2022 LiveLaw (SC) 698

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
N.V. RAMANA; CJI., KRISHNA MURARI; J., HIMA KOHLI; J.
AUGUST 23, 2022
CIVIL APPEAL NO. 5784 OF 2022 (@ S.L.P (CIVIL) NO. 7015/2022)
MY PALACE MUTUALLY AIDED CO-OPERATIVE SOCIETY versus B. MAHESH & ORS.
Code of Civil Procedure, 1908; Section 151 - Section 151 of the CPC can only be
applicable if there is no alternate remedy available in accordance with the existing
provisions of law - It cannot be said that the civil courts can exercise substantive
jurisdiction to unsettle already decided issues. A Court having jurisdiction over
the relevant subject matter has the power to decide and may come either to a right
or a wrong conclusion. Even if a wrong conclusion is arrived at or an incorrect
decree is passed by the jurisdictional court, the same is binding on the parties
until it is set aside by an appellate court or through other remedies provided in law
- Such inherent power cannot override statutory prohibitions or create remedies
which are not contemplated under the Code. Section 151 cannot be invoked as an
alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find
solace in Section 151 to allege and rectify historic wrongs and bypass procedural
safeguards inbuilt in the CPC. (Para 26-28)
Code of Civil Procedure, 1908; Sections 96-100 - Any aggrieved party can prefer
an appeal with the leave of the Court - A person who is affected by a judgment but
is not a party to the suit, can prefer an appeal with the leave of the Court. The sine
qua non for filing an appeal by a third party is that he must have been affected by
reason of the judgment and decree which is sought to be impugned. (Para 29-31)
Practice and Procedure - Judge who passed the impugned order had represented
one of the opposite parties in certain collateral proceedings related to the subject
property - Not only must justice be done; it must also be seen to be done" - In the
present circumstances, it may have been more apposite for the concerned Judge
to have recused from this case - The appellant should have brought it to the notice
of the learned senior Judge at the very first instance, and not at this belated stage.
(Para 38-39)
(Arising out of impugned final judgment and order dated 21-09-2021 in IA No. 5/2020 passed by the
High Court for the State of Telangana at Hyderabad)
For Petitioner(s) Mr. Maninder Singh, Sr. Adv. Mr. Kumar Shashank, Adv. Mr. Nivesh Kumar, Adv.
Ms. Suditi Singh, Adv. Mr. Piyush Tonk, Adv. Ms. Ritika Sethi, Adv. Mr. Vishal Prasad, AOR
For Respondent(s) Mr. Purvish Jitendra Malkan, AOR Mr. Alok Kumar, Adv. Mrs. Dharita P. Malkan,
Adv. Ms. Nandini Chhabra, Adv. Mr. V. Giri, Sr. Adv. Mr. V. Seshagiri, Adv. Mr. Ashu Pathak, Adv.
Mrs. Bela Maheshwari, AOR
JUDGMENT
N.V. Ramana, CJI
1. Leave granted.

