Q1.
TEMPORARY INJUNCTION
INTRODUCTION
An injunction is a court-issued remedy that prevents the commission of a
threat of wrongdoing or the continuance of a wrongdoing that has already
occurred commenced.
Injunctions are documented by several Relief Acts (Specific Relief Act, 1963)
and are carried out following the Civil Procedure Code, 1908.
For example –Suppose someone is demolishing a building on which another
person has rights. In that case, that person may approach the appropriate
Court to order that such person not demolish the property until the claim for
the building is resolved and a judgment is rendered in his favor.
CONDITIONS FOR GRANTING TEMPORARY INJUNCTION:
Injunction is discretionary remedy and thus, before granting of the
temporary injunction, the following conditions are required to be satisfied:
1. Prima Facie Case is in the favour of the plaintiff and against the
defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be
compensated for in terms of money.
3. Balance of convenience is in favor of the plaintiff and against the
defendant.
4. There is a bona fide dispute raised by the applicant and there is a
probability of the applicant being entitled to the relief claimed by him.
Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of
the above conditions does not entitle a person to an order of temporary
Injunction.
In Dalpat Kumar vs Prahlad Singh and Ors AIR 1993 SC 276 ,the Apex Court,
while considering the question of balance of convenience observed that the
court while exercising discretion in granting or refusing injunction should
exercise sound judicial discretion and should attempt to weigh substantial
mischief or injury likely to be caused to the parties , and in the case of refusal
of injunction should compare it with that which is likely to be caused to the
opposite party, if the injunction is granted.
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CIRCUMSTANCES WHERE INJUNCTION CAN BE GRANTED:
The list below is not exhaustive but some of them are as follows:
1. To maintain status -quo.
2. Against transfer of property.
3. Disposal of goods.
4. Making construction
5. Effecting recovery of dues.
6. Attachment of property.
7. Appointing receiver or commission
8. Against Prosecution etc.
ManoharLal vs Seth HiraLal AIR 1962; SC held, even if case not covered on
grounds of 0-39, Temporary Injunction can be granted in exercise of Inherent
Powers Under Section 151 of CPC.
TEMPORARY INJUNCTION
The Court may impose a temporary restraining order to prevent the Defendant
from causing any damage to the Plaintiff’s property or threatening to sell it.
This is an interim relief provided to ensure that Plaintiff’s rights are not
violated. The Court can issue this Injunction at any point throughout the trial,
even before the case is resolved.
The Civil Procedure Code of 1908 governs temporary injunctions. The following
are the provisions that govern it
SECTION 94 – This section tries to prevent the defeat of justice. Sub clause (c)
refers to awarding temporary injunctions and, in the event of non-compliance,
even condemning the individual to civil prison or ordering the attachment and
sale of his property.
SECTION 95 – If the Plaintiff’s claim is dismissed, the Court may award the
Defendant to compensate if he requests it.
ORDER 39 OF CPC –
1. GROUNDS OF TEMPORARY INJUNCTION:
Order 39, Rule 1 lists the circumstances in which the Court may grant a
temporary injunction as a statutory relief, and they include:-
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1. Property in dispute is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of decree.
2. Where defendant: threatens or intends to remove or dispose of his
property with a view to defraud creditors.
3. Where defendant: threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to the property in dispute
4. Defendant is about to commit breach of peace or contract or otherwise
(order 39 rule 2).
5. Where the court is of opinion that interest of justice, so required
2. DISOBEDIENCE OF BREACH OF AN ORDER OF INJUNCTION
Although an injunction is a remedy in itself, in the event of a breach of this
order, there needs to be another remedy to protect the complainant. The Latin
term ‘Ubi jus ibi remedium’ which means where there is a right there is remedy
is often used in explaining this concept as courts also need a remedy against
the person who breaches their order to prevent further dishonoring of their
orders.
Order 39, Rule 2 is about granting an injunction to restrain repetition or
continuance of breach. Rule 2A of the order the consequence of disobedience
or breach of injunction as follows:
In the case where there is disobedience shown in any injunction granted
or other order ordered under Rule 1 or 2 or breach of any of the terms
on which the injunction was granted or order made, the court can order
that property of such a person can be attached and he can be sent to
civil prison for a period not exceeding three months unless in the
meantime the Court directs his release.
Also, no attachment made under this rule shall remain in force beyond 1
year and if the breach continues, the court can allow that The attached
property may be sold, and the court may award such compensation as it
sees suitable to the injured party out of the revenues, and the rest, if
any, shall be paid to the person entitled thereto.
Order 21- Rule 32 of the Civil Procedure Code – It provides that a
defendant who failed to comply with the decree will in the first place
forfeit his right of ownership and the Court may later seize his property
at its discretion.
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In a recent case of Amazon v Future Retail (2021), a Supreme Court bench
comprising Justices RF Nariman and BR Gavai made an important observation
regarding if “mere” disobedience will suffice or it has to be ‘wilful
disobedience’ of injunction to invoke Order 39A Rule 2A. This provision was
interpreted in the Amazon by a single bench in an application filed by Amazon
to enforce the award passed by the Emergency Arbitrator, which had issued a
show-cause notice under Order XXXIX, Rule 2-A of the Code of Civil Procedure .
Damages in lieu of or in addition to the failure of performance of the
injunction order
(1) In a claim for a perpetual injunction pursuant to Section 38 or for a
mandatory injunction pursuant to Section 39, the plaintiff may claim damages
in addition to or in substitution for such injunction, and the court may, if it
considers it appropriate, award such damages.
(2) No compensation under this provision shall be granted unless the claimant
requests such relief in the plaint. Provided: that where no such damages have
been asserted in the plaint, the court shall, at any point of the trial, which may
be just and fair for that argument, allow the plaintiff to amend the plaint.
(3) The dismissal of a claim to avoid the breach of a contract existing in favor of
the plaintiff shall preclude his right to sue for damages for such infringement.
3. EX-PARTE INJUNCTION
In most cases, the court must notify the opposing party of the injunction
request. Even yet, under Order 39, Rule 3, the Court can issue an ex-parte
injunction if it feels the order’s aim will be jeopardized by the delay.
Rule 3 of O-39 requires that the applicant to issue a notice to the opposite
party before an injunction is granted. Though the court has the power to grant
an ex-parte injunction without issuing a notice or granting a hearing to the
party, who will be affected by such order, the said power is to be exercised
sparingly and under exceptional circumstances.
