FAQ's

Uncategorized Archives | B&B Associates LLP
Cadit Quaestio

Legal Maxim

Cadit Quaestio

Literal Meaning

Question falls/ argument collapses

Origin

Latin

Explanation

The above maxim is derived from two Latin words “cadit” means to fall and “quaestio” means question. It means that there is no further argument or discussion which is used to refer to a situation where a legal dispute has been settled. In general, cadit quaestio is used to indicate that a dispute or an issue is no longer in question.

Case Laws

In Foss vs. Harbottle, the court observed that the proper plaintiff in an action in respect of a wrong alleged to be done to a company or association of persons is prima facie the company or the association of persons itself. Secondly, where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of the members, no individual member of the company is allowed to maintain an action in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favor of what has been done, then cadit quaestio. No wrong had been done to the company or association and there is nothing in respect of which anyone can sue. If, on the other hand, a simple majority of members of the company or the association is against what has been done, then there is no valid reason why the company or association itself should not sue. In my judgment, it is implicit in the rule that the matter relied on as constituting the cause of action should be a cause of action properly belonging to the general body of corporators or members of the company or association as opposed to a cause of action which some individual member can assert in his own right.”

Prohibition

Literal Meaning

To forbid or to stop. It is popularly known as ‘Stay Order’.

Explanation

A writ of prohibition is issued primarily by a superior court to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued to inferior courts from usurping a jurisdiction with which it was not legally vested. In other words, the writ compels the inferior courts to keep within the limits of their jurisdiction.

The Writ of Prohibition is issued when a lower court or the body tries to transgress the limits or powers vested in it. It is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. It is an extraordinary writ of preventive nature that prevents courts, tribunal, quasi-judicial bodies, and other officers from exercising their power beyond their jurisdiction or exercising those powers that are not vested on them.

Case Laws

In Brij Khandelwal vs. India, the Delhi High Court refused to issue prohibition to the Central Government to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against government discharging executive functions and that prohibition is intended to control quasi-judicial and not executive, functions.

But this view is no longer tenable with the expansion of the concept of natural justice, and the emergence of the concept of fairness even in administrative functions, the rigidity about prohibition has also been relaxed. The writ can now be issued to anybody, irrespective of the nature of the function discharged by it if any of the grounds on which the writ is issued is present. Prohibition is now regarded as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights.

In S. Govind Menon vs. Union of India, it was held that prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal’s proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and another superior one by which the latter, by virtue of its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited.

In Calcutta Discount Co. Ltd. Vs. ITO, Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.

In the case of Mannusamappa and Sons vs. Custodian Evacuee Property, the custodian, after accepting the petitioners as tenants of the evacuee property and after accepting rent for five months, purported to proceed against them as if they were in permissive possession. Prohibition was issued to forbid him from proceeding further.

Ab Extra

Literal Meaning

From without, from the outside

Origin

Latin

Explanation

The knowledge obtained from external sources refers to Ab Extra. This maxim deals with the situation in which, aside from the real source of it the source of something is. Where there is any documentation or any information provided by a third party (a person other than the parties to the case), this shall be treated as ab extra.

Illustration

When a party to the case may have received some information from a third party. This information by a third party is considered as ab extra.

Case Laws

In Manjula S. Deshmukh vs. Sjresh Deshmukh, the court accepted the evidence of the wife which showed that the semen might have encountered the vagina of the woman and caused a pregnancy without penetration or ordinary intercourse as it is properly understood. The birth of the child was due to an accident freak of fecundation ab extra during an abortive attempt to consummate. The decree of nullity of marriage has been confirmed.

In T. Rangaswami vs. T. Aravindammal, J. Ramaswami stated in the judgment that the birth of a child is not conclusive evidence, the marriage has been consummated as it is well established that fecundation ‘ab extra’ can take place.

Per Minas

Literal Meaning

By means of menaces or threats

Origin

Latin

Explanation

When a person is forced to enter into a contract by threats or menaces, it can be called per minas. When a person fears death or any mayhem on not acting according to the threat, the person may act as instructed. Nevertheless, the acts performed in compulsion may be changed by the person afterward. The courts only require that the individual was compelled to act by threat and that the threat was not one that could have been resolved by a strong and fair man’s mind and will.

In other words, when another person persuades someone, by uttering threats, to commit a criminal act which he would not have committed but for the threats, a man acts under pressure, it is referred to as Per Minas. Threats are threats of personal abuse aimed either at himself or at others with whom he has a near relationship with his family. Threats to harm a stranger or even anyone, such as a sovereign, who is under a public obligation to protect the victim, are not included.

