You are on page 1of 14

EVIDENCE PROJECT

TYPES OF PRESUMPTION

SUBMITTED TO :Dr.SABINA SALIM

SUBMITTED BY:VAIBHAV ANEJA


112/12
MANIK SINGLA
119/12
BALLB Hs 7 TH SEM

[1]

Acknowledgement
I wish to express our deep sense of gratitude to Dr..Karan Jawanda,. professor
of law, university institute of legal studies for her able guidance and useful
suggestions, which helped us in completing the project work, in time.
.
Finally, yet importantly, we would like to express our heartfelt thanks to our
beloved parents for their blessings, our friends, classmates for their help and
wishes for the successful completion of this project.

[2]

TABLE OF CONTENTS
Abstract................
Introduction.........
Reason and Purpose behind the Inherent power of the court.......
Section Regarding to Inherent power of the court....
Enlargement of the time of Section 148........
Payment of court fees Section 149........
The reason for saving the Inherent powers ..........
End of the justice ...
To prevent the abuse of the process of the courts......................................
Bibliography................

[3]

Abstract
This project deals with the Inherent power of the court as in the section 151 of
the Civil Procedure Code, 1908 described. Firstly this project gives the
introduction of this concept of the Inherent power of the court. After this project
discusses the reason for this concept is enacted. This project also discusses the
nature of this inherent power that what extend court can use it and what kind of
limitation imposed on the court for exercise this power. It will also look into the
some related case laws of the courts where this concept described. This project
will analyze all related section in detail and also summed the authorities views
on the mentioned topics. In the last it will conclude with describing the nature
of this power.

[4]

Introduction
According to blacks law dictionary inherent power means a power which
necessarily derives from an office, position or status. As in this definition of
inherent power said that it is necessarily derives from office means it cant be
separate from the office. So it is an essential element, something intrinsic, or
essential, vested in or attached to a person or office as a right of privilege
because it is necessary to running the office or for a person to fulfil his
responsibility. It is also a concept of the management that a you should give
some free scope to your employee that he can deal in better way with the
problems according to circumstances. Same is applying in regarding the
judiciary here legislator draft the rules but they also leave the scope for the
courts in form of inherent power. Although this inherent power of the court
gives the discretionary power to the court but it was said by the justice
Bhagwati that a discretionary power is not necessarily discriminatory its
depends on the courts how they used it but it should be presumed that every law
should be administered by the administration not with unequal hand and evil
eye. In general this power is derived from practise not derived by the any statue
or constitutional.
According to dictionary meaning inherent means a natural, existing and
inseparable from something, a permanent attribute or quality, an essential
element, something intrinsic or essential which vested to a person or office as
right of privilege
Inherent powers are thus powers which may be exercised by a court to do full
and complete justice between the parties before it. They are complementary to
those powers and the is free to exercise them for the ends of justice or to prevent
the abuse of the process of the court.

Reason and Purpose behind the Inherent power of the court:


The fundamental purpose of the courts is the meet to end of justice in a friendly
manner and for this CPC was enacted that justice can be delivered in the smooth
way. But it is also should be keep in the mind that no legislator can not presume
all the situation or problems which will be arise in regard of particular matter.
So meet to above mentioned purpose it is necessary to provide such inherent
power to the court. In Indian legal system this inherent power of the civil courts
is preserved in the section 151 of Civil Procedure Code, 1908. The purpose is
also described in the case of Mahendra Manilal v. Sushlila Mahendra1 . It was
said in this case that in unforeseen circumstance and in ex debito justitiae in
1 AIR 1965 SC 364

[5]

absence of express provision in this code. This concept of inherent power of the
court is introduced in the interest of justice and effective judicial administration.
As it was beautifully described by the Supreme Court in the case of Manohar
Lal Chopra vs. Rai Bahadur Rao Raja Seth Hirala 2l it was said by justice
Raghuvir Dayal every court is made for the provide the justice according to law
and for that it is necessary that they possess all such power so they can do right
and undo the wrong. Under following it is described in the language of the
judgment given by justice Dayal.
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 s. 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 or
different from the procedure expressly provided in the Code."