In Morgan Stanley vs. Kartick Das (1994), the Supreme Court indicated the
following factors which should weigh with a court in the grant of an ex-parte
Injunction:
1. Whether irreparable or serious mischief will ensure to the plaintiff.
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2. Whether the refusal of an ex-parte injunction would involve greater
injustice than grant of it would involve.
3. The court will also consider the time at which the plaintiff first had
notice of the act complained of so that the making of an improper order
against a party in his absence is prevented.
4. The court will consider whether the plaintiff had acquiesced for some
time and in such circumstances, it will not grant an ex parte injunction.
5. General principle like prima facie case, balance of convenience and
irreparable loss would also be considered by the court.
[Link] AND VARIATION OF ORDER OF INJUNCTION:
O-39 R4 lays down that any order for an injunction may be discharged or
varied or set aside by the court on an application made thereto by any party
dissatisfied with such order.
It is further provided that if an application for temporary Injunction, or in any
affidavit supporting such application, a party has knowingly made a false or
misleading statement in relation to a particular matter and the injunction was
granted without giving notice to the opposite party, the court must vacate the
injunction unless for the reasons to be recorded, it considers that it is not
necessary so to do in the interests of justice.
Moreover, if an order for an injunction has been passed after giving to a party
an opportunity of being heard, the order is not to be discharged, varied or set
aside on the application of that party, except where such discharge, variation
or setting aside has been necessitated by a change in the circumstances, or
unless the court is satisfied that the order has caused undue hardship to that
party.
[Link] ON CORPORATIONS:
0-39 R5 says that an Injunction directed to a corporation is binding not only on
the corporation itself, but also on all the members and officers of the
corporation whose personal action it seeks to restrain.
CAN AN INJUNCTION BE GRANTED TO DEFENDANT?
When deciding whether or not to award injunctive relief, the Court considers
the ‘Trinity of Principles,’ which include
(I) Balance of convenience;
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(ii) Prima facie case; and
(iii) Irreparable harm or injury that cannot be repaid by money.
The opinions of various High Courts on the subject
The High Court of Travancore and Kochi (erstwhile) took the first position on
this issue when it answered the question of whether the Defendant can
petition for an injunction against the Plaintiff without filing a counter-claim.
The Court answered yes in light of authorities in English Law, holding that
Defendant can only seek a temporary injunction under CPC against Plaintiff if
their claim arises out of or is incidental to Plaintiff’s cause of action. For
decades, several High Courts have shared this viewpoint.
In Ganga Bricks Udhyog v. Jai Bhagwan Swarup AIR 1982 All 333, the
Allahabad High Court provided interim relief to Defendant by requiring Plaintiff
to provide security for Defendant’s loss in the event of the suit’s defeat. The
Court found that the Defendant’s damage incurred due to the stay orders
should also be protected because the defendants would be harmed if the claim
was dropped, dismissed, or if the status quo continued during the suit’s
pendency.
Q. INHERENT POWERS OF COURT
The inherent powers of a court under the Code of Civil Procedure (CPC) refer
to the powers that are not specifically conferred on the court by the statute
but are necessary for the proper administration of justice. These powers are
inherent in the court by virtue of its existence and are meant to be used
sparingly and judiciously.
The inherent powers of the court are not unlimited and are subject to certain
limitations. The court cannot use its inherent powers to do something which is
expressly prohibited by law or which goes against the principles of natural
justice. The powers must be used only when necessary and for the ends of
justice.
Nature And Scope Of S.151
The provision contained in this section is merely indicative of the power of the
court to make such orders as may be necessary for achieving the ends of
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justice, and also to prevent an abuse of the process of the court and does not
confer any power. The court has been vested with such powers to make it
capable to grant relief when the ends of justice and equity so demand, as such
powers are of a wide scope and ambit.
The Supreme Court in the case of Raj Bahadur Ras Raja v Seth Hiralal observed
that ‘the inherent power has not been conferred on the court; it is a power in
the court by virtue of its duty to do justice between the parties before it’.
This power of the court is limited to the extent that it cannot be exercised if its
exercise is inconsistent with, or comes into conflict with, any of the powers
expressly or by necessary implication conferred under the Code. The power
under S.151 cannot be exercised as an appellate power and it cannot be
invoked to pass administrative and ministerial orders.
WHEN CAN AN INHERENT POWER BE EXERCISED
Under S. 151 there are two major principles the court must take into
consideration while exercising its inherent powers. The first being that the
powers are to be exercised only for the ends of justice and second, it should be
to prevent abuse of process of the court. Such power must not be exercised
when prohibited or excluded by the Code or other statutes and in situations
when there exist specific provisions in the Code applicable to the litigation at
hand.
[Link] To Be Exercised Only For The Ends Of Justice
Courts have inherent power to pass interim orders for ends of justice or to
prevent failure of justice. It has been observed by the Supreme Court that the
interests of justice are the prime consideration in granting or not granting
prayers in a petition under S.151 and no rule or procedure can curtail that
power of the court.
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of
justice” was explained. It was held that “ends of justice” are solemn words,
also theres words are not merely a polite expression as per juristic
methodology. These words also indicate that Justice is the persuit and end of
all law. However, this expression is not vague and indeterminate notion of
justice according to laws of the land and statutes.
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The Court is allowed to exercise these inherent powers in cases like- to recheck
its own order and correct its error, to pass injunction in case not included by
Order 39, and an ex parte order against the party, etc.
[Link] To Prevent Abuse of Process of The Court
According to Mulla the words ‘abuse of process of courts’, is defined as
follows:Abuse of process of court, is the malicious and improper use of some
regular legal proceedings to obtain an unfair advantage over an opponent.
Section 151 of the CPC provides for the exercise of inherent powers to check
the infringement of the process of the court. Abuse of the powers of the court
which happens in unfairness to party needs to get relief on the ground that the
act of a court shall not prejudice anyone. When a party practices fraud on the
court or on a party to a proceeding, the remedies have to be provided on the
basis of inherent power.
AMENDMENT OF JUDGMENTS, DECREES, ORDERS, AND OTHER RECORDS
Section 152 of CPC deals with the “Amendment of judgements, decrees, and
order.” According to Section 152 of CPC, Court has the power to change (either
by own actions or on the application of any of the parties) written or
arithmetical mistakes in judgments, decrees or orders or faults arising from an
unexpected lapse or imperfection.
