Since laws are general rules, they cannot regulate for all times to come so as to make express provision against all inconveniences, which are infinite in number, and to foresee all cases that may possibly happen with a view to providing a remedy. A Code however wisely framed cannot make express provisions against all contingencies and for all times. The purpose of the law is to secure the ends of justice.
The laws are not ends in themselves but are only a means for securing justice. If the ordinary rules of procedure result in injustice in any case and there is no other remedy, it is the duty of the court to override those rules for achieving the ends of justice.
It is to serve this necessity that provision has been made in S. 151 of the Code of Civil Procedure, which reads thus:
ADVERTISEMENTS:
Saving of inherent powers of court:
Nothing in this .Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
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Saving clause:
ADVERTISEMENTS:
It is a saving clause and only gives legislative recognition of an age-old and well established principle that every court has inherent power to do that real and substantial justice between the parties for the administration of’ which alone it exists. It does not confer any substantive right on parties but is meant to get over the difficulties arising from rules of procedure.
Section 15l gives no right to a party to make an application. It gives power to the court to pass such orders as it thinks fit. Section 151 is really intended to prevent courts from being rendered impotent by any omission in the Code; but it is not intended to override the main enactment of the law.
The inherent powers are inherent in the court itself and have not been ‘ conferred by the Code; these powers are independent of and in addition to any other powers that the court may exercise under the Code.
Illustrations:
ADVERTISEMENTS:
The court has an inherent power under S. 151, C.P.C.:
(a) To consolidate suits and appeals including appeals to the Supreme Court;
(b) To postpone the hearing of suits pending the decision of a selected action or where some of the issues are common in another pending suit;
(c) To stay cross-suits on the ground of convenience;
(d) To allow a defence in forma pauperis,
(e) To grant restitution apart from the provisions of S. 144, C.P.C.; Where the court rectifies a mistake in a decree in the exercise of its inherent powers, it has jurisdiction to order restitution of any benefit which may have been received wrongly by the persons who were not entitled to such benefits but for the mistake in the decree;
(f) To add a party or to transpose parties, or where the appeal is filed against dead persons to allow the appellant to add legal representatives of the deceased as parties in a proper case;
(g) To entertain the application of a third person to be made a party;
(h) To punish summarily by imprisonment for contempt’s of court committed by the publication of a libel out of court;
(i) To stay the drawing up of the court’s own orders or to suspend their operation, if the necessities of justice so require;
(j) To stay the carrying out of a preliminary order pending appeal;
(k) To amend decrees by correcting errors in cases not covered by S. 152. The court has an inherent jurisdiction to rectify its own mistake and to do justice between the parties where injustice has been done to them due to the mistake of the court;
(1) To restrain by injunction a person from proceeding with a suit in another court;
(m) To vacate an order obtained by fraud practised upon it or by abusing the process of the court;
(n) To set aside an order made ex parte and without notice to the parties to be affected thereby if a proper case is substantiated;
(o) To remand a suit in a case to which neither Order XLI, Rule 23 nor Order XLI, Rule 25 applies the court, by reason of its inherent jurisdiction, may order remand in cases other than the case specified in Order XLI, Rule 23, if it is necessary for the ends of justice;
(p) To interfere where its decree is being executed in a manner manifestly at variance with the purpose and intent of the decree;
(q) To set aside a compromise decree when the court has been misled into recording it by a statement of the pleader that he was specially authorised to compromise when in fact he was not so authorised;
(r) To stay a suit even when it does not come within S. 10, C.P.C.;
(s) To apply the principles of res judicata to cases not falling within S. 11 of the Code;
(t) To recall and cancel the court’s invalid orders, etc. The court has jurisdiction under S. 151, C.P.C., to restore a suit previously dismissed by it if it thinks that such restoration is necessary in the ends of justice.
A court can entertain an application for restoration of an application dismissed for default under inherent powers. There is, therefore, no reason to suppose that it cannot restore that also under S. 151 if it is dismissed for default.
The power which gives the court a discretion to entertain an application must necessarily give the residuary powers to pass other orders ex debito justitiae. Thus it is not possible to construe an order dismissing an application which has itself been dismissed for default as an order dismissing the suit itself so as to be appealable under Order XLIII, Rule 1 (c), C.P.C.
