Kuwait Court of Cassation principle number 184

Summary: - Orders on petitions. Their nature. They are orders issued by judges of interim matters under their non-contentious authority, upon applications submitted by interested parties on petitions. A judge may not exercise non-contentious authority except in cases in which the law permits him to do so. Implication. The legislature restricted the judge’s authority, so that he may not issue an order on a petition outside the cases provided for in the Code of Civil Procedure or any other law. - The challenged judgment’s conclusion reversing the judgment appealed from and cancelling the order on a petition issued to reinforce and strengthen the electrical current, because there is no specific provision permitting the issuance of the order complained of, and because the general rule in seeking judicial protection is to proceed by the legally prescribed route, whereas recourse to an order on a petition is an exception operating within its limits without expansive interpretation, such that the appellant had departed from the route prescribed by law. This does not vitiate it. Rule: Orders on petitions are orders issued by judges of interim matters under their non-contentious authority upon applications submitted to them by interested parties on petitions. The general rule is that a judge does not exercise non-contentious authority except in cases in which the law permits him to do so. It is apparent from Article 163 of the Code of Civil Procedure that the legislature—in keeping with this rule, in its concern not to extend this authority beyond its intended purpose, and to avert any dispute arising between those who consider this authority unrestricted and those who consider it restricted—settled this matter by opening that Article with the phrase (In cases in which the law permits obtaining an order on a petition .....). This means that the legislature restricted the judge’s authority in this respect, so that he may not issue an order on a petition outside the cases in which a definitive provision in the Code of Civil Procedure or any other law permits him to issue that order. Since the challenged judgment adhered to this view and concluded by reversing the judgment appealed from, cancelling the order on a petition issued to reinforce and strengthen the electrical current in the buildings specified in the papers, and treating it as never having existed, on the basis that orders on petitions may be issued only in cases in which a specific provision permits this, and that the provisions of the Civil Code, the Commercial Code and the Code of Civil Procedure contain nothing permitting the issuance of the order complained of; and since the general rule in seeking judicial protection or the declaration or protection of rights is to proceed by the route specified in the Code of Civil Procedure, and recourse to the procedure of an order on a petition is an exception operating only within its limits without expansive interpretation; and since the appellant pursued the route of orders on petitions rather than an ordinary action to reinforce and strengthen the aforementioned electrical current, she departed from the route prescribed by law. Accordingly, the judgment correctly applied the law, and the challenge to it on this ground is without foundation.