Section 2: Definitions in CPC

Code of Civil Procedure Section 1. Short title, commencement and extent.

2. Definitions.—

In this Act, unless there is anything repugnant in the subject or context,—

(1) “Code” includes rules;

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within ¹*** Section 144, but shall not include—

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

Note: 1***: The words and figures “section 47 or” omitted by s. 3, ibid., (w.e.f. 1-2-1977).

It is the formal expression of an adjudication. It conclusively determines the rights of parties. A decree may be either preliminary or final.

A decree is preliminary when a further procedure has to be taken before the suit can be completely disposed off. When adjudication completely disposes of the suit such decree is final.

It may be noted that the term decree doesn’t include the following:

(a) Any adjudication from which an appeal lies as an appeal from an order or

(b) Any order or decision of the dismissal of the suit for default.

A decree must be drawn separately after a judgment.

Deemed Decrees: A deemed decree is one which, though not fulfilling the essential features of a decree as required by the Code has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions of facts are deemed decrees. 

(3) “decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

²[(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;]

Note 2: Subs. by Act 2 of 1951, s. 4, for clause (5).

(6) “foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader;

³[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, ⁴[44A,] 78, 79, 82, 83 and 87A, means the territory of India *[excluding the State of Jammu and Kashmir];]

Note 3: Ins. by s. 4 ibid.

Note 4: Ins. by Act 42 of 1953, s. 4 and the Third Schedule.

* Due to implementation of The Jammu and Kashmir Reformation Act 2019, the CPC had become applicable in the state of Jammu and Kashmir.

(8) “Judge” means the presiding officer of a Civil Court;

(9) “judgment” means the statement given by the Judge of the grounds of a decree or order;

Judgment means the statement given by the Judge on the grounds of a Decree or Order.  Thus a judgment sets out the ground and the reason for the Judge to have arrived at the decision. Judgment is the decision of a court of justice upon the respective rights and claims of the parties to an action in a suit submitted to it for determination. Judgment is the statement of the Court on the grounds for having arrived at a decision.

A judgment must contain the following components:

1. A crisp statement of facts of the case;

2. The points or issues for determination;

3. The decision on such issues and finally;

4. The reasons for such a decision.

(10) “judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(11) “legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;

(12) “mesne profits” of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there-from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

(13) “movable property” includes growing crops;

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;

“Formal expression” means the recordation of the ruling of the Court on the matter presented before it, so far as the Court expressing it alludes to the fact that the same issue cannot be adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum. Formal expression may be a decree or an order.

Order is defined u/s 2 (14) of the Civil Procedure Code.  It means the formal expression of any decision of the Civil Court which is not a decree.

The starting point for an order need not always be a plaint, it may be an application or petition. Though being a formal expression, it follows that an order need not conclusively determine the rights of parties on any matter in dispute. However, it may relate to the matters in controversy. 

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court;

(16) “prescribed” means prescribed by rules;

(17) “public officer” means a person falling under any of the following descriptions, namely :—

(a) every Judge;

(b) every member of ⁵[an All-India Service];

Note 5: Subs. by Act 104 of 1976, s. 3, for “the Indian Civil Service” (w.e.f. 1-2-1977).

(c) every commissioned or gazetted officer in the military ⁶[naval or air] forces of ⁷[the Union] ⁸*** while serving under the Government;

Note 6: Subs. by Act 35 of 1934, s. 2 and the Schedule, for “or naval”.

Note 7: Subs. by the A.O. 1950, for “his Majesty”.

Note 8: The words “including His Majesty’s Indian Marine Service” omitted by Act 35 of 1934, s. 2 and the Schedule.

(d) Every officer of a court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorised by a court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty;

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or section 125;

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or bonds;

and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

⁹* * * * *

Note 9: Clause (21) omitted by Act 2 of 1951, s. 4 earlier ins. by the A.O. 1950.

Code of Civil Procedure Section 3. Subordination of Courts.

More Reading:

Decree

Judgment

Difference between Judgement and Decree

Section 1. Short title, commencement and extent.

Section 29. Service of foreign summonses.

Section 33. Judgment and decree.

Section 43. Execution of decrees passed by Civil Courts in places to which this Code does not extend.

Section 44. Execution of decrees passed by Revenue Courts in places to which this Code does not extend.

Section 44A. Execution of decrees passed by Courts in reciprocating territory.

Section 47. Questions to be determined by the Court executing decree.

Section 78. Commissions issued by foreign Courts.

Section 79. Suits by or against Government.

Section 82. Execution of decree.

