No Provisions Can Limit Or Effect Court's Inherent Powers U/S 151 CPC To Do Complete Justice: J&K High Court

A bench of Justice Javed Iqbal Wani explained,

“No provision of the court should be taken or deemed to limit or otherwise effect these inherent powers vested in the court by virtue of its duty to do full and complete justice between the parties before it”.

This includes the ability to recall an order if it is discovered that the order was obtained through fraudulent means or collusion, the bench underscored.

The case stemmed from a dispute between Veena Gurtoo and Rajesh Kumar Gupta, residents of Jammu. Gurtoo filed a suit against Gupta seeking a permanent injunction to prevent him from interfering with repairs to a boundary wall separating their properties. The trial court granted an interim order allowing Gurtoo to make repairs but restricting her from raising the height of the wall.

Before the next hearing, Gurtoo filed an application to withdraw the suit, which the trial court allowed. However, Gupta contended that Gurtoo had raised the height of the wall in violation of the interim order and then withdrew the suit to avoid facing consequences. He filed an application before the trial court seeking restoration of the pre-existing wall height. The trial court dismissed his application seeking the exercise of its powers under section 151 CPC to direct Gutroo to restore the height of the wall, prompting Gupta to file a revision petition before the High Court.

High Court's Observations:

Citing the maxim "Actus Curiae Neminem Gravabit" (the act of the Court shall harm no one), Justice Wani emphasised the court's primary duty to prevent any harm to a party due to its own actions and pointed out that the petitioners' withdrawal of the suit, without giving the respondent a chance to be heard on the issue of the raised wall height, was unfair.

“..in this view of the admitted factual position obtaining in the matter, it cannot but be said that the plaintiff/respondent herein under the cover of the interim order of the trial court dated 22.09.2010 raised the height of the boundary wall…and after completing the same with a design by playing mischief withdrew the suit before the trial court that too within a week before the date which was fixed in the suit and the trial court ironically permitted the withdrawal of the suit overlooking the fact that the defendants/petitioners have had entered appearance in the suit”, the bench recorded.

Commenting on the application of petitioner Gupta under provisions of section 151 of CPC wherein the impugned order has been passed, the bench said said that under the provisions of section 151, the petitioners had sought in essence the restitution of the proceedings/suit before the trial court.

Highlighting its inherent power under Section 151 CPC to recall an order obtained by fraud or collusion the bench remarked,

“Even under the provisions of section 151, a court is vested with a power exercisable under section 144 for recalling of an order passed by it in case, the order inter alia has been obtained by playing a fraud or collusion has been used to obtain such an order”.

Drawing from legal precedents including Zaffar Iqbal vs. Board of Revenue and Lajwanti vs. Union of India, the Court reaffirmed the equitable principles underlying the doctrine of restitution. It deemed the trial court's decision legally unsustainable, noting that it resulted in a miscarriage of justice to the defendants.

In view of the said observations, the court quashed the trial court's order and directed it to hold a fresh hearing on the restoration issue, ensuring both parties have the opportunity to be heard.

Case Title: Veena Gurtoo vs Rajesh Kumar Gupta

Citation: 2024 LiveLaw (JKL) 89

Mr. Sumir Pandita, Advocate Mr. Imran Ahmed Rather, Advocate appeared for petitioners & Mr. Siddhant Gupta, Advocate represented respondents

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