Category Archives: Legal Terms and Phrases

Filing a Caveat and Related Rules

This article is being constantly updated.

What is a Caveat?

A Caveat is a Notice given by a person, informing the Court that another person may file a suit or application against him and that the Court must give the Caveator (person filing the Caveat) a fair hearing before deciding any matter brought before it in the relevant case.

Caveat in the High Court of Judicature at Bombay

Caveat in the High Court of Judicature at Bombay

As per Order XI A, section 148A of the Code of Civil Procedure ,1908:

148A. Right to lodge a caveat— (1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

Is it mandatory to file a Caveat?

No. A Caveat is optional and need not be filed.

In which Court(s) can a Caveat be filed?

Caveats can be filed in a principal Civil Court of original jurisdiction, an Appellate Court, the High Courts and the Supreme Court. This includes the Court of Small Causes. This includes all courts which have powers of a Civil Court including Tribunals, Forums and Commissions which are vested with the power of such a court.

Can I file a Caveat in the Consumer Forum or National Commission or Central Administrative Tribunal or with any similar quasi-judicial body?

The Principle of Natural Justice (audi alteram partem) suggests that a fair chance of hearing should be given to the other party. All tribunals and commissions are bound to follow this principle and hence must accept Caveats for all practical purposes. However, in place of Caveats, many laws require that the other party be given prior notice of any judicial proceedings.

When is a Caveat filed? Why do people file Caveats?

A Caveat is filed when the Caveator anticipates some legal proceeding filed against him by another party, in the near future.

There are multiple reasons of filing a Caveat, some of which include:

  • to clarify the Caveator’s address
  • to place on record his intention to participate in the proceedings
  • to prevent any ad interim order or injunction being passed without his appearance to defend his case (also known as an ex parte order)

What are the consequences of not filling a Caveat?

What is the time duration of the enforceability of a Caveat?

The Caveat is valid for 90 days from the date of lodging in the Court. Before the expiry of the period of 90 days, a fresh application can be made to extend the period of the Caveat for a further period of 90 days.

As per Order XI A, section 148A of the Code of Civil Procedure ,1908:

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not reman in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.

 What details should the Caveat contain?

The Caveat must contain:

  • The Name of the Court where the Caveat is to be filed
  • The Suit / Petition / Appeal No. if it exists
  • Caveator’s Name (Person making the Caveat)
  • Brief Details of Suit / Appeal likely to be filed
  • Name(s) of possible Plaintiff(s) / Appellant(s)
  • Caveator’s Address for service of the Notice when it is filed
  • Address where Notice of Caveat sent to the Other Parties by RPAD

What are the Court fees for filing a Caveat?

Does every court have separate rules for filing Caveats?

Most High Courts have some specific rules for filing Caveats, but they are all pretty much similar.

Bombay High Court Caveat Rules: http://bombayhighcourt.nic.in/libweb/acts/cpc1908/Order40A.pdf

Delhi High Court Caveat format: http://delhihighcourt.nic.in/writereaddata/upload/Downloads/DownloadFile_KUD67PSJ.PDF

What happens after a Caveat is filed?

Sample Caveat

Caveat Notice Sample

Caveat Notice Sample

 

 

Vakalatnama

What is a Vakalatnama?

A Vakalatnama is a document in writing, appointing a lawyer or pleader to represent the clients matter in a court of law.

ORDER III

4.(1) No pleader Shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such  person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.

What is the meaning of VP or VP Filed in the Court proceedings and Roznama?

VP means Vakil Patra, which is another name for Vakalatnama. Most courts use the term VP Filed in their Roznama or online records, to indicate that the Vakalatnama was filed.

Screenshot from 2016-08-03 09:21:34

 

What does the Vakalatnama contain?

The Vakalatnama contains:

  • The date on which it is executed.
  • The name of case / cases for which the pleader(s) has been appointed
  • The name of the court / courts for which the pleader has been appointed
  • The name of the party appointing the Advocate and the parties authority to appoint (Eg: Power of Attorney Holder or Recognised Agent)
  • If not executed by the party in person, then the document supporting the appointment
  • The name of the lawyer / pleader / advocate(s) so appointed
  • The address of the pleader, for service of documents
  • The case title / number to identify the case for which the appointment has been made
  • The powers / decision making authority given to the advocate. This may limit the advocate only to obtain certified copies, or
  • Signature of the party or parties (with the name of the party or parties next to it)
  • Signature of the pleader(s) or lawyer(s) accepting the vakalatnama

A vakalatnama gives a lot of authority to the pleader. It should be executed by the client with great care and scrutiny. Clauses like compromising the matter, appointing another Legal Practitioner, accepting money etc. may sometimes be detrimental to the interest of the client.

