Historical School of Jurisprudence

Meaning

The historical school of jurisprudence holds that law is not something made or commanded by a sovereign, but something that grows and develops with the life of a people. Law is a product of the common consciousness, customs, traditions and social experience of a community. It is found, not fabricated. The school therefore studies law as a historical and social phenomenon, tracing how legal rules emerged from the past rather than asking what law ought to be.

Its central idea is captured in the maxim that law is the "spirit of the people" — it lives in the habits, beliefs and customs of the nation and evolves slowly with them.

Chief Exponents and Their Contributions

1. Friedrich Carl von Savigny (1779–1861) — Germany

Savigny is regarded as the founder of the historical school. His work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814) was written in reply to Thibaut, who had proposed a uniform civil code for Germany. Savigny opposed codification and put forward these views:

• Law has its origin in the common consciousness of the people (Volksgeist), not in the will of a legislator.
• Law develops organically, like language, in three stages: first as customary law, then as legal science in the hands of jurists, and finally as codified law.
• A code imposed from above is artificial and harmful; law must be allowed to grow naturally.
• Jurists and lawyers are not makers of law but its organs, expressing the people's legal consciousness.

2. Sir Henry Maine (1822–1888) — England

Maine applied the historical method to comparative study in Ancient Law (1861). His key contributions:

• Law develops through identifiable stages: divine law → customary law → code → statute.
• His famous maxim: society has moved "from status to contract" — from status-based relations (family, caste) to free contractual relations.
• He introduced the comparative and anthropological method to jurisprudence.

3. Georg Friedrich Puchta (1798–1846)

A disciple of Savigny, he developed the idea of the "national spirit" and the role of jurists in systematising customary law into a body of legal science.

4. Otto von Gierke (1841–1921)

He emphasised the social and associative character of law, holding that law arises from the groups and associations within society, not merely from individual will. He is often treated as a bridge to the sociological school.

5. Other Contributors

• Montesquieu — in The Spirit of Laws, he showed that law is related to climate, soil, religion and manners of a people.
• Savigny's followers in England — Maine, Vinogradoff and Pollock carried the historical method into English legal scholarship.

Main Tenets of the Historical School

1. Law is found, not made — it is discovered from social life, not created by the state.
2. Law is based on customs and traditions of the people.
3. Law is the expression of the common consciousness (Volksgeist) of a community.
4. Law grows and evolves continuously with society; it is never static.
5. Legislation is secondary; the legislator only declares or codifies what already exists in social practice.
6. Law is organic and national in character, differing from people to people.
7. Jurists are interpreters, not creators, of law.

Criticism

• It over-emphasises the past and ignores conscious law-making needed for social reform.
• Customs may be irrational, backward and unjust (e.g., sati, untouchability); blind adherence to them is harmful.
• It gives no definite standard for judging the validity of law.
• It is conservative and obstructs progressive legislation.
• Savigny's own theory was later contradicted when Germany adopted the Civil Code in 1900.

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Difference Between Historical School and Analytical School

Conclusion

The historical school treats law as a living, growing organism rooted in the customs and consciousness of a people, while the analytical school treats law as a body of commands issued by the sovereign. The two approaches are not rivals but complementary: the analytical school explains the form and authority of law, and the historical school explains its origin and growth. A complete understanding of jurisprudence requires both.

Critical Legal Studies (CLS)

Meaning and Origin

Critical Legal Studies (CLS) is a radical school of legal thought that emerged in the United States in the 1970s, mainly associated with scholars such as Roberto Mangabeira Unger, Duncan Kennedy, Mark Kelman, Morton Horwitz and Richard Abel. It grew out of the realist tradition and drew inspiration from Marxism, critical theory, and post-structuralism. CLS questions the traditional belief that law is neutral, objective, and certain. It holds that law is a tool of the powerful and that legal reasoning often hides political and economic interests behind a mask of neutrality.

Main Features / Tenets of CLS

1. Law is not neutral — Law is politics in another form. It reflects the interests of dominant classes and serves to maintain the existing social and economic order.
2. Indeterminacy of law — Legal rules and precedents do not produce a single correct answer. The same rule can be interpreted in opposite ways, so the outcome depends on the judge's choice, not on logic alone.
3. Law legitimises domination — Law creates an illusion of fairness and justice, which makes people accept inequality as natural and lawful.
4. Critique of legal formalism — CLS rejects the idea that law is a closed, scientific system of rules. It attacks the "objective" application of rules as a myth.
5. Rejection of the neutrality of rights — Rights are not absolute protections; they are often used to protect the interests of the wealthy and to block social change.
6. Deconstruction and critique — CLS uses deconstruction to expose contradictions, hidden assumptions, and hierarchies within legal doctrines.
7. Law as a means of social transformation — CLS is not only destructive; it also aims to make law an instrument of emancipation and social justice.

Justification as a Fundamental Concept of Jurisprudence

CLS is regarded as a fundamental concept of jurisprudence for the following reasons:

1. It widens the scope of jurisprudence — Traditional jurisprudence studied law as a body of rules. CLS goes further and studies law in relation to politics, economics, class, race, and gender. Thus it enriches the field of legal theory.

2. It challenges legal positivism and natural law — Positivism says law is the command of the sovereign; natural law says law must conform to morality. CLS shows that both approaches ignore the real power relations behind law. It therefore provides a critical alternative.

3. It explains the gap between law-in-books and law-in-action — CLS demonstrates why equal laws often produce unequal results. This is a central concern of jurisprudence.

4. It exposes the political nature of judicial decision-making — By showing that judges choose among competing interpretations, CLS explains how law actually works in practice. This is a key jurisprudential question.

5. It provides a critical method — Deconstruction, indeterminacy, and critique are important tools for analysing any legal system. These methods are now used in constitutional law, labour law, and human rights law.

6. It influences other schools — CLS gave rise to Critical Race Theory, Feminist Jurisprudence, and Critical Legal Feminism. These are now recognised branches of jurisprudence.

7. It promotes justice and social change — By exposing how law serves the powerful, CLS helps to reform law for the benefit of the weak, the poor, and the marginalised. This is the ultimate aim of jurisprudence.

Criticism of CLS

1. It is too negative and destructive; it offers little constructive solution.
2. It over-emphasises indeterminacy; in practice, many legal rules are quite certain.
3. It ignores the role of law in protecting rights and liberties.
4. It is largely a Western, academic movement with limited practical application in developing countries like Nepal.