Every court has an inherent power, quite independently of Order VI, Rule 16, C.P.C. to strike out scandalous matter in any record of proceedings. Under S. 151, the court has power to expunge scandalous allegations which are irrelevant to the proceedings, even though they are contained in an affidavit. But the allegations cannot be scandalous when they are relevant.
The court has inherent powers, in order to advance the cause of justice and not to allow justice to be defeated, to issue orders in the nature of even injunctions. Therefore, it cannot be said that the court has no power to issue stay of a suit under its inherent powers unless the case clearly falls within the four corners of Order XXXIX, Rules 1 and 2.
The court has jurisdiction under S. 151, C.P.C. to enquire into an allegation that the defendant who was shown as minor at the time of the institution of the suit and against whom a preliminary decree has been passed, was really not a minor but a major at that time, and, therefore, the preliminary decree passed against him is not binding on him.
In the case of a preliminary decree the court does not become functus officio, but the suit still continues in that court and if before a final decree is passed, it is brought to the notice of that court that the preliminary decree was obtained by the plaintiff against a person who is not on the record, it is certainly open to that court to go into that question and amend its decree.
Statutory recognition of the inherent power of the Court:
The Code of Civil Procedure is not exhaustive and S. 151 does not confer any new powers but only makes statutory recognition of the inherent power of the court to do certain things ex debito justitiae (to act as justice demands). It is in the ends of justice to avoid needless expense and inconvenience to
parties. So the court will not refuse relief merely because the application there for is made under a wrong section or because there is some technical defect.
The abuse of the process of the court may be the result of an act of $he court itself (default its officers) or may be done by the party (misrepresentation). In all such cases the court is empowered to remedy the wrong.
Ghuznavi v. Allahabad Bank Ltd:
The exercise of such inherent power can only be invoked where the court is satisfied that the provisions of the Code are not sufficient to meet the exigencies of the case: Justice Asutosh Mookerjee in the case of Ghuznavi v. Allahabad Bank Ltd)
Hukam Chand v. Kamalanand Singh:
Justice Woodroff in Hukum Chand v. Kamalanand Singh, observed with reference to the applicability of S. 151 of the Code:
“I am not aware of any authority which has laid down that the Code of Civil Procedure is exhaustive. The essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law, on any point specifically dealt with by it. In respect of such matters the court cannot disregard or go outside the letters of the enactment according to its true construction.
The Code does not affect the power and duty of a court where no specific rule exists to act according to justice, equity and good conscience, though in exercise of such power it must be careful to see that its decision is based on the sound general principles and is not in conflict with them or the intention of the Legislature.
“The court has, therefore, in many cases where the circumstances require it acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists.”
It has, therefore, to be noted that the Code is not exhaustive and in matters with which it does not deal the court will exercise an inherent jurisdiction to do justice between the parties as warranted under the circumstances and which the necessities of the case require.
Lalta Prasad v. Ram Kawar:
The words “ends of justice” in S. 151, wide as they are, do not mean vague and indeterminate notions of justice, but justice according to the statutes and laws of the land. They cannot mean that express provisions of the statute can be overridden at the dictates of what one might by private emotion or arbitrary preference call or conceive to be justice between the parties.
Section 151, C.P.C., gives statutory recognition to the inherent power of the court to make such orders as may be necessary for the ends of justice, and in the absence of any specific law to the contrary the court is entitled to exercise this power.
Indeed, to recall and cancel an invalid order, or an order passed inadvertently or by oversight, is not simply permitted but is the duty of the court, which should always be vigilant not to allow any act of itself or any mistake of counsel to do wrong to the suitor.
How exactly the error has occurred is irrelevant, nor for the revocation of an erroneous order any cause other than the irregularity of the order itself need be considered. A mere mistake of law is normally not a sufficient ground for correcting a wrong order, but if the mistake is an obvious one due to failure to notice a particular piece of legislation the court has the power to make the necessary correction and should not be hesitant in exercising that power. As to the aggrieved party, it has a right to choose between approaching the court itself under S. 151 and going to the court of appeal (assuming of course that an appeal is maintainable).
