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Category Archives: Legal Information

Benefits Of Mediation For Litigants

BENEFITS OF MEDIATION FOR LITIGANTS

(1) Procedures more satisfying results

• Helps settle all or part of the dispute much sooner than regular trial.
• Permits a mutually acceptable solution that a court would not have the
power to order.
• Saves time and money
• Preserve ongoing business or personal relationships
• Increases satisfaction and thus results in a greater likelihood of a lasting
resolution.

(2) Allows more flexibility, control and participation

• Tailors the procedures used to seek a resolution
• Broadens the interests taken into consideration
• Fashions a business-driven or other creative solution that may not be
available from the court.
• Protects confidentiality
• Eliminates the risks of litigation

(3) Enables a better understanding of the case

• Provides an opportunity for clients to communicate their views directly and
informally
• Helps parties get to the core of the case and identify the disputed issues.
• Helps parties agree to exchange key information directly.

(4) Improves case management

• Narrows the issues in dispute and identifies areas of agreement and
disagreement.

(5) Reduces hostility

• Improves the quality and tone of communication between parties.
• Decreases hostility between clients and lawyers.
• Reduces the risk that parties will give up on settlement efforts.

Know About Summary Suits in India

KNOW ABOUT SUMMARY SUITS IN INDIA

Summary suits can be filed under Order XXXVII in respect of recoveries based upon bills of exchange, hundies and promissory notes; debt or liquidated demands, with or without interest based on a written contract or law or on a guarantee claim against the principal. The suit must contain a specific averment that suit has been filed under Order XXXVII; no relief outside the ambit of this Order has been claimed and just below the title it is mentioned “(Under Order XXXVII of the Code of Civil Procedure, 1908)”.
On service of prescribed summons in Form No. 4 in Appendix B, the defendant may file his appearance within 10 days otherwise the suit would be decreed against him. If appearance has been filed by the defendant, then Summons for Judgment in Form No. 4A shall be served upon the defendant along with affidavit of plaintiff verifying cause of action, amount claimed and stating that in his belief, there is no defence to the suit.
The defendant may apply for leave to defend suit within 10 days of receipt of summons for judgment, for grant of leave to defend, disclosing such facts which entitle him to defend the suit and where the Court considers the defence sought to be raised is not bona fide, it will decree the suit. Otherwise, where defence appears to be bona fide, Court may grant leave to defend, with or without conditions. When leave to defend is granted, the procedure for ordinary suits is to be followed
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क्या एक मजिस्ट्रेट को किसी मामले की सीबीआई जांच करवाने का आदेश देने की शक्ति है ?

इसका संक्षिप्त जवाब “नहीं” में है, एक मजिस्ट्रेट द्वारा  आपराधिक प्रक्रिया संहिता (सीआरपीसी) की धारा 156 (3) के प्रावधानों के तहत केंद्रीय जांच ब्यूरो (CBI) को  किसी अपराध में जांच करने के आदेश नहीं दिए जा सकते है।
CBI बनाम राजस्थान राज्य, (2001) 3  SCC 333 : 2001 Cri LJ 968 : AIR 2001 SC 668,: के मामले में,  सीआरपीसी की धारा 156 (3) Section 156 (3) of CRPC के तहत मजिस्ट्रेट की  शक्ति को बढ़ाया नहीं जा सकता है। जांच के लिए पुलिस स्टेशन के प्रभारी अधिकारी को निर्देशित करने से परे और सीबीआई को ऐसी कोई दिशा नहीं दिया जा सकता है।


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How An Advocate Can Become Member Of Advocate Welfare Fund

