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Thursday, 9 March 2017

Falsus in uno, falsest in omnibus

Falsus in uno, falsest in omnibus
Testimonial of a witness should not be believed if the witness on some material fact omitted by him his examination in chief by showing that the witness has lied as to that fact is closely analogous to and in a sense merely an application of impeaching a witness’s credit by previous inconsistent statement.
Yasin Rahman@Rahamn Yasin@Titu us State (Criminal) 19 BLC(AD) 8

Stare desises
Stare devises is a legal principle by shish judges are obliged to respect precedents established by prior decisions. This doctrine is also referred to as the doctrine of precedent. Courts should generally abide by precedents and not disturb settled matters. This is necessary for the administration of justice otherwise the lower Courts and the High Court Division will be confused in determining any particular issue. State decisis one of the fundamental doctrines of common law systems. This doctrine is also referred to as the doctrine of precedent. Stare decisis requires judges to follow precedent and apply the law as they find it or to justify their deviation from the established rule. In majority of cases, there will be no justification for divergence; the judge will be obliged to apply the law as it is. This is why the Stare decisis are the foundation of the judicial to apply occasional law.

Anwarul Huq us Iqbal Ahmed (Civil) 19 BLC (AD) 241

Per incuriam
The expression per incur am a Latin word which means through inadvertence or through want of care. According to PS Osborn’s Law Dictionary A decision of the Court is not binding precedent if given per incur am, that is without the court’s attention having been drawn to the relevant authorities. A decision can be said generally to be given per incuriam when court has decided a case in ignorance of a law applicable in the case or when the court has decided a case through oversight of law applicable in the case which were not considered and had it been considered the result would have been otherwise.

Abul Kalam Khan us Reaz Morshed
and another, 5 BLC (2000) 528

Wednesday, 4 January 2017

Important tips for The Limitation Act (Act no.9 of 1908)

Condo notion of delay

When it is not possible to file any case with in the stipulated period of time a petition is submitted in the court for having the kind permission of the court in filing the case for which the stipulated time is over.If the court allows the petition submitted for the condo nation of delay then it is possible to file the case.The petitioner will be deprived from the ends of justice for the condo nation of delay if the filing of appeal  or revision is not accepted by the court.According to the provision of the Limitation Act  1908 when the stipulated period of limitation is over than a petition may be submitted showing the cause of delay of delay and if the court is satisfied in considering the matter the court allows the petition for the condo nation of delay for filing  the appeal or revision and also for review.On the basis of sufficient cause if the perceived ed period is over  but the court received the case  under  cognizable it is called "The Condonotion of delay".


The applicable provision for the Condonotion of delay :

In section-5 of The Limitation Act-1908 it has been stated that about the "Condonation of delay in filing  the appeal ,leave to appeal,application for review,or revision or any other application .Then a petition is submitted in the court for the Condo-notion of delay if the prescribed period is over .Generally the court allows the petition for the Condonation of delay if the petition we can  satisfactorily explain the sufficient cause of delay in the submitted petition in the court.

Tuesday, 3 January 2017

Bar Council exam tips and tricks for The Specific Relief Act ( Act No. 1 of 1877)



THE SPECIFEC RELIEF ACT- 1887
Question-1: (a) what do you mean by cancellation of an instrument? Who can seek such cancellation and on what grounds?
(b) The plaintiff is a party to the disputed document. Can he maintain a suit for a simple declaration that the deed in question is forged and fraudulent one and as such the same is not binding upon hem? If not, unden which law and what section he should seek his redress?     [9th December, 2006].
Ans: Meaning of cancellation of instrument:
Cancellation of instrument means the cancellation of deed or documents. The deed is cancelled by passing a decree by the court. The court cancels the deed which is void or void able.
ln section 39 of The Specific Relief Act- 1877, it has been stated about the cancellation of the instruments that "Any person against whom a written instruments is void or void able, who has reasonable apprehension that such instruments, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the court may in its discretion, so adjudge it and order it to he delivered up and cancelled". If the instrument has been registered under the registration Act, the court shall also send a copy of its decree to the officer in whose the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Who can seek such cancellation and on what grounds?
Cancellation of instrument means the instruments which are illegal and unenforceable by law. On that basis the instrument are declared by the court as void or voidable it does not have any legal effect. The person can seek such cancellation of the instrument for which this type of instrument is enforceable to achieve the rights on the property. He bears the apprehension in such instrument may cause him serious prejudice when it is properly used. That person can file a suit in the court for the cancellation of that instrument under section 39 of The Specific Relief Act 1877. lf that person thinks that the existing instrument may cause him prejudice, then he decides to file the suit for the cancellation of instrument.
Grounds:
On the basis of the only two grounds any person can seek cancellation of instrument, namely-
(1) The instrument is void or voidable.
(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.
Ans: Essential points:
The plaintiff of the suit will have to prove the essential ingredients for the cancellation of instrument. 
The main 3(Three) points are given below:
(1) The instrument must be void or void able.
(2) There is a reasonable apprehension that such instrument if left outstanding may cause him serious injury.
(3) The court has the competent jurisdiction to cancel the instrument for the ends of justice.
From the above reasons stated in section 39 of The Specific Act-1877. plaintiff will have to prove those reasons in the suit of the cancellation of the instrument. Ans: (b): From the above problem it is found that the plaintiff is a party to the disputed document. This is the question whether he can maintain a suit for a simple declaration that the deed is forged and fraudulent one and as such the same is not binding upon him.
lf any of the parties of a registered deed want to cancel it, then a suit should be fided in the competent court under section 39 of the specific Relief Act-187. Simce the plaintiff is the party to the disputed deed. So, it will not be the right legal step if he files a suit of simple. Declaration that the forged and fraudulent document under section 39 of the Specific Relief Act. Otherwise. this document will be a matter or prejudice in future for the plaintiff.  Because, if the deed is void or voidable and kept uncompromised may be the cause of prejudice for the plaintiff. Thus the deed should be compulsorily cancelled by the decree of the court. Because, the forged and fraudulent deed is remained strong and active unless it is cancelled by the decree of the court.