The High Court does possess the power to recall and correct an invalid or manifestly erroneous order passed by it in the exercise of its jurisdiction under Art. 226 of the Constitution in respect of the enforcement or vindication of civil rights. So far as the Allahabad High Court is concerned this power is derived not from S. 114 and Order XLVII but from S. 151 of the Code of Civil Procedure.
There is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.
Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law.
As a matter of general principle prohibitions cannot be presumed. Where a wrong order cannot be corrected under S. 114 and Order XLVII, Rule 1, C.P.C., it by no means follows that the correction cannot be made under S. 151. The court has power to act under S. 151, C.P.C., for doing justice.
Section 151, C.P.C. only recognises the inherent power that exists in all courts. It is true that S. 151 may not apply to proceedings arising under Art. 226 of the Constitution in view of the Explanation to S. 141 of the Code of Civil Procedure.
Even so since every court has got inherent power to do real and substantial justice, it cannot admit of any doubt that any clerical or inadvertent error or omission can be corrected even in judgments or orders tendered in proceedings, in exercise of the powers under Art. 226 of the Constitution, if it is necessary for the ends of justice or prevention of abuse of the process of court. There is no prohibition in law against the said exercise of inherent power.
Where during the pendency of the release application under the provisions of section 21 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the tenants filed a suit in the court of Munsif City, Kanpur, for specific performance of the agreement entered into between the parties in respect of the reconstruction of the premises and for letting the same to them in accordance with its terms, an application to the District
Judge to transfer the suit to the court of II Additional Civil Judge, Kanpur, where the release application under S. 21 of U.P. Act No. XIII of 1972, was pending, was not maintainable. The civil court trying the rent case as a Prescribed Authority being not a civil court while it being a civil court in respect of the suit, it cannot consolidate rent case with the civil suit.
The Prescribed Authority is not a court, much less an ordinary court of civil jurisdiction which the II Additional Civil Judge is in respect of the civil suit. The two actions fall under two different jurisdictions.
The II Additional Civil Judge trying the rent case as a Prescribed Authority being not a civil court while he being a civil court in respect of the suit, he could not consolidate the rent case with the civil suit. The two proceedings, besides falling under two different jurisdictions, farther did not appear to be of a like nature. They may be civil proceedings but their nature was different.
In Chandrapal Singh v. Maharaj Singh, the Supreme Court held that the Rent Control Officer shall be deemed to be a civil court within the meaning of Ss. 345 and 346 of the Code of Criminal Procedure, 1973, and in view of sub-section (2) of S. 34 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, shall be a civil court for the purpose of S. 193, I.P.C.
Padam Sen v. The State of Uttar Pradesh:
It has been held by their lordships of the Supreme Court in Padam Sen v. The State of Uttar Pradesh, that the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code.
They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.
Discretionary powers:
The inherent powers exercised under S. 151, C.P.C. are discretionary. In considering the question of propriety in invoking the power, the court should take into account several matters, some of which are the complexity of the question involved, availability of a more complete and efficacious remedy by means of a suit and the apparent justice of the claim. These are not exhaustive but merely illustrative. They would vary according to the facts and circumstances of each case. No hard and fast rule can be laid down.
Where the averments in the application did not make out a case as to how the exercise of the inherent power of the court was necessary for the ends of justice or to prevent abuse of the process of the court and the applicant did not come to the court with clean hands and had suppressed the facts and the case involved complexity of facts and the justice of the claim was adverse to the applicant, it was held that there was no case for the exercise of inherent powers in favour of the applicant.
Judge to transfer the suit to the court of II Additional Civil Judge, Kanpur, where the release application under S. 21 of U.P. Act No. XIII of 1972, was pending, was not maintainable. The civil court trying the rent case as a Prescribed Authority being not a civil court while it being a civil court in respect of the suit, it cannot consolidate rent case with the civil suit.
The Prescribed Authority is not a court, much less an ordinary court of civil jurisdiction which the II Additional Civil Judge is in respect of the civil suit. The two actions fall under two different jurisdictions.
The II Additional Civil Judge trying the rent case as a Prescribed Authority being not a civil court while he being a civil court in respect of the suit, he could not consolidate the rent case with the civil suit. The two proceedings, besides falling under two different jurisdictions, further did not appear to be of a like nature. They may be civil proceedings but their nature was different.
