STOREHOUSE OF LEGAL JARGON

FROM SAMPATH’S DESK:

 

 

STOREHOUSE OF LEGAL JARGON

 

Summons (singular). The plural of summons is 'summonses'.

 

Cause of action:

In short, a legal claim.

A cause of action specifically encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often, the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

 

A set of facts and circumstances sufficient for a party to initiate legal action against another party.   

 

A fact or facts that enable a person to bring an action against another.

 

 

Actus Reus:

 

It refers to the act or omission that comprises the physical elements of a crime as required by statute. Actus reus includes only a voluntary affirmative act, or an omission (failure to act), causing a criminally proscribed result.

 

It is the unlawful, physical act that constitutes an essential element of a crime and which, in most cases, must be combined with mens rea (criminal intent) to prove that a crime has been committed.

 

MODUS OPERANDI:

 

The mode or way in which a person commits a crime.

 

EX-PARTE:

 

A hearing or trial is conducted in the absence of one party to the case.

 

PRE-EMPTION:

 

It is the preferential right to purchase or enjoy the property before another.

 

PRIMA FACIE:

 

It means ‘at first sight’ in Latin. It is a way to evaluate a case at an initial stage to see if there is enough material for it to go to trial.

 

GARNISHEE:

 

Garnishee is a debtor (who has the materials deposited for the purpose of some services) of the judgment debtor (declared so by the court), whose debt has been attached by the court. For example, a film has been produced by ‘A’ and the rushes, prints, copies, etc. are now with a colour laboratory ‘B’ which is the Garnishee in this case (which holds the safe custody of all materials of a produced film and copies are to be taken for the commercial release of the film on a particular date). Suppose ‘A’ owes, say Rs.5 crores to ‘C’ and ‘A’ has not so far paid it. So, ‘C’ wants to prevent the film from being released unless his debts are cleared by ‘A’.  ‘C’ will file a case and the court may attach all the materials now with laboratory ‘B’ (Garnishee). In this case, ‘A’ is the judgment debtor (whose film materials have been attached by the court) that now remain with the Garnishee laboratory ‘B’. ‘C’ has the benefit of the attachment order. Unless ‘A’ pays to ‘C’ all the dues, the court may order ‘B’ (the Garnishee) not to part with any materials of the film for being commercially screened unless and until so ordered by the court. If the dues are cleared, the court will raise the bar against the Garnishee and everything will then become normal.

 

INDIGENT PERSON:

 

An individual who does not possess the financial means to afford the court fees to be paid along with the plaint in a particular suit.

 

INTERLOCUTORY APPLICATION:

 

An application filed by either party during the pendency of a civil proceeding seeking relief of an interim/temporary nature.

 

 

RES JUDICATA:

Suppose, a matter has already been decided by a competent court. The same matter cannot, therefore, be pursued further by the same parties in the court. The same issue/dispute already adjudicated cannot be brought by one or both parties before the court for adjudication. Such a matter is barred from being prosecuted yet again in the same form or otherwise by the principle of RES JUDICATA.

 

LAW OF ESTOPPEL:

 

The doctrine prevents the promisor or enterprise from going back on their word or promise, or from arguing something or asserting a right that contradicts what they previously said or agreed to by law. In effect, estoppel prevents a person from contradicting an action or statement from the past.

 

For example, a vendor makes an oral promise to the customer to replace the goods if they do not fit the customer's size requirements. The customer purchases the clothes and takes them home.

 

Alike res judicata, once a court has given the judgment, the parties, their representatives, their executors, etc. are all bound by that decision. This doctrine stops the parties to a case, from raising another suit in the same matter or to dispute the facts of the case after a decision has already been pronounced by the court. 

 

A legal rule that prevents someone from changing their stand/mind about something they have previously said is true in court.

 

OBITER DICTUM:

 

It is a Latin phrase meaning “that which is said as a passing reference”, an incidental statement. Specifically, in law, it refers to a passage in a judicial opinion which is not necessary for the decision of the case before the court. It is not an order to be implemented. Such statement(s) of judges lack the force of a precedent or established law/judicial decision but may nevertheless be significant just to take note of.

 

 

HABEAS CORPUS:

 

The literal meaning of habeas corpus is "You shall have the body" i.e. the judge must have the person charged with a crime be brought into the courtroom to hear what he has been charged with.

 

It also means an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. 

 

Facts about Habeas Corpus in India:

 

• The Supreme Court or High Court can issue this writ against both private and public authorities.
• Habeas Corpus can not be issued in the following cases:

• When detention is lawful
• When the proceeding is for contempt of a legislature or a court
• Detention is by a competent court
• Detention is outside the jurisdiction of the court

 

WRIT OF MANDAMUS:

The meaning of this writ is ‘We command.’ This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work. Besides public officials, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or a government for the same purpose.

 

Facts about Mandamus in India:

 

• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
• Mandamus can not be issued in the following cases:

• To enforce departmental instruction that does not possess statutory force
• To order someone to work when the kind of work is discretionary and not mandatory
• To enforce a contractual obligation
• Mandamus can’t be issued against the President of India or State Governors
• Against the Chief Justice of a High Court acting in a judicial capacity

 

 

WRIT OF PROHIBITION:

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition writ against a court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

  

Facts about Prohibition in India:

 

• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies, and private individuals or bodies.

 

WRIT OF CERTIORARI:

 

The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or quash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures the mistakes in the judiciary.

  

Facts about Certiorari in India:

 

• Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities
• Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
• It cannot be issued against legislative bodies and private individuals or bodies.

 

WRIT OF CERTIORARIFIED MANDAMUS:

 

A case might be rescinded due to application of certiorari and may end up getting decided by following the due process of law because of a subsequent issuance of mandamus. This kind of writ is known as certiorarified mandamus.

 

This expression means a merger of two writs i.e. Certiorari and Mandamus. Mandamus comes in to help Certiorari, which can only quash the order. Therefore Mandamus is required to direct rectification of defect or for suitable direction. During the past some years the term "Certiorarified Mandamus" is used half-seriously in a more inclusive sense.

 

 

WRIT OF QUO-WARRANTO:

The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or High Court issues this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office.

 Facts about Quo-Warranto in India:

 

• Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved
• It can’t be issued against private or ministerial office 

SUBPOENA: (pronunciation - sa-pee-na, ஸபீன

 

A written order to attend a court of law to give evidence. - a legal document ordering someone to appear in a court of law or to produce documents - issue/receive/serve a subpoena.

 

AMICUS CURIAE: 

Pronunciation:

ama-kas-kyuria (or) amikkas kyoori  – 

அமகஸ் க்யூரிய  (or)  அமிக்கஸ் கியூரி

Amicus Curiae literally translated from Latin is "friend of the court." Plural is "amici curiae." Generally, it is referencing a person or group who is not a party to an action but has a strong interest in the matter.

 

An amicus curiae is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision on whether to consider an amicus brief lies within the discretion of the court.

 

A person/entity who has been allowed by the court to plead or make submissions but who, however, is not directly involved in the action.

 

An amicus curiae is someone who is not a party to a case but still offers information that affects the case but who has not been asked by any of the parties to assist a court. This may take the form of legal opinion, testimony, or learned treatise (the amicus brief). It is a way to introduce concerns that might be overlooked by the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court.

 

 

 

(R.SAMPATH)

16/5/2023

 

P.S. – I reserve my right to add more legal terms and explanations for the same as and when they strike my mind.