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Legally Speaking
Sandeep Jalan
Can Courts be compelled to pass meritorious orders or judgments ? 23 April, 2012
The answer may be 'yes' but a the issue needs to be understood in depth. In this article I have highlighted various cases to illustrate my point.

BEFORE DEALING with the aforesaid proposition, let me first try to define what is meant by passing of “Meritous orders / judgments”. In my mind, it may mean –

 
1. •    While giving due consideration to the submissions and evidences on record of the rival parties, to record a finding with respect to disputed question of fact or of law;
•    Employing cogent reasons about the conclusion reached in the order / judgment.
•    Passing of orders in accordance with law.
•    Principles of natural justice are reasonably observed in the judicial proceeding.
 
 2.   The orders of the Court are generally challenged in Appeal or in Revision, alleging the impugned Order, being infected with –
 
•    Perversity; and / or
•    Illegality, i.e. not in accordance with law; and / or
•    In breach of principles of natural justice
 
3.    The perversity of the order implies –
•    The Court ignored the relevant provision of law; and / or
•    The Court ignored the relevant facts and evidences which were on record;
•    The Court considered and emphasized upon irrelevant facts in its Order.
 
4.   In the case of Gayadin versus Hanuman Prasad – AIR 2001 SC 386, it has been observed that the expression occurring in Section 48 of the Act (U.P. Consolidation of Holdings Act, 1953) means that the findings of the subordinate authority are not supported by the evidence brought on record or the findings are against the law or the order suffers from the vice of procedural irregularity.
 
In the case of Parrys (Cal) Employees Union versus Parrys and Co – AIR 1966 Cal 31, 42 – it is observed as – perverse finding means which is not only against the weight of the evidence but is altogether against the evidence itself.
 
In the case of Narayanagowde versus Girijamma – AIR 1977 Kar 58, 60, it is observed as – an Order which is made in conscious violation of pleadings and law is a perverse Order.
 
5.   The Illegality, i.e. not in accordance with law, of the order implies –
•    The plain and well settled meaning of the relevant statutory provision was ignored by the Court in its Order.
 
6.   Time and again, our Constitutional Courts have reiterated that Orders passed, whether by Administrative, judicial or quasi judicial authorities must be reasoned.
 
Any perverse Order presupposes – (a) an unreasoned Order; (b) the non consideration of “submissions and evidences on record” of the party who is victim of the perverse Order and the opportunity of affording due hearing given is thus rendered meaningless and empty formality, thereby causing the breach of principles of natural justice.
 
7.   Now I seek to invite attention to some of important observation and rulings of our Constitutional Courts –
 
(a)    Every court has inherent powers to recall such judgment /order where Order / judgment is alleged to have been obtained by fraud – suppression of facts – misrepresentation; or where it is brought to the notice of the Court that the Court itself has committed a mistake. – S P Chengalverau versus Jagannath – (1994) 1 SCC 1.
 
(b)   In Indian Bank vs.  Satyam  Fibres  (India)  (P) Ltd  (1996)  5  SCC  550,  a  two-judge  bench  of  the  Hon'ble  Supreme  Court,  after  making  reference  to  a  number  of  earlier  decisions  rendered  by  different  High  Courts  in  India,  stated  the  legal  position  thus:  “......  where  the  Court  is  misled  by  a  party  or  the  Court  itself  commits  a  mistake  which  prejudices  a  party,  the  Court  has  the  inherent  power  to  recall  its  order.” Paras 20, 22, 23, 27, 28, 30 to 33.
 
(c)    Hon’ble  SC  in  Raj  Bahadur  Ras  Raja  versus  Seth  Hiralal,  AIR  1962  SC  527,  the  inherent  powers  has  not  been  conferred  on  the  court,  it  is  a  power  inherent  in  a  court  by  virtue  of  its  duty  to  do  justice  between  the  parties  before  it.
 
(d)   In  the  case  of  Baldlabhdas  versus  Sobhaji  Kesharisingh  (1947)  Nag  344  AIR  1948  Mad  52,  the  Court  observed  that-  To  set  aside  an  order,  obtained  by  fraud  upon  the  court,  or  where  the  court  is  misled  by  a  party  or  the  court  itself  commits  a  mistake  which  prejudices  a  party.
 
(e)    As observed by Hon’ble Supreme Court in a case that inherent  powers  has  its  roots  in  necessity  and  breadth  is  co-extensive  with  the  necessity.  N  S Mills  versus  UOI  AIR  1976  SC  1152.
 
(f)     Section 151 of CPC – To recall and cancel its invalid order or order which causes injustice. Sitaram versus Kedarnath AIR 1957 All 825.
 