Conclusion

Critical Legal Studies is a radical and critical approach to law that challenges the neutrality, objectivity, and certainty of legal rules. It reveals the political and economic interests hidden in law and legal reasoning. Although it is criticised for being too negative, it has made a valuable contribution to jurisprudence by broadening its scope, exposing the gap between law-in-books and law-in-action, and inspiring other critical schools such as Critical Race Theory and Feminist Jurisprudence. Hence, CLS is rightly regarded as a fundamental concept of jurisprudence.

Concept of property

Meaning. Property is anything that a person can own, use, enjoy, transfer or exclude others from, and that the law recognises and protects. The word comes from the Latin proprius, "one's own". It covers both things (land, house, money) and rights over things. Property is not just the object: it is the bundle of legal relationships between a person and the thing, enforceable against everyone else.

Definitions. Blackstone described property as the "sole and despotic dominion" a person claims over the external things of the world. Salmond treats it as the right of ownership over a thing, together with the objects of that right. Modern law prefers the "bundle of rights" view: possession, use, enjoyment, transfer, and exclusion.

Elements. (i) a person who owns (natural or legal), (ii) a subject matter (a thing or right), (iii) legal recognition, (iv) the right to exclude others, and (v) limits imposed by law in the public interest.

Constitutional footing in Nepal. The Constitution of Nepal (2072), Article 25, guarantees every citizen the right to acquire, own, sell, dispose of, earn profit from and otherwise deal with property, subject to law. The State may not acquire a person's property except for a public purpose, and then only against compensation under law. Article 40 and other provisions on women's and Dalit rights, and Article 18 (equality), also protect equal property rights, including those of daughters and women. The right is not absolute: it is restricted by law, for example by land ceilings, taxation and the needs of public works.

Kinds of property

1. Movable and immovable property. Immovable property includes land, houses and buildings, trees and things permanently attached to the land, and rights over them. Movable property is everything else that can be carried from place to place, such as money, vehicles, jewellery, livestock, shares. Nepalese law treats the two differently in registration, transfer and inheritance, since land and buildings are transferred by registration (Lalpurja) in the Land Revenue Office, while most movables pass by delivery.
2. Tangible and intangible property. Tangible property has physical form (land, goods). Intangible property has none, for example patents, copyright, trademarks, goodwill and debts owed to a person (these are protected by the Patent, Design and Trademark Act and the Copyright Act).
3. Public, private and community property. Public property belongs to the State and is for public use (roads, rivers, forests, national parks). Private property is owned by individuals and firms. Community property includes community forests and user-group property.
4. Ancestral and self-acquired property. Nepalese law has long distinguished property inherited from forebears from property a person has earned. Under the Muluki Civil Code, 2074, a person's own earnings are held in their own right, and the rule that a son has a birth-right in ancestral property has been replaced by equal rights for sons and daughters in the family property of parents.
5. Real and personal property (right in rem and right in personam): rights enforceable against all the world and rights against a specific person.
6. Individual, joint and co-ownership. Property may be owned by one person, by several persons in defined shares (co-ownership), or jointly, as with a family or a firm.
7. Corporeal and incorporeal. Related to tangible and intangible property.

Present Nepalese legal provisions

• Constitution of Nepal (2072), Article 25 (right to property) and the directive principles on land reform and the economy.
• Muluki Civil Code, 2074 (the National Civil (Code) Act), which governs property relations: ownership, possession, co-ownership, easements, mortgage, pledge, gift, sale, partition and inheritance, and rights of women and daughters in family property. It states the rule that a person may deal with their own property as they wish within the law.
• Land Act, 2021 (and the Land Related Act, 2021), which regulates the ownership of land, land ceilings and tenancy rights, and the Land Revenue Act, 2034, which covers land records, registration and revenue.
• Land Acquisition Act, 2034, under which the State may take land for public purposes after paying compensation.
• Laws on intangible property: the Patent, Design and Trademark Act, 2022, and the Copyright Act, 2059.
• Muluki Criminal Code, 2074, which punishes theft, cheating, forgery and mischief against property.
• Guthi Corporation Act, 2033, which governs religious and charitable trust property (guthi).
• Company Act, 2063 and Insolvency Act, 2063, on property of companies and its handling on insolvency.

Conclusion

Property in Nepalese law is a protected, but not absolute, right. The Constitution guarantees it, the Civil Code gives it detailed rules for owning, using and passing it on, and the specialised statutes regulate land, intellectual and trust property. The law classifies property mainly as movable and immovable, tangible and intangible, private, public and community, and individual and joint. It also gives women and daughters an equal share in family property.

Definition of Person and Personality

Person: In law, a "person" is any entity (human or artificial) that is recognised by law as capable of possessing rights and duties. Legal personality is not limited to human beings; corporations, idols, and even a child in the womb (in certain respects) may be treated as persons.

Personality: Personality (legal personality) means the legal capacity or status by which an entity is recognised as a subject of rights and obligations. It is the sum total of rights and duties that the law confers on an entity. A being has legal personality when it can sue and be sued, own property, and enter into contracts in its own name.

In short, "person" is the entity, and "personality" is the legal capacity that entity enjoys.

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Legal Status of Unborn Person

An unborn child (a child in the womb) is generally not a full legal person. However, law gives it limited or conditional personality for its own benefit.

• General rule: The unborn child has no separate legal existence; it is treated as part of the mother. It cannot sue or be sued, cannot own property in its own name, and cannot enter into contracts.
• Exception (fiction of law): For the purpose of inheritance and property, the law treats the unborn child as already born, provided the child is later born alive. This is expressed in the maxim: "Nasciturus pro jam nato habetur quoties de commodis ejus agitur" — the unborn is deemed born whenever it concerns its own advantage.
• Conditions: This limited personality applies only if:
  1. The child is born alive;
  2. It is born within 280 days (or a reasonable period) after the death of the father, in case of posthumous inheritance;
  3. It concerns the benefit of the child, not its burden.
• Rights recognised: Right to inherit ancestral property, right to claim damages for injuries suffered in the womb, and right to maintenance.
• Duties: The unborn child bears no duties or liabilities.

Conclusion: The unborn person has no absolute legal personality but enjoys a contingent and beneficial personality that becomes complete on live birth.

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Legal Status of Dead Person

A dead person has no legal personality. Death extinguishes legal personality completely.