Membership in Fund
  1. Every advocate practicing, before the commencement of this Act, in any court, tribunal or other authority in a State and being a member of a State Bar Association or a State Advocates’ Association in that State, shall apply, w thin six months of the commencement of this Act, to the Trustee Committee for admission as a member of the Fund, in such form as may be prescribed.
  2. Every person,-
  3. Admitted as an advocate on the roll of a State Bar Council, after the commencement of this Act;
  4. Practicing in any court, tribunal or other authority in a State and being a member of a State Bar Association or a State Advocates’ Association in that State, shall apply, within six months of his enrolment as an advocate to the Trustee Committee, for admission as a member of the Fund in such form as may be prescribed.
  5. On receipt of an application under sub-section (1) or sub-section (2), the Trustee Committee shall make such enquiry as it deems fit and either admit the applicant to the Fund or, for reasons to be recorded in writing, reject the application: Provided that no order rejecting an application shall be passed unless the applicant has been given an opportunity of being heard.
  6. Every applicant shall pay an application fee of two hundred rupees along with the application to the account of the Trustee Committee.
  7. Every advocate, being a member of the Fund, shall pay an annual subscription of fifty rupees to the Fund on or before the 31st day of March of every year: Provided that every advocate, who makes an application under sub-section (1) or sub-section (2), shall pay his first annual subscription within three months of his becoming a member of the Fund: Provided further that a senior advocate shall pay an annual subscription of one thousand rupees.
  8. Any member of the Fund, who fails to pay the annual subscription for any year before the 31st day of March of that year, shall be liable to be removed from the membership in the Fund.
  9. A member of the Fund removed from the membership in the Fund under sub-section (6) may be re-admitted to the Fund, on payment of arrears along with re-admission fee of ten rupees, within six months from the date of such removal.
  10. Every member of the Fund shall, at the time of admission to the membership in the Fund, make nomination conferring on one or more of his dependents the right to receive, in the event of his death, any amount payable to the member under this Act.
  11. If a member of the Fund nominates more than one person under sub-section (8), he shall specify in the nomination, the amount of share payable to each of the nominees.
  12. A member of the Fund may, at any time, cancel a nomination by sending a notice in writing to the Trustee Committee.
  13. Every member of the Fund, who cancels his nomination under sub-section (10), shall make a fresh nomination along with registration fee of five rupees.
  14. Every member of the Fund, whose name has been removed from the State roll under section 26A of the Advocates Act, 1961 (25 of 1961), or who voluntarily suspends practice, shall, within fifteen days of such removal or suspension, intimate such removal or suspension to the Trustee Committee and if any member of the Fund fails to do so without sufficient reason, the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount payable to that member under this Act.
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110 Legal Phrases used in Laws That every Lawyer & Law Student Must Know

