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The Maxim Actus Curiae Neminem Gravabit: An act of the Court shall prejudice no man

The Maxim "Actus Curiae Neminem Gravabit" means that nobody should be allowed to suffer for the fault of the court. This is an important Latin Maxim of Equity, which has wide application in the subordinate as well as higher judiciary of India.

This principle is considered fundamental in the Indian Judiciary and Jurisprudence. The maxim in simple words means that if any loss is suffered by a litigant due to the negligence of the Court, it becomes the duty of the Court to restore the matter as it would have been before the mistake of the Court.

It would be relevant to refer to Inderchand Jain (Dead) through LRs. Vs. Motilal (Dead) through LRs., (2009) 14 SCC 663, wherein the Apex Court observed that the said maxim is founded upon equity & justice and helpful in the administration of law. The Court observed thus:

"This well settled position need not detain us, when the second point urged by the appellants is focused. There can be no quarrel with the proposition as noted by the High Court that a party cannot be made to suffer on account of an act of the Court. There is a well recognised maxim of equity, namely, actus curiae neminem gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law."

The maxim of Actus Curiae Neminem Gravabit finds its application in the Section 152 of the Civil Procedure Code (CPC), according to which if there is any error due to the negligence on behalf of the Court, it must be rectified by the Court. It would be appropriate to refer to the Apex Court case in M/S. U.P.S.R.T.C vs Imtiaz Hussain (2006 )1 SCC 380, wherein the Court elucidated the maxim as the foundation of Section 152 of CPC and observed thus:

"The basis of the provision under Section 152 of the Code is founded on the maxim 'actus curiae neminem gravabit' i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law", said Cresswell J. in Freeman v. Tranah (12 C.B. 406). An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified.

In Master Construction Co. (P) Ltd. v. State of Orissa (AIR 1966 SC 1047) it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected.

To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case.

The maxim of equity, namely, actus curiae neminem gravabit an act of court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform.

The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987 (4) SCC 398), Gursharan Singh v. New Delhi Municipal Committee (1996 (2) SCC 459) and Mohammod Gazi v. State of M.P. and others (2000(4) SCC 342)."

It is appropriate to refer to Karnataka Rare Earth & Anr. v. Senior Geologist Department of Mines & Geology & Anr. 2004 (2) SCC 783, wherein the Apex Court laid down the scope/ambit of the said maxim thus:

"The doctrine of actus curiae neminem gravabit is not confined in its application only to such acts of the Court which are erroneous; the doctrine is applicable to all such acts as to which it can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted.

When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in only gaining an advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed.

The successful party can demand:

  1. The delivery of benefit earned by the opposite party under the interim order of the Court, or
  2. To make restitution for what it has lost.
It would be apropos to refer to the case of the Apex Court in South Eastern Coalfields Ltd. vs State of M.P. and Ors. (2003) 8 SCC 648 wherein the Court held that the aim of the maxim Actus Curiae Neminem Gravabit was not only just to rectify the mistakes of the Court but also to make sure that the order or decree which was mistaken had not proved to be advantageous to one party and harmful for the other. The Court held thus:

27. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law.

The factor attracting applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the Court; the test is whether on account of an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the set of such party.

The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice.

The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry.

Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end.

This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.

It would be trite to refer to Hotel Balaji & Ors. v. State of Andhra Pradesh & Ors. 88 STC 98 wherein the Apex Court held that it is always a Judge to accept that they are mere humans and mistakes can be made by them. But it is always more important to leave the pride behind and right the wrongs. Therefore, by the use of the maxim Actus Curiae Neminem Gravabit, it was important that no one faces injustice by the negligence on part of the Court.

It would be relevant to refer to a three judge bench of the Apex Court in Jang Singh vs. Brijlal and Others, 1966 AIR 1631 wherein it was categorically held that if there is a mistake made by the court in delivering the information, the responsibility of the litigant does not end but is shared by the court also. If the litigant acts on the faith of that mistaken information, the Courts have no authority to hold him responsible as it would be holding him responsible for a mistake which was caused by the Court itself. The Court explained the said maxim thus:

"It is, therefore, quite clear that if there was an error the Court and its officers largely contributed to it. It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligation-, under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.

If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts 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: "Actus curiae neminem gravabit".