Case Laws

In Brown v. Pierce, 74 US 205 (1868), the honorable court mentioned that Text-writers usually divide the subject into two classes, namely, duress per minas and duress of imprisonment, and that classification was uniformly adopted in the early history of the common law, and is generally preserved in the decisions of the English courts to the present time. And Second class, duress per minas as defined at common law, is where the party enters into a contract (1) For fear of loss of life; (2) For fear of loss of limb; (3) For fear of mayhem; (4) For fear of imprisonment; and many modern decisions of the courts of that country still restrict the operations of the rule within those limits.

In Nandini Satpathy vs Dani (P.L), 1978 AIR 1025, 1978 SCR (3) 608, the court mentioned that ‘Duress is where a man is compelled to do an act by injury, beating, or unlawful imprisonment (sometimes called duress in a strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per minas). Duress also includes threatening, beating, or imprisonment of the wife, parent, or child of a person.

Persona Non Grata

Literal meaning

Person not welcome

Origin

Latin

Explanation

This maxim has evolved in the field of diplomatic relations and such a declaration means that the foreign diplomat is unwelcome in that country; he is not permitted to enter or continue to stay in a particular country. Just as the principle of diplomatic immunity provides protection to the State sending the diplomat, this principle of persona non grata safeguards the interests of the receiving State. Such a statement could be given either before the diplomat even arrives at the receiving state, or after he has started carrying out his functions. Therefore, not every statement results in the diplomat’s expulsion, but if it does, it has to be in conformity with Article 41 of the Vienna Convention, 1961.

Illustration

State X sends a diplomat to State Y.  Due to war, or severed relations between the States, or due to some offense committed by the diplomat, State X can issue a statement declaring the diplomat to be persona non grata (unwelcome) to their State.

Cases

In 2016, Surjeet Singh an Indian national was declared persona non grata by the Government of Pakistan. This happened shortly after the Government of India detained a Pakistani diplomat before his expulsion, thereby causing a violation of the Vienna Convention of 1961. Therefore, this incident was on account of the strained relations between the two states. This case led to his expulsion from the country.

In 2014, Devyani Khobragade incident occurred; she was an Indian diplomat in New York. She was accused of stating false information to enter the country, and committing visa fraud for her servant. Upon request, India refused to waive its immunity and charge the diplomat in the Court. Hence, the United States applied this principle and declared her an unwanted diplomat, leading to her expulsion from the country.

In 2013, Jagmeet Singh, was a Canadian MPP, was barred from traveling to India by application of this principle. He was the first sitting member from a Western Legislature, whose visa was canceled for travel to India. This was primarily based on the accusation that he was linked to the Khalistan Extremists settled in Canada, who had bombed Air Flight 182 causing a deadly incident.


This maxim has been written and submitted by Ms. Ayushi Goyal during her course of internship at B&B Associates LLP. Ms. Ayushi is a 4th-year law student at Christ University, Bangalore.

Nolle Prosequi

Literal meaning

Unwilling to pursue

Origin

Latin

Explanation

This maxim means that there is no longer a will to pursue the case forward. It is generally applied by a judge or the prosecutor with respect to a criminal case. In some instances, it is also used by a plaintiff during a civil case. It could be applied either before or during the trial proceedings. Once this maxim is used the case will not proceed further and all charges against the defendant will be dropped.

In a few jurisdictions, this maxim is not applicable and the case is simply dismissed in such circumstances. This includes countries like New York and India. The difference between the two is that, once this maxim is used, it implies that the case never happened and the charges were never framed; therefore there can be no instance of double jeopardy, unlike cases that are dismissed.

Illustration

This maxim is used when the charges cannot be proved, or the evidence submitted has indicated innocence or a major flaw in the claim of the prosecution or the district attorney is convinced that the accused is not guilty.

Case Laws

In People vs. Daniels, 187 Ill. 2d 301 (1999), the Court had held that by application of this maxim the defendant is not acquitted but all charges against him are dropped.

In Kenyon vs. Com., 37 Va. App. 668 (2002) ¸ it was held that the consequence of this maxim is that the case can still be filed again and be prosecuted by fresh charges document. This is sometimes done ‘with prejudice’, whereby the prosecution in such cases can never re-file the charges against the defendant for the same case.


This maxim has been written and submitted by Ms. Ayushi Goyal during her course of internship at B&B Associates LLP. Ms. Ayushi is a 4th-year law student at Christ University, Bangalore. 

error: Content is protected !!