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TABLE OF CONTENTS

Acknowledgement…………………………………...……………….…..

Abstract…………………………………………………………................

Table Of Cases……………………………………………………………

Table Of Statutes………………………………………..........................

Research Plan………………………………………………..…………..

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……………………………………………………...............

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Introduction
According to black‟s 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 can‟t 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 1 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”2 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.

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

1
Concise oxford English dictionary(2002)
2
Kedar Nath Bajoria and Anr. vs The State Of West Bengal AIR 1954 SC 660

American Government and Politics Today: The Essentials By Barbara A.


Bardes, Mack C. Shelley, II, Steffen W. Schmid 2011-12 edition at page no. 385

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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 Mahendra 3. It was said in this case that in
unforeseen circumstance and in ex debito justitiae in 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 Hiralal4 it was said by justice Raghuverr 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."

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
3
AIR 1965 SC 364 at p. 399
4
1962 AIR 527, 1962 SCR Supl. (1) 450
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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 indicate 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 can‟t 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. This term „May‟ of this
section also emphasized in the case of Johri Singh v. Sukh Pal
Singh5 it was said that the use of the word „May‟ indicates that the
power is discretionary, and the court is therefore , entitled to take
into account the conduct of the party praying for such extension.

In the case of Mahanth Ram Das v. Ganga Das6 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

6
Air 1961 SC 882 at. p. 883
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expired. So after this judgment court has the power to enlarge the
time even after original time has expired.

In another case Chinnamarkathian v. Ayyavoo7 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 jurisdiction , the jurisdiction to grant
time would include in its ambit the jurisdiction to extend time initially
fixed by it.8 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.9 Generally this section don‟t
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.

7
(1982)1 SCC 159 at p.168
8
Civil Procedure Code ,c.k. Takwani sixth addition
9 th
Commentary on Civil Procedure Code, 1908 5 edition, Delhi Law publication
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In the case of Priya Nath v. Mianjan, 10it 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. Veenakataskrishana11 and by the Patna High court in
the case of Gaya loan office v. Awadhh Behari12. But on this
descending opinion is given by the Bombay High court in the case
of Achtt v. Nagappa13 and Punjab chief court in the case of Jiwan
Das v. Khusabi Ram14 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 & Anr15 .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 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 Ram16 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 co.17 also the
condition or we can say manner of the courts to use this

10
29 I.C. 571
11
27 I.C. M.L.J. 677 at p.678
12
1 pat.L.J. 420 at pp. 423
13
I.L.R. 38 Bom. 41
14
27 P.L.R. 1917 et seq
15
A.I.R. 2006 S.C. 811 at p. 817
16
A.I.R. 1938 Lah.361
17
A.I.R. 1975 Raj. 150 at p. 53
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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.18

It was discussed in the case of Buta singh v. unoion of India19 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.

18 th
Commentary on Civil Procedure Code, 1908 5 edition, Delhi Law
19
A.I.R. 1995 S.C. 1945 at p. 1947
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3. The reason for saving the Inherent powers under
section 151of the CPC:

This section preserves the inherent power of the courts. This


section read as

“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, viz, that every court has inherent power to act
ex debito justitiae and to do that real and substantial justice for
which alone it exists.20 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 procedure21 (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.22

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.

The purpose of this section also discussed in the case of Zandu


Pharmaceutical works Ltd. V. Mohd. Sharaful Haque23. In this case
it was said that all courts whether civil or criminal possess in the

20
(1989) 4 SCC 403 at p. 415
21
(AIR 1962 SC 527)
22 th
Sarkar‟s civil court practice & procedure manual 11 edition 2011
23
(2005) 1 S.C.C. 122at p.127
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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 aliquid alicui concedit, concedere videture et id sine quo res
ipsae esse non potest” 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 sah24 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 justitae 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.

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.
24
A.I.R. 2006 Raj. At p. 204
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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.25 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 Shaw26 it 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 Reddi27 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

25
Inherent power of the courts by Anil Sachdeva 2008 editoin
26
A.I.R. 1984 SC 241 at p. 259-60
27
I.L.R. 32 Mad. 242
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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.

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 India29, In the judgment of this case Krishna Iyer j
approved a passage of from Benjamin cardozo‟s the judicial
process30 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.31

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:

28
Bishun Charan Das v. Dhani Biswal A.I.R. 1977 Orissa 68 at p. 69
29
A.I.R. 1976 SC 1152
30
Benjamin Cardozo‟s the Nature of the judicial process, Yale university Press,
1921
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Mulla the Code of Civil Procedure 17 Edition 2007
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1. It should not be used where the Code of Civil Procedure deals
expressly with a particular matter32.

2. It should not be used when prohibited or excluded by the code or


other statutes.33

3. It can‟t be used for reopen the settled matter.34

4. It should be used only for the end of the justice and prevent the
abuse the process of the court.35

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 recalled37

7. It should not affect the substantive rights of the parties.

32
Manoharlal Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527
33
Daromodaran Pillai v. South Indian bank ltd. AIR 2005 SC 3460
34
State of Wb v. Karan Singh Binayak AIR 2002 SC 1543
35
Ganesh v. Purushottam (1910) 34 Bom 135
36
Somar Bhuiya v. Kapil Kumar AIR 1974 Pat 289
37
Hindustan Thermo prints ltd. V. DRG (UK Ltd) AIR 1999 Del.202
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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 it‟s 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.

38
Ram Chand v. Kanhayalal AIR 1966 SC 1899
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Bibliography

Books

Mulla the Code of Civil Procedure 17th Edition 2007

Inherent power of the courts by Anil Sachdeva 2008 edition

Sarkar‟s civil court practice & procedure manual 11th edition 2011

Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law

Civil Procedure Code, C.K. Takwani sixth addition

Benjamin Cardozo‟s the Nature of the judicial process, Yale


University Press, 1921

Concise oxford English dictionary (2002)

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