The Single Bench of Justice Javed Iqbal Wani while dealing with a Petition filed against an order passed by Trial Court observed that “provisions of section 144 CPC have been held to be based on a well known maxim “Actus Curiae Neminem Gravabit” i.e. the act of the Court shall harm no one, suggesting that one of the first and highest duties of all the courts is to take that the act of the court does not give injury to the suiter. Thus, imposing an obligation on a party who had received a benefit of an order to restore to the other party for what that party has lost and it has been held that it is the duty of the court to enforce this communication”. 

The court was dealing with a petition in which the respondent had filed  suit for permanent prohibitory injunction alleging therein that his immovable property, being a residential house, is separated from the property/residential house of the defendants/petitioners by a boundary wall which boundary wall along with pillars of the gate got damaged due to heavy rains necessitating repairs and while undertaking repairs of the said wall and the pillars, the petitioners obstructed and objected the same necessitating the filing of the suit. The trial court upon entertaining the suit passed an ex parte interim order though allowed respondent to execute the repairs in the wall as also the pillars, but bound down the respondent not to raise the height of the said boundary wall which exists earlier. Before the date fixed in the case, the respondent filed an application for withdrawal of the suit and the trial court allowed the same and permitted the respondent herein to withdraw the suit. 

The petitioner being aggrieved by the withdrawal filed an application praying that in the exercise of powers under section 151 CPC the plaintiff be directed to restore the height of the wall to 6 feet as it existed on 22.09.2010, prior to the passing of order and demolish the additional brick lines laid from 6 feet to 10 feet at his own peril and cost; And in case of his failure to do so the restoration be got done and implemented through some other agency at the risk and cost of the plaintiff; Or any other relief or order which this Hon’ble Court deems fit and proper in nature and circumstance of the case be passed in favour of the defendants and against plaintiff including review of the order dated 05.10.2010. The Trial Court however dismissed the application. 

The High Court observed that, the defendants/petitioners herein though have had invoked the provisions of section 151 of the Code of Civil Procedure in the application wherein the impugned order has been passed, yet it can safely be said that under the provisions of section 151, the defendants/petitioners have had sought in essence the restitution of the proceedings/suit before the trial court. Even under the provisions of section 151, a court is vested with a power exercisable under section 144 for recalling of an order passed by it in case, the order inter alia has been obtained by playing a fraud or collusion has been used to obtain such an order. The Court as such while treating the revision petition as a petition under Article 227 of the Constitution of India allowed the petition and set aside the impugned order by holding that the trial court misdirected itself while considering the application and in the process proceeded to pass the impugned order, which per se is not only grossly misconceived, misdirected but also patently perverse.