• General rule: A dead person cannot own property, cannot sue or be sued, and cannot be bound by contracts. His rights and liabilities pass to his heirs, executors or legal representatives.
• Exceptions / limited recognition:
  1. Will (Testament): A person may dispose of property by will, and the will takes effect after death. The law respects the wishes of the deceased.
  2. Reputation and body: Law protects the reputation of the dead against defamation in some systems, and protects the dead body from desecration.
  3. Succession: Property left by the deceased devolves on heirs according to law.
  4. Debts: Debts of the deceased are payable out of his estate by the legal representatives, but only to the extent of the estate.
• Maxim: "Actio personalis moritur cum persona" — a personal action dies with the person.

Conclusion: A dead person has no legal personality; only certain rights and wishes are respected for the benefit of survivors and society.

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Legal Status of Animal

Animals have no legal personality in the strict sense. They are treated as property or objects of law, not subjects of law.

• General rule: An animal cannot own property, cannot sue or be sued, and cannot enter into contracts. It is owned by a person and is the object of ownership.
• Liability: If an animal causes injury or damage, its owner is liable. The animal itself is not liable.
• Protection: Modern law (e.g., Nepal's Animal Welfare laws, Prevention of Cruelty to Animals Act) protects animals from cruelty. But this protection is granted for the benefit of society and morality, not because the animal has rights of its own.
• No duties: An animal cannot bear legal duties.
• Exception in some systems: Certain religious or charitable trusts treat animals (like cows in Nepal) as objects of special protection, but this still does not confer legal personality.

Conclusion: Animals are objects of law, not legal persons. They have no rights or duties, though the law protects them from cruelty.

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Summary Table

Overall: Only human beings (born alive) and artificial persons (companies, corporations) have full legal personality. The unborn, the dead and animals are either partially or not at all recognised as legal persons.

Definition of Law

Law is a body of rules of conduct, established and enforced by the sovereign authority of the state, which regulates the behaviour of persons living in society. It is backed by the coercive power of the state, so its violation attracts punishment or legal remedy. In the words of Salmond, "Law is the body of principles recognised and applied by the state in the administration of justice." Woodrow Wilson defined law as "that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform rules backed by the authority and power of government."

Main Sources of Law

1. Legislation (Statute Law) This is the most important and primary source of law. It means law made deliberately by the legislature — Parliament in Nepal — in the form of Acts, Ordinances and Regulations. It is written, precise, and easily ascertainable. Examples: the Civil Code (Muluki Civil Code), the Contract Act, the Company Act. Because the legislature is the sovereign law-making body, legislation can amend or override all other sources.

2. Precedent (Judicial Decisions) Precedent means a rule of law laid down by a higher court in an earlier case, which lower courts must follow in similar later cases. This is also called case law or judge-made law. The Supreme Court of Nepal is the highest court, and its decisions bind all subordinate courts. Precedent fills the gaps where legislation is silent and gives flexibility to the law. It is a major source in common law countries.

3. Custom and Usage Customs are long-standing practices followed by a community which, when recognised and enforced by the courts, become law. Custom is the oldest source of law, developing before written legislation existed. For a custom to be valid it must be ancient, continuous, reasonable, certain, and not against public policy or morality. In Nepal, many customs relating to marriage, inheritance and religious practices have been given legal recognition.

4. Religion and Morality In many societies, religious principles and moral standards have shaped legal rules. Hindu law, Islamic law and Christian law all grew out of religious teachings. Morality influences legislation and judicial interpretation, though all moral rules are not law. In Nepal, Hindu religious texts historically influenced the legal system, and the present Civil Code still reflects some of these values.

5. Agreement and Contract Rules agreed upon by parties themselves, such as in contracts, are binding on them and are enforced by courts. Such agreements create rights and duties between the parties and thus act as a source of law for them. Similarly, international treaties and conventions ratified by the state also become a source of law.

6. Equity and Justice Equity means the body of principles developed to correct the rigidity and harshness of strict law, based on fairness and conscience. Where the existing law gives no remedy or an unfair remedy, equity principles supply relief. Equity decisions have contributed many rules to the modern legal system.

7. Writings of Jurists The opinions, treatises and commentaries of legal scholars and jurists are persuasive sources of law. They explain, criticise and systematise the law, and courts often refer to them for guidance. They are not binding by themselves but carry great weight in interpretation.

Conclusion Law is thus the enforceable body of rules governing society. Its main sources are legislation, precedent, custom, religion and morality, agreement, equity and the writings of jurists. Among these, legislation is the most authoritative and precedent and custom are the most important historical sources.

Justice is the virtue or principle by which each person is given what is due to him or her — a fair, impartial and rightful treatment in the distribution of benefits and burdens, in the settlement of disputes, and in the punishment of wrongs. In political theory it is the central standard by which the state, its laws and its institutions are judged. Plato treated justice as the harmony of the soul and the state in which every part performs its own proper function; Aristotle called it the complete virtue, "the greatest of virtues," because it is exercised toward others; the Roman jurists defined it as "the constant and perpetual will to render to every man his due" (Ulpian); and modern thinkers such as Rawls define it as fairness — the principles free and rational persons would choose behind a veil of ignorance. Justice thus has two faces: it is both a legal standard (what the law commands) and a moral standard (what ought to be commanded).

Justice is commonly classified into the following kinds:

1. Natural justice. Those principles of right and wrong held to be universal, unwritten and discoverable by reason, independent of any particular state — for example, that an innocent person must not be punished. It is superior to man-made law; an unjust statute is said to lack moral force. Its rules are the same everywhere and are not enacted by any legislature.

2. Legal (positive) justice. Justice as declared and enforced by the laws of the state. It is particular, changeable and backed by sanction. It is of two types:

• Civil justice — concerns disputes between private persons over rights, property and contracts, and aims at compensation or restoration.
• Criminal justice — concerns offences against society, and aims at punishment, deterrence and reform of the offender.

3. Distributive justice. Justice in the allocation of society's benefits and burdens — wealth, income, offices, honours, education, taxation — among the members of the community. Aristotle held that goods should be distributed in proportion to merit or desert; modern liberals argue for distribution according to need or to contribution. The central problem is the choice of the criterion of distribution.

4. Retributive (corrective) justice. Justice that restores the disturbed balance by giving the wrongdoer the punishment he deserves and by compensating the victim. It looks backward to the wrong done, and its guiding idea is proportionality — the punishment must fit the crime.