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2. The present Civil Appeal has been filed by the appellant against impugned final
judgment and order dated 21.09.2021, passed by the High Court of Telangana in
Interlocutory Application No. 5/2020 in Application No. 837/2013 in CS No. 7/1958.
3. The brief facts of this case necessary for the disposal of the appeal are as follows:
the present dispute relates to Sy. No. 57 (Old [Link]. 274) in Shamsguda Village, Ranga
Reddy District, Telangana forming part of S. No. 252 of the list of Mukthas in the
preliminary decree dated 06.04.1959 by the erstwhile High Court of Andhra Pradesh in
CS No. 7/1958.
4. The underlying original suit was filed in 1953 before the City Civil Court, Hyderabad
by one Smt. Sultana Jahan Begum, the daughter of Nawab Moinuddowla Bahadur. The
plaintiff was seeking partition of properties of the Nawab known as ‘Asman Jahi Paigah’.
This suit was ultimately transferred to the file of the High Court numbered as C.S. No.
7/1958. The suit along with certain applications were disposed of by a
preliminary-cum-final decree dated 06.04.1959 passed by the learned Judge of the High
Court of Andhra Pradesh. The judgment recorded that the plaintiff withdraws the suit
against defendant Nos. 27 to 49. It also recorded that a compromise was affected
amongst some of the defendants. The litigation relating to this original suit subsequently
enters a complicated phase, wherein several different parallel proceedings take place.
Suffice to state, that even after 60 years, the issues in the same are not settled.
5. It is the say of the present appellant that they acquired the property in Sy. No. 57
of Shamsguda Village under an Assignment Deed dated 16.09.2000 executed by the
earlier predecessor-in-interest under the preliminary decree. The
predecessors-in-interest had also executed a Conveyance Deed dated 03.08.2003 in
favour of the appellant, conveying the schedule property with specific boundaries. As the
earlier Assignment Deed dated 16.09.2000 and Conveyance Deed dated 03.08.2003
were unregistered documents, the predecessors-in-interest also executed a registered
document in favour of the appellant, namely a ‘Deed of Declaration/ Confirmation’ dated
12.08.2011.
6. On the above basis, an application (No. 837/2013) was filed in C.S. No. 7/1958 by
the appellant herein along with a party (not before us) for passing a final decree in their
favour in respect of property measuring Acs 92.56 cts. and Acs. 27.00 gts land in Sy. No.
57 of Shamsguda Village, Balanagar Mandal, Ranga Reddy District. A further prayer was
made for a direction to deliver the physical possession of the said properties.
7. The learned Single Judge of the High Court of Andhra Pradesh allowed the said
Application in part vide final decree dated 19.09.2013 as sought by the appellant, and
granted a declaration that they are the absolute owners of Acs. 92.56 cts in Sy. No. 57
of Shamsguda Village.
8. The State of Andhra Pradesh challenged the said order in OSA SR No. 3744 of
2014. After formation of the State of Telangana on the bifurcation of the composite State
of Andhra Pradesh, the State of Telangana filed IA No. 2 of 2016 seeking condonation
of delay of 182 days in filing the Appeal. Responding to the said IA, the appellant stated
that the delay in filing of the Appeal is much longer, amounting to 729 days. Thereafter,

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I.A. No. 2 of 2017 was filed by the State of Telangana to condone a delay of 913 days in
filing the Appeal.
9. By order dated 22.12.2020, the Division bench of the High Court of Telangana
dismissed the two applications for condonation of delay in filing the appeal, being I.A.
No. 2 of 2016 and I.A. No. 2 of 2017. As a consequence of the same, the State of
Telangana’s appeal, OSA SR No. 3744 of 2014 was dismissed.
10. In these circumstances, after lapse of nearly 7 years since the final decree was
granted in favor of the appellant herein, the respondents herein filed 6 IAs (in Application
837/2013 in CS No. 7/1958) before the High Court of Telangana in 2020. The details of
the applications are as follows:

I.A No. Prayer

1/2020 To grant leave to the respondents to file implead petition in the

above-mentioned application.

2/2020 To dispense with the filing of a neatly typed copy of material papers in
application filed in the abovementioned application

3/2020 To allow impleadment

4/2020 To allow impleadment.

5/2020 To recall the order dated 19.09.2013 passed in the above-mentioned

application and to set aside and pass such other order or orders as deemed
fit and proper in the circumstances of the case

6/2020 To direct the appellant to not to alienate, not to interfere, not to change
peaceful possession, not register any documents in scheduled property in Sy
No.57 and any subdivision numbers in Sy No 57 of Shamsguda in the
above-mentioned application.

11. A Division Bench of the High Court of Telangana vide order dated 05.01.2021,
allowed IA No. 1/2021 preferred by the respondents and granted them leave to file the
application recalling the final decree dated 19.09.2013, passed by the learned Single
Judge of the High Court in Application No. 837/2013 in C.S No. 7/1958.
12. The aforesaid order was challenged before this Court in an earlier Special Leave
Petition, being SLP(C) No. 8025/2021. This Court, by order dated 06.07.2021, dismissed
the said petition and gave the parties liberty to raise all objections when the substantial
application for recalling the final decree was being heard.
13. After hearing the submissions of the parties, the Division Bench of the High Court
in I.A No. 5/2020 in Application No. 837 of 2013 in CS No. 7 of 1958, passed the
impugned order dated 21.09.2021, allowing the recall of the final decree dated
19.09.2013.