2 AIR 1962 SC 527

[6]

Section Regarding to Inherent power of the court:


Five section of the C.P.C. are the most related to this concept of the Inherent
power of the court. Out of five sections 151 is the preserve the inherent power
of the courts.
Section 151 gives the wide scope to court use this inherent power of the court.
Another section is just focusing on the some points like section 148 focuses
upon enlargement of the time, section 149 focus upon matter related to the
payment of the court fees and section 152, 153 deal with amendments in
judgments, decree orders and in other proceeding. Section 153-b declares a
palace of trial to be open court. Here these sections are mentioned with the more
details.

1. Enlargement of the time of Section 148:


This section is indicating the one scope where court may use its inherent
power. In general this section provides power to court for enlarging the time for
any act which given by the court to anyone. This section is read as in the Civil
Procedure Code, 1908
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 1[not exceeding thirty days in total], even though
the period originally fixed or granted may have expired.
In this section the word used is May which is show the intention of the
legislator that they are not compelling to do so they just leaving on the judiciary
so they can use it according to circumstances or facts of the cases. In general
one rule cant be apply in every situation so there should be some flexibility as
by justice Hidayatullah conditional orders are not like the law of Medes and
the Persians. This section just gives the basic rule many practical problem arise
regarding to this rule in many cases so for full understanding this we can refer
some cases.
In the case of Mahanth Ram Das v. Ganga Das3 the three judge bench of the
Supreme Court allowed the appeal of the petitioner and grant the appellant two
months time for payment the deficit court fee. It was allowed even after the
original fixed time has expired. So after this judgment court has the power to
enlarge the time even after original time has expired.
In another case Chinnamarkathian v. Ayyavoo4 it was held that a court in the
exercise of its jurisdiction can grant time to do a thing , in the absence of a
specific provision to the contrary curtailing, denying or withstanding such
3 AIR 1961 SC 882
4 (1982) 1 SCC 159

[7]

jurisdiction , the jurisdiction to grant time would include in its ambit the
jurisdiction to extend time initially fixed by it. It was also said in this case that
this section provide the discretionary power to the court for specific purpose as
above discussed so it cannot be claimed by the parties as of right .
After referred many cases regarding to this section we also found some
condition that court have to fulfil otherwise this section will not possess any
application. First is that a period must have been fixed or granted by the court
and such period must be for doing an act prescribed or allowed by the code.

2. Payment of court fees Section 149:


This section is similar in the nature of the provision of sec.54 and 582-A of the
old civil procedure code and sec. 28 of the court fees act. Section 148 gives
power to the court to make up the deficiency of courts fees payable on a plaint,
memorandum of appeal. Etc. even after the expiry of the period of limitation
prescribed for the filling of such suit, appeal, etc. section 149 of the civil
procedure code is an enabling provision and its effect to confer a retroactive
validation on a document which is not duly stamped within the meaning of sec.4
of the court fees act. Generally this section dont use by the parties as a right it
is allowed by the court according the facts and circumstance but there is dispute
among the courts that it should be on court discretion or it should be use by the
parties as a right. In the case of Priya Nath v. Mianjan5 it was held by the
Calcutta high court that it should be based on the discretion of the court that
whether a person is to be allowed to make good deficient court fees and it is
only such payment is allowed, that validation clause will apply .Same decision
was held by the Madras court in the case of Narayana v. Veenakataskrishana6
But on this descending opinion is given by the Bombay High court in the case
of Achtt v. Nagappa7 and Punjab chief court in the case of Jiwan Das v.
Khusabi Ram8 that any party can claim for allowed time to pay up the deficient
fee of the court.
There is no such fixes rule for the applicability for this section but it was
discussed in many cases after all cases above mentioned it was settled by the
supreme court in recent decision in the leading case of K.C. Skaria vs. The
Govt. Of State Of Kerala & Anr9 .In this case it was held by two judge bench
that it will be applicable where if the court fee has due on the time of instituting
5 29 I.C 571
6 27 I.C. M.L.J. 677 at p.678
7 I.L.R. 38 Bom. 41
8 27 P.L.R. 1917