In Chandrapal Singh v. Maharaj Singh, the Supreme Court held that the Rent Control Officer shall be deemed to be a civil court within the meaning of Ss. 345 and 346 of the Code of Criminal Procedure, 1973, and in view of sub-section (2) of S. 34 of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, shall be a civil court for the purpose of S. 193, I.P.C.
Padam Sen v. The State of Uttar Pradesh:
It has beer; held by their lordships of the Supreme Court in Padam Sen v. The State of Uttar Pradesh, that the inherent powers of the court are in addition to the powers specifically conferred on the court by the Code.
They are complementary to those powers and therefore it must be held that the court is free to exercise them for the purposes mentioned in S. 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.
Discretionary powers:
The inherent powers exercised under S. 151, C.P.C. are discretionary. In considering the question of propriety in invoking the power, the court should take into account several matters, some of which are the complexity of the question involved, availability of a more complete and efficacious remedy by means of a suit and the apparent justice of the claim. These are not exhaustive but merely illustrative. They would vary according to the facts and circumstances of each case. No hard and fast rule can be laid down.
Where the averments in the application did not make out a case as to how the exercise of the inherent power of the court was necessary for the ends of justice or to prevent abuse of the process of the court and the applicant did not come to the court with clean hands and had suppressed the facts and the case involved complexity of facts and the justice of the claim was adverse to the applicant, it was held that there was no case for the exercise of inherent powers in favour of the applicant.
Where the possession has been taken forcibly by a landlord/defendant during the pendency of the proceedings, i.e., when the application for temporary injunction restraining landlord/defendants from interfering with possession is dismissed by the trial court and before filing the appeal, even though S. 144 of the Code of Civil Procedure may not strictly apply, the court in exercise of its inherent jurisdiction under S. 151 can grant restitution. ‘By invoking the inherent jurisdiction the Court would be justified to do justice and put back the parties in the same position in which they were, but for the order of the trial court.
The Court has power and jurisdiction under section 151 of the Code to grant police help to implement its order of injunction.
The defendant had filed an application under S. 151, C.P.C. He had not filed an application for punishing the petitioner for disobedience of breach of injunction order under Order XXXIX, Rule 2-A, C.P.C. The court had jurisdiction to pass suitable order to maintain status quo ante in the interest of justice.
The Court has inherent power to restore status quo ante after taking into consideration the conduct of the parties in the suit. It is not conferred only when specific order is disobeyed by a party during the pendency of the suit.
The exercise of inherent power vested in a court is based on the principle that no party can be allowed to take advantage of his own wrong in spite of the order to the contrary passed by the Court.
It has been held in the case of Arjun Singh v. Mohindra Kumar, that inherent powers of the Court cannot override the express provision of law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked.
Executing court can use inherent powers:
It is settled law that power of a court to direct restitution is inherent in the court itself. It is the fundamental principle that a court of justice is under a duty to repair the injury done to a party by its act. The executing court can therefore grant restitution under its inherent powers.
A court has got jurisdiction to recall an order which it has made earlier in the suit. A court always has power to recall the order which has the effect of perpetrating an injustice on a party. It is open to the court to reconsider its order refusing to grant further time to the plaintiff to make good the deficiency which was made on the assumption that the plaintiff’s illness was not genuine.
It can recall its order when it found that the order had been made in the absence of materials on the record, materials which were subsequently put before the court. Once that order is withdrawn by the court then the order rejecting the plaint automatically fails.
An order passed in a proceeding contrary to law could be corrected by the same court after discovery that the order was passed by mistake of the court. For a court which desires to do justice by correcting its own mistakes it is not always necessary that the order to be corrected must be a nullity.
There is no specific provision in the Code enabling the court to recall an earlier order which is the result of mistake committed by court. Even otherwise and apart from the provisions of S. 151, C.P.C., every court of record has got inherent powers to correct its own mistakes.
In the case of Jang Singh v. Brij Lai, Mr. Justice Hidayatullah of the Supreme Court of India said: “There is no higher principle for the guidance of the court than the one that no act of court should harm a litigant and it is the bounden duty of courts to see that if a person is harmed by a mistake of the court, he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim ‘Acfus curiae neminem gravabit’.