The said maxim was also elaborated explained by the Constitution Bench of the Apex Court in Sarah Mathew Vs Institute of Cardio-Vascular Diseases and Ors.(2014) 2 SCC 62 wherein it was observed thus:

"Taking cognizance is not dictated by the prosecution of the complaint or police report but is predicated upon application of judicial mind by the Magistrate which is not in the control of the individual instituting the prosecution. If date of taking cognizance is considered to be relevant in computing limitation, the act of the court can prejudice the complainant which will be against the maxim ‘the acts of courts should not prejudice anyone’. [Rodger v. Comptoir D’Escompte De Paris (1870-71) VII Moore N.S. 314.]

................This Court further observed that taking cognizance is an act of the court over which the prosecuting agency or the complainant has no control. A complaint filed within the period of limitation cannot be made infructuous by an act of the court which will cause prejudice to the complainant. Such a construction will be against the maxim ‘actus curiae neminem gravabit’, which means the act of court shall prejudice no man. It was also observed relying on Rashmi Kumar (Smt.) that the legislature could not have intended to put a period of limitation on the act of the court for taking cognizance of an offence so as to defeat the case of the complainant."

It would be apposite to refer to Kala Bharati Advertising v. Hemant Vimalnath Narichania - (2010) 9 SCC 437 wherein the Apex Court elucidated the maxim 'actus curiae neminem gravabit’ in detail and observed thus:

"15. No litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed.

The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court.

(vide: Dr. A.R. Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v. Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).

16. In Ram Krishna Verma & Ors. v. State of U.P. & Ors., AIR 1992 SC 1888, this Court examined the issue while placing reliance upon its earlier judgment in Grindlays Bank Limited v. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and the petitioner takes advantage thereof, and ultimately the petition stands dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized.

17. A similar view has been reiterated by this Court in Mahadeo Savlaram Shelke & Ors. v. Pune Municipal Corporation & Anr., (1995) 3 SCC 33.

18. In South Eastern Coalfields Ltd. v. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party.

There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. The Court further held:

".....Litigation may turn into a fruitful industry.

Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated......"

19. In Karnataka Rare Earth & Anr. v. Senior Geologist, Department of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court would not have protected them by issuing interim order.

20. The aforesaid judgments are passed on the application of legal maxim "sublato fundamento cadit opus", which means in case a foundation is removed, the superstructure falls.

21. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, action, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. Court-cannot be used only for interim relief."

An important question that arises for deliberation is whether delay in disposal of an appeal by a Court can be termed an action of the Court. The Apex Court in Mithilesh Kumari & Anr vs Prem Behari Khare 1989 SCR (1) 621 has categorically held that the delay in disposal of an appeal cannot be termed an action of the court. The Court held thus:

"Counsel for the respondent lastly submits that nobody should be allowed to suffer for fault of the court. As the maxim goes, actus curiae neminem gravabit. Nobody should suffer for an act of the court. However, the delay in disposal of an appeal cannot be termed an action of the court."

It would be trite to refer to Neeraj Kumar Sainy & Ors. v. State of UP & Ors., (2017) SCC Online SC 25, wherein the Apex Court observed that the legal maxim “actus curiae neminem gravabit” does not operate in vacuum and cannot be taken recourse by the lethargic & those who sleep over their rights & legal remedies. The Apex Court observed thus:

". It is noticeable from the aforesaid passage that the interpretation was made in accordance with the Code and the legal maxim was taken as a guiding principle. Needless to say, it is well settled in law that no one should suffer any prejudice because of the act of the court. The authorities that we have referred to dealt with the different factual expositions. The legal maxim that has been taken recourse to cannot operate in a vacuum. It has to get the sustenance from the facts.

As is manifest, after the admissions were over as per the direction of this Court, the appellants, who seemed to have resigned to their fate, woke up to have control over the events forgetting that the law does not assist the non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing the feeling that forgetting is a virtue, and thereafter, when the time has slipped through, for it waits for none, wake up and take shelter under the maxim “actus curiae neminem gravabit”. It is completely unacceptable."

Thus, it is amply clear that the Court is under a bounden duty to ensure that nobody suffers from the fault of the Court but at the same time the litigant has to be watchful & vigilant, take suitable remedy in the appointed time frame and should not sleep over his rights to invoke the maxim "actus curiae neminem gravabit” in it's favour.

Written By: Inder Chand Jain
Email: [email protected], Pn no: 8279945021

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