(g)    While exercising powers u/s 151, the court first has to consider whether exercise of powers is expressly prohibited by any provisions of the code, and if there is no such provision, then it will consider whether such powers should be exercised on the basis of the facts mentioned in the application. Under section 151, the court can issue directions su moto or otherwise. Sharda versus Dharampal AIR 2003 SC 3450.
 
(h)    In the case of Jet Ply Wood Private Ltd & Anr Vs Madhukar Nowlakha & Ors-AIR 2006 SC 1260, a party based on (mis)representation of the other party, withdrew the Suit before the trial court and the trial court in fact imposed the condition that no new suit could be filed on this cause of action. The party so misrepresented applied for recall of the (Withdrawl) Order of the trial Court. The trial court refused to Recall. The party approached Calcutta HC under Article 227. The Calcutta HC directed to restore the said Suit. The party who misrepresented went into Appeal before SC.

The Hon’ble Supreme Court said – As indicated hereinbefore, the only point which falls for our consideration in these appeals is whether the Trial Court was entitled in law to recall the order by which it had allowed the plaintiff to withdraw his suit.
 
From the order of the Learned Civil Judge (Senior Division) 9th Court at Alipore, it is clear that he had no intention of granting any leave for filing of a fresh suit on the same cause of action while allowing the plaintiff to withdraw his suit. That does not, however, mean that by passing such an order the learned court divested itself of its inherent power to recall its said order, which fact is also evident from the order itself which indicates that the Court did not find any scope to exercise its inherent powers under Section 151 of the Code of Civil Procedure for recalling the order passed by it earlier. In the circumstances set out in the order of 24th September, 2004, the learned trial court felt that no case had been made out to recall the order which had been made at the instance of the plaintiff himself. It was, therefore, not a question of lack of jurisdiction but the conscious decision of the Court not to exercise such jurisdiction in favour of the plaintiff.
 
The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4th February, 2005, though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14th March, 2005, in which reference has been made to a bench decision of the Calcutta High Court in the case of Rameswar Sarkar (supra) which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice.
 
The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in the case of Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527, as follows:
 
"It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them."
 
Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar's case, allowed the application for withdrawal of the suit in exercise of inherent powers under Section 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the Court would not be powerless to set aside the order permitting withdrawal of the suit.
 
(i)      In the case of State of Orissa v. Mamata Mohanty, (2011) 3 SCC 436, the Apex Court observed as saying  that once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same, (2011) 3 SCC 436.
 
(j)     In the case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 SCC 363, the Hon’ble Apex Court observed as saying that “Court cannot be blind to reality of situation”, Appellants knowingly and purposely damaged mangroves and vegetation of wetland of CRZ-I area. Under garb of repairing old bund, appellants constructed pukka bund using boulders and debris with huge platform violating norms of environmental law and in flagrant violation and utter disregard of Court orders.
 
(k)   In the very recent case of State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207, the Apex Court has in Para 27 said – If a judgment / order has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. Other judgmenrs relied upon in the aforesaid judgment are –
1970 CrLJ 378;
1985 CrLJ 23;
AIR 1987 Raj 83 (FB) – Paras 42, 43, 44, 45 and 24 (Imp)
AIR 1972 SC 1300 – Publication of defective cause list – advocate remained absent – order of conviction from acquittal – ordered for rehearing afresh
AIR 1981 SC 1156, Para 2 – Breach of principles of natural justice – matter remanded back to HC.
(2009) 2 SCC 703;
AIR 2011 SC 1232. Paras 3, 4, 5, 9.
 
(l)   In the case of Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2010) 14 SCC 792, the Hon’ble Apex Court, in  a Ex-parte Judgment, however, held that Recall of judgment is not warranted where the party not appearing in a “specially directed matter'' for which adequate notice was given.
 

8.   Some other important observation and rulings of our Constitutional Courts are –
 
•    An extension of principles of natural justice requires a reasoned decision – R B Desai versus UOI – (1987) 3 Comp LJ 111 (Del).
•    Speaking orders – Necessity of – Order of HC setting aside Interlocutory Order without assigning any reason – Not proper – AIR 2011 SC 1353.
•    Orders passed must be reasoned – AIR 2011 SC 1883 – Para 27.
•    Order / judgment was passed considering Irrelevant & extraneous material – 2011 (3) ABR (NOC) 261 Bom –Paras 6, 7, 56, 57 – M/s Formac Engineering versus MCGM;
•    Appellate Auth did not considered several material pieces of evidence while passing impugned order – Appellate auth failed in its duty in deciding the Appeal in accordance with law – a fit case for remanding the matter to the Appellate auth for deciding the Appeal afresh on merit – in accordance with law – Khatri Film Ent versus Vijay Cycle – 2010 (2) All MR 722 – Para 3
•    Misadventure of Subordinate court – resulting in grave injustice – Balaji Properties & Developers versus The Church of St. Matias – 2010 (3) All MR 62
•    Interlocutory orders – wrong notions of law canvassed before lower court – Kanhaiyalal K Kewalramani versus Anil K Gurbakshani – 2010 All MR (Cri) 797
•    Suit filed for temporary Injunction – Appeal court granted Injunction – failure of Appellate court to consider relevant material and appreciation of findings of trial court – omissions can be corrected at under Article 226, 227 – General Manager versus Mehmooda Shikshan and Mahila Gramin – 2010 All MR (Supp) 676 – Para 10; Relied on (2008) 9 SCC 1; (2001) 8 SCC 97; (2002) 1 SCC 319; (1998) 3 SCC 341; (2006) 5 SCC 282;
•    Challenge to order of Civil Court – Material irregularity – Francisco Rodrigues versus Angelica Rebello – 2010 (5) All MR 516;
•    Passing of speaking order, discussion of relevant case law, analysis of defence pleas, and recording of findings is an essential requirement of natural justice. Govan Soma Tandel versus C C (Prev) – (2000) 115 ELT 772;
•    Where the Decree is passed by a court lacking inherent (subject matter) jurisdiction – it can be challenged at any stage – (2011) 11 SCC 198 – Paras 20, 24 and even Application under Article 227 can be maintained before the High Court concerned;
•    decree obtained by fraud – misrepresentation – can be invoked – Kedariseth Atmaram versus Seetharamaraju – CRA – 5044 / 2009 – Judgment dated – 31-08-2010 – AIR 2011 (NOC);
•    Where the Court while passing the Order / judgment, has misinterpreted the provision of law and thus acted beyond the scope of their powers conferred upon them under the Statute, then, their such Orders / judgments may be deemed as Ultra Vires and can be challenged under Writ Jurisdiction. Acting beyond Statutory powers / exceeding Statutory powers – (2010) 14 SCC 1.
 
9. Therefore, in my view, in the light of above discussion, any Order / judgment of any Court / Tribunal which is alleged to be –  
 
(a)  Obtained by fraud;
(b)  Obtained by Suppression of facts;
(c) Obtained by misrepresentation;
(d) Where it is brought to the notice of the Court / Tribunal that the Court / Tribunal
      itself has committed a mistake;
(e) Where if an Order has been pronounced without jurisdiction;
(f) Where if an Order has been pronounced in violation of principles of natural
      justice;
(g) Where if an order has been obtained by abuse of the process of the court / tribunal
     which would really amount to its being without jurisdiction;
(h) Where Order is perverse, i.e. unreasoned;
(i) Where there is non consideration of submissions and evidences of the party, which
     would amount to breach of principles of natural justice;
(j) As far as illegality of the Order of the Court / Tribunal is concerned, I will borrow
the words of Justice Lord Denning, in the case of Pearlman versus Governor of    Harrow School, [1978] 3 WLR 736, he said – Whenever a tribunal goes wrong in law, it goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred jurisdiction on the tribunal on the condition that it decides in accordance with the law.
 
may be Recalled, instead of preferring an Appeal / Revision or Writ.
 
10. In Raghubir Saran versus State of Bihar– “The Courts exist not only for securing obedience to law of the land but also for securing ends of justice in its widest sense. All Courts, including the HC can exercise such powers as the law of the land confers upon them as well as such inherent powers to do justice as are preserved expressly or are not taken away by a Statute. It is necessary to remember that courts are established to do justice.
 
Every practice of court must find its ultimate justification in the interest of justice. Every Court possesses the power to do justice. Absence of conferment of powers on subordinate courts does not change this basic and fundamental principle which is inbuilt in every civilized system of law. The primary duty of the court is to see that truth is arrived at.
 
In The State of Uttar Pradesh Vs. Mohammad Nooh [1958 SCR 595] Vivian Bose, J. said that justice should be done in a common sense point of view stating: "I see no reason why any narrow or ultra technical restrictions should be placed on them. Justice should, in my opinion be administered in our courts in a common sense liberal way and be  broad based on human values rather than  on narrow and restricted considerations hedged round with hair-splitting technicalities...."
 
11. However, whereas our Constitutional Courts have distinguished Tribunals with Courts, nevertheless, Tribunals too administer laws of the land, decides rights and obligations of the parties before it, and I see no reason why the Tribunals too shall not have the inherent powers to do justice, i.e. to recall their Orders, if they were found to be obtained by fraud etc.


About The Author
Advocate Sandeep Ramnarayan Jalan is an active member of the legal community in India. He is also associated with the Bar Council of Maharashtra & Goa since 17-03-2010.
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