Who is authorised to give a Vakalatnama?

A Vakalatnama can be given by:

  • The party (in person)
  • A person holding a power of attorney for the party
  • A person carrying on trade or business on behalf of the party in that jurisdiction

ORDER III

2. The recognized agents of parties by whom such appearances, applications and acts may be made or done are-

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or acts made or done, in matters connected with such trade or business only, where no other agent is expressly authorized to make  and do such appearances, applications and acts.

A vakalatnama can be given jointly by multiple parties in the case, to appoint the same pleader or set of pleaders.

Whom is the Vakalatnama given to?

The vakalatnama can be given to one or many advocates / pleaders. Each of their names must be specifically mentioned.

What is done after the Vakalatnama is given?

After the Vakalatnama is given, it is filed in court within the prescribed period.

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the  court by a writing signed by the client or the pleader, as the case may tie, and filed in Court or until the client or the pleader dies, or until all proceedings in.the suit are ended so far as regards the client.

Is the Vakalatnama a Power of Attorney?

Yes. For all practical purposes, the Vakalatnama is a Power of Attorney.

Does a Vakalatnama need to be stamped?

Yes.Advocates Welfare Fund Stamps need to be affixed to the Vakalatnama.

As per section 27 of the Advocates Welfare Fund Act, 2001:

27. Vakalatnama to bear stamps:

1. Every advocate shall affix stamp of a value of-

a. five rupees on every Vakalatnama filed by him in a District Court or a court subordinate to the District Court;

b. ten rupees on every Vakalatnama filed by him in a tribunal or other authority or a High Court or the Supreme Court: Provided that the appropriate Government may prescribe the value of the stamps not exceeding twenty-five rupees to be affixed under this sub-section: Provided further that the appropriate Government may prescribe different value of the stamps to be affixed on every Vakalatnama to be filed in a District Court, or a court subordinate to the District Court or a tribunal or other authority or a High Court or the Supreme Court.

2. The value of the stamp shall neither be the cost in a case nor be collected in any event from the client.

3. Any contravention of the provisions of sub-section (1) or sub-section (2) by any advocate shall disentitle him either in whole or in part to the benefits of the Fund and the Trustee Committee shall report such contravention to the State Bar Council for appropriate action.

4. Every stamp affixed on every Vakalatnama filed before a District Court or a court subordinate to the District Court or a tribunal or other authority or a High Court or the Supreme Court shall be cancelled in such manner as may be prescribed.

Is the Vakalatnama different for different Courts?

No. Since the vakalatnama has no specific form, if it contains all the required details, it can be used in any court.

What is a Vakalatnama called in other languages or countries?

Vakalatnama is also interchangably called vakkalathu, vakil patra, mukhtyarnama.

What is the duration of the effect of the Vakalatnama? Can a Vakalatnama be withdrawn?

A Vakalatnama is said to be in force until:

  • The client dies or
  • The pleader / lawyer dies or
  • The client withdraws the Vakalatnama and the Court permits such withdrawal or
  • The lawyer / pleader withdraws the Vakalatnama and the Court permits such withdrawal or
  • The proceedings of the case are ended

(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in.the suit are ended so far as regards the client.

Bombay High Court Rule:
Rules framed by the High Court under section 34(1) of the Advocates Act, 1961 (Act 25 of 1961)

A party who wishes to discharge the Advocate engaged by him may apply to the Court for an order of discharge by following a similar procedure and the Court, if it is satisfied, may pass orders discharging the Advocate and while doing so impose such terms and conditions as it may deem proper.

Can a client argue the case in person even if he has given a Vakalatnama to a lawyer / pleader?

Yes.

CPC Order III Rule 1

1. Appearances, etc., may be In person, by recognized agent or by pleader.- Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

Provided that any such appearance shall, if the court so directs, be made by the party in person.

Can a lawyer who has been given a Vakalatnama, appoint another lawyer to plead the case in the same or different court?

Yes – If there is a specific clause in the Vakalatnama allowing him to do so.

Interesting Precedents:

  • Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr
    The defects routinely found in Vakalatnamas filed in courts
  • Ramappayya vs Subbamma And Ors. (1947) 2 MLJ 580
    Whether an advocate-or a pleader to whom a Vakalatnama is given, has power in the absence of express authorisation to compromise the suit on behalf of the party for whom he appears.