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14. One of the primary objections taken by the appellant herein before the Division
Bench of the High Court related to the fact that the senior member of the Bench hearing
the recall application was presiding over the Bench which had heard and dismissed the
appeal filed by the State of Telangana against the same final decree dated 19.09.2013.
On this issue, the Division Bench held that the earlier appeal filed by the State of
Telangana had been dismissed as a consequence of the dismissal of the application for
condonation of delay in filing the appeal filed by the State. There was no discussion on
the merits of the matter, particularly the claim of the appellant. Further, the Division Bench
held that as per the roster prepared by the Hon’ble Chief Justice of the High Court of
Telangana, all matters arising out of C.S. No. 7 of 1958 were placed before it. As such,
the Division Bench held that there were no strong reasons put forth by the appellant for
the said member of the Bench to recuse from the hearing of the present matter.
15. The High Court, on merits, held that the appellant had obtained the final decree
dated 19.09.2013 by suppressing certain information and by exercising its powers under
Section 151, Code of Civil Procedure, 1908 (“CPC”), has recalled its earlier final decree
dated 19.09.2013. At the same time, the High Court clarified that recalling of the order
would not enure to the benefit of the State of Telangana, whose appeal had already been
dismissed, or the respondents, who would have to establish their right, title and interest
in the subject property in appropriate proceedings.
16. Aggrieved by the impugned judgment of the High Court recalling the final decree
dated 19.09.2013, the appellant has approached this Court by way of the present Civil
Appeal.
17. It is appropriate to mention here that the State of Telangana, despite dismissal of
its appeal in 2020, and the specific observations of the High Court in the impugned order,
initially filed an impleadment application, being IA No. 98965/2022, in the present Civil
Appeal. This Court dismissed the abovementioned application for impleadment vide
order dated 22.07.2022.
18. The State of Telangana also filed separate Special Leave Petitions challenging the
present impugned order dated 22.12.2020, as well and the earlier order dated
22.12.2020 dismissing their intra court appeal [SLP (C) No. 13453 of 2022 and SLP (C)
No. 13454- 13456 of 2022]. These Special Leave Petitions were heard on 01.08.2022 by
this Court and were dismissed in light of the observations made by the High Court in
paragraph 116 of the impugned order. In any case, the claim of the State over the
scheduled property is not sufficiently supported by any documentary evidence.
19. Dr. A. M. Singhvi, learned Senior Counsel appearing on behalf of the appellant,
submitted as follows:
(i) No recall application could have been filed by the respondents. Their only remedy
was a separate civil suit for declaration of title.
(ii) The preliminary decree in the matter was passed on 06.04.1959 and the final
decree in favour of the appellant was passed on 19.09.2013. The appeal preferred by
the State of Telangana challenging the final decree was dismissed by the High Court on
22.12.2020. The respondents’ application for recall of final decree, in which the impugned
order has been passed, was filed before the High Court on 16.12.2020, raising issues of
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fraud for the first time. The High Court ought to have dismissed the application for recall
on the grounds of delay.
(iii)A reading of the impugned order shows that the survey numbers claimed by the
respondents are distinct from those claimed by the appellant.
(iv) The Senior Judge heading the Division Bench, Justice M.S. Rama Chander Rao
who passed the impugned judgment appeared on behalf of one of the parties who were
claiming possession in parallel proceedings relating to the subject property, which party
had also filed an FIR against the appellant herein.
(v) The respondents alleged fraud on the basis of non-disclosure of certain orders
passed against the appellant. The first such order is of 10.06.2003, whereby the High
Court set aside recognition of the assignment deed in favor of the appellant. The second
order is of 26.08.2013, passed in injunction proceedings preferred by the appellant
against the revenue authorities. However, both these orders were passed at a time when
the assignment deed in favour of the appellant was unregistered. At the time when final
decree was passed in 2013 the appellant had a registered assignment deed in their
favour with respect to the subject property. The earlier orders are therefore not relevant.
(vi) The fact that the subject property had certain proceedings pending against it was
recorded in the preliminary decree, and the same was in the notice of the learned Single
Judge at the time of passing of the final decree in 2013. No fraud can be alleged on this
ground by the respondents.
20. Mr. Dushyant Dave, learned Senior Counsel also appearing on behalf of the
appellant, submitted as follows:
(i) After the final decree was passed on 19.09.2013, the respondents, who are rank
outsiders to the proceedings, filed the application for recall only in 2020. The respondents
have neither provided an explanation as to the delay, nor have they filed any application
for condonation of delay.
(ii) The affidavit supporting the application for recall was filed by power of attorney
holders. The person who signs the affidavit must have personal knowledge of the facts.
Without such personal knowledge, such an affidavit could not have been filed.
(iii) The present litigation is nothing but a proxy litigation. Unrelated third parties are
seeking to interfere in the present matter as the value of the subject property is very high.
(iv) The allegations of fraud were never taken before any forum until the impugned
recall application before the High Court. Such plea taken by the third party without any
supporting documents cannot be raised at a belated stage.
(v) Once the State’s appeal against the final decree was dismissed on grounds of
delay, the respondents’ recall application should have been similarly dismissed.