Section 153 deals with the “General authority to amend.” This Section
empowers the court to amend any fault and error in any proceedings in suits
and all required improvements shall be made for the purpose of arranging
raised issues or depending on such proceeding.
Section 152 and 153 of the CPC makes it clear that the court may set correct
any blunders in their experiences at any time.
Power to amend decree or order where an appeal is summarily dismissed and
place of the trial to be deemed to be open Court are defined under Section
153A and 153B of CPC,1908.
LIMITATION
The exercise of inherent powers carries with it certain barriers such as:
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They can be applied only in the deficiency of particular provisions in the
Code;
They cannot be applied in dispute with what has been expressly given in
the code;
They can be applied in rare or exceptional cases;
While operating the powers, the court has to follow the method shown
by the legislature;
Courts can neither exercise jurisdiction nor entrust in them by law;
To abide by the principle of Res Judicata i.e., not to open the issues
which have already been decided finally;
To pick a mediator to make an award afresh;
Substantive rights of the parties shall not be taken away;
To limit a party from taking proceedings in a court of law; and
To set apart an order which was valid at the moment of its issuance.
S.151 gives inherent power to the court to make such order as may be
necessary for the ends of justice or o prevent abuse of the process of the
court; however same is required to be exercised by the court when there is no
other statutory remedy available to parties to redress their grievances.
In Ram Chand & Sons Sugar Mills Pvt Ltd v Kanhayalal Bhargav , the court
observed that, the inherent power of the court ‘is in addition to and
complimentary to the powers expressly conferred, but that power will not be
exercised if its exercise is inconsistent with, or comes in conflict with any of the
powers expressly or by necessary interpretation conferred by the other
provisions of the Code. The limitations imposed by construction on the
provision of section 151 do not control the undoubted power of the court to
make a suitable order to prevent abuse of the process of the court.
CONCLUSION
Inherent powers are the power of court which are helpful in minimizing
litigation, avoid multiplicity of proceedings and to render complete justice
between two parties. Section 148 to 153B of CPC discusses the provisions of
the Inherent powers of the Court.
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Q. JOINDER,MISJOINDER OF PARTIES AND MISJOINDER OF CAUSE OF ACTION.
Joinder of Parties means joining several parties as plaintiffs or defendants in
the same suit. All or any of those persons can be joined to a suit as plaintiffs or
defendants in whom the right to any relief is alleged to exist, or who is alleged
to possess any interest in the subject-matter of litigation, or in the opinion of
the court is a proper or a necessary party.
Joinder of Plaintiffs:
Anybody or anyone may join in one suit as plaintiffs as per the required
conditions under Rule 1 of Order 1. These conditions that are necessary to be
consummated are the right to relief claiming to exist in each of the plaintiffs
that come out of the same act of transaction; and the case is such of a
character that, if such person got separate suits, any common question of law
or question of fact may arise.
Joinder of Defendants:
Just the opposite to the joinder of plaintiffs, that, a persona can join as a
defendant as per the provisions of Rule 3 of Order 1. The conditions that are
necessary to be satisfied in the case of a defendant is the right to relief
claiming to exist against them comes out of the same act of transaction; and
the case is of such a nature that, if separate suits are brought against such a
person, any common question of law or question of fact may arise.
THE NECESSARY PARTIES TO A CIVIL SUIT
A necessary party is that party without whom a claim or allegation cannot be
settled by the Honorable Court legally. In layman’s terms, in the absence of a
“necessary party”, no efficacious and absolute decree can be passed by the
Court.
In Benaras Bank v. Bhagawan Das Ltd. [A.I.R. 1947 All. 18], the Honorable
Bench of the High Court of Allahabad specified two tests that would determine
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the questions about whether a specific party is a necessary party to a
proceeding. The tests are as follows:
A right of relief has to be present against such a party with regard to the
matters involved in the suit.
In the absence of such a party, the court must not be in a position to
pass an efficacious decree.
Nonetheless, the aforementioned tests, as provided by the Honorable Bench of
Allahabad High Court were explained as true tests by the Honorable Supreme
Court of India in Deputy Commissioner, Hardoi v. Rama Krishna.
MISJOINDER OF PARTIES
The joinder or incorporation of any person as a party to a suit, opposite to the
provisions of the Code is known to be a misjoinder. Grounds for a court ruling
that there is a misjoinder incorporate that:
The parties to the suit do not have the same rights to a judgment.
They have a conflict of interests.
The situations in each allegation must be unique or contradictory.
Even to a bit, the defendants are not involved in the same transaction. In
the case of a criminal prosecution, the most usual cause for misjoinder is
the defendants are found to be involved in various claimed crimes or the
charges are based on separate unique transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of the
cause of action.
MISJOINDER OF PARTIES
The joinder or incorporation of any person as a party to a suit, opposite to the
provisions of the Code is known to be a misjoinder. Grounds for a court ruling
that there is a misjoinder incorporate that:
The parties to the suit do not have the same rights to a judgment.
They have a conflict of interests.
The situations in each allegation must be unique or contradictory.
Even for a bit, the defendants are not involved in the same transaction.
In the case of a criminal prosecution, the most usual cause for
misjoinder is the defendants are found to be involved in various claimed
crimes or the charges are based on separate unique transactions.
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However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of a
cause of action.
Misjoinder of Plaintiffs
Where two or more persons may have joined as Plaintiffs in one suit but the
Right to Relied claimed to exist in each plaintiff, does NOT come out of the
same act or same transaction (or series) and if separate suits were brought by
each of the plaintiff, no common question of fact or question of law may have
arisen, there shall be a misjoinder of plaintiff.
Misjoinder of Defendants
In a similar way, where two or more persons may have joined as Defendants in
one suit but the Right to Relied claimed to exist in each defendant, does NOT
come out of the same act or same transaction (or series) and if separate suits
were brought by each of the defendant, no common question of fact or
question of law may have arisen, there shall be a misjoinder of defendant.
Misjoinder of Cause of Action
This aspect may be coexisting with misjoinder of plaintiffs or misjoinder of
defendants. Hence, the subject may be considered pertaining to the following
heads.