Section 83. When aliens may sue.

Section 87A. Definitions of “foreign State” and “Ruler”.

Section 114. Review.

Section 122. Power of certain High Courts to make rules.

Section 125. Power of other High Courts to make rules.

Section 144. Application for restitution.

Section 152. Amendment of judgments, decrees or orders.

Order XX Rule 2: Power to pronounce judgment written by Judge’s predecessor.

Order XX Rule 4: Judgments of Small Cause Courts and Other Courts.

Order XX Rule 6B: Copies of judgments when to be made available.

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CPC: Preliminary Section 1.

Introduction and History

PRELIMINARY

1. Short title, commencement and extent.—(1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

¹[(3) It extends to the whole of India except—

*[(a) the State of Jammu and Kashmir;]

(b) the State of Nagaland and the tribal areas :

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation. — In this clause, “tribal areas” means the territories which, immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union Territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union Territory, as the case may be, relating to the application of this Code.]

1. Subs. by Act 104 of 1976, s. 2, for sub-section (3) (w.e.f. 1-2-1977).

* Omitted by Jammu and Kashmir Reorgnisation Act, 2019.

In "Red" colour it is portion as it in the bare act of CPC.

Explanation:

As it is evident from its name “Code of Civil Procedure”, it mainly lays down the procedure to be adopted in civil courts, and its principles may be applicable in other courts, like writ courts, and Tribunals to the extent the enactments establishing the Tribunals provide for it. It provides for a fair procedure for redressal of disputes. The other party may know what is the dispute about?, what defence it can take?, and how both the parties may proceed to prove their respective cases?.

The purpose of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’) is to provide a litigant a fair trial in accordance with the accepted principles of natural justice.

 

Short Q and A:

1. When did CPC come in to force?

Ans. 1st January, 1909

2. How CPC is applicable in State of Jammu and Kashmir throughout the History?

Ans. When CPC came in to force in 1909 it extended phase wise all over India under British Rule. After independence it was applicable in new India. Then in 1977 due to Act 104 of 1976 it was abolished in State of Jammu and Kashmir. But since 2019 with effect of The State of Jammu and Kashmir Reformation Act, 2019 the CPC came in to effect in the said State. During the period from 1977 to 2019 The State of Jammu and Kashmir Code of Civil Procedure Act, 1977 was enacted in that area.

3. In which area of India it is still not applicable?

Ans. In state of Nagaland and in the Tribal, areas as defined in paragraph 20 of the 6th Schedule of the Constitution of India, CPC is not applicable even today.

4. What is the purpose of CPC?

Ans. CPC lays down the procedure to be adopted in civil courts.

5. Does CPC supports principles of Natural Justice? How?

Ans. Yes CPC supports principles of natural justice. As CPC is to provide a litigant a fair trial in accordance with the accepted principles of natural justice

References:

1) http://egazette.nic.in/WriteReadData/2019/210407.pdf

2) http://www.nja.nic.in/16%20CPC.pdf 

Code of Civil Procedure

Section 2. Definitions.

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CPC: History

THE CODE OF CIVIL PROCEDURE, 1908

ACT NO. 5 OF 1908

[21st March, 1908.]

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature : It is hereby enacted as follows : —

Preliminary: 

Note: For next blog click here. For short we are using CPC in whole series of blogs on Code of Civil Procedure.

History of amendments and implementation in different states of India:

1) Assam: Assam Acts 2 of 1941 and 3 of 1953

2) Tamil Nadu: Madras Act 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act 15 of 1970

3) Punjab: Punjab Act 7 of 1934

4) Uttar Pradesh: U.P. Acts 4 of 1925, 35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31 of 1978

5) Karnataka: Mysore Act 14 of 1955

6) Kerala: Kerala Act 13 of 1957

7) Rajasthan: Rajasthan Act 19 of 1958

8) Maharashtra: Maharashtra Act 22 of 1960 and 25 of 1970

9) Berar: Berar Laws Act, 1941 (4 of 1941)

10) By notification under ss. 5 and 5A of the Schedule Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts:

1. Short title, commencement and extent.—(1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

1. This Act has been amended in its application to Assam by Assam Acts 2 of 1941 and 3 of 1953; to Tamil Nadu by Madras Act 34 of 1950, Madras A.O. 1950, and Tamil Nadu Act 15 of 1970; to Punjab by Punjab Act 7 of 1934; to Uttar Pradesh by U.P. Acts 4 of 1925, 35 of 1948, 24 of 1954, 17 of 1970, 57 of 1976 and 31 of 1978; to Karnataka by Mysore Act 14 of 1955; to Kerala by Kerala Act 13 of 1957; to Rajasthan by Rajasthan Act 19 of 1958; to Maharashtra by Maharashtra Act 22 of 1960 and 25 of 1970; It has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and, by notification under ss. 5 and 5A of the Schedule Districts Act, 1874 (14 of 1874), also to the following Scheduled Districts :—