5. Social justice. Justice applied to the structure of society as a whole, requiring the removal of inequalities of caste, class, gender and wealth, and the provision of equal opportunity and a decent minimum of welfare to all. It is the ideal behind the welfare state, affirmative action and the Nepali Constitution's provisions on equality and inclusion.

5. Economic justice. A branch of social justice dealing with the fair distribution of material resources — fair wages, fair prices, prevention of exploitation, and a reasonable standard of living for every worker. It stands opposed to gross inequality of wealth.

6. Political justice. Justice in the political sphere: equal political rights, universal adult franchise, equal access to public office, and the rule of law — that no one, however powerful, is above the law.

7. Procedural justice. Justice in the manner in which decisions are reached — impartial tribunals, the right to be heard, audi alteram partem, no one to be judge in his own cause. It is contrasted with substantive justice, which concerns the fairness of the outcome itself.

8. Commutative justice. Justice in dealings between equals — in exchange, contract and commerce — requiring equivalence of value given and received, as distinct from distributive justice, which concerns the shares allotted by a superior authority.

These kinds are not mutually exclusive; a just order requires them to operate together. Natural justice supplies the moral standard, legal justice gives it enforceable form, distributive and social justice secure fair shares, retributive justice repairs wrongs, and political and procedural justice guarantee that all the rest are arrived at fairly.

Note: The question paper asks for any THREE of the five. Model answers for all five are given below; in the exam, write any three.

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a) Write a note on American realism.

American realism is a 20th-century school of legal thought that treats law as it actually operates in practice rather than as a set of abstract, logically ordered rules. It grew out of sociological jurisprudence and is associated chiefly with Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank, Roscoe Pound and John Chipman Gray.

Key features:

1. Law as prediction. Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." Law is thus what officials actually do, not what books say.
2. Law in action vs. law in books. Realists distinguish the written rule from its actual application. Pound's phrase "law in action" captures this gap.
3. Scepticism about rules. Rules are only one factor among many. Llewellyn's "rule sceptics" stressed that the judge's choice among competing precedents decides the case; Frank's "fact sceptics" stressed that the finding of facts by witnesses and juries is the most unpredictable element.
4. Judicial personality. The background, values and biases of the judge influence the decision. Law is therefore not fully certain or predictable.
5. Interdisciplinary approach. Law must be studied with the help of sociology, psychology, economics and statistics, not logic alone.
6. Law as a means to social ends. Law is an instrument of social engineering, to be judged by its effects rather than its formal elegance.

Contribution: American realism exposed the myth of complete legal certainty, encouraged the study of actual judicial behaviour, and influenced legal education (the case method), the drafting of the Uniform Commercial Code, and the growth of the law-and-economics and sociological movements. Its weakness is excessive scepticism, which can undermine the idea of the rule of law and predictability.

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b) Discuss the contribution of natural law theory.

Natural law theory holds that there exist certain universal, immutable principles of right and wrong, discoverable by human reason, which are superior to and stand in judgment over man-made (positive) law. Its roots lie in Plato, Aristotle, Cicero, St. Thomas Aquinas and later Grotius, Locke, Rousseau and Finnis.

Main contributions:

1. Foundation of human rights. The doctrine of natural rights — life, liberty, property and equality — supplied the philosophical basis of the Magna Carta (1215), the American Declaration of Independence (1776), the French Declaration of the Rights of Man (1789) and the Universal Declaration of Human Rights (1948).
2. Higher law and limited government. It established that the state and its laws are not supreme; a law contrary to natural law is unjust and may be disobeyed. This gave rise to constitutionalism, judicial review and the concept of a written constitution as a higher law.
3. Moral content of law. It insisted that law must conform to justice, reason and the common good, thus linking law with ethics and preventing law from becoming the mere will of the ruler.
4. Abolition of slavery and unjust practices. Natural law reasoning was used to condemn slavery, racial discrimination and colonial exploitation, and to support movements for freedom and equality.
5. International law. Grotius applied natural law to relations between states, laying the foundation of modern international law, the law of war and peace, and human rights law.
6. Source of legal reform. It has inspired reforms in criminal law (proportionality of punishment), family law (equal rights of women) and labour law (dignity of labour).

Criticism: Natural law is vague, lacks a fixed standard of measurement, and has often been used to justify the status quo or the interests of the dominant class. Still, its contribution to justice, human rights and constitutional government remains lasting.

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c) Discuss the contractual and quasi contractual obligation.

1. Contractual obligation. A contractual obligation arises from an express or implied agreement between two or more parties. It is a legal duty created by the free will of the parties themselves. Under the Nepali Contract Act, 2056 and the Muluki Civil Code, 2074, a valid contract requires offer and acceptance, lawful consideration, capacity of parties, free consent and a lawful object. The obligation is voluntary, definite and enforceable; the parties are bound by the terms they agreed upon (pacta sunt servanda). Breach gives the aggrieved party the right to damages, specific performance or rescission.

2. Quasi-contractual obligation. A quasi-contract is not a true contract, because there is no agreement between the parties. Yet the law imposes an obligation on one person to pay or restore something to another on the ground of justice, equity and unjust enrichment. It is "quasi" or "as if" a contract because the remedy resembles a contractual remedy. The basis is the principle that no one should be allowed to enrich himself unjustly at the expense of another.

Examples / kinds:

• Necessaries supplied to a person incapable of contracting (e.g., a minor) — the supplier is entitled to be reimbursed from the minor's property.
• Payment by mistake — money paid under a mistake must be refunded.
• Money paid for another's liability — a person who pays a debt that another is legally bound to pay may recover it.
• Finder of goods — the finder must return the goods to the true owner and may claim reasonable expenses.
• Contribution between co-owners for common expenses.

Distinction: In a contractual obligation the duty is created by the parties' consent; in a quasi-contractual obligation it is created by law irrespective of consent. Contract is based on agreement; quasi-contract is based on unjust enrichment. Contractual rights are in personam and arise from the will of the parties; quasi-contractual rights arise from the operation of law to prevent injustice.

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d) Explain the theories of corporate personality.

A company is a legal person distinct from its members. The following theories explain the nature of its personality:

1. Fiction theory (Salmond). A corporation is a mere creature of law — an artificial person having no real existence. It exists only in the contemplation of law; the law creates it and can destroy it. Since it has no body or mind, it acts through agents. Criticism: it fails to explain why the law treats the company as a real entity with rights and duties.