[Link] BEDORE JUDGEMENT AND ATTACHMENT
Provisions has been made under order 38 of Civil Procedure Code 1908 for
arrest and attachment before judgment.
ARREST BEFORE JUDGMENT:
Under rules 1 to 4 of order 38 of the code, provision has been made for arrest
before judgment.
[Link] for security- when at any stage of the case, if it appears from the
affidavit of the court or otherwise that the defendant with the intention of:
1. delaying the trial of the suit;
2. avoiding the order of the court;
3. creating obstacles in the execution of the decree being passed against
him:
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has run away
about to run away
has left the jurisdiction of the court; or
about to leave the jurisdiction of the court; or
remove the property from the jurisdiction of
the court; or
has consumed the property or
about to leave India so that delay or obstacle
may be caused in the execution of the decree.
Then the court will issue warrant of arrest with the intention that he should be
brought before the court and he should explain as to why he should not give
security to the court for his appearance.
If the defendant presents himself in the court and assures the court that he is
willing to give security or deposits the amount of claim of the plaintiff in the
court, he will not be arrested and the warrant of arrest will be cancelled.
(order 38, Rule 1).
In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been said that for the
purpose of rule 1, it is not sufficient to give security, but the security must be
sufficient.
[Link] when be becomes unsuccessful in giving security- if the defendant
remains unsuccessful in giving the desired security then under Rule 4, order 38,
the defendant will be put to civil prison till:
ii. The case is decide finally; or
iii. If the decree has been passed against the defendant,
the decree is not satisfied.
The period of detention in civil prison will not exceed six weeks if the value of
suit does not exceed Rs. 50/- and six months, in other cases.
It is to be mentioned that in case of suits for recovery of money, no woman can
be arrested. (M/s Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129).
It is to be mentioned here that in case of suits instituted under section 16 of
the code, no order of arrest can be passed before judgment in the following
cases:
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ii. suit for re-possession of immoveable property;
iii. suit for partition of immoveable property;
iv. suit of prohibition or redemption or for redemption of mortgage
of such immoveable property;
v. suit for acquiring rights for benefits in any immoveable property;
vi. suit for sale of immoveable property; and
vii. Suit for creating charge on immoveable property. (Order 38, Rule
1 and section 16).
ATTACHMENT BEFORE JUDGMENT
The second method of defeating the obstacles to be created by the defendant
in execution of decree is passing order by the court for attachment of the
property before judgment. Provision has been made in this regard under rules
5 to 13 or order 38 of the code.
[Link] for Security: under Rule 5, order 38 of the code, if the court comes
to the conclusion at any stage of the suit either from the affidavit or otherwise,
that the defendant with the intention of creating obstruction in the execution
of decree passed against him:
i. intends to consume his property; or
ii. about to remove that property from the jurisdiction of the
court;
then the court will direct the defendant that he should explain why security
should not be taken from him he should surrender that property or its value or
any portion of it at the disposal of the court or to give security for that (Sub
rule 2 of Rule 5).
It is to be mentioned that until the court gives direction or passes orders
otherwise, the plaintiff can make demand for attachment of the property (Sub-
rule 2, Rule 5)
Further, the court can pass order for conditional attachment of any property
(Sub-rule 3 of Rule 5).
[Link] in case the defendant remains unsuccessful in giving security:
when the defendant remains unsuccessful in submission of proper security or
could not show any cause for it, then court under Rule 6, Order 38, will attach
the property or any portion of it which can satisfy the claim of the plaintiff
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(Sub-rule 1, Rule 6).
But during this period, if cause is shown by the defendant or security is given,
then the court will withdraw such order (Sub-rule 2 of Rule 6).
Thus under rules 5 and 6 of Order 38 of the code, provision has been made for
attachment of property before judgment.
The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills Pvt.
Ltd. Vs Vishvasaraiyya Iron and Steel Company Ltd. (A.I.R. 1985, Karnataka
282), has been decided by the court that before passing orders for attachment
by any court, it should be ascertained that strong possibility exists of creating
obstacles in the execution of the decree by the defendant.
The plaintiff will have to prove that the defendant will create obstacles in the
execution of decree (Tatanagar Transport corporation vs M/s Ajanta
Enterprises, A.I.R. 1987, Orissa 107).
In M/S K.C.V. Airways limited Vs Wing Commander R.K. Balgana (A.I.R. 1998,
Delhi 70), it has been decide that the order for attachment before judgment
cannot be issued so long as all the conditions of Rule 5, Order 38 are fulfilled.
[Link] IS THE DOCTRINE OF RESTITUTION IN CIVIL PROCEDURE CODE
The term ‘restitution’ is not defined in the Civil Procedure Code. But it can be
defined as restoring to one party the benefit that the other party received
under a decree that was later found to be incorrect.
According to the Doctrine of Restitution, the law imposes an obligation on the
party to the suit who received an unjust benefit from the erroneous decree to
make restitution to the other party for what he has lost.
The obligation arises automatically upon the reversal or modification of the
decree and entails the right to restitution for all that was done under the
erroneous decree. In making the restitution, the court is bound to restore the
parties, to the extent that they can be restored, to the position they were in at
the time when the court, by its erroneous action, had displaced them from.
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It is the court’s duty to see that if a person is harmed by a mistake of court, he
should be restored to the position he would have occupied before for that
mistake.
In Kavita Trehen vs Balsara Hygiene Products Ltd (1994), the court held that
“the jurisdiction to make restitution is inherent in every court and can be
exercised whenever justice of the case demands.”
The Doctrine of Restitution is based on the well-known maxim actus curiae
neminem gravabit, which means that the act of court shall harm no one.
THE DOCTRINE IS BASED ON EQUITABLE PRINCIPLES.
[Link] for Application of the Doctrine of Restitution
Before restitution can be ordered, the three conditions listed below must be
met:
1. The restitution sought must be in relation to the reversed or varied
decree or order.
2. The party seeking restitution must be eligible to receive benefits under
the reversing decree or order.
3. The relief sought must be directly related to the reversal or variation of
the decree or order.
[Link] May Apply for the Doctrine of Restitution?
Two conditions must be met for a person to be eligible to apply under section
144 of the Civil Procedure Code (CPC):
1. He must be a party to the decree or order that is being varied or
reversed.