(1) The district of Jalpaiguri, Cachar (excluding the North Cachar Hills Goalpara (including the Eastern Duars), Kamrup, Darrang, Nowgong (excluding the Mikir Hill Tracts) Sibsagar (excluding the Mikir Hill Tracts) and Lakhimpur (excluding the Dibrugarh Frontier Tracts) : Gazette of India, 1909, Pt. 1. p. 5 and ibid, 1914, Pt I, p. 1690.

(2) The District of Darjeeling and the District of Hazaribagh, Ranchi, Palamau and Manbhum in Chota Nagpur : Calcutta Gazette, 1909, Pt. I, p. 25 and Gazette of India, 1909, Pt. I, p. 33.

(3) The Province of Kumaon and Garhwal and the Tarai Parganas (with modifications) : U.P. Gazette, 1909, Pt. I, p. 3 and Gazette of India, 1909, Pt. I, p. 31.

(4) The Pargana of Jaunsar-Bawar in Dehradun and the Scheduled portion of the Mirzapur District : U.P. Gazette, 1909, Pt. I, p. 4 and Gazette of India, 1909, Pt. I, p. 32.

(5) Coorg : Gazette of India, 1909, Pt. I, p. 32.

(6) Scheduled Districts in the Punjab : Gazette of India, 1909, Pt. I, p. 33.

(7) Sections 36 to 43 to all the Scheduled Districts in Madras, Gazette of India, 1909, Pt. I. p. 152.

(8) Scheduled Districts in the C.P., except so much as is already in force and so much as authorizes the attachment and sale of immovable property in execution of a decree, not being a decree directing the sale of such property : Gazette of India, 1909, Pt. I, p. 239.

(9) Ajmer-Merwara except ss. 1 and 155 to 158: Gazette of India, 1909, Pt. II, p. 480.

(10) Pargana Dhalbhum, the Municipality of Chaibassa in the Kolhan and the Porahat Estate in the District of Singhbhum : Calcutta, Gazette of India, 1909, Pt. I, p. 453 and Gazette of India, 1909. Pt. I, p. 443.

(11) Under s. 3(3)(a) of the Sonthal Parganas Settlement Regulation (3 of 1872), ss. 38 to 42 and 156 and rules 4 to 9 in Order XXI in the First Schedule have been declared to be in force in the Sonthal Parganas and the rest of the Code for the trial of suits referred to in s. 10 of the Sonthal Parganas Justice Regulation, 1893 (5 of 1893): see Calcutta, Gazette, 1909, Pt. I, p. 45.

(12) It has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation. 1929 (1 of 1929), s. 2; in the Khondmals District by the Khondmals Laws Regulation, 1936 (4 of 1936), s. 3 and Sch. and in the Angul District by the Angul Laws Regulation, 1936 (5 of 1936), s. 3 and Sch.

(13) It has been extended to the District of Koraput and Ganjam Agency by Orissa Regulation, (5 of 1951) s.2.

(14) It has been extended to the State of Manipur (w.e.f. 1-1-1957) by Act 30 of 1950, s. 3 to the whole of the Union Territory of Lakshadweep (w.e.f. 1-10-1967) by Regulation 8 of 1965, s. 3 and Sch. : to Goa, Daman and Diu (w.e.f. 15-6-1966) by Act 30 of 1965, s. 3; to Dadra and Nagar Haveli (w.e.f. 1-7-1965) by Reg. 6 of 1963, s. 2 and Sch. 1 and to the State of Sikkim (w.e.f. 1-9-1984), vide Notification No. S.O. 599 (E), dated 13-8-1984, Gazette of India Extraordinary., Part. II, s. 3.

Q. 1) When was CPC sanctioned in India?

Ans. CPC was sanctioned in India on Dt. 21St March 1908.

Q. 2) What is the purpose of CPC?

Ans. An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

Note: For next blog click here. For short we are using CPC in whole series of blogs on Code of Civil Procedure.

Waqf in India: Introduction and definition

Definition in India:

The law (Waqf Legislation) in India conceptualizes waqf as ‘the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable.’

 

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Implication of creating a waqf suggests that the said property can never again change hands by inheritance, sale or seizure. 