Limitations:
The limitations of the inherent power may be noted, In the first place, the court has no inherent power to do what is prohibited by the Code so as to defeat a statutory provision of the law of the land. Section 151, C.P.C. does not invest the court with jurisdiction over matters which are excluded from its cognizance.
Thus no appeal can be allowed from a non-appealable order. Similarly, when once a judgment is signed it cannot be altered or added to save as provided by S. 152 or on review. In the same way an ex parte decree cannot be set aside when no case has been made out within the meaning of Order IX, Rule 13 of the Code.
In the second place, the inherent power is not to be exercised where the applicant has remedy provided elsewhere in the Code but has neglected to avail himself of it.
In the third place, the inherent power must not be exercised so as to come in conflict with the general principles of law. The court cannot entertain a suit arising in a place where it has no jurisdiction, nor can it acting under S. 151 recall its own previous order or hear appeal from its own judgment except as provided in order to cure a legal defect.
In the fourth place, the inherent powers of the court should not be invoked to circumvent the mandatory provisions of the Code of Civil Procedure. Independently of the provisions of Order IX, Rule 13 of the Code of Civil Procedure, under which provision an application for setting aside an ex parte decree has to be made, the court is not entitled to set aside an ex parte decree under its inherent powers.
In the fifth place, the inherent power vested in the court is discretionary. The mere fact that there is remedy will not attract the provisions of S. 151, C.P.C., unless it is necessary for the ends of justice or to prevent abuse of the process of the court.
In the sixth place, in exercising jurisdiction under its inherent powers, the court is influenced by the justice of the case in favour of the party who invokes its aid. Where the party has been guilty of laches or has been negligent in prosecuting his remedy, a court of law would be most reluctant to exercise its inherent powers in his favour. Equity aids the vigilant and not the indolent.
Lastly, if there be specific provision in the Code, which would meet the necessities of the case, inherent powers cannot be invoked.
The court is not to invoke its inherent powers under S. 151 for the purpose of impleading the legal representatives of the deceased respondent if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application for setting aside the abatement is not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time.
It is not permissible to invoke the inherent jurisdiction of the court as defined by S. 151 in cases where the applicant has his remedy provided elsewhere in the Code and has neglected to avail himself of it. So also the inherent jurisdiction vested in courts is to be exercised only to further the ends of justice and not to create complication in a cause by introducing matters, the adjudication of which may be impossible without reception of additional evidence.
The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its existence is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code.
Under the inherent power of courts recognised by S. 151, C.P.C., a court has not power to do that which is prohibited by the Code. Inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case such provisions should be followed and inherent jurisdiction should not be invoked.
In other words, the Court cannot make use of the special provisions of S. 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglects to avail himself of the same. Further, the power under S. 151 of the Code cannot be exercised as an appellate power.
Where a compromise decree was challenged and S. 151, C.P.C. was invoked on the ground that the compromise decree was defective as the parties did not sign the compromise or that the terms of the compromise were vague or uncertain, it was held that the petition invoking inherent powers under S. 151 was not maintainable and the proper remedy is to prefer an appeal.
Even where a superior court issues a stay order, if the decree is executed before the stay order of the superior court reaches the original court, the stay order becomes inoperative. The same principle will apply in respect of the order passed by the same court regarding stay where decree for delivery of the possession is clearly executed. In such a case no inherent jurisdiction is vested in the trial court to restore the possession of land already given to the decree-holder.
It is true that there is no specific provision from which it can be gathered that compulsion can be exercised against a person to produce documents. Such power, however, cannot be said to be absent with the court. Section 151 is the reservoir of that power where under inherent powers can be exercised by the court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the court.
Obviously, in order to exercise inherent powers, facts and circumstances of each case would have to be seen by the court if it comes to the view that a person purposely, contumaciously and maliciously was withholding documents required to be produced by it. There is no reason why the civil court cannot in that situation to further the object of Ss. 30 and 32, Civil Procedure Code, exercise the inherent powers under S. 151, C.P.C.