2. He must have become entitled to any benefit under the reversing decree
or order, whether through restitution or otherwise.
[Link] May Grant Restitution?
An application for restitution must be made to the court that issued the decree
or order.
[Link] Whom Restitution May Be Granted?
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Under section 144 of the Civil Procedure Code, restitution can be ordered not
only against the party to the litigation but also against his legal representative,
such as pendente lite (during the pendency of a case). Section 144 of the Civil
Procedure Code only applies to the parties or their representatives and not to
sureties.
[Link] Period for Restitution
An application for execution of a decree under section 144 of the Civil
Procedure Code is governed by Article 136 of the Limitation Act, 1963. The
limitation period for such an application is 12 years, beginning with the date of
the appellate decree or order.
[Link] Against Restitution
The determination of question under section 144 of the Civil Procedure Code
has been expressly declared to be a decree under section 2 sub-clause 2 of CPC
and is thus appealable.
[Link]: MEANING| ESSENTIALS|INSTITUTION OF A SUIT
MEANING OF A SUIT
The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is
understood as a proceeding that commences upon the presentation of a plaint
in a civil court.
A plaint is a statement in writing of a cause of action in which the relief claimed
is set out in detail.
The Black’s Law Dictionary defines a suit as the proceeding initiated by a
party or parties against another in the court of law.
Provisions regarding institution of a suit are specified under Section 26 and
Orders I, II, IV, VI, VII.
ESSENTIALS OF A SUIT
There are four essentials of a suit which are explained as follows:
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1. Parties (Order I)
In a suit, there must be at least two parties i.e. the plaintiff and the defendant.
There is no bar as to the maximum numbers of plaintiffs or defendants.
There are two categories of parties viz. necessary party and proper party. The
significance of the necessary party in a suit is that the presence of such a party
is vital to the constitution of the suit and the relief is sought against such party
and without such party, no effective order can be passed. A proper party is
one in whose absence an effective order can be passed, nonetheless whose
presence is necessary for a complete and final decision on the question
involved in the proceeding.
2. Subject Matter
There must be a subject matter i.e. a set of facts which have to be proved to
enable the plaintiff to get the relief claimed by him. It includes the cause of
action.
3. Cause of Action (Order II, Rules 3, 6 and 7)
It contains a set of facts or circumstances that the plaintiff is required to prove
before he can succeed. It serves as the foundation of the suit. It includes all the
essential facts which constitute the right of a plaintiff and its alleged
infringement and thus it is an antecedent to the filing or institution of any suit.
The facts must be mentioned in clear and unambiguous terms. A person is a
party to the suit if there lies a cause of action against him.
4. Relief claimed by the plaintiff
Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will
give relief unless it is specifically claimed by the parties to the suit. There are
two types of reliefs: Specific and Alternative.
INSTITUTION OF A SUIT UNDER CPC, 1908
There are various stages of a suit viz. institution of suit or commencement of
suit, service of summons, written statements, first hearing and framing of
issues, production of evidence and final hearing, arguments, judgment,
preparation of a decree and its execution.
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The institution of a suit consists of the following steps:
1. Filing of a plaint
Order VII deals with the format of a plaint and contains various rules.
Pleadings are defined as pleadings as “a plaint or a written statement” in Order
VI Rule I of the CPC, 1908. Plaint is the first step to initiate the filing of a suit.
The document containing various facts and circumstances regarding the
Plaintiff’s grievance is filed by the plaintiff after hiring a counsel and such a
document is called a plaint.
2. Amendment of Pleadings
The Court may, at any stage of the proceedings, allow either party to alter or
amend its pleadings in such manner and on such terms as may be just (Rule 17
of Order VI of CPC, 1908), and all such amendments shall be made when it is
necessary for determination of real question in controversy or is just and
proper or is necessary in the interest of justice.
3. Place of suing
The place of suing plays a major role in a suit as it directly deals with the
authority of a court to pass a decree. Choosing a court depends upon the
contents of plaint one is filing. It refers to the jurisdictional aspect. Section 9 of
CPC, 1908 provides that the Courts shall have jurisdiction to try all suits of a
civil nature except in suits of which their cognizance is either expressly or
impliedly barred.
Section 15 of Civil Procedure Code provides that every suit shall be instituted
in the Court of the lowest grade competent to try it. On the filing of the suit,
the Court must ascertain whether it has jurisdiction to entertain it. In cases
where the jurisdiction is challenged by filing a petition by the defendant(s) to
reject the plaint under Order VII-Rule 11 CPC. The want of jurisdiction is
merely an irregularity of the proceedings and the Court has the power to
rectify it.
Presentation of the plaint (When does the suit commence?)
The moment the plaint is filed it leads to the institution of the suit as it is
provided in Section 26 of CPC, 1908 provides that every suit under shall be
instituted by the presentation of a plaint or in such other manner as may be
19
prescribed and the contents of such plaint shall be proved by an affidavit as
per the amendment of 2002.
Thus, a plaint is rightly filed by complying with the provisions of Order IV-Rule
1 of CPC, 1908. The plaint may be presented either by the affected person
himself, or by his advocate or by his recognised agent or by any person duly
authorised by him.
Time and Place of Presentation
Ordinarily, the presentation of a plaint must be on a working day and during
the office hours. But there is no rule regarding it being made either at a
particular place or time
Registration of Suits
Rule 2 of Order IV provides that the Court shall cause the particulars of every
suit to be entered in a book to be kept for the purpose and called the Register
of civil suits after the Court fees have been paid correctly in the Court having
pecuniary Pecuniary jurisdiction specifies the monetary jurisdiction of the
Court and divides the Courts on a vertical basis.
Territorial jurisdiction deals with the area wise jurisdiction of various courts
which is decided by taking numerous factors into consideration.
Such entries shall be numbered in every year according to the order in which
the plaints are admitted. Thus, after the presentation, the suit will be
numbered along with being scrutinised by the Stamp Reporter.
Once all these steps have been taken care of, a suit is successfully instituted
before a Civil Court.
[Link] OF THE SUITS
The transfer of the suits is explained from Sections 22 to 25 of the Civil
Procedure Code, 1908.
