Kuwait Court of Cassation principle number 412

Summary: - Orders on petitions. Their nature. They are orders issued by judges of interim matters pursuant to their non-contentious authority, based on applications submitted by interested persons in petitions. A judge may not exercise a non-contentious function except in cases where the law permits him to do so. Its consequence. The legislature restricted the judge’s authority, so that he may not issue an order on a petition outside the cases for which a provision appears in the Code of Procedure or any other law. - The challenged judgment’s conclusion setting aside the judgment appealed against and revoking the order on a petition issued to enhance and strengthen the electric current, because no special provision permitted issuance of the order challenged by grievance, and because the general rule for seeking judicial protection is that it be sought through the legally prescribed procedure, while resort to an order on a petition is an exception operating within its scope without expansive interpretation, so that the appellant had departed from the procedure laid down by law. This does not render it defective. Rule: Orders on petitions are orders issued by judges of interim matters pursuant to their non-contentious authority, based on applications submitted to them by interested persons in petitions. The general rule is that a judge does not exercise a non-contentious function except in cases where the law permits him to do so. It is apparent from Article 163 of the Code of Procedure that the legislature—in keeping with this rule, out of concern not to extend this authority beyond its intended purpose, and to avert any disagreement 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 where the law permits obtaining an order on a petition .....). This means that the legislature restricted the judge’s authority in this regard, so that he may not issue an order on a petition outside the cases in which a decisive provision appears in the Code of Procedure or in any other law permitting him to issue that order. Since the challenged judgment adhered to this view and concluded by setting aside the judgment appealed against and revoking the order on a petition issued to enhance and strengthen the electric current in the buildings identified in the papers, and treating it as if it had never existed, on the basis that orders on petitions may be issued only in cases where a special provision permits this, and that the Civil Code, Commercial Code and Code of Procedure contain no provisions permitting issuance of the order challenged by grievance; and since the general rule in seeking judicial protection or the declaration or protection of rights is that the matter be brought through the procedure prescribed in the Code of Procedure, and resort to the procedure of an order on a petition is an exception that operates only within its scope without expansive interpretation; and since the appellant pursued the route of orders on petitions rather than an ordinary action to enhance and strengthen the aforementioned electric current, she departed from the procedure laid down by law. The judgment therefore adhered to the correct application of the law, and the criticism of it on this ground is unfounded.