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Inherent Power of The Court
Inherent Power of The Court
TABLE OF CONTENTS
Acknowledgement…………………………………...……………….…..
Abstract…………………………………………………………................
Table Of Cases……………………………………………………………
Table Of Statutes………………………………………..........................
Research Plan………………………………………………..…………..
Introduction…………………………………………………..……………
Bibliography……………………………………………………...............
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Acknowledgement
We wish to express our deep sense of gratitude to our instructor Mrs. Chandreshwari
Minhas, asst. professor of law, Gujarat National Law University for her able guidance
and useful suggestions, which helped us in completing the project work, in time.
Words are inadequate in offering my thanks to the Project instructor and the
payroll of library, GNLU for their cooperation in carrying out the project work.
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.
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Abstract
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Table of Cases
Statue(s) referred
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Research Plan
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.
1
Concise oxford English dictionary(2002)
2
Kedar Nath Bajoria and Anr. vs The State Of West Bengal AIR 1954 SC 660
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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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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.
7
(1982)1 SCC 159 at p.168
8
Civil Procedure Code ,c.k. Takwani sixth addition
9
Commentary on Civil Procedure Code, 1908 5th 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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18
Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law
19
A.I.R. 1995 S.C. 1945 at p. 1947
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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
20
(1989) 4 SCC 403 at p. 415
21
(AIR 1962 SC 527)
22
Sarkar‟s civil court practice & procedure manual 11th edition 2011
23
(2005) 1 S.C.C. 122at p.127
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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.
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.
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 affairs 28 . 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.
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
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
31
Mulla the Code of Civil Procedure 17th Edition 2007
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4. It should be used only for the end of the justice and prevent the
abuse the process of the court.35
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
38
Ram Chand v. Kanhayalal AIR 1966 SC 1899
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Bibliography
Books
Sarkar‟s civil court practice & procedure manual 11th edition 2011
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