat to State Y.  Due to war, or severed relations between the States, or due to some offense committed by the diplomat, State X can issue a statement declaring the diplomat to be persona non grata (unwelcome) to their State.

Cases

In 2016, Surjeet Singh an Indian national was declared persona non grata by the Government of Pakistan. This happened shortly after the Government of India detained a Pakistani diplomat before his expulsion, thereby causing a violation of the Vienna Convention of 1961. Therefore, this incident was on account of the strained relations between the two states. This case led to his expulsion from the country.

In 2014, Devyani Khobragade incident occurred; she was an Indian diplomat in New York. She was accused of stating false information to enter the country, and committing visa fraud for her servant. Upon request, India refused to waive its immunity and charge the diplomat in the Court. Hence, the United States applied this principle and declared her an unwanted diplomat, leading to her expulsion from the country.

In 2013, Jagmeet Singh, was a Canadian MPP, was barred from traveling to India by application of this principle. He was the first sitting member from a Western Legislature, whose visa was canceled for travel to India. This was primarily based on the accusation that he was linked to the Khalistan Extremists settled in Canada, who had bombed Air Flight 182 causing a deadly incident.

This maxim has been written and submitted by Ms. Ayushi Goyal during her course of internship at B&B Associates LLP. Ms. Ayushi is a 4th-year law student at Christ University, Bangalore.

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Unwilling to pursue

Origin

Latin

Explanation

This maxim means that there is no longer a will to pursue the case forward. It is generally applied by a judge or the prosecutor with respect to a criminal case. In some instances, it is also used by a plaintiff during a civil case. It could be applied either before or during the trial proceedings. Once this maxim is used the case will not proceed further and all charges against the defendant will be dropped.

In a few jurisdictions, this maxim is not applicable and the case is simply dismissed in such circumstances. This includes countries like New York and India. The difference between the two is that, once this maxim is used, it implies that the case never happened and the charges were never framed; therefore there can be no instance of double jeopardy, unlike cases that are dismissed.

Illustration

This maxim is used when the charges cannot be proved, or the evidence submitted has indicated innocence or a major flaw in the claim of the prosecution or the district attorney is convinced that the accused is not guilty.

Case Laws

In People vs. Daniels, 187 Ill. 2d 301 (1999), the Court had held that by application of this maxim the defendant is not acquitted but all charges against him are dropped.

In Kenyon vs. Com., 37 Va. App. 668 (2002) ¸ it was held that the consequence of this maxim is that the case can still be filed again and be prosecuted by fresh charges document. This is sometimes done ‘with prejudice’, whereby the prosecution in such cases can never re-file the charges against the defendant for the same case.

This maxim has been written and submitted by Ms. Ayushi Goyal during her course of internship at B&B Associates LLP. Ms. Ayushi is a 4th-year law student at Christ University, Bangalore. 

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Mind to Harm

Origin

Latin

Explanation

In criminal jurisprudence, the maxim animus nocendi is indicative of a state of mind of the criminal offender. It denotes that the offender has the actual and exact knowledge of the criminal act that is being committed along with its consequences. A comparison with mens rea reveals that it relates to the person being aware of their conduct; whereas animus nocendi aids in the detection of the innocence or criminal intent of the person. This serves as an important element in the commission of a crime. The constituent elements of this are:

1. knowledge of law; it is presumed that the offender is aware that his acts are in violation of the existing laws.
2. knowledge of the consequences of the act.
3. intention to violate the law by the act and its consequences.

Illustration

This state of mind is said to be absent in the mentally disabled or persons with mental illness. Minors are in most jurisdictions considered to be incapable of knowingly committing criminal acts. Therefore, the possibility of them being punished is comparatively lesser.

Cases

In Ryland vs. Fletcher, the Court held that the element of animus nocendi is not required. Instead, the principle of strict liability was laid down, stating that irrespective of whether the intention was present or not, the person will be liable for keeping a hazardous substance in their premises and its escape causes damage.

In M.C.Mehta vs Union of India (Oleum Gas Tragedy case), the Court had taken the intention into consideration and imposed an absolute liability for the severe damage caused to the life and health of neighboring residents.

This maxim has been written and submitted by Ms. Ayushi Goyal during her course of internship at B&B Associates LLP. Ms. Ayushi is a 4th-year law student at Christ University, Bangalore.

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The best way to construe a document is to read it as it would be read when it was made.

Origin

Latin

Explanation

This maxim is based on the principle of Salmond- “the essence of law lies in the spirit, not its letter or the latter is significant only as being the external manifestation of the intention that underlies it”. It means to read the statute by reference to the exposition it has received from the authority where the language given by the authority is plain and unambiguous. The maxim is considered to be the best exposition of a statute or any other document as it states that the construction as provided by the authority is competent enough. It states that the words of statutes should be construed in a true sense as in the manner created by the person who created such a statute. The maxim aims at providing meaning to the words when the statutes were constructed logically and should bore the meaning as to that when it was passed.