Sometimes it does happen that an application is filed under a particular provision of a statute and it is found to be not maintainable there under or the Court or Tribunal has no power to grant the relief asked for there under but the said application is maintainable under some other provision of the statute before the same Court or Tribunal and it has power to grant the relief asked for, it is in such cases that it has always been held that the “label” or the “nomenclature” of the application or petition should not matter and after seeing the substance or contents of the application, if it is possible to grant the relief under some other provision of the statute, such a relief should not be denied to a party.
Such recourse can be taken only when it is found that the relief asked for cannot be granted under the provisions under which the jurisdiction of the Court or Tribunal is invoked, much less when the result would be to deprive the party of a right of appeal provided against the order passed under such a provision.
Recall of Ex parte Order:
It is also true that there is no express provision in the Civil Procedure Code for recalling the order under section 115, C.P.C., and in such circumstances the court has to pass the order according to justice, equity and good conscience, especially in India, where every court is a court of equity as well as of law.
In this connection reference may be made to the case of Narsingh, Das v. Mangal Dubey, where it was held that “The courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but the converse principle is to be understood as permissible till it is shown to be prohibited by law. As a matter of general principle prohibitions cannot be presumed.”
Section 151 of the Code of Civil Procedure is an enabling section. It was not possible for the legislature to cover each and every case which may come up before a court for consideration and it is for that purpose to enable the court to cover cases that this enabling provision was put in the Code.
There may be cases where the ex parte disposal of an application may result in substantial injustice to a party. The Court in such circumstances should not fail to exercise its power to restore such case to their original position and then dispose the same according to merits upon hearing both sides.
Since no party can suffer for mis-demeanour or laches of his counsel, as laid down in the decision reported in A.I.R. 1981 SC. 1400, the Court observed that substantial injustice would be caused to the petitioner/defendant if they are not allowed to make their submissions in the revisional application. Application for recalling the ex parte order was allowed and the ex parte order was accordingly recalled and the revisional application was restored to file.
Interim orders:
Interim orders are granted by the Court as they are necessary to protect the interest of the petitioner till the rights are finally adjudicated upon. Even where it is not provided in the statute the Supreme Court has held that the courts have inherent power to grant it. In admission matters, however, such orders obtained once create vested interest of avoiding final adjudication to enable the student to complete the course and then invoke sympathy of the court.
The Supreme Court has emphasised in several decisions that passing of interim orders—more particularly of a mandatory nature is neither a matter of course nor a matter of charity. The power to grant interim orders is coupled with the duty to consider all the relevant facts and legal principles relevant in that behalf. Admission to educational institutions should not be granted by interim orders at any rate, not without fully hearing the respondents.
Appeal:
No appeal lies from an order passed by a court in the exercise of its inherent jurisdiction under S. 151, C.P.C., and the remedy of the aggrieved party is to move the High Court direct to exercise its revisional jurisdiction under the provisions of S. 115, C.P.C.
Consequently, there is no appeal against an order of remand passed under S. 151, C.P.C. It has, however, been held that where the discretion permitted under S. 151 is used to enlarge a provision of procedural law under any section or order of the Code, the matter is appealable.
An order of remand under S. 151, C.P.C. is appealable only when it amounts to a decree. Where the order of remand merely sets aside the decree of the trial court and does not itself decide any of the points raised for determination and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it cannot amount to a decree and must be treated as an order.
The mere fact that the order reverses the decree of the trial court and deprives a party of the valuable right it had acquired there under would not make an order of remand a ‘decree’, unless that order itself determines any of the points arising for determination in regard to the matters in controversy in the suit.
The definition of the ‘decree’ indicates that it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. The mere fact that the decree of the trial court has been set aside would not thus make the order of remand a decree and appealable as such.
To state otherwise, there is no final adjudication by the appellate court of the rights of the parties by the order of remand. Therefore, it cannot be treated as a decree. The order indicates that pursuant to the remand, the trial court must proceed to determine the suit.
Thus, the determination of the suit is yet to come and that depends upon the adjudication by the trial court. Such adjudication consequent on the remand would result in the decree. In such circumstances, a second appeal could not lie from an order of remand of the High Court. The only remedy which was open to the petitioner was to approach the High Court by a revisional application.
Recalling of order of settlement:
Simply because public notice of claim was not served in affected locality, an order of settlement cannot be set aside, as omission to serve notice is an ordinary irregularity and no violation of any mandatory provision.