Legal Provisions for Transfer of Suit
Sections 22 of the Code of Civil Procedure deal with the rights of the defendant
to apply for the transfer of a suit in cases where the suit may be instituted in
more than one court. Section 23 provides for the appropriate court to which
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an application for the transfer of the suit should be made. Section 24 deals
with the general power of the high court and district court to transfer and
withdraw the case at any stage of proceedings. Section 25 deals with the
power of the Supreme Court to transfer suits.
Conditions for the Transfer of a Civil Suit
A civil suit may be transferred if the suit is of such a nature that it may be
instituted in more than one court and has actually been instituted in one such
court. However, the defendant is not pleased with the place of suing i.e., the
place of the sitting of the court, and has raised objections to that effect, and
the court has decided those objections in favour of the defendant. In that
situation, the defendant has the right to apply before the appropriate court to
get the suit transferred to one of the other courts in which it may have been
filed.
In Section 22 of the Code of Civil Procedure, the defendant gets the right to
apply for the transfer of the suit at the earliest stage of the proceedings and in
any case before settlement of the issues. If the defendant wants to file a
transfer application, he has to give notice to the plaintiff of his intentions
before filing the application. The court, to which such an application has been
filed, shall consider the objections of the other party (if any) and decide the
court before which the suit shall proceed further.
In Basanti Devi v. Sahodra, AIR 1935 All 979, the supreme court laid down that
in an application for transfer under Section 22 of the Code of Civil Procedure,
the convenience of the parties alone should not be considered, but the totality
of the circumstances should indicate that a suit should proceed in a court
different from the one chosen by the plaintiff.
In Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani (1979) 4 SCC 167, the
Supreme Court held that the mere convenience of the parties is insufficient to
transfer a case from one court to another.
To Which Court the Transfer Application can be Made?
Section 23 of the Code of Civil Procedure specifies the court to which an
application for transfer can be made. As per the provision of subsection (1) of
Section 23, an application under Section 22 for transfer of the suit is to be
made to the appellate court having jurisdiction over both the court before
which the suit is pending and the court to which the transfer is sought.
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There are three cases mentioned in Section 23 that help in deciding the court
to which a transfer application can be made.
Case 1 − If all the several courts having jurisdiction over the subject of
the suit, are to be subordinate to the same appellate court, then the
application is to be filed before the appellant court.
Case 2 − If all such courts are subordinate to different appellate courts
but are subordinate to the same High Court, the application shall be
made to the High Court.
Case 3 − If such courts are subordinate to different High Courts, then the
application shall be made to the High Court within the local limits of
whose jurisdiction the court in which the suit is first brought is situated.
General power of the high court and district court to transfer the suit
Section 24 of the Code of Civil Procedure of 1908 empowers the High Court
and District Court to transfer any pending suit, appeal, or any proceeding, at
any stage, from any subordinate court to the other court competent to try the
suit, either suo moto on its own motion or upon the application of the
aggrieved party. Under this provision, the suit can be transferred from one
court to another; however, the new court should be equally competent to try
the suit. Further, if a suit is erroneously filed before a court that has no
jurisdiction to try and adjudicate upon it, then under this provision of the Code
of Civil Procedure 1908, that suit may be transferred to the court that has
jurisdiction and is competent to try and adjudicate.
The provision under this section may be used by the aggrieved party who has
reasonable apprehension of being treated prejudicially by the court under the
influence of the other party. However In any case, this apprehension of
partiality must be reasonable and mere assumptions or wage apprehension
can't and ought not to be the ground of transferring a case from one Court to
other.
The Power of the Supreme Court to Transfer Suits
Section 25 of the Code of Civil Procedure empowers the Supreme Court to
transfer any case from the High Court or another civil court in one state to the
High Court or another civil court in any other state.
The Supreme Court is to exercise the power provided under this section only
upon the application made to it by the aggrieved party and upon having been
satisfied that, for the end of justice, an order of transfer under this section is
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expedient. The convenience of one party or the inconvenience of the other
party shall not be sufficient for the Supreme Court to exercise its power;
rather, the necessity of transfer must be demonstrated for the sake of justice.
In Dr. Subramaniam Swamy v. Ramakrishna Hegde, AIR 1990 SC 113, the
supreme court held that in the transfer of suits, appeals, and other
proceedings, the paramount consideration is that justice according to the law
is done, and if the ends of justice so demand, then there ought to be no delay
in the transfer of the case.
Legal Provisions for Transferring the Suit or Proceedings
Sub-section 5 of Section 25, provides that the law that is applicable to the suit
or proceeding originally instituted, shall continue to apply to the suit or
proceeding so transferred to the other court situated in the other state. As a
result, even after the suit is transferred to another court in another state, the
law that was originally applicable to the suit or proceedings will continue to
apply.
Jurisdiction of the Supreme Court under Article 139-A of the Indian
Constitution
As per the Article 139-A(1) of the Constitution the Supreme Court has the
power to call the cases those are pending before the High Courts to be heard
by itself.
Further, as per the Article 139-A (2) of the Constitution, the Supreme Court can
transfer any case, or other proceedings pending before any High Court to
another High Court if the Supreme Court is satisfied, upon the grounds
mentioned in the application, that it is expedient for the ends of justice.
Conclusion
Free and fair justice is the fundamental right of every citizen under the Indian
constitution. Transferring the case to a court where free and fair justice can be
guaranteed is unquestionably a right. However, the courts should exercise the
power to transfer very cautiously to meet the ends of justice.
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Q. POWERS AND DUTIES OF EXECUTING COURTS
Section 47 of the Code of Civil Procedure confers wide powers on the
executing Court to decide all questions arising between the parties to the suit
in which the decree was passed, or their representatives, and relating to the
execution, discharge or satisfaction of the decree. Such questions must be
decided by the executing Court and no separate suit is maintainable for the
purpose.
Conditions: -
1. All questions must arise between the parties to the suit or their
representative.
2. It must arise in the suit in which the decree was passed.
3. It must relate to the execution, discharge or satisfaction of the decree.
4. It must be determined by the execution court.
Ambit and Scope
The scope of sec. 47 is very wide as exclusive jurisdiction has been conferred
on the executing court in respect of all matters relating to execution. Section
47 deals with the powers of the court executing the decree while order XXIÂ
deals with the procedure which a court whose duty it is to execute decree has
to follow in a limited class of cases relating to discharge or satisfaction of
decree either by payment of money out of court or adjustment in any other
manner by consensual Arrangement.
The provision is not ultra vires Article 14 of the constitution.