2. Realist theory (Gierke, Maitland). The corporation is a real, living group-person with a will and personality of its own, not a fiction. It is as real as a human being, though its personality is different in nature. Criticism: it over-personifies the group and ignores the role of law in creating the company.

3. Concession theory. The company owes its existence to the concession or grant of the state. Corporate personality is a privilege conferred by the sovereign, and the company must act within the limits of the concession. Criticism: it makes the company wholly dependent on the state's will.

4. Purpose theory (Brinz). A corporation is not a person at all; it is merely a fund or property devoted to a particular purpose, and the law personifies the purpose, not the group. Criticism: it ignores the human element and the rights of members.

5. Organism theory. The corporation is an organism in which members are parts and the management is the brain; the whole is greater than the sum of its parts. Criticism: it is more a description than a legal theory.

6. Association theory (Freund). The corporation is an association of individuals recognised by law as a unit; its personality is the legal expression of the collective will of its members.

Legal effects of corporate personality: separate legal entity (Salomon v. Salomon), perpetual succession, limited liability, capacity to own property, sue and be sued, and transferability of shares. The theory chosen matters because it decides whether the corporate veil can be lifted to reach the members behind it.

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e) Write a note on mediate and immediate possession.

Possession is the physical control (corpus) over a thing coupled with the intention to hold it as one's own (animus possidendi). On the basis of how that control is exercised, possession is classified as immediate and mediate.

1. Immediate possession (direct possession). Here the possessor has direct and physical control over the thing, with no person standing between him and the object. He himself occupies, uses or holds the thing. Examples: a man wearing his own watch; a farmer cultivating his own land; a person sitting in his own house. The relation between the possessor and the thing is direct.

2. Mediate possession (indirect possession). Here the possessor does not have direct physical control; another person holds the thing on his behalf or under his authority. The relation between the true possessor and the thing is indirect, because a third party stands between them. Examples: a landlord whose tenant occupies the house; an owner whose goods are with a bailee, pledgee or carrier; a master whose servant holds the master's goods. The owner retains possession "through" the other person.

Points of distinction:

Significance: The distinction matters for remedies. An immediate possessor can sue for trespass and recover the thing at once; a mediate possessor must generally proceed against the person holding the thing, or wait until the right to immediate possession revives. Both are protected by law, but the nature and extent of protection differ.

Yes, I fully agree with the statement. Municipal law — the internal law of a state — is basically divided into substantive law and procedural law. Substantive law proclaims rights and duties, while procedural law arranges the means, methods and process to enforce and protect those rights and duties. The two are distinct in nature and function, yet they are interdependent and complementary. The statement is explained in detail below.

1. Meaning of Substantive Law

Substantive law is that branch of municipal law which defines and determines the rights, duties, liberties, powers and liabilities of persons. It tells us what the law is — what a person may or may not do, and what consequences follow from doing or not doing it. It creates, confers, and regulates rights and obligations.

Examples of substantive law:

• Civil substantive law: The Muluki Civil Code, 2074 (Nepal) — provisions on ownership of property, formation of contract, marriage, succession, and tort liability. It declares that an owner has the right to use and dispose of his property, and that a person who commits a wrong must compensate the injured party.
• Criminal substantive law: The Muluki Criminal Code, 2074 — it defines offences (theft, assault, murder) and prescribes punishments. It proclaims that "theft is an offence punishable with imprisonment," thereby declaring a duty not to steal and a corresponding liability.
• Constitutional substantive law: Fundamental Rights under Part 3 of the Constitution of Nepal, 2072 — rights to equality, freedom, and life are substantive in nature.

Thus, substantive law is the "what" of law — the body of rules that creates and declares rights and duties.

2. Meaning of Procedural Law

Procedural law (also called adjective law) is that branch of municipal law which prescribes the means, methods, and process by which substantive rights and duties are enforced, protected, and realized. It tells us how the law works — how a right is claimed, how a duty is enforced, how a dispute is brought before a court, how evidence is produced, and how a decision is executed.

Examples of procedural law:

• Civil Procedure Code, 2074 (Nepal) — rules on filing a plaint, service of summons, framing of issues, presentation of evidence, hearing, judgment, and execution of decree.
• Criminal Procedure Code, 2074 (Nepal) — rules on FIR, investigation, arrest, bail, charge framing, trial, and appeal.
• Evidence Act, 2031 — rules on what facts may be proved and how (burden of proof, admissibility, examination of witnesses).
• Court rules and regulations — jurisdiction, court fees, limitation periods, and appellate procedure.

Thus, procedural law is the "how" of law — the machinery through which substantive rights and duties are made effective.

3. Distinction Between Substantive and Procedural Law

4. Interdependence of the Two

The statement is not merely a division; it also shows their relationship:

• Substantive law without procedural law is powerless. A right of ownership or a right to life is meaningless unless there is a procedure to sue, to complain, to produce evidence, and to execute a decree. As Salmond observed, substantive law has no value without procedural law to enforce it.
• Procedural law without substantive law is empty. Procedure exists only to enforce some right or duty. If there were no substantive rights, there would be nothing for procedure to enforce. Procedure is therefore ancillary and adjective to substantive law.
• They are two sides of the same coin. Every legal system contains both. A municipal legal system that has only substantive rules but no procedure would be a dead letter; one with only procedure would have nothing to protect.

5. Illustration from Nepali Law

Suppose A lends Rs 1,00,000 to B and B refuses to repay.

• The substantive law (Muluki Civil Code, 2074) declares that A has a right to recover the loan and B has a duty to repay it.
• The procedural law (Civil Procedure Code, 2074) tells A how to file a case in the proper court, how to serve notice on B, how to prove the loan, how the court will hear the matter, and how A can execute the decree if B still does not pay.

Without the substantive rule, A would have no right at all. Without the procedural rules, A's right would remain unenforced. Both are essential.

6. Conclusion

The statement is correct and well-founded. Municipal law is basically divided into substantive law and procedural law. Substantive law proclaims rights and duties; procedural law arranges the means, methods and process to enforce and protect them. They are distinct but inseparable — substantive law gives the right, procedural law gives the remedy. As the maxim goes, ubi jus ibi remedium (where there is a right, there is a remedy), and the remedy is supplied by procedural law. Hence, the division is not only valid but essential for the effective functioning of any municipal legal system.