21. Mr. C. S. Sundaram, learned Senior Counsel appearing on behalf of respondent
No. 1, submitted as follows:
(i) respondent No.1 is claiming through the original pattedar of the property. The recall
applications were filed soon after his possession over the property was sought to be
disturbed. Therefore, the question of delay does not arise.
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(ii) The preliminary decree indicates that the title to the suit property was conditional.
The respondents’ claim was upheld in the Atiyat Court, which was not shown before the
learned Single Judge at the time of passing of the final decree on 19.09.2013.
(iii) Respondents had also filed another application seeking leave to file the recall
application, which was allowed by the High Court on 05.01.2021. The Special Leave
Petition against the same was dismissed by this Court on 06.07.2021 and, as such, the
locus of the parties to file recall application cannot be questioned at this stage.
(iv) The Court always has the power to recall its order, if such an order was obtained
by playing fraud upon the Court.
(v) Ultimately, the impugned order does not decide the title of the parties. The parties
have been relegated to file a civil suit to decide title. The appellant may exercise its right
and do the same.
22. Mr. V. Giri, learned Senior Counsel appearing on behalf of the respondents no. 3
to 8, submitted as follows:
(i) The preliminary decree was a conditional decree as it was subject to pending
Revenue Court proceedings.
(ii) The respondents are the pattedars of the property who were owners in possession.
(iii) The appellant’s earlier application seeking delivery of the property on the basis of
assignment deed was remanded to the Single Judge and subsequently dismissed for
non-prosecution as it was not pressed. They abandoned their original application.
Additionally, the civil suit filed by the appellant for injunction in 2007 was also dismissed.
(iv) None of these facts and findings against the appellant were disclosed by them in
2013 when the final decree was sought. It is a clear case of fraud on the Court.
(v) In any event, no final decree could have been passed on the assignment deed as
no order for partition of property was ever passed.
(vi) These points moved the learned Division Bench in allowing the recall application
filed by the respondents. The impugned order therefore, merits no interference by this
Court.
23. Mr. Yatin Oza, learned Senior Counsel appearing on behalf of the respondent no.
4, submitted as follows:
(i) The conduct of the appellant is clear for all to see. They committed fraud on the
Court to have the final decree dated 19.9.2013 passed in their favour by supressing
judgement of Nazim Atiyat.
(ii) The fundamental principle of equity is that the parties must come to Court with
clean hands. In the present case, this Court should not show any indulgence to the
appellant by interfering with the well-reasoned impugned judgment of the High Court
under Article 136 of the Constitution.
24. We have heard the learned Senior counsel on either side, perused the entire
material on record. Though several grounds have been raised, the first ground taken is
that the High Court erred in exercising jurisdiction under Section 151 of the CPC, when
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alternate remedies exist under the CPC. Second ground is that the Senior Judge on the
Bench, who appeared for one of the parties, ought not to have heard the matter.
25. In response to the first leg of challenge, i.e., on the procedural aspect, we may
note that the recall application was filed under Section 151 of the CPC against the final
decree dated 19.09.2013. It is in this context that we must ascertain whether a third party
to a final decree can be allowed to file such applications, by invoking the inherent powers
of the Court under Section 151 of the CPC.
26. Section 151 of the CPC provides for Civil Courts to invoke their inherent jurisdiction
and utilize the same to meet the ends of justice or to prevent abuse of process. Although
such a provision is worded broadly, this Court has tempered the provision to limit its ambit
to only those circumstances where certain procedural gaps exist, to ensure that
substantive justice is not obliterated by hyper technicalities. As far back as in 1961, this
Court in Padam Sen v. State of U.P., AIR 1961 SC 218, observed as under:
“8. …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 Section
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 recognized 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.”
(emphasis supplied)
27. In exercising powers under Section 151 of the CPC, it cannot be said that the civil
courts can exercise substantive jurisdiction to unsettle already decided issues. A Court
having jurisdiction over the relevant subject matter has the power to decide and may
come either to a right or a wrong conclusion. Even if a wrong conclusion is arrived at or
an incorrect decree is passed by the jurisdictional court, the same is binding on the
parties until it is set aside by an appellate court or through other remedies provided in
law.
28. Section 151 of the CPC can only be applicable if there is no alternate remedy
available in accordance with the existing provisions of law. Such inherent power cannot
override statutory prohibitions or create remedies which are not contemplated under the
Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals,
revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify
historic wrongs and bypass procedural safeguards inbuilt in the CPC.
29. The respondents in the present case had access to recourse under Section 96 of
the CPC, which allows for appeals from an original decree. It must be remembered that
the present matter was being heard by the High Court exercising its original jurisdiction.
The High Court was in effect conducting a trial, and the final decree passed by the High
Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a
right of appeal under Section 96 of the CPC, for the respondents. Though they were not
parties to the suit, they could have filed an appeal with the leave of the Court as an
affected party. Section 96 of the CPC reads as under:

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96. Appeal from original decree .-(1) Save where otherwise expressly provided in the
body of this Code or by any other law for the time being in force, an appeal shall lie from
every decree passed by any Court exercising original jurisdiction to the Court authorized
to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passedex parte.
(3) No appeal shall lie from a decree passed by theCourt with the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed [ten thousand rupees.]
30. Sections 96 to 100 of CPC deals with the procedure for filing appeals from original
decrees. A perusal of the above provision makes it clear that the provisions are silent
about the category of persons who can prefer an appeal. But it is well settled legal
position that a person who is affected by a judgment but is not a party to the suit, can
prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a
third party is that he must have been affected by reason of the judgment and decree
which is sought to be impugned.
31. In the light of the above, it can be safely concluded any aggrieved party can prefer
an appeal with the leave of the Court.
32. The High Court, in the impugned judgment, relied on the judgment of this Court in
Indian Bank vs Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550, wherein this Court
acknowledges the possibility of maintaining a recall application against a judgement if it
is obtained by fraud on the Court. However, it went on to hold that in cases of fraud, the
Court may direct the affected party to file a separate suit for setting aside the decree
obtained by fraud. The Court held as follows:
“22. The judiciary in India also possesses inherent power, specially under Section 151
CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud
on a party to the suit or proceedings, the court may direct the affected party to file a
separate suit for setting aside the decree obtained by fraud…”
33. The subsequent judgment of this Court in Ram Prakash Agarwal v. Gopi
Krishan, (2013) 11 SCC 296 further clarifies the law on the use of the power under
Section 151 of the CPC by the Court in cases of fraud and holds as follows:
“13. Section 151 CPC is not a substantive provision that confers the right to get any relief
of any kind. It is a mere procedural provision which enables a party to have the
proceedings of a pending suit conducted in a manner that is consistent with justice and
equity. The court can do justice between the parties before it. Similarly, inherent powers
cannot be used to re-open settled matters. The inherent powers of the Court must, to
that extent, be regarded as abrogated by the legislature. A provision barring the exercise
of inherent power need not be express, it may even be implied. Inherent power cannot
be used to restrain the execution of a decree at the instance of one who was not a party
to suit. Such power is absolutely essential for securing the ends of justice, and to
overcome the failure of justice. The Court under Section 151 CPC may adopt any
procedure to do justice, unless the same is expressly prohibited.
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xxx
19. In view of the above, the law on this issue stands crystallised to the effect that
the inherent powers enshrined under Section 151 CPC can be exercised only
where no remedy has been provided for in any other provision of CPC. In the event
that a party has obtained a decree or order by playing a fraud upon the court, or where
an order has been passed by a mistake of the court, the court may be justified in rectifying
such mistake, either by recalling the said order, or by passing any other appropriate
order. However, inherent powers cannot be used in conflict of any other existing
provision, or in case a remedy has been provided for by any other provision of
CPC. Moreover, in the event that a fraud has been played upon a party, the same
may not be a case where inherent powers can be exercised.”
(emphasis supplied)
34. The High Court, relying upon the above judgments of this Court which recognizes
the power to recall, seems to have lost sight of the restrictions imposed while exercising
jurisdiction under Section 151 of the CPC, which were elaborately discussed by this Court
in the above referred judgment about exercising of the power under Section 151 of the
CPC being only in circumstances where alternate remedies do not exist.
35. Therefore, we are of the firm opinion that recalling a final decree in such
circumstances cannot be countenanced under Section 151 of the CPC. The High Court
erred in exercising its jurisdiction under Section 151 of the CPC, to hear and pass a
detailed judgment recalling its earlier final decree dated 19.09.2013, rather than directing
the respondents to pursue the effective alternate remedies under law. Having said the
above, we must clarify that we are not, in any way, doubting the proposition of law that
fraud nullifies all proceedings, or that the Court has power to recall an order which was
passed due to a fraud played on the Court. However, while exercising the power under
Section 151 CPC for setting aside the final judgment and decree, the Division Bench
should have taken into consideration the restriction which was observed by this Court in
the captioned judgment. Once we have come to the irresistible conclusion that exercising
power under Section 151 CPC in the facts and circumstances of the case is bad, we are
not inclined to go into further issues that were extensively argued.
36. The other ground that the learned senior judge who passed the present impugned
order had represented one of the opposite parties in certain collateral proceedings
related to the subject property, merits some discussion. It appears that although the
appellant raised this ground before us, it was neither raised before the High Court nor
brought to the attention of the learned senior Judge. The party ought to have raised this
issue also at the time of arguments, particularly when the issue of recusal of the learned
Judge had been specifically raised on the other ground that he had been the presiding
member of the Bench which had dismissed the appeal filed by the State.
37. When an issue was not raised before the learned Division Bench, we do not wish
to spill much ink on this issue. However, the material placed on record by the counsel for
the appellant cannot be ignored. Annexure P8 of the appeal paper book indicates that
the Senior Judge heading the Division Bench, while being an advocate, had represented