1 Suo moto: own motion 
2 Deeming fiction cannot be stretched beyonyd the purpose for which it is created 
3 The words used in Law are not used for nothing 
4 To invoke Provision : To make use of particular provision 
5 Ipso Facto: By this fact alone or because of this matter alone 
6 ‘MAY’ may be treated as ‘SHALL’ but ‘SHALL’ shall not be treated as ‘MAY’ 
7 Tenable: Acceptable in law 
8 Redundant Provision : Out of Force or Outdated Provision 
9 Quasi : Almost Similar to 
10 Quasi Criminal: Almost equal to criminal 
11 Jurisprudence: Law relating to particular matter 
12 Mensrea: Guilty Mind 
13 Ibid: As printed earlier 
14 Suo Moto: On its own 
15 Prima Facie: On its face 
16 Non est: What is not in existence / Non existing thing 
17 Call in question: To challenge 
18 De Nova: Completely New 
19 Sine quo non: Most essential thing 
20 Purposes of this Act: Proceeding must be pending 
21 Reason to believe Vs Reason to suspect: Refer various case laws 
22 Derived from & attributable to: Derived from refers to direct connection with a particular matter whereas attributable to refers to an indirect connection 
23 Mutatis Mutandis: After making necessary changes as may be required 
24 Discovery Vs Detection: Discovery is made by the assessee whereas detection is done by the Assessing Officer 
25 To Quash: The process of cancelling the proceeding of Assessing Authorities by
Judicial Authorities 
26 So far as may be: To the extent possible 
27 Travisity of Justice : A ridiculous interpretation of a very serious statement, making a mockery of a very serious matter 
28 To impugne : To challenge 
29 Save as otherwise provided : Except to the extent as oppositely provided 
30 If one section is overriding the other section : Use Words “Not withstanding anything contained in ……” 
31 If one section is superceded by the other section : Use words “Save as otherwise
provided………..” 
32 Other provisions apply in General way: Use words “Without prejudice to the provisions ……………..” 
33 Reckoned : Recognised, Counted, Calculated 
34 Doctrine of Merger: When an order passed by the lower authority is superceded by the higher authority 
35 Doctrine : Principle or saying in general acceptance 
36 In Pari Material Pavi Causa: Same material, same content {Eg. Sec. 24B of IT Act, 1922 is Pari Material with Sec. 159 of IT Act, 1961. In such a case a judgement given in respect of section 24B would be valid in respect of sec. 159} 
37 Per se : By itself 
38 Cy Press : As near as possible 
39 Tax is always charged, Interest is levied and Penalty is imposed 
40 Deductions are admissible, Relief is granted. 
41 Return is always furnished, Assessment order is made / passed. 
42 De hors : Independent of 
43 Order of Injunction of HC : Stay order. 
44 Several Liability means separate liability. [Refer sections 168(3), 171(7), 179(1)
178(5) & 188A.] 
45 Legatee is a person for whose benefit there exists an asset of a deceased 
46 Locus Standi : Directly involved in relation or deal. 
47 Garnishee Proceeding : The proceeding which gives Govt. the right to attach (i.e. forcibly take over) any asset from a person who is defaulter. 
48 Vitiate Proceedings : To make proceedings null, void. 
49 Inter alia : Among other things. 
50 Audit Altream partem : It is a principle of natural justice. According to this principle, which is the principle in every civilized jurisprudence, a person against whom any action is sought to be taken or a person whose rights or interests are to be affected should be given a reasonable opportunity to defend himself. 
51 Resjudicata : [Once the decision of HC comes then on that same point again appeal cannot be made.] The issue of Law which has been already decided shall not be pleaded for review. 
52 In Limine : At the outset (i.e. at the beginning) 
53 Suspended animus : An order under Appeal is not subject to any action by any authority till the order disposing of the appeal is available. 
54 Subjudice : Under an appeal to a court, decision awaited. 
55 Adjudicate : Consider for judgement. A court adjudicates means gives its decision on a particular matter. 
56 Akin : Similar to; of the same type Coterminus : Similar to; of the same type 
57 Impediment : Obstacles or Hindrance. 
58 Sine Di: For indefinite period. 
59 To deduce : Logically come to the conclusion. 
60 Purview : Scope 
61 Bounty : Additional Advantage 
62 Ad Hoc : Without any particular rate, percentage, proportion. 
63 Ad infinitum : Without any Time limit. 
64 Ad interim : In the Mean Time 
65 Bonafide : Genuine 
66 Surmises : Presumptions, own assumptions 
67 Defacto : Infact 
68 Defjure : In Law, irrespective of whatever the facts. 
69 Ejusdem Generis : Of the same kind 
70 Ex-gratia : As a matter of grace ir favour 
71 Ignorantia Legis known excusat : Ignorance of law is not excused 
72 Mesne Profit : Profit earned by somebody by wrongful possession of property. 
73 Modus Operandi : Mode of Operation / Manner of working 
74 Nexus : Close connection link. 
75 Onus probandi : Onus of proof / The burden of Proof. 
76 Non obnstante clause : That provision has superceding effect on any other provision 
77 Raison D’etre : Reason or justification for existence. 
78 Ratio Decidendi : Reason for deciding / Grounds for decision 
79 Suijuris : of his own right. 
80 Assessee engaged in ……………. : The activity should have started 
81 Option Vs Discretion : Whenever choices is available to the assessee in respect of any matter. Law uses the word at his option – for eg:
  1. Sec 11(11) – Explanation to Sec. 11 (11)
  2. Sec. 23(4) 
82 amicus curiae : Friend of court; one who voluntarily or on invitation of the court, and not on instructions of any party, helps the court in any judicial proceedings 
83 audi alteram : hear the other side. Both sides should be heard before a decision is arrived at 
84 caveat emptor : let the purchaser beware. implying that the buyer must be cautious, as the risk is his and not that of the seller. 
85 cestui que trust : a beneficiary under a trust, the person for whose benefit the trust is created 
86 ex officio : by virtue of an office. 
87 ex parte : exkpression used to signify something done or said by one person not in the
presence of his opponent. 
88 fait accompli : An accomplished act. 
89 obiter diccum : an opinion of law not necessary to the decision. An exspression of
opinion (formed) by a judge on a question immaterial to the ratio decidendi, and unnecessary for the decision of the particular case. It is no way binding on any court, but may receive attention as being an opinion of the high authority. 
90 pendente lite : during litigation. 
91 per incuriam : through carelessness, through inadvertence. A decision of the court is not binding precedent if given peer incuriam, that is, without the court’s attention having been drawn to the relevant authorities, or statutes. 
92 pro tanto : to that extent, for so much, for as much as may be. 
93 quid pro quo : the giving of one thing of value for another thing of value; one for the other; thing given as compensation. 
94 Ratio Decidendi : Reason for deciding/Grounds for decision 
95 res integra : an untouched matter; a point without a precedent; a case of novel impression. 
96 rule njsi : a rule to show cause why a party should not do a certain act, or why the object of the rule should not be enforced. 
97 in personam : against the person; an act or preceeding done or directed with reference to no specific person or with reference to all whom it might concern. 
98 in rem : an act / proceeding done or directed with reference to no specific person or with refernce to all whom it might concern. 
99 inter vivos : between living persons. 
100 intestate : a person is deemed to die intestate in respect of property of which he or she
has not made a testamentary disposition (“will”) capable of taking effect. 
101 intra vires : within the powers; within the authority given by law. 
102 ipse dixit : he himself said it; there is no other authority. 
103 ipso jure : by the law itself ; by the mere operation of law. 
104 lis pe ndens : a pending suit. 
105 rule absolute : when, having heard counsels, court directs the performance of that act forthwith. 
106 sine die : without delay. 
107 stare decisis : to stand by things decided; to abide by precedents where the same points come again in litigation. 
108 status quo : existing condition. 
109 sub judice : before a judge or court; pending decision of a competent court. 
110 ultra vires : beyond one’s power..