As per Sachar Committee Report of 2006, there are more than 4.9 lakh registered wakfs in India. The total area under these properties is estimated at about six lac acres.

Types of properties of Wakfs: Apart from agricultural, commercial and residential properties, waqf in India include functional/non-functional mosques, darghās (tomb or shrine of Muslim saint), khanqahās (building or space for Sufi brotherhood) maqbaras (tombs), ashoorkhanās (mourning place for Shias), qabristāns (graveyards), idghās (space to offer Eid Prayer), imam-baras (space for prayers and gatherings for Shias) etc.

Auqāf is meant to create a welfare and just society- a society which does not leave anybody to die hungry and ignorant.

The law for wakf legislation: 

For the better administration of waqf properties in the country, Government of India passed the Waqf Act 1954.

Before it was repealed and replaced by the Waqf Act 1995, the Waqf Act 1954 was amended in 1959, 1964, 1969 and 1984. 

Presently waqf administration in India is governed by the Waqf Act 1995 which was amended by the Waqf (Amendment) Act 2013.

The Waqf Amendment Act 2013 was repealed by Repealing and Amending (Second) Act, 2015. 

It however does not nullify the amendments made by Waqf (Amendment) Act 2013 to Waqf Act 1995. 

Therefore, wherever Waqf Act 1995 is mentioned, it means Waqf Act 1995 as amended by Waqf (Amendment) Act 2013.

Definition and meaning:

Definition as per wakf Act, 1995:

As per Section 3(r) of waqf Act 1995 reads “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— 

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; 

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkaan or by any other name entered in a revenue record; 

(iii) “grants,” including mashrat-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and 

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, 

The income of the waqf shall be spent for education, development, welfare and such other purposes as recognized by Muslim law.

Monzer Kahf defined waqf as “holding a Maal (an asset) and preventing its consumption for the purpose of repeatedly extracting its usufruct for the benefit of an objective representing righteousness / philanthropy. (as stated in article “Financing the Development of Awqaf Property,” of The American Journal of Islamic Social Sciences, 16 (Winter 1999): 4, 41.)

Purpose of Wakf:

A per Islamic law a waqf property is permanently dedicated to Allah and is to be used, as specified by the Waqif for permissible purposes. (As per Qazi Mujahidul Islam Qasmi, written in "Auqāf: Ahkam-o-Masa'il")

The theoretical implication of creating a waqf suggests that the said property can never again change hands by inheritance, sale or seizure. (As stated by Gregory C. Kozlowski, in book Muslim Endowments and Society in British India)

 On the issue of ownership, there is consensus of the Ummah that it vests in Allah Almighty and is incapable of human ownership. (As per Qazi Mujahidul Islam Qasmi, written in "Auqāf: Ahkam-o-Masa'il")

Allah is not a physically tangible entity the community, so it is considered to be the actual heir of auqāf (plural of waqf) and through appointed Mutawalli (trustee of waqf) controls its affairs. (as per Hilal Ahmed stated in "Muslim Political Discourse in post-colonial India: Monuments, Memory, Contestations" ).

As per Mohd. Zain bin Haji Othman "When the specified purposes cease, the relief of the poor is the ultimate purpose of every waqf. "

So this is very short introduction of Wakf  in India which is biggest charitable board governed by Government of India and having its own Laws and Acts. Following are the some social questions:

Thanks for reading.

ROSCOE POUND: 8

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ROSCOE POUND

Roscoe Pound was a dean in Harvard Law School – is known to have been the most influential proponent of the American Sociological jurisprudence. He essentially saw law as a social institution created and designed to satisfy human (individual and social) wants. He agonized over the fact that traditional scholarship focused almost exclusively on the law in the textbooks to the detriment of the law in action. Law in action refers to the law that actually reflects the current behaviour of the people. In other words, he was of the view that the society should be the focal point of law and legal development, that the social mass must be able to influence the law that regulates their behaviour. This approach has the potential to, in the long run, eliminate unjust laws. Essential features of the legal order were the securing and protection of various (often competing) interests in the society. He dwelt much on interests. Pound is considered to be the American leader in the field of sociological jurisprudence.

