Skip to main content

Dependent Order, doctrine of

2009 (1) SCC 240

In G. Ramegowda, Major and Others V/s. Special Land Acquisition Officer, Bangalore, 1988 2 SCC 142, this Court held:

"10. We might, perhaps, deal with the latter submission of Shri Veerappa first. The fact that the main appeals are themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called "dependent orders" and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals, would be rendered nugatory. The submission of Shri Veerappa is, therefore, insubstantial."

28 We are, however, not oblivious that the said proposition of law is not absolute, as has been noticed by a Division Bench of this Court in Ajay Bansal V/s. Anup Mehta, 2007 2 SCC 275, wherein it was held:

"14. A decree passed subsequent to the refusal of leave to defend could either be under Or. 37 R. 3(6) of the Code or it could be based on the affidavit evidence on the side of the plaintiff and the documents produced or even based on oral evidence formally proving, say, the execution of a promissory note by the defendant. It may not be proper or necessary to apply the theory of "dependent order" in such circumstances. For one, the theory may not apply. Even if this Court were to set aside the order of the court below and give the defendant leave to defend the suit, the decree that is passed may not go automatically. It may have to be set aside. Secondly, the defendant can always go to the court which passed the decree and move under R. 4 of Or. 37 of the Code to reopen the decree."

The doctrine, therefore, must be applied having regard to the fact situation obtaining in each case.


Sandeep Jalan

Advocate

Law Referencer: https://www.vakeelkanumber.com/



Comments

Popular posts from this blog

Fraud / Misleading the Courts

AIR 2007 SC 1546 Para 21:  Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal". Para 22:  It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. Para 23:  In the leading case of Lazarus Estates Ltd. V/s. Beasley, 1956 1 AllER 341, Lord Denning observed: "No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

Prescribed procedure must be followed

2015 (3) SCC 624 Para 22:  Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. ……..Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. Statutory law and processal law are two sides of the judicial drachma, each being the obverse of the other. In the case in hand, had the Tenant diligently filed an appeal against the decree at least in respect of O.S. 5/78, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all. 2014 (2) SCC 401 Para 34: There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention o

Arbitrariness

The act of “arbitrariness” may ordinarily mean, exercise of powers or exercise of discretion, according to one whims and personal choices, taking into considerations the irrelevant factors, not taking into considerations the factors which should have been considered whilst taking decisions or whilst acting, or acting in disregard of express statutory mandate or acting in disregard of legal principles or in disregard of any principle or logic, common sense or fairness. Arbitrariness is violence to common sense of a prudent man. When discretion is assumed absolute, man has always suffered. The Rule of law prohibits arbitrary action and also makes it liable to be invalidated. The expression “Rule of Law” may have varied dimensions, and the most apt explanation to this expression appears to be, “The People have an absolute / unqualified right to be Ruled / governed/ regulated by Law, and not by individual whims and fancies”. This is also in fact and precisely the mandate of Article 1