Advertising By An Advocate is Not Prohibited in India

As Per the Recent BCI Amended Rules, Indian Advocates Can Advertise Now

Bar Council of India Rules

Under the Advocates Act, the Bar Council of India (BCI) has the power to make rules in order to discharge its functions under the Act, based on which, it has formulated the BCI Rules .9
As per the Rule 36 of the BCI Rules, an advocate is prohibited from soliciting work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. Even the sign board, name plate or stationery of an advocate should not indicate that he is or has been the President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General.
However, in 2008, the Rule was amended, pursuant to a resolution passed by the BCI on 30th April, 2008 before a three- member bench of the Apex Court. According to the amended Rule, advocates are allowed to furnish information on their websites, in conformity with the Schedule, as per which the following information can be furnished on the websites:
  1. Name
  2. Address, telephone numbers, e-mail id’s
  3. Enrollment number, date of enrollment, name of the State Bar Council where originally enrolled, name of the State Bar Council on whose roll they currently stand, name of the Bar Association of which the advocate is a member
  4. Professional and academic qualifications
  5. Areas of Practice

IMPORTANT DECISION THAT AN ADVOCATE CAN ADVERTISE ON WEBSITES OF THEIR CHOICE

Mr.V B Joshi had filed a petition challenging the Rule 36, Section IV of BCI rules, which stops Indian Advocates from advertising their services in public in the Supreme Court. The bench was hearing to the said petition. The BCI had made amendment in the above said rule, thereby allowing the Indian Advocates to Advertise their legal services in the website of their choice. This amendment allows advocates to mention their names, telephone numbers, e-mail IDs and professional and educational qualifications on the websites of their choice.
Justice S H Kapadia who was part of this three member bench perusing the amended notification, made a suggestion that Advocates may also add their area of specialization and number of years of experience to their profile on the website.

 

Grounds Of Divorce In India

GROUNDS OF DIVORCE IN INDIA

 Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(1) is living in adultery; or

(2) has ceased to be a Hindu by conversion to another religion; or

(3) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

(4) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(5) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(6) has renounced the world by entering any religious order; or

(7) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

(8) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

(9) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

 A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(1) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(2) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.


RTI Reveals 1.3 Million Advocates in India

In 2011 there were 1.3 million Lawyers in India, revealed a right to information (RTI) response by the Bar Council of India (BCI) to Delhi-based advocate Kush Kalra, with an average annual growth rate between 2007 and 2011 of around 4 per cent.

Reply of Bar Council of India

State wise Data / List Of Lawyers in India as on Year 2011

 

Delhi is the most legally concentrated state in India, with every 300th person in the city being a lawyer, and the number of lawyers in Delhi has increased by a 29 per cent in five years.
Punjab & Haryana (391 non-lawyer per lawyer), Madhya Pradesh (517) and Uttar Pradesh (692) and Kerala (770), are next in the list.
In Maharashtra, where the number of lawyers rose by 25 per cent in five years, there are around 1,000 non-lawyer per lawyer.
The national average is 886 non-lawyers per lawyer with 19 per cent growth in lawyer numbers over five years.
In terms of lawyer per capita, West Bengal and Assam and Nagaland, are the least densely populated after Jharkhand and Jammu & Kashmir (around 1,500 non-lawyers to every lawyer).
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