[INHERENT POWER OF THE COURT]

NATIONAL LAW INSTITUTE, UNIVERSITY,

BHOPAL.

CODE OF CIVIL PROCEDURE PROJECT

ON

INHERENT POWERS OF THE COURT.

SUBMITTED TO : SUBMITTED BY
Proffesor P.K. Gupta Aditya Mohanty

2008 B.A.L.L.B. 82

3RD YEAR

VIII Trimester

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TABLE OF CONTENTS

1. DECLARATION…………………………………………………..3

2. CHAPTER 1: INHERENT POWERS OF THE COURT : CONCEPT

SCOPE AND INGREDIENT………………………………………6

3. CHAPTER 2 : SPECIFIC INSTANCES OF INHERENT POWER :

CASE LAW APPROACH………………………………………….11

4. CONCLUSION……………………………………………………..15

5. BIBLIOGRAPHY…………………………………………………..16.

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DECLARATION.

The ideas expressed are in the report are mine and not of the University.
The work reported in this report is original and not reproduced any where
without adequate acknowledgement.

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INTRODUCTION

Under Civil Procedure Code1, the court is endowed with special inherent powers as clearly
stated in section 151. Section 151, CPC clearly declares that nothing in the CPC shall be
deemed to limit or otherwise affect the inherent power of the court to make such orders as
may be necessary for ends of justice or to prevent abuse of the process of the court. The Code
has endowed each and every court to pass orders ex debito justitiae. Under ordinary
circumstances, the court preserves such inherent power (section 151) by making the above
declaration, but the inherent powers can be exercised only where no express provision in the
CPC. Such power cannot be exercised to override the express provision of the Code. 2 This
inherent power is in respect of procedure and not in respect of substantive right of nay party.
So this power cannot be exercised to affect the substantive rights of other parties to the
litigation. The public should clearly bear in mind that what cannot be done under the law or
what is against public policy cannot be done by exercise of inherent power. 3Where there is an
alternative remedy under the code, even if the said remedy is longer or more costly the
inherent power cannot be invoked if by neglecting to avail himself of that remedy the party
invoking inherent power has lost the remedy.4

Inherent power of a court is in addition to and not complementary to the power expressly
conferred upon it by other provisions of the Code. But they are not intended to enable a court
to create rights to the parties but are meant to enable the courts to pass such orders for ends of
justice as may be necessary considering the rights which are conferred upon the parties by the
substantive law. Inherent power cannot be invoked when the Code itself provides for a
particular situation or contingencies or points out to the procedure adopted. 5 But the inherent
power can be exercised only when no other remedies are available according to the existing
provisions of the Act. Therefore, inherent power can be exercised only when no other remedy
is available and it can be exercised only for securing the ends of justice or preventing the
abuse of the process of court.6 As stated by Justice Raghubir Dayal “The inherent power has
1
The researcher shall now on refer Civil Code Procedure as CPC.
2
Ram Karan Das v. Bhagwan Das (AIR 1965 SC 1144)
3
Nain Singh v. Koonwarjee (AIR 1970 SC 997)
4
Doma v. Ram Dagubai (AIR 1959 Pat 121)
5
Santa Ram v. Dagubai (AIR 1987 Bom 182)
6
Sundar v. Mulakhraj (AIR 1981 Del 45)

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not been conferred upon the court by virtue of its duty to do justice between the parties before
it”

This paper shall make an in depth analysis of the inherent power of the court and shall
proceed in the form of a critique by thoroughly examining the evolution of the changing
judicial stand on the issue.

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CHAPTER ONE: INHERENT POWERS: CONCEPT, SCOPE AND INGRDIENTS

In this chapter, the researcher shall consider the various grounds on which the inherent power
of the court may be exercised. The inherent power of the court was instituted to administer
justice. The philosophy behind the law as stated by Justice Raghubir Dayal “The inherent
power has not been conferred upon the court by virtue of its duty to do justice between the
parties before it”. This chapter shall enumerate and study the different grounds on which
inherent powers of the court can be exercised, and try to find out how these different grounds
are distinct from one another.