Meaning of procedural law

Procedural (adjective) law lays down how rights and duties are enforced in the courts: how a case is filed, how parties are heard and evidence led, how judgment is given, appealed and executed. It differs from substantive law, which creates the rights and duties. In Nepal, the Muluki Civil Procedure Code, 2074 (the Civil Procedure Code, CPC) is the main statute for civil cases.

General principles of procedural law

1. Natural justice: no one is a judge in their own cause (nemo judex in causa sua) and both sides must be heard (audi alteram partem).
2. Fair trial and due process: an independent and impartial court, and proper notice of the case.
3. Equality of parties: both sides have equal opportunity to plead and prove their case.
4. Adversarial system: the parties present their case and evidence while the court acts as a neutral umpire.
5. Open court and reasoned judgment: hearings are public and decisions state reasons.
6. Speedy and inexpensive justice: delay is justice denied, so time limits are set.
7. Finality of litigation: res judicata and limitation prevent endless disputes.
8. Right of appeal and review: a wrong decision can be corrected by a higher court.
9. Access to justice: legal aid, so that the poor are not shut out.
10. Burden of proof rests on the person who asserts.

Principles adopted in the Civil Procedure Code, 2074

The Code adopts the general principles and adds features that suit Nepal's circumstances:

1. Adversarial approach with court control: parties file pleadings and prove facts, but the court manages the case, fixes dates and can ask questions to find the truth.
2. Natural justice and fair hearing: notice must be served on the defendant and a reply allowed before a decision.
3. Time-bound procedure: the Code sets time limits for the written statement, hearing and judgment, to speed up disposal.
4. Alternative dispute resolution: reconciliation and mediation are encouraged and may be used before and during trial.
5. Equality and access to justice: provision for legal aid and suits by the poor without paying the full court fee.
6. Res judicata and finality: the same matter cannot be tried again between the same parties once decided.
7. Open and reasoned judgments: judgments are announced in court with reasons, and appeal, review and revision are available.
8. Use of technology: electronic filing, notice and recording are permitted.
9. Inherent power of the court: the court can make orders necessary for justice or to prevent abuse of process.
10. Execution of decrees: the Code provides how a decree is carried out, so that a decision is not just on paper.

Comparison

Conclusion

The general principles are the foundation: natural justice, fairness, equality, finality and speed. The Civil Procedure Code, 2074 turns these ideas into concrete rules for Nepalese courts, adding mediation, time limits, legal aid and electronic procedure. The principles are the same in spirit, but the Code is more specific, more detailed and tied to Nepal's constitution and conditions.

Extraordinary Jurisdiction of the Supreme Court

Meaning

Extraordinary jurisdiction means the special, exclusive power of the Supreme Court to issue extraordinary writs for the enforcement of fundamental rights and for any other legal right for which no other remedy is available. It is "extraordinary" because it is exercised outside the ordinary course of litigation — a person does not have to wait for a lower court to decide first. This power is conferred by Article 133 of the Constitution of Nepal.

Legal Basis

• Article 133(1): The Supreme Court has the power to issue appropriate orders and writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of fundamental rights guaranteed by the Constitution.
• Article 133(2): The same writs may be issued for the enforcement of any other legal right for which no other remedy is available or for which the remedy available is inadequate or ineffective.
• Article 133(3): The Supreme Court may, on its own initiative (suo motu), take action on any serious matter of public concern or public interest.
• Article 133(4): The Supreme Court has the final authority to interpret the Constitution and laws, and its interpretation is binding on all.

Nature of the Jurisdiction

1. Exclusive: Only the Supreme Court can issue these writs at the national level; no other court can.
2. Discretionary: The Court decides whether to exercise it; it is not a matter of right for the petitioner.
3. Remedial: It is meant to protect rights, not to punish.
4. Constitutional: It flows directly from the Constitution, not from ordinary legislation.
5. Suo motu power: The Court can act on its own without a formal petition in matters of public concern.

The Five Writs

Procedure of Cases Under This Jurisdiction

1. Filing of the petition Any person whose fundamental right or other legal right is violated may file a writ petition before the Supreme Court. The petition must state the facts, the right violated, the relief sought, and why no other remedy is adequate. A petition may also be filed by a public-spirited person in matters of public interest.

2. Registration and preliminary examination The petition is registered in the Supreme Court. The Court first examines whether it falls within its extraordinary jurisdiction — that is, whether a fundamental or legal right is involved and whether an alternative remedy exists. If the petition is frivolous or the matter is not within jurisdiction, it may be rejected at this stage.

3. Issuance of show cause notice or interim order If the petition is admitted, the Court issues a show cause notice to the opposite party (the government or authority concerned), asking it to explain why the writ should not be issued. Where the matter is urgent — for example, illegal detention — the Court may issue an interim order immediately.

4. Hearing Both parties are given the opportunity to present their arguments. The petitioner argues the violation of rights; the respondent argues the legality of its action. The Court may call for records, examine evidence, or seek expert opinion.

5. Decision and issuance of the writ After hearing both sides, the Court delivers its judgment. It may:

• issue the appropriate writ or order,
• quash the illegal action,
• direct the authority to act or refrain from acting,
• award compensation or other relief, or
• dismiss the petition if no violation is found.

6. Enforcement and follow-up The order of the Supreme Court is binding on all authorities. Under Article 133(4), its interpretation is final. Non-compliance may amount to contempt of court, and the Court may take further action to enforce its order.

Conclusion

The extraordinary jurisdiction of the Supreme Court under Article 133 is the ultimate guarantee of the rule of law and of fundamental rights in Nepal. Through the five writs and its suo motu power, the Court acts as the protector of citizens against arbitrary state action. The procedure — filing, preliminary examination, notice, hearing, decision and enforcement — ensures that this power is exercised carefully, only where ordinary remedies are inadequate.

Arbitration and Mediation as Alternative Dispute Resolution Methods

1. Concept of Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) refers to all those methods of settling disputes outside the traditional court system. It is informal, flexible, speedy, inexpensive and confidential. The main ADR methods are negotiation, mediation, conciliation and arbitration. Among these, mediation and arbitration are the most widely used.

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2. Meaning of Mediation

Mediation is a voluntary and informal process in which a neutral third party, called the mediator, assists the disputing parties to reach a mutually acceptable settlement. The mediator does not decide the dispute; he/she only facilitates communication, clarifies issues and suggests possible solutions. The final decision-making power remains with the parties themselves.

