By Rishi Jain, Vasu Jain & Shaurya Singh Rathore, GNLU
Editor’s Note: Law has always been an essential element of society. It was there even when men were uncivilized and it is even today when we have entered into much-sophisticated world. The presence of law is made much known to us with the existence of courts. The Courts existed when there was no written statue on the fundamental principle to do justice and to peacefully settle the matter.
They are not as old as law but law got recognition by courts only. They hold a very high position in society by virtue of its duty to do justice between the parties. Every court is constituted for the purpose of administering justice between the parties and, therefore must be deemed to possess all such powers as may be necessary to do the right and to undo the wrong in the process of administering the justice. The Code of Civil Procedure is a procedural or adjective law and the provisions thereof must be liberally construed to advance the cause of justice and further its ends since the basic function of the courts is to do justice rather than focusing on the procedural part of the parties.
The Code of Civil Procedure acknowledges the powers along with limitations on the courts but there are some powers which are vested in the court but not prescribed in the code and those are the Inherent powers. The inherent powers of the court are in addition to the powers specifically conferred by the code on the court. They are complementary to those powers. The court is free to exercise them for the ends of justice or to prevent the abuse of the process of the court. The reason is obvious.
The provisions of the court are not comprehensive for the simple reason that the legislature is incapable of contemplating all the possible surroundings which may arise in future litigations. Inherent powers come to the rescue in such unforeseen circumstances. They can be exercised ex debito justitiae in the absence of provisions in the code. But those need to be exercised with due care and not arbitrary.
INHERENT POWER: MEANING
The word “Inherent” is very wide in itself. It means existing and inseparable from something, a permanent attribute or quality, an essential element, something intrinsic, or essential, vested in or attached to a person or office as a right of privilege.[i] Hence, inherent powers are such powers which are inalienable from courts and may be exercised by a court to do full and complete justice between the parties before it.
There are many sections in the CPC that provides for the same.
Section 148 of CPC reads:
Enlargement of time:- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period *[not exceeding thirty days in total], even though the period originally fixed or granted may have expired.
Section 148-A of CPC reads:
|Right to lodge a caveat:- (1) Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.|
|(2)||Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).|
|(3)||Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.|
|(4)||Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator’s expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.|
|(5)||Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.|
Section 149 of CPC reads:
Power to make up deficiency of Court-fees:- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
Section 150 of CPC reads:
Transfer of Business:- Save as otherwise provide, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.
Section 151 of CPC reads:
Saving of inherent powers of the code:- Nothing in this code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court.
Section 152 of CPC reads:
Amendment of judgments, decrees or orders:- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.
Section 153 of CPC reads:
General powers to amend:- The Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made of the purpose of determining the real question or issue raised by or depending on such proceeding.
Section 153-A of CPC reads:
Power to amend decree or order where appeal is summarily dismissed:- Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of the first instance.
HOW DOES THE COURT EXERCISE THIS POWER?
In the cases where the C.P.C does not deal with, the Court will exercise its inherent power to do justice. If there are specific provisions of the C.P.C dealing with the specific issue and they expressly or by basic implication, then the inherent powers of the Court cannot be invoked as inherent powers itself means those which are not specified in C.P.C.
The section confers on the judges to make such orders that may be necessary to make justice achievable. The Power can be invoked to support the provisions of the code but not to override or evade other express provisions as C.P.C. is the basic law which governs the functioning of the courts.
Alternative for ‘No other remedy:
In the absence of any special circumstances which amount to the abuse of the process of the Court, it cannot grant a relief in exercise of its inherent power when the justice can be served by another remedy is available to the party concerned provided by the Code.
No Powers over the Substantive Rights: The inherent powers saved by S. 151 of the Code are not over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders.
InRam Chand and Sons Sugar Mills v. Kanhayalal[ii]: the SC held that the Court would not exercise its inherent power under S.151 CPC if it was inconsistent with the powers expressly or impliedly conferred by other provisions of Code. It had opined that the Court had an undoubted power to make a suitable order to prevent the abuse of the process of the Court.
The Apex Court in M/s Jaipur Mineral Development Syndicate v. Commissioner of I.T[iii], has maintained that the Courts had power under Section 151, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court.[iv]
To Advance Interests of Justice:
In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava[v], the appellant contended that during the pendency of the first suit, certain subsequent events had taken place due to which the first was not fruitful and in law the said suit could not be kept pending and continued solely for the purpose of continuing an interim order made in the said suit.
While examining the question the Supreme Court was to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed or not. The question arose was whether a defendant could make an application under Section 151 CPC for dismissing the pending suit on the ground that the said suit has lost its cause of action. The Court upheld the contention.[vi]
Restoration of Money Suit–
Bahadur Pradhani v. Gopal Patel[vii]. In this case, the plaint of a Money Suit was rejected for non-payment of deficit court fee within the time granted by the court. The plaintiff filed a petition under Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the petition and the suit were restored to file. This Court examined the scope of the inherent powers of the Court and expressed that the provisions of the Code do not control the inherent powers of the court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its duties to do justice between the parties before it.
When there is no scope for getting any relief:- It was held in the case of Manoharlal v. Seth Hiralal[viii] that the provisions of the Code are not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation.
Enlargement of Time: Section 148
The court has the power to enlarge the said period even if the original period fixed has been expired.[ix] Where the court in the exercise of its jurisdiction can grant time to do a thing, in the absence of the specific provision to the contrary, denying or withholding such jurisdiction, the jurisdiction to grant time would include in its ambit the jurisdiction to extend time initially fixed by it.[x] This power is discretionary and so the court is entitled to take into account the conduct of the party praying for such extension. The party cannot claim this power as their right.
In the words of J. Hidayatullah:
“conditional orders are not like the laws of Medes and Persians”[xi].
As J. Desai states:
“the danger inherent in passing conditional orders becomes self-evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case. The true purpose of conditional orders is that such orders merely create something like a guarantee or sanction for the obedience of the court’s order but would not take away the court’s jurisdiction to ct according to the mandate of the statute or the relevant equitable considerations if the statute does not deny such considerations”.[xii]
Payment of Court Fees: Section 149
The Section 149 of the Code authorizes the court to allow a party to make up the deficiency of court fees payable on a plaint, memorandum of appeal, etc. even after the expiry of the period of limitation prescribed for the filing of such suit, appeal etc. Under the provisions of S. 149, C.P.C., as a practice, the court’s grants time for payment of the court-fee on coming to an adverse conclusion on a pauper application.[xiii] Section 4 of the Court Fees Act, 1870 provides that no document chargeable with court fee under the act shall be filed or recorded on any court of justice unless the requisite court fee is paid.
Amendment of Judgement, Decrees, Orders and other Records: Sec. 152, 153-153A
Sec. 152 of the Code of Civil Procedure endorses that clerical or arithmetical mistakes in judgments, decree or orders arising from any accidental slip or omission may at any time be corrected by court suo motu or on the application of any other parties. The section is based on two essential principles:
- It is the duty of the court to see that their records are true and they present the correct state of affairs.
- An act of court should not prejudice any party
(1) If a man files a suit against another for some amount of rupees in court. And the court passes a decree for Rs. 10,000 “as prayed”. The decree can be amended under this section.
(2) If a man files a suit against another for some amount of rupees in court. But the court passes a decree for lesser amount of money. He applies to amend the decree by adding a payment of interest. The decree cannot be amended under this Section. If aggrieved by the decree, he may file an appeal or application for review.
WHAT IS THE SCOPE OF INHERENT POWER EXERCISED BY THE COURT UNDER SECTION 151 OF THE CPC?
More than seven decades back, the Privy Council in the case of Emperor v. Khwaja Nazir Ahmed[xiv], observed that Section 561A (corresponding to Section 482 of the Code) had not given increased powers to the Court which it did not possess before that section was enacted. It was observed
“The section gives no new powers, it only provides that those which the court already inherently possess shall be preserved and is inserted lest, as their Lordships think, it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Code.”
In the very recent verdict of K.K. Velusamy v. N. Palaanisamy[xv], the Hon’ble Supreme Court upheld that Section 151 of the Code recognizes the discretionary power inherited by every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’. The Court summarized the scope of Section 151 of the CPC as follows:
(a) Section 151 is not a substantive provision which confers any power or jurisdiction on courts. It merely recognizes the discretionary power of every court for rendering justice in accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) The provisions of the Code are not exhaustive; Section 151 says that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used by the court to deal with such situation, to achieve the ends of justice, depending upon the facts and circumstances of the case.
(c) A Court has no power to do things which is prohibited by law or the Code, in the exercise of its inherent powers. The court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is expressly provided in the Code.
(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them and the court should exercise it in a way that it should not be in conflict with what has been expressly provided in the Code.
(e) While exercising the inherent power, there is no such legislative guidance to deal with those special situations of the case and so the exercise of power depends upon the discretion and wisdom of the court, and also upon the facts and circumstances of the case. So, such a consequential situation should not, however, be treated as a carte blanche to grant any relief.
(f) The power under section 151 will have to be used with care, only where it is absolutely necessary, when there is no provision in the Code governing the matter or when the bona fides of the applicant cannot be doubted or when such exercise is to meet the ends of justice and to prevent abuse of process of court.
It can be clearly seen that the inherent powers of the court are extensively wide and residuary in nature. Though, one cannot rule out the fact that the same inherent powers can be exercised ex debito justitae only in the absence of express provisions in the code.[xvi] The restrictions on the inherent powers are not there because they are controlled by the provisions of the Code, but because of the fact that it shall be presumed that the procedure provided by the legislature is dictated by ends of justice.
Through the doctrinal research and the analytical approach, it can be safely deduced that Section 151 CPC is not a substantive provision. Sections 148-153A bestow the courts with very wide and extensive powers to minimize litigation, avoid multiplicity of proceedings and render full and complete justice between the parties before them. Sec 151 saves the inherent power of the court, which is supposed to be exercised ex debito justitae, i.e., in the interest of the justice. These powers are not conferred upon the court. In the end, one has to look up to the judgment of J. Subbarao who made a very poignant observation in the case of Ram Chand & Sons Sugar Mills Ltd. V. Kanhayalal Bhargava[xvii]:
“Whatever limitations are imposed by the construction of the provisions of Section 151 of the Code, they do not control the undoubted power of this court conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.”
Formatted on March 21st, 2019.
[i] Concise Oxford English Dictionary (2002).
[ii] In Ram Chand and Sons Sugar Mills v. Kanhayalal  1 S.C.R. 884
[iii] M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T AIR 1977 SC 1348
[iv] Ibid 6
[v] M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava AIR 1966 SC 1899
[vii] Bahadur Pradhani v. Gopal Patel AIR 1964 Ori 134
[viii] Manoharlal v. Seth Hiralal 1962 AIR 527
[ix] Mahanth Ram Das v. Ganga Das AIR 1961 SC 882
[x] Ramesh Bejoy v. Pashupati Rai (1979) 4 SCC 27
[xi] Ram Das v. Ganga Das, AIR 1961 SC 882
[xii] Chinnamarkathian v. Ayyavoo (1982) 1 SCC 159
[xiv] Emperor v. Khwaja Nazir Ahmed (1945) 47 BOMLR 245
[xv]K.K. Velusamy v. N. Palaanisamy (2011) 11 SCC 275
[xvi]MahendraManilal v. SushilaMahendra AIR 1965 SC 364 p. 399
[xvii]Ram Chand & Sons Sugar Mills Ltd. V. Kanhayalal Bhargava AIR 1966 SC 1899