Applicability of Section 47:-
It does not apply where dispute arises between parties and his own
representative or between two persons who both represent same party.
(Mohd. Osman Ali v. Mohd. Kharim, 1995(2) CCC 408 A.P.)
Object :-
1. To provide cheap & expeditious remedy for determination of certain
question in execution.
2. To avoid the multiplicity of suits.
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In conditions two are important: -
1. One arises between parties or their representative.
2. Execution, discharge or satisfaction of decree
1. Whether a decree is executable?
2. Whether the property is liable to be sold in execution of the
decree?
3. Whether a decree is fully satisfied?
4. Whether a particular property is included or not in decree?
5. Question regarding attachment, sale or delivery of property
DUTIES OF EXECUTING COURT
1. Not to go beyond the decree.
2. Not to question on the correctness of the decree. But if the decree
prima facie appears to be vague or ambiguous the concerned court can
question the correctness of decree.
3. If executing court found that court which passes the decree don’t have
jurisdiction for the same it can refuse to execute it.
1. Powers of Executing Court: -
The executing court shall posses all the powers as deemed necessary for the
disposal of the application for execution of decree. Further, the powers of
court can be summarized under two points: -
1. Court have plenary power to determine all questions relating to
execution of a decree.
2. Power to determine all the questions arise before or after the executing
of the decree.
[Link] of Execution: -
Elaborate procedures have been laid down for execution of various types of
decrees. By virtue of the very nature of such decrees special intricacies may be
involved and specific remedies maybe provided under the law to meet with
such situation.
1. Delivery of property
2. Moveable sec. 51(a) , Rule31
3. Immoveable Rules 35-36
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4. Attachment and sale of property.
5. Arrest and detention Sec. 51(C).
6. Appointment of receiver Sec. 51(d)
7. Partition Sec. 54
8. Cross decrees and cross claims Rule 18-20
9. Payment of money Rule 2 & 30
[Link] PROVISION OF EXECUTION SECTION 38 TO 46
Section 38: Court by which decree may be executed
A decree may be executed either by the court which passed it, or by the Court
to which it is sent for execution.
Section 39: Transfer of decree
The Court which passed a decree may, on the application of the decree-holder,
send it for execution to another Court of competent jurisdiction:
I. if the person against whom the decree is passed actually and voluntarily
resides or carries on business, or personally works for gain, within the
local limits of the jurisdiction of such other Court, or
II. if such person has not property with in the local limits of the jurisdiction
of the Court which passed the decree sufficient to satisfy such decree
and has property within the local limits of the jurisdiction of such other
Court, or
III. if the decree directs the sale or delivery of immovable property situate
outside the local limits of the jurisdiction of the Court which passed it, or
IV. if the Court which passed the decree considers for any other reason,
which it shall record in writing, that the decree should be executed by
such other Court.
The Court which passed the decree may of its own motion send it for execution
to any subordinate Court of competent jurisdiction.
Section 40: Transfer of decree to Court in another State
Where a decree is sent for execution in another State, it shall be sent to such
Court and executed in such manner as may be prescribed by rules in force in
that State.
Section 41: Result of execution proceedings to be certified
The Court to which a decree is sent for execution shall certify to the Court
26
which passed it the fact of such execution, or where the former Court fails to
execute the same the circumstances attending such failure.
Section 42: Powers of Court in executing transferred decree
The Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons disobeying
or obstructing the execution of the decree shall be punishable by such Court in
the same manner as if it had passed the decree. And its order in executing such
decree shall be subject to the same rules in respect of appeal as if the decree
had been passed by itself.
The powers of the Court under this section shall include the following powers
of the Court passed the decree, namely:
I. power to send the decree for execution to another Court under section
39;
II. power to execute the decree against the legal representative of the
deceased judgment-debtor under section 50;
III. power to order attachment of a decree.
A Court passing an order in exercise of the powers specified shall send a copy
thereof to the Court which passed the decree.
Section 43: Execution of decrees passed by Civil Courts in places to which this
Code does not extend
Any decree passed by any Civil Court established in any part of India to which
the provisions of this Code do not extend, or by any Court established or
continued by the authority of the Central Government outside India, may, if it
cannot be executed within the jurisdiction of the Court by which it was passed,
be executed in the manner herein provided within the jurisdiction of any Court
in the territories to which this Code extends.
Section 44: Execution of decrees passed by Revenue Court in places to which
this Code does not extend
The State Government may, by notification in the Official Gazette, declare that
the decrees of any Revenue Court in any part of India to which the provisions
of this Code do not extend or any class of such decrees, may be executed in
the State as if they had been passed by Courts in that State.
Section 44A Execution of decrees passed by Courts in reciprocating territory
Where a certified copy of decree of any of the superior Courts of any
27
reciprocating territory has been filed in a District Court, the decree may be
executed in India as if it had been passed by the District Court.
Together with the certified copy of the decree shall be filed a certificate from
such superior Court stating the extent, if any, to which the decree has been
satisfied or adjusted and such certificate shall, for the purposes of proceedings
under this section, be conclusive proof of the extent of such satisfaction or
adjustment.
Section 45: Execution of decrees outside India
So much of the foregoing sections of this Part as empowers a Court to send a
decree for execution to another Court shall be construed as empowering a
Court in any State to send a decree for execution to any Court established by
the authority of the Central Government outside India to which the State
Government has by notification in the Official Gazette declared this section to
apply.
Section 46: Precepts
Upon the application of the decree-holder the Court which passed the decree
may, whenever it thinks fit, issue a precept to any other Court which would be
competent to execute such decree to attach any property belonging to the
judgment-debtor and specified in the precept.
The Court to which a precept is sent shall proceed to attach the property in the
manner prescribed in regard to the attachment of property in execution of a
decree.
[Link]
Reference is dealt under Section 113 of the Code. It mentions that a
subordinate court can refer a doubt to the High court where the former thinks
that there should not be misinterpretation with regard to any law. This is called
a reference.
No party to the suit has the right to apply for reference. It is only the
subordinate court which has the power of reference suo-moto (on its own
motion) when there is doubt regarding the validity of any legal provision. For
matters other than the validity of legal provisions, the court is not bound to
refer to the High court.
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So, when the court feels that it needs clarification regarding any matter which
is pending, it can seek an opinion from the High court to avoid the commission
of errors while rendering a judgement. If there is reasonable doubt regarding
the question of law, subordinate courts can exercise the right of reference
under the following situations when:
A question as to the validity of any act, rule, regulation, ordinance, etc.,
arises in the court where the suit is being entertained
The court is of the opinion that such act or any other provision of law is
invalid (“ultra vires” means “beyond the powers”) or inoperative
Such question on the provision of law is never before made invalid
either by the High court or Supreme court
It is pertinent for determining the validity of such provision of law for
disposal of the suit
Object
The object behind the provisions of Reference is to empower the subordinate
court to obtain the opinion of the High Court in non-appealable cases when
there is a question of law so that any commission of error could be avoided
which couldn’t be remedied later on.
As held in the case of Diwali Bai v. Sadashivdas, the reference must be made
before passing of the judgement of the case.
Order 46 of the Code lays down the conditions which should be satisfied by
the subordinate court in order to make a reference to the High court. They are:
The suit or appeal must be pending wherein no further appeal lies from
decree or order of such suit or appeal respectively
The question of law must arise during the course of proceedings, i.e., the
pendency of the suit
The court must be entertaining the suit from which such doubt
regarding the question of law has arisenwhere such reference has been
made to the High court, the subordinate court may pass a decree, taking
into consideration, the opinion of the High court.
In the case of Banarasi Yadav v. Krishna Chandra it was held that the question
of law about which the subordinate court is doubtful, must have actually been
called upon in the case for adjudication and it shouldn’t be a hypothetical
question. Therefore, no reference can be made on a hypothetical question or a
29
point that may or may not arise in future. But, if the situation arises it may be
considered for reference.
[Link]
A review is mentioned under Section 114 of the Code. An aggrieved party can
file an application for review in the same court where the decree has been
passed. This provision enables the court to review its own judgement in case of
any error or mistake made with regard to the decision rendered, to rectify the
same. While Section 114 is a substantive right, the procedure for the same has
been provided for under Order 47 of the Code. The application for Review can
be filed under the circumstances where:
a decree or order is appealable as provided by the law, but no such
appeal has been preferred
there is no provision for appeal from certain decree or order
a decision is passed by the court of Small Causes
The grounds for filing review application are:
discovery of new facts when there is no knowledge about the same or
could not produce the same due to negligence, prior to the time when
the decree was passed
the error apparent on the face of the record which means errors which
do not give rise to re-arguments of the whole case and those which are
not related to erroneous decisions
any other sufficient grounds as provided by the Code, wherein the
misconception of the court can be considered as sufficient ground
The application for review shall be filed within 30 days from the date of
order/decree. The order or decree passed after such review shall be final and
in force. The review petition is discretionary of a court, meaning, it can either
choose to entertain or reject the application.
As a matter of fact, the Supreme court can also review its own decisions
under Article 137 of the Constitution of India. As per Supreme Court Rules,
1966, the review petition should be filed within thirty days from the date of
judgment.
In Lily Thomas etc vs Union of India & Ors (2000), the SC observed and held
that the power of review can be exercised for correction of a mistake but not
30
to substitute a view. Such powers can be exercised within the limits of the
statute dealing with the exercise of power.
[Link] JURISDICTION OF HIGH COURT: SECTION 115 CODE OF CIVIL
PROCEDURE
Section 115 of the Code deals with the revisional jurisdiction of the High Court.
It provides that the High Court may call for the record of any case which has
been decided by any court subordinate to such High Court and in which no
appeal lies thereto, and if such subordinate court appears
a. to have exercised jurisdiction not vested in it by law, or
b. to have failed to exercise a jurisdiction so vested. or
c. to have acted in the exercise of its jurisdiction illegally or with material
irregularity.
Explanation: In Section 115, the expression any case which has been decided
includes any order made or any order deciding an issue, in the course of suit or
other proceeding.
The High Court's revisional power cannot be invoked unless the following
conditions exist:
1. there must be a case decided;
2. the court deciding the case must be subordinate to the High Court;
3. no appeal should lie to the High Court against the decision;
4. in deciding the case the subordinate court must appear to have;
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction vested in it by law; or
(c) acted in the exercise of its jurisdiction illegally or with material
irregularity.
In the exercise of revisional powers it is not the duty of the High Court to enter
into the merits of the evidence. It has only to see whether the requirements of
the law have been duly and properly obeyed by the court whose order is the
subject of revision and whether the irregularity as to failure of exercise of
jurisdiction is such as to justify interference with the order as mentioned
in Dinshaw Iron Works v. Mitakhan Adamji (1943) .
Whether a particular order is expedient or not is not a ground on which the
High Court can interfere under Section 115 C.P.C.
31
Section 115 applies to jurisdiction alone, the irregular exercise or non-exercise
of it or the illegal assumption of it. But the mere fact that the decision of the
lower court is erroneous whether it be upon question of fact or of law does not
amount to an illegality or material irregularity.
Therefore, the High Court will not interfere in the exercise of its revisional
jurisdiction merely because the lower court wrongly decides that a particular
suit is barred by res judicata or that it is barred by limitation or because it
proceeds upon an erroneous construction of the various provisions of an Act.
In Amir Hasan v. Sheo Baksh Singh, it was emphasized by their Lordships of
the Judicial Committee that where the subordinate court has jurisdiction to
determine a question, it has jurisdiction to decide wrong as well as right and
that a wrong decision is not an irregular exercise of jurisdiction. The judicial
Commissioner of the High Court has no jurisdiction in such a case.
The section empowers the High Court to satisfy itself upon three matters:
1. that the order of the subordinate court is within its jurisdiction,
2. that the case is one in which the court ought to exercise jurisdiction,
3. that in exercising jurisdiction the court has not acted illegally, that is in
breach of some provision of law or with material irregularity.
If the High Court is satisfied upon those three matters, it has no power to
interfere because it differs, however profoundly from the conclusions of the
subordinate court upon questions of fact or law.
Section 115 applies to any case divided. The majority of the High Courts appear
to share the view that the case is wide enough to include an interlocutory
order. The interlocutory order which can be revised should be orders from
which no appeal lies to the High Court. The Allahabad High Court, however,
held that an interlocutory order was not case decided, within the meaning of
Section 115 C.P.C. and consequently no revision lay from it.
32
33