Features of Mediation:

• The mediator acts only as a facilitator, not as a judge.
• The process is voluntary; either party may withdraw at any time.
• The outcome is a mutual agreement, not an imposed decision.
• It is informal, flexible and confidential.
• It maintains the ongoing relationship between the parties.
• The mediator has no legal power to enforce a decision.

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3. Meaning of Arbitration

Arbitration is a process in which the disputing parties refer their dispute to one or more neutral third parties, called arbitrators, who hear both sides and give a binding decision known as the award. The arbitrator acts like a private judge.

Features of Arbitration:

• The arbitrator acts as a decision-maker, not merely a facilitator.
• The process may be voluntary (by agreement) or compulsory (by law).
• The award is binding on the parties and enforceable by law.
• It is quasi-judicial in nature, following a simplified procedure.
• The arbitrator's decision is generally final, with very limited grounds for appeal.
• It is less formal than litigation but more formal than mediation.

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4. Distinction between Arbitration and Mediation

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5. Can They Be Used Together?

Yes, they can be used together, and this is known as the Med-Arb (Mediation-Arbitration) approach. In this combined process:

1. The dispute is first referred to mediation, where the parties try to settle it amicably.
2. If mediation succeeds, the settlement is recorded and the matter ends.
3. If mediation fails, the same dispute is referred to arbitration, where the arbitrator gives a binding award.

This combination is useful because it gives the parties a chance to settle the dispute themselves (preserving relationships) and, at the same time, guarantees a final and binding resolution if they cannot agree. However, care must be taken that the same person does not act as both mediator and arbitrator in sensitive cases, because information disclosed during mediation may prejudice the arbitration. To avoid this, different persons are usually appointed for the two stages.

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6. Conclusion

Mediation and arbitration are both alternative methods of dispute resolution, but they differ fundamentally in the role of the third party and the binding nature of the outcome. Mediation is a facilitative, non-binding process, whereas arbitration is an adjudicatory, binding process. They are not substitutes but complementary tools, and they can be used together through the Med-Arb model to combine the advantages of both — amicable settlement with a guarantee of final resolution.

Importance of Execution of Judgement and Procedure for Recovering the Claimed Amount (Bigo Bharanane)

1. Meaning of Execution of Judgement

Execution of judgement means the process of enforcing or implementing the decision (judgement) passed by a competent court. A judgement by itself is merely a declaration of the rights and liabilities of the parties. It becomes meaningful only when it is executed, i.e., when the decree-holder actually receives what the court has awarded. Under the National Civil Code (Muluki Civil Code) and the Civil Procedure Code of Nepal, execution is the final stage of a civil suit.

2. Importance of Execution of Judgement

The importance of execution of judgement can be explained as follows:

1. Gives practical effect to the judgement: A judgement without execution is like a body without a soul. Execution converts the court's decision into a real benefit for the decree-holder.

2. Protects the rights of the decree-holder: It ensures that the successful party actually gets the money, property or relief awarded by the court.

3. Maintains the dignity and credibility of the judiciary: If judgements are not executed, people lose faith in the court system. Execution upholds the authority of the court.

4. Prevents the judgement-debtor from escaping liability: It compels the defeated party to satisfy the decree and prevents him from avoiding his legal obligation.

5. Deters future violation of law: The certainty of execution discourages people from disobeying court orders and encourages lawful behaviour.

6. Ensures the rule of law: Execution is essential for maintaining the rule of law in society, as rights are meaningless unless they can be enforced.

7. Provides finality to litigation: Execution brings the dispute to a final end and gives certainty to the parties.

3. Procedure for Recovering the Claimed Amount (Bigo Bharanane)

In Nepal, the recovery of the claimed amount from the judgement-debtor is governed by the Civil Procedure Code, 2074 (2017) and the National Civil Code. The main steps are:

(a) Filing of Execution Petition (Bigo Karyabahi Darta)

The decree-holder (Bigo) must file an execution petition before the same court that passed the judgement, within the limitation period. The petition must state the case number, the amount awarded, the amount already recovered (if any), and the details of the judgement-debtor's property.

(b) Issuance of Notice to the Judgement-Debtor

After the petition is registered, the court issues a notice to the judgement-debtor asking him to pay the claimed amount within a specified period (generally 15 to 35 days) or to appear before the court with reasons for non-payment.

(c) Inquiry into the Property of the Judgement-Debtor

If the debtor fails to pay within the given time, the court conducts an inquiry into his movable and immovable property. The debtor may be asked to submit a statement of his assets (Sampatti Bibaran).

(d) Attachment of Property (Rokad / Thamka)

The court may order the attachment of the debtor's movable or immovable property to secure the claimed amount. Attachment may be made before judgement (pre-judgement attachment) or after judgement (post-judgement attachment).

(e) Auction Sale of Attached Property (Lilan)

If the debtor still fails to pay, the attached property is sold by public auction. The sale proceeds are used first to satisfy the decree amount, costs, and interest; any surplus is returned to the debtor.

(f) Recovery from Salary or Bank Account

Where the debtor is a salaried person or has a bank balance, the court may order deduction from his salary or freezing of his bank account to recover the amount.

(g) Imprisonment of the Judgement-Debtor (Thunuvako Adesh)

If the debtor has the capacity to pay but wilfully avoids payment, or if no property is available for attachment, the court may order his imprisonment (civil imprisonment) as a coercive measure to compel payment.

(h) Satisfaction of Decree (Bigo Bharanako Praman)

Once the amount is fully recovered, the court records full satisfaction of the decree (Bigo Bharanako Praman) and closes the execution proceeding. The decree-holder is given the recovered amount.

(i) Appeal against Execution Order

If either party is dissatisfied with the execution order, an appeal may be filed before the higher court within the prescribed time.

Conclusion

Execution of judgement is the backbone of the civil justice system. Without it, a judgement remains a mere paper right. The Civil Procedure Code of Nepal provides a systematic procedure — from filing the execution petition to attachment, auction, salary deduction, and even imprisonment — to ensure that the decree-holder actually recovers the claimed amount. Thus, execution gives real meaning to the judicial decision and strengthens the rule of law.

Does Procedural Law Have Retrospective Effect?