Illustration

If some provision of a particular Act defines that only a particular section of the society is eligible for the benefits of reservation or anything else and since it was been particularly mentioned and the intention by applying the principle of ‘Contemporanea Expositio Est Optima Et Fortissmo in lege’ is clear and definite, it means that only that particular section of the society can prevail the benefits offered by the provision and none else unless otherwise mentioned.

Case laws

JK Cotton Spinning and Weaving Mills Ltd and another v. Union of India and Others, the appellants are operating composite mills where they manufacture different kinds of fabrics at the immediate stage and for the same, they have to pay excise duty which was removed from the factory. The Collector Central Excise issued a notice under rule 9(1) of the central rules demanding the payment of central excise.  The appellants contended that they are liable to pay the excise only when the yarn is removed from the factory and pleaded ‘Contemporanea Expositio Est Optima Et Fortissmo in lege’, however, the apex court rejected the appeal by taking into the amount another case of KP Varghese v. Income-tax Officer, Ernakulam, in which it was observed by the court that if in any case there is ambiguity and a word is capable of two constructions then the principle can be applied but in the instant case the maxim of Contemporanea Expositio Est Optima Et Fortissmo in lege cannot be applied as there is no ambiguity.

This maxim has been written and submitted by Ms. Arushi Lamba during her course of internship at B&B Associates LLP. Ms. Arushi is a 4th-year law student of Panjab University, Chandigarh.

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A person making contradictory allegations are not to be heard

Origin

Latin

Explanation

The legal maxim ‘Allegans Contraria Non-Est Audiendus’ means that a person adducing to the contrary is not to be heard. This is the principle of good faith that a person should not be allowed to testify hot and cold at different times about the same event, in other words, he/she should not give contradictory statements. It is a concept of common sense and used to bring cross-examinations to an abrupt end.

The legal maxim is based on common sense and common justice and it is called ‘estoppel’ or any other name which is generally used in courts. In simple terms, the maxim means that if a person states something in good faith on one event and says the contrary about the same event, that shall not be allowed. The contradiction in the statements is likely to give the benefit of the doubt in cross-examinations to invalidate the statements. Thus, it can be comprehended by the principle that a person producing contradictory statements shall not be heard in a court of law.

Case laws

In the case of Hiralal Maganlal and Co. vs. Dcit, it was stated by the Hon’ble court that the principle of Allegans Contraria Non-Est Audiendus will be upheld as the instant case involved provisions under the Income Tax act and it was argued that  Section 115 of Indian Evidence Act will not apply, however, it was held by the court that since section 115 of the Indian Evidence Act  provides statutory recognition of the said principle which is applicable to all the judicial and quasi-judicial proceedings, the principle of Allegans Contraria Non-Est Audiendus shall be considered.

In case of Vallapareddy Sumitra Reddy and others vs. Kasireddy Laxminarayana Reddy and Ors.,it was held by the Hon’ble Court that the principle of Allegans Contraria Non-Est Audiendus means a party cannot be allowed to approbate and reprobate. It means that no one shall state contradictory things to each other. This maxim is applied in form of ‘estoppel’ in the said court proceedings.

This maxim has been written and submitted by Ms. Arushi Lamba during her course of internship at B&B Associates LLP. Ms. Arushi is a 4th-year law student of Panjab University, Chandigarh.

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A new law ought to regulate what is to follow, not the past.

Origin

Latin

Explanation

To understand the meaning of the above legal maxim, it can be said that a new state of the law is supposed to affect the future, not the past. It means that the cardinal principle of construction that every statute is prospective in nature unless it has been stated to have retrospective operation. It implies that except in special cases the new law has been to construed so as to interfere as little as possible with already vested rights. It embodies a particular rule of construction which is valuable only when the words of the Act of the Parliament are not clear and plain. It means that a new law ought to be construed to interfere as little as possible with vested rights.

Case laws

In the case of Vallabhaneni Lakshmana Swamy and others vs. Valluru Basavaiah and others, the principle of Nova Consititutio Futuris Formmam Imponere Debt, Non-Praeteritis was applied and it was held by the Hon’ble Andhra Pradesh court that it is a cardinal principle of construction that every statute prima facie perspective, unless expressly or by necessary implication has been made to operate with retrospective effect. The rule, in general, is to impose new burdens to the impair existing obligations.

In the case of Secretary Shivdatt education trust and another vs. Ramlochan Rajbali Patel and others, it was stated by the Hon’ble court that unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights. It is deemed to be prospective as per the principle of Nova Consititutio Futuris Formmam Imponere Debt, Non-Praeteritis- a new law ought to be regulated what to follow, not the past.

This maxim has been written and submitted by Ms. Arushi Lamba during her course of internship at B&B Associates LLP. Ms. Arushi is a 4th-year law student of Panjab University, Chandigarh.

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