[8]

the plaint if that time court fee is not paid wholly or partly by the person
instituting the suit. Section 149 has no application where the court fee due on
the plaint as per the valuation of the plaint as per the valuation of the suit.
It was also discussed in the many cases that in which manner court should use
this discretion. It was held in the case of Jagat Ram v. Misar Kharaiti Ram10
that the discretion conferred on the court by sec. 149 is normally expected to be
exercised in favour of the litigant except in cases or contumacy or positive mala
fides reason of a similar kind.
In the case of Gulam Abbas v. Shri Kalayan Finance co11.also the condition or
we can say manner of the courts to use this discretionary power discussed. It
was held in this case that court should use this discretionary power in such a
manner that third party should not deprived from any vested rights.
In this regard some guidelines is also laid down in the book commentary on the
Civil procedure Code by sir John Woodrofee & Ameer Ali that describe that in
which manner courts should be use this discretionary power of the court.
1. Court while exercising the discretionary power of the court has to bear in
mind that the power conferred is meant to be exercised in the exceptional case.
2. It should be exercised on being satisfied that non-payment of court fee in
time is for reason beyond the control the appellant
3. Delay in the payment of court fee should not due to negligence of the
appellant.
4. The ground shown has, therefore, to be adequate, cogent and strong, because,
otherwise the exception would take from of rule which would militate against
the legislative intention.
It was discussed that the aid of section 149, could be taken only when the party
was not able to pay court fee in circumstance beyond his control or under
unavoidable circumstance and the court would be justify in an appropriate case
to exercise the discretionary power of the court under section 149 after giving
due notice to the affected party.
So after referred all above mentioned cases it can be concluded that the court
may allow a party to pay court fee at any stage of the case and after the payment
it will considered as it has been paid at the time when plain was instituted.

3. The reason for saving the Inherent powers under section 151 of
the CPC:
This section preserves the inherent power of the courts. This section read as
9 A.I.R. 2006 S.C. 811
10 A.I.R. 1938 Lah.361
11 A.I.R. 1975 Raj. 150

[9]

Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.
This section was inserted first in the code of 1908, but it is merely a legislative
reorganization of the power which has existed since the creation of the court,
vis, that every court has inherent power to act ex debito justitiae and to do that
real and substantial justice for which alone it exists. So we can say that this
inherent power of the court is not conferred on the court but it is power inherent
in the court by virtue of its duty to do justice between the parties it. This section
is just indicate that The inherent powers are to be exercised by the court in every
exceptional circumstances for which the court lays no procedure (AIR 1962 SC
527) whenever any situation arises either in a suit or in any other proceeding
which is productive of considerable hardship or injustice unless it is remedied,
but there is no provision in the code to fall back upon, the practitioner should
turn to section 151 and weigh carefully whether it can be invoked.
In many cases the purpose of this section discussed so it can be apply for serve
its purpose for which it enacted that is end of justice and prevent abuse of
the process of the court. Here we will discuss some case where the purpose of
this section was discussed.
In another case it was said that all courts whether civil or criminal possess in
the absence of any express provision as inherent in their constitution, all such
powers as are necessary to do the right and to undo a wrong in course of
administration of justice on the principal quando lex a liquid alicui concedit,
conceder divesture et id sine quo res lipase esse non protest meaning by when
the law gives a person anything, it gives him that without which it cannot exist.
In another case Mohammad salim v. smt. Shahin sah it was said The section
merely furnished legislative recognised of an age-old and well established
principal that every court has inherent power to act ex debito justitiae to do the
real and substantial justice for the administration of which alone it exist or to
prevent abuse of process of the court.
As it is mentioned above that the provisions of the code is not exhaustive and
the simple reason of it is that it is not possible for legislate all the problems
which will arise in future. As we can interpret from the language of the section
that this section mainly serve two purpose first is the end of the justice and
other one is the prevent abuse of the process of the court.

End of the justice


This term end of the justice is not defined in the CPC but by D.V. Chitaely give
some conditions which described that in which condition end of justice will not
be there.
1. It is in the end of justice that an enquiry should be remedied and needless
expense and inconvenience to parties avoided.
[10]

2. It will not be in ends of justice to exercise inherent power if it would


interference with the rights of the third parties or cause mischief or injustice.
3. It will not be in end of justice to assist a party guilty of laches in consequence
of which new rights have arisen against him. These conditions are useful to
determination the end of justice but these are not exhaustive one.

To prevent the abuse of the process of the courts:


The term abuse of the process of the court is also not defined in the CPC like
end of the justice but we can found this term in the many cases. This term is
defined in the many judicial pronouncements. In general we can say that abuse
of the process of the courts means something happing through the process of the
courts. It would be abuse that of process of the court to allow any action which
would result in injustice and prevent promotion of justice. this type of abuse
may be committed by party as well as courts. Here we can understand this abuse
of the process court through some judgments.
In the case of Kanai Law Shaw v. Bhathu Shaw 12it was said that no one should
be deprived from the justice on the basis of the doctrine actus curiae neminem
gravbit meaning by an act of the court shall prejudice no one. So if someone
divested from the justice it will be abuse of the court.
In the case of Thathu Naick v. Kondu Reddy13 abuse of the process is defined
according this judgment Abuse of processes in connection with the actions,
means using some process of the court maliciously to the injury of the person.
So abuse of the process of the court means as mentioned above something is
illegal achieved by court procedure like get an order by fraudulently
misrepresentation etc.

Section 152 and 153:


Both sections is similar in the nature and also based on the same principal is that
an act of the court shall not prejudice to the parties and other that the courts
have a duty to see that their records are true and that they represent the correct
state of the affairs28 . the difference between both the section is that through
section 152 court can correct the clerical or arithmetical mistake in the
judgment, decree or in a order when section 153 have the wide scope and
through this section court can correct the any defect or error in any proceeding.

12 A.I.R. 1984 SC 241


13 I.L.R. 32 Mad. 242

[11]

Limitation to the exercise of inherent powers:


The court has the great power under these sections of inherent powers of the
jurisdiction mainly in the section 151. But this power should be used for the
objective for which it has been vested with the courts that are end of justice or
prevent to abuse the process of the court. In the leading case of Nawabgani
Sugar Mills co.Ltd. V. Union of India, in the judgment of this case Krishna Iyer
j approved a passage of from Benjamin cardozos the judicial process which is
under:
The judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his inspiration from consecrated principal.
He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinate to the primordial necessity of
order in social life. Wide enough in all conscience is the field of the discretion
that remains.
The question on the applicability of this inherent power of the court Is discussed
in the many cases so it will be difficult to summed all the condition but some
important limitation are is described under:
1. It should not be used where the Code of Civil Procedure deals expressly with
a particular matter
2. It should not be used when prohibited or excluded by the code or other
statutes.
3. It can be used for reopen the settled matter.
4. It should be used only for the end of the justice and prevent the abuse the
process of the court.
5. Inherent jurisdiction should not be guilty of laches and has to be diligent.36
6. If the discretion is exercised by suppression or concealment, the same must
be withdrawn and the benefit recalled
7. It should not affect the substantive rights of the parties.
[12]

Conclusion
After looking into the many cases and in the commentaries which is given by
authorities it can be said that the Inherent power is the not absolute and it is
discretionary in the nature but discretion should not be used in the arbitrary
manner. According to justice Subbo Rao the inherent power of the court is in
addition to and complimentary to the powers expressly conferred under the
code. But the power will not be if its inconsistent with, or comes into conflict
with, any of the power expressly or by necessarily implication that no power
shall be exercised in provision. Whatever limitation are imposed by construction
on the provision of section 151 of the code, they do not control the undoubted
power of the court conferred under section 151 of the code to make a suitable
order to prevent the abuse of the process of the court.38
The two points is very important in the regard of the nature of these inherent
powers
1. These powers cannot override the general principal of the law
2. These powers cannot override the express provision of law.
These powers should be exercised by only in the rare and rarest cases and court
cannot give itself the jurisdiction which is not vested in it.

[13]

Bibliography
Mulla the Code of Civil Procedure 17th Edition 2007
Inherent power of the courts by Anil Sachdeva 2008 edition
Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law
Civil Procedure Code, C.K. Takwani sixth addition

[14]