It’s a Latin
expression which means “the act of the Court shall prejudice no one”. The
Courts act through their Orders. This expression is based on the elementary
legal principle that Courts (including Tribunals) exists for dispensation of
justice, and whenever it is brought to their knowledge that a party has
suffered due to the “mistake” of the Court, the Courts should forthwith, after
satisfying itself that it has committed a “mistake”, rectify the mistake by
reviewing / recalling or rectifying its said Order. This expression is founded
on the principle that a wrong order should not be perpetuated by keeping it
alive and adhering to it.
Justice is a virtue which transcends all barriers and the
rules or procedures or technicalities of law cannot stand in the way of
administration of justice. Law has to bend before justice. If the Court finds
that the error pointed out was under a mistake and the earlier Judgment would
not have been passed but for erroneous assumption, which in fact did not exist,
and its perpetration shall result in miscarriage of justice, nothing would
preclude the Court from rectifying the error. Rectification of an order stems
from the fundamental principle that justice is above all. Technicalities apart
if the Court is satisfied of the injustice then it is its constitutional and
legal obligation to set it right by recalling its order". [1993 (Supp4)
SCC 595; AIR 1988 SC 1531; AIR 2005 SC 592; AIR 2000 SC 1650; AIR 2008 SCW 7153]
Having said
this, the above expression woefully interferes with another cherished legal
principle that there must be finality to the Orders of the Court; and Orders of
the competent Court of jurisdiction should not be interfered with as a matter
of course.
It is well
settled that a party is not entitled to seek a review of a Judgment merely for
the purpose of a rehearing and a fresh decision of the case. The normal
principle is that a Judgment pronounced by the Court is final, and departure
from that principle is justified only when circumstances of a substantial and
compelling character make it necessary to do so. [AIR 1965 SC 845]. The
finality of the Judgment delivered by the Court will not be reconsidered except
'where a glaring omission or patent mistake or like grave error has crept in
earlier by judicial fallibility'. [(1975) 3 SCR 935]. It is essential that it
should be something more than a mere error; it must be one which must be
manifest on the face of the record. [AIR 1955 SC 233]. However, what is “an
error apparent on the face of the record” cannot be defined precisely, there
being an element of subjectivity inherent in its very nature, and it must be
left to be determined judicially on the facts of each case.
Coming back to
Latin expression, our codified laws do recognize the above expression in
various legal provisions, more particularly under Review jurisdiction of the
Courts, i.e. u/ss 114, 144 , 151, 152 of CPC, 1908. Apart from this, the above
expression is also judicially crystallized in the form of “Recall jurisdiction”
of the Court.
The expression
confers jurisdiction upon Court which has passed the Order, to entertain
Application which sought to review or recall or rectify their said Order, which
has been passed under “Mistake” of fact or law, causing serious prejudice /
injustice to one of the party, without there being his any fault. We may see
the instances in which this expression may be applied.
An Order of the Court which has been passed in ignorance of
express provision of law, which was central to the issues involved [AIR 1988 SC
1531; AIR 2009 SC(Supp) 1952]
Where the Court omits to consider a binding precedent of the
same Court or of the superior Court rendered on the same issue, or to say, an
Order of the Court which has been passed in ignorance of binding precedent of
the higher Courts, the precedent which was squarely applicable to the facts of
the case. [AIR 1988 SC 1531; AIR 2009 SC(Supp) 1952; AIR 2008 SCW 7153]
Where a Party has suffered or would be subject to any
penalty or is deprived or would be deprived of some legitimate benefits, due to
the Injunction Orders of the Court [AIR 2012 SC 1146]
Where a party misleads the Court and persuades the Court to
believe in a false or incorrect proposition of facts or law; or where the Court
itself decides the case on erroneous assumption of certain facts or law. [AIR
2012 SC 1146; AIR 2003 SC 4482; AIR 2005 SC 592]
When there are
clerical, arithmetical errors or omissions; where the order contain something
which is not mentioned in the decree; or where on established facts of the
case, the Court have said something which it never had intention to say or have
omitted to say something which it would never omit to say, but have omitted out
of inadvertence. No new arguments or re-arguments on merits are required for
such rectification of mistake. [AIR 2013
SC 1690; AIR 2008 SC 1975; Section 152 of CPC, 1908]
Where a Party
has suffered due to omission on the part of Court to act according to the
procedure established by law. [AIR 2000 SC 3032]
Where the Court,
even after conclusion of final arguments by the Parties, fail to pass Order
within reasonable time. [AIR 2001 SC 3173]
A clear error or omission on the part of the court to
consider a justifiable claim of the party. [AIR 2008 SC 1101]
Where an Order
of the Court have resulted in deprivation of fundamental rights of a citizen or
rights created under any other statute. [AIR 1988 SC 1531]
In cases of reversal of judgment by the Appellate Court, on
the principle of the doctrine of restitution contained in section 144 of CPC,
1908, the law imposes an obligation upon Courts to secure that the party to the
suit who received the benefit of the erroneous judgment, to restore or return
to the other party. [AIR 2012 SC 1146; AIR 2003 SC 4482; AIR 2004 SC 2915]
If a judgment
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, inherent powers can be exercised to recall such
order, for the reason, that in such eventuality the order becomes a nullity and
the provisions of section 362 CrPC would not operate. The above proposition
would be available to High Courts only in the exercise of their inherent
jurisdiction under Section 482 of CrPC, 1973. [AIR
2012 SC 364]
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 which goes to the
root of the matter.
[AIR 1994 SC 853; AIR 1996 SC 2592; AIR 2006 SC 1260;
AIR 2000 SC 1165;
AIR 2007 SC 1546; AIR 2007 SC 1546]
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. While dealing with a similar
issue, the Apex Court in Hotel Balaji & Ors. V/s. State of A.P. & Ors.,
AIR 1993 SC 1048 observed as under: "...To perpetuate an error is no
heroism. To rectify it is the compulsion of judicial conscience. In this, we
derive comfort and strength from the wise and inspiring words of Justice
Bronson in Pierce V/s. Delameter (A.M.Y. at page 18: `a Judge ought to be wise
enough to know that he is fallible and, therefore, ever ready to learn: great
and honest enough to discard all mere pride of opinion and follow truth
wherever it may lead: and courageous enough to acknowledge his errors'". [AIR 2011 SCW
1332]
Every decision /
order of the court, be interim or final, as far as possible, must be based on
findings of facts recorded by it [2006 (9) SCC 222] whether prima facie or
conclusive; and findings on facts is always in respect of an issue which
naturally arises having regard to relief claimed. Issues
are like asking or addressing the right question, for the court to deal with;
addressing the principal contentions between the parties; and once that is
decided, the other supplementary issues, either don’t survive, or if survive,
they may be addressed with greater clarity. Therefore, whilst addressing the
Court, it may specifically be pointed out to the Court, as what is the main
issue involved in the present case; and asking the Court to decide the issue.
Sandeep Jalan
Advocate
Mumbai
Mumbai
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