Actus non facit reum nisi mens sit rea

Meaning

A crime is not considered to have been done unless the intention of the accused was to do so.

Easy way to remember

Actus = The act or action
Non facit = not doing / not done
reum = the accused / defendent
nisi = unless
mens = mental condition / of the mind / intention
sit = to be
rea =  reum /  the accused / defendent

Explanation

This maxim holds good for criminal law, where not only the act of the accused must be proved, but the intention of the accused to do that specific act must also be proven to show guilt and sentence him for that particular crime.

The act follows the intention.

By this principal, the accused must have the intention to perform a certain crime, which caused him to act in that way. The mental state must be such that the accused had the intention to commit that act and the knowledge of its outcome.

Only when the act committed and the state of mind of the accused is in concurrence, can he be sentenced for committing a crime.

Common Misconception

No where in this maxim is the word guilt mentioned or implied. Hence, this maxim does not talk about guilt, which needs to be proven later, it only talks about the mental state of the accused which maybe further extended to the intention, knowledge or foresight of the accused.

The interpretation that this maxim means “an act does not make a person guilty unless (their) mind is also guilty” is not completely correct.

Example

An accused who commits a motor vehicle accident which leads to death of the victim, may be charged for murder, if he had the intention of killing the accused i.e. his act and mind worked in unison to execute the crime. Else, it would be considered an accident or negligence attracting a lesser punishment.

Lis Pendens

Meaning

Pending Litigation / Notice of pending dispute

Easy way to remember

Lis = Litis / Litigation / Legal Action
Pendens = Pending

Explanation

Lis Pendens is a notice in writing filed with the Talati / Tehsildar of the local Land Records Office bringing on record the fact that there is pending litigation over that property. It also serves as notice to any potential purchaser of the land, making him aware of the fact that though he may purchase the property, he will be subject to the decision of the court. It does not prevent a purchaser from buying the land,but makes him subject to the decision of the court, to show that he acted despite having knowledge of the dispute.

Example

s. 52 of the India Transfer of Property Act, 1882 states that:

52. Transfer of property pending suit relating thereto.- During the 1[ pendency] in any Court having authority 2[ 3[ within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[ the Central Government 5[ ], of 6[ any] suit or proceeding 7[ which is not collusive and] in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Precedent

A precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts.

It is a legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts (within a particular system of courts) are mandatory precedent on lower courts within that system–that is, the principle announced by a higher court must be followed in later cases.

Does a precedent always have to be followed

Decisions of lower courts are not binding on higher courts, although from time to time a higher court will adopt the reasoning and conclusion of a lower court. Decisions by courts of the same level (usually appellate courts) are considered persuasive authority. That is, they should always be carefully considered by the later court but need not be followed.

A previously decided case that is considered binding in the court where it was issued and in all lower courts in the same jurisdiction.

Blackstone says, that a former decision is in general to be followed unless “manifestly absurd or unjust,” and, in the latter case, it is declared when overruled not that the former sentence was bad law, but that it was not law.

Essentials of a precedent

  • the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions.
  • the avoidance of undue restriction on the proper development of the law

Types of precedents

Binding precedent

a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the House of Lords in the United Kingdom. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of Stare decisis.

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent in any event.

Advantages

  • Certain,
  • Consistent,
  • Precise,
  • Flexible and
  • Time-saving.

Disadvantages

  • Rigid,
  • Complex,
  • illogical (The differences between some cases may be very small and appear illogical) and
  • slow to grow (some areas of the law are unclear or in need of reform).

Persuasive precedent

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive authority may guide the judge in making the decision in the instant case.

Persuasive precedent may come from a number of sources such as

  • lower courts,
  • “horizontal” courts,
  • foreign courts,
  • statements made in dicta,
  • treatises or law reviews.

Types of persuasive authority

  • Lower Courts – A lower court’s opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.
  • Higher Courts in other Circuits – A court may consider the ruling of a higher court that is not binding.
  • Horizontal Courts – Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.
  • Statements made in obiter dicta of a higher court, though not binding, will often be persuasive to lower courts.
  • A Dissenting judgement – A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
  • Treatises, Restatements, Law Review Articles – Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argument.
  • Courts in other countries – An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example, Canada, Australia, or New Zealand) and to some extent the United States.

Case law

In common law systems this type of precedent is granted more or less weight in the deliberations of a court according to a number of factors:

  • whether the precedent is “on point,” that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case?
  • when and where was the precedent decided – A recent decision in the same jurisdiction as the instant case will be given great weight.
  • recent precedent in jurisdictions whose law is the same as local law.
  • stems from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law.