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the Andhra Pradesh State Financial Corporation in one of the connected proceedings
related to this case.
38. Although we have no doubt in our mind about the absence of bias of any form of
the learned senior Judge, we must at the same time also look at the issue of whether
right minded persons could consider there exists any real likelihood of bias. In the case
of State of West Bengal v. Shivananda Pathak, 1998 5 SCC 513, this Court held as
under:
“34. In Metropolitan Properties Co. v. Lannon [(1968) 1 WLR 815 : (1968) 1 All ER 354]
it was observed “whether there was a real likelihood of bias or not has to be ascertained
with reference to right-minded persons; whether they would consider that there was a
real likelihood of bias”. Almost the same test has also been applied here in an old
decision, namely, in Manak Lal v. Dr Prem Chand Singhvi [AIR 1957 SC 425 : 1957 SCR
575] . In that case, although the Court found that the Chairman of the Bar Council
Tribunal appointed by the Chief Justice of the Rajasthan High Court to enquire into
the misconduct of Manak Lal, an advocate, on the complaint of one Prem Chand
was not biased towards him, it was held that he should not have presided over the
proceedings to give effect to the salutary principle that justice should not only be
done, it should also be seen to be done in view of the fact that the Chairman, who,
undoubtedly, was a Senior Advocate and an ex-Advocate General, had, at one time,
represented Prem Chand in some case. These principles have had their evolution in the
field of administrative law but the courts performing judicial functions only cannot be
excepted from the rule of bias as the Presiding Officers of the court have to hear and
decide contentious issues with an unbiased mind. The maxim nemo debet esse judex in
propria sua causa and the principle “justice should not only be done but should manifestly
be seen to be done” can be legitimately invoked in their cases.”
(emphasis supplied)
39. It is a well-established principle, both in our jurisprudence and across the world,
that “[N]ot only must justice be done; it must also be seen to be done”.1 In the present
circumstances, it may have been more apposite for the concerned Judge to have recused
from this case. The appellant should have brought it to the notice of the learned senior
Judge at the very first instance, and not at this belated stage.
40. In the above circumstances, we are of the opinion that the High Court should not
have decided the recall application filed by the respondents, let alone pass such
extensive orders which has the effect of unsettling proceedings and transactions which
have a history of more than 60 years in a proceeding, basing on an application filed under
Section 151 of the CPC.
41. In view of the above, the appeal is allowed by setting aside the order dated
21.09.2021 passed in I.A No. 5/2020 in Application No. 837 of 2013 in CS No. 7 of 1958.

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1
R v. Sussex Justices, ex parte McCarthy, 1924 (1) KB 256.
10