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

What happens after a Caveat is filed?

Caveat Format as per CPC

 

 

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.