Introduction

The general principle of jurisprudence is that substantive law (law that creates, defines and regulates rights and duties) is not retrospective unless the statute expressly or by necessary implication says so. The position regarding procedural law (law that prescribes the machinery, method and process by which rights are enforced) is different. The generally accepted rule is that changes in procedural law are retrospective in operation — that is, they apply to all proceedings, pending or future, even if the cause of action arose before the change. The reason is that no one has a vested right in a particular procedure; a person has only a vested right in the substantive remedy.

This principle was authoritatively settled in Nepal by the Supreme Court in Pasang Dawa Tamang v. His Majesty's Government (NKP 2053, Vol. 1, Decision No. 6119).

Facts of the Case

The petitioner, Pasang Dawa Tamang, was convicted and sentenced by the District Court in a criminal case. He filed an appeal before the Court of Appeal (then the Appellate Court). While the appeal was pending, the Muluki Criminal Procedure Code, 2028 (1971) was amended, and a new provision was introduced requiring the deposit of a certain amount as a condition for filing or continuing an appeal in certain cases. The appellate court applied the new (amended) procedural provision to the pending appeal and dismissed it on the ground that the required deposit had not been made. The petitioner challenged this, contending that the amended procedural provision could not apply to his case because the cause of action (the judgment of the District Court) had arisen before the amendment came into force. He argued that applying the new procedure retrospectively violated his vested right of appeal.

Issues Raised

1. Whether procedural law can be applied retrospectively to pending proceedings.
2. Whether the right of appeal is a substantive right or a procedural right.
3. Whether the amended provision requiring a deposit for appeal could apply to an appeal filed before the amendment.

Judgment / Precedent Set

The Supreme Court held:

1. Procedural law is retrospective in nature. A change in the law relating to procedure — the method of filing, hearing, evidence, execution, etc. — applies to all proceedings, including those pending at the time the change came into force. The reason is that procedure is only the means by which a substantive right is realised; it does not create or destroy the right itself.

2. No vested right in procedure. A litigant has a vested right in the substantive law and in the cause of action, but not in the procedure by which that right is enforced. Therefore, a change in procedure does not amount to taking away a vested right.

3. The right of appeal is a substantive right, but the manner, conditions and limitations subject to which the appeal is to be heard and decided are procedural. Hence, an amendment prescribing the mode or condition of appeal (such as a deposit) applies to pending appeals as well.

4. Distinction between substantive and procedural law. The Court drew a clear line: if the amendment affects the right itself (e.g., creates a new offence, enhances punishment, or takes away the right of appeal), it is substantive and prospective; if it merely regulates the machinery by which the right is enforced, it is procedural and retrospective.

5. Applying these principles, the Court held that the amended provision requiring the deposit was procedural in character and could validly apply to the petitioner's pending appeal. The petition was accordingly dismissed.

Ratio Decidendi

A change in procedural law is retrospective and applies to pending proceedings, whereas a change in substantive law is prospective unless expressly made retrospective. A person has no vested right in a particular procedure.

Conclusion

The case of Pasang Dawa Tamang v. HMG is a landmark precedent in Nepali jurisprudence on the retrospectivity of procedural law. It firmly establishes that:

• Substantive law — prospective, unless expressly retrospective.
• Procedural law — retrospective, applying to pending and future proceedings.
• The right of appeal is substantive, but the conditions and mode of exercising that right are procedural and can be changed retrospectively.

Thus, the answer to the question is: Yes, procedural law does have retrospective effect, and this has been settled in Nepal by the precedent of Pasang Dawa Tamang v. HMG.

a) Mutation (Namsari)

Mutation is the legal process of changing the name of the registered owner of land or other registered property in the government records after a lawful transfer. In Nepal, the land is registered at the Land Revenue Office (Malpot Karyalaya) and the ownership certificate is the lalpurja; a transfer is completed only when the new owner's name is recorded.

• Grounds: sale, gift, inheritance on the death of the owner, partition (ansabanda), court order or government acquisition.
• Procedure: application with the deed or court order, the existing lalpurja, tax clearance, and citizenship certificates of the parties; the office verifies the record and issues a new lalpurja.
• Importance: gives legal recognition to ownership, prevents disputes and double sale, and allows the owner to sell, mortgage or take a loan against the land.

b) Foreclosure

Foreclosure is the process by which a lender (bank or financial institution) recovers a loan by taking over and selling the mortgaged property of a borrower who has defaulted.

• The lender gives written notice demanding repayment within a stated time.
• If the borrower still fails to pay, the lender enforces the security as provided by the Banks and Financial Institutions Act, 2073, or approaches the Debt Recovery Tribunal under the Debt Recovery Act, 2058.
• The property is sold by public auction; the proceeds first clear principal, interest and costs, and any surplus goes back to the borrower.

It protects lenders and the financial system, but the borrower keeps the right to redeem by paying the dues before the sale and to challenge an unfair sale.

c) Ex-parte hearing

An ex-parte hearing is a hearing and decision of a case in the absence of one party, usually the defendant who was properly served with the summons but did not appear or file a reply within the time allowed. Under the Civil Procedure Code, 2074, the court may proceed on the evidence of the party present and give judgment.

The absent party is not left without remedy: if he or she shows a good reason for the absence, the court can set the ex-parte decision aside and rehear the case. The rule prevents a defendant from delaying justice by simply not appearing, while safeguarding the principle of natural justice (the right to be heard).

d) Mediation

Mediation is a voluntary method of dispute resolution in which a neutral third person (the mediator) helps the parties reach a settlement that they themselves accept; the mediator has no power to impose a decision. It is governed by the Mediation Act, 2068 BS (2011) and its rules, and is also used through court-referred mediation and community mediation at the local level.

• Features: voluntary, confidential, informal, quick and cheap; the outcome is a written settlement signed by the parties.
• Effect: a settlement agreement made under the Act is binding and enforceable like a court decision.
• Importance: reduces case backlog in courts, preserves relationships and suits family, neighbourhood and commercial disputes.

e) Postponement (adjournment)

Postponement means putting off a hearing or other proceeding to a later date. A court may postpone a hearing on application of a party for a reasonable cause such as illness, absence of a necessary witness or document, or the death of a relative, or by itself in the interest of justice.

Because repeated postponement causes delay and cost, the procedural law limits the number of adjournments and allows costs to be imposed on the party seeking them without good reason. Fair use of postponement protects the right to a fair hearing; its abuse defeats the principle that justice delayed is justice denied.