His main thesis is that the task of law is "social engineering." By social engineering pound means a balance between the competing interest in the society. His legal philosophy is free from all dogmas. He takes a middle way avoiding all exaggerations. He speaks of values but says that they are relative. He emphasises 'engineering' but does not forget the task of maintaining of balance. His approach is experimental. Pound's theory stands on a practical and firm ground and it has inspired great practical field-work. His emphasis on studying the actual working of legal rules in the society, the importance of social research for good saw making and pointing out the great constructive function which the law is to perform are very valuable contributions to jurisprudence. He points out the responsibility of the lawyer, the judge and the jurist and gives a comprehensive picture of the scope and field of the subject. Pound's influence on modern legal thought is great and the study of the subject is being undertaken under the light of his theory.

Criticism or Demerits of Theory of Social Engineering by Roscoe Pound: 7

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Criticism or Demerits of Theory of Social Engineering by Roscoe Pound:

Critics of Roscoe Pound argue that it is difficult to see how the balancing of interests will produce a cohesive society where there are minorities whose interests are irreconcilable with those of the majority. There is a different problem where the substantial proportion of the populace is parochially minded and has little or no sense of nationhood.

However, against the backdrop of the foregoing, Pound failed to tell us if the interests he identified are exhaustive. Moreover, he has not been able to convince us about how conflicts generated by the variety of interests can be resolved. Although he indicated that this can be done by weighing and balancing, he failed to elaborate. When you have to weigh, then certain interests must give way. Although he expected the minimum of interests to be trampled upon, it is still the case that certain interests would be sacrificed. If he adopted the utilitarian theory, then it means minority rights would have a raw deal.

Again, note that ‘civilization’ featured in his analysis of conflict resolution. But this should not imply that those considered to be uncivilised cannot resolve conflicts. Note that if mediation is a yardstick for measuring the level of civilisation, then those said to be uncivilised have been erroneously labelled. This is because in these ‘uncivilised’ societies, conflicts are mediated and controlled by institutional mechanisms.

Demerits of social engineering:

i) Law suffers from rigidity.

ii) It may not change to social needs by changing itself. Thus, it lags behind social changes.

iii) Law is becoming more complex. To meet competing interests more laws are continuously passed often changed and the citizens may not know where they stand.

Thus, even though, the social engineering theory had marked an era of change in modern jurisprudence, it is worth while repeating that Pound seems to have devoted too little attention in developing a mechanism of evaluation for rights. It is submitted by his critics that it would have been preferable had he enlarged on the criteria of evaluating interests instead of developing particular interests.

The above analysis has referred to individual rights, but, when we look to the interests of the individuals in society as a whole, their rights and their conflicting social interests, we find law playing the role of “social engineering”. This aims at maximum fulfilment of the interests of the community and of its members and also to promote the smooth running of the machinery or the society. The architect of this is Roscoe Pound.

Law should be just, but more than that it should be uniform definite certain, known and permanent. This enables a person, to predict what he may get from the courts. Impartiality is the objective of law; publicly declared principles protect the administration of justice. People in Society need not be at the mercy of others. Hence the saying “rule of law is always preferable to rule of men”. Law assures stability and security of social order.

New Interests and Jural Postulates by Roscoe Pound: 6

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New Interests and Jural Postulates by Roscoe Pound:

The recognition of a new interest is a matter of policy. Interests need only be considered as and when they arise in disputes; the matter that is of importance is the way in which they are viewed and evaluated by the particular judge. As society progresses, Pound noted that ‘new interests’ will emerge or evolve. Notice that international human rights law has witnessed the evolution of new generational human rights in addition to the traditional first and second generational rights. Recognition of such new interests would be realised subsequent to their being tested by reference to ‘jural postulates’ of a civilised society. Those postulates embody societal values. Such reference would enable legislators to consider possible modification of values through legislative reforms.

In broad sense they are categorised in three groups.

Jural Postulate-I – In civilized society men must be able to assume that other will commit no intentional aggressions upon them.

Jural Postulate-II - In civilized society men must be able to assume that they may control for beneficial purposes what they have discovered and appropriated to their own use, what they have created by their own labour, and what they have acquired under the existing social and economic orderly.

Jural Postulate-III - In civilized society men must be able to assume-that those with whom they deal in the general intercourse of society will act in good faith.

According to Pound, pursuant to the postulates, the citizens in a civilised society are entitled to assume:

(a) That others will commit no intentional aggression upon them;

(b) That they may control for beneficial purposes what they have discovered, created or acquired;

(c) That promises will be carried out in good faith and that unreasonable and unjust enrichment will be prevented as far as possible;

(d) That persons engaged in a course of conduct will act with due care so as not to create unreasonable risk of injury to others;

(e) That citizens shall be entitled to assume that the burdens incident to social life shall be borne by society; and

(f) That, as a minimum matter, ‘a standard human life’ shall be assured to every citizen.