Section 151 of the Code reads :

"Nothing in this Code shall be deemed to limit or otherwise affected 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."

The words of the section appear to be rather wide. But the decisions of this Court, by
construction, limited the scope of the said section. In Padam Sen v. State of Uttar Pradesh the
question raised was whether a Munsif had inherent powers under Section 151 of the Code to
appoint a commissioner to seize account books. This Court held that he had no such power.
The Apex court observed :

"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 Section 151 of the Code
when the exercise of these 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 to or
different from the procedure expressly provided in the Code."

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This Court again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal 7 considered
the question whether a court had inherent power under Section 151 of the Code to issue a
temporary injunction restraining a party from proceeding with a suit in another State. In that
context, Raghubar Dayal J., after quoting the passage cited above from his earlier judgment,
interpreted the said observations and said that it clearly means that the inherent powers are
not in any way controlled by the provisions of the Code as has been specifically stated in
Section 151 itself. But those powers are not to be exercised when their exercise may be in
conflict with what had been expressly provided in the Code or against the intentions of the
Legislature. This restriction, for practical purposes, on the exercise of those powers is not
because these powers are controlled by the provisions of the Code but because it should be
presumed that the procedure specifically provided by the Legislature for orders in certain
circumstances is dictated by the interests of justice.

The Court again in Arjun Singh v. Mohindra Kumar considered the scope of Section 151 of
the Code. One of the questions raised was whether an order made by a court under a situation
to which Order IX, rule 7, of the Code did not apply, could be treated as one made under
Section 151 of the Code. Rajagopala Ayyangar, J., made the following observations that it is
common ground that the inherent power of the court cannot override the express provisions
of the law. In other words, if there are specific provisions of the Code dealing with a
particular topic and they expressly or by necessary implication exhaust the scope of the
powers of the Court or the jurisdiction that may be exercised in relation to a matter the
inherent power of the court cannot be invoked in order to cut across the powers conferred by
the Code. The prohibition contained in the Code need not be expressed but may be implied or
implicit from the very nature of the provisions that it makes for covering the contingencies to
which it relates.

Having regard to the said decisions, the scope of the inherent power of a court under Section
151 of the Code may be defined thus: The inherent power of a court is in addition to and
complementary to the powers expressly conferred under the Code.

LIMITATIONS TO INHERENT POWERS OF THE COURT

The inherent power of the court is to be exercised in very exceptional circumstances for
which the code lays no procedure. Section 151 is not an absolute provision of law and cannot

7
(1962) Supp. 1 S.C.R. 450, 461

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be invoked if its exercise is inconsistent with, or comes into conflict with, any of the powers
expressly or by necessary implication conferred by the other provisions of the Code. If there
are express provisions exhaustively covering a particular topic, they give rise to a necessary
implication that no power shall be exercised in respect of the said topic otherwise than in the
manner prescribed by the said provisions. Whatever limitations are imposed by construction
on the provisions 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.8

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 Section 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 to or
different from the procedure expressly provided in the Code.

Thus, in the exercise of inherent powers a court cannot invest itself with jurisdiction not
vested in it by law or grant an order of stay circumventing the provisions of Section 10 the
code or allow set off in execution proceedings at the instance of an auction purchaser,
ignoring the provisons of Order 21 Rule 84.9

All such powers as may be necessary to do the right and undo the wrong in the course of the
administration of justice constitute an inherent power of the court. The aim of the legislature
in enacting this provision was to serve the ends of justice. To emphasise this point the Apex
Court has held that the High Court has power to hold trials in camera or part of a trial in
camera or to prohibit excessive publication of a part of its proceedings. What would meet the
end of justice will always depend on upon the facts of each case and the requirements
justice.10

The cardinal test to see whether the court has not or has an inherent power to pass an order in
any particular case is whether it falls within or without the ambit of the provisions of the

8
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527
9
1970 (1) SCC 732
10
Ramkarandas v. Bhagwandas AIR 1965 SC 1144

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statute. In the former case the court cannot exercise any inherent power, for it has none. In the
latter case it would have inherent powers to pass an order.

In one of the most landmark case on this point Jaipur Mineral Development Syndicate, Jaipur