Can Courts / Tribunals be compelled to pass meritous orders / judgments (in case if they don’t passes) ?
1. 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 –
- 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 material 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) In the case of S P Chengalverau versus Jagannath – (1994) 1 SCC 1, the Hon’ble SC
had the occasion to coin the doctrine of fraud.
Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as 'wholly perverse', Kuldip Singh, J. stated: "The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation". (emphasis supplied)
The Court proceeded to state: "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party".
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.
The Court concluded: "The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants".
(b) In Indian Bank v. 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.
In this case while referring to the case of Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;
"The judiciary in
also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it
is obtained by Fraud on Court. In the case of fraud on a party to the suit or
proceedings, the Court may direct the affected party to file a separate suit
for setting aside the Decree obtained by fraud. Inherent powers are powers
which are resident in all courts, especially of superior jurisdiction. These
powers spring not from legislation but from the nature and the Constitution of
the Tribunals or Courts themselves so as to enable them to maintain their
dignity, secure obedience to its process and rules, protect its officers from
indignity and wrong and to punish unseemly behaviour. This power is necessary
for the orderly administration of the Court's business". (emphasis
(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)
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 United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT
2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.
Allowing the appeal and setting aside the orders, this Court stated;
"It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
(j) It is worthwhile to record the striking obsewrvation of Hon’ble SC in the
case of A.V. PAPAYYA SASTRY & ORS versus Govt of A.P. & Ors –
(2007) 4 SCC 221 –
Now, it is well settled principle of law that if any judgment or order is obtained by
Fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".
It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the
Court or by the final Court has to be treated as
nullity by every Court, superior or inferior. It can be challenged in any
Court, at any time, in appeal, revision, writ or even in collateral
(k) In the case of State of
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.
(l) 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
(m) In the very recent case of State of
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.
(n) In the case of Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2010) 14 SCC 792,
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
- 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 –
- 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 material mistake as to law;
(e) Where if an Order has been pronounced without jurisdiction;
(f) Where if an Order has been pronounced in violation of principles of natural
(g) Where there is non consideration of material submissions and evidences of the party, which would amount to breach of principles of natural justice;
(h) 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,  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...."
Sandeep Jalan, Advocate,
32 Rajpuria Baug,
Vile Parle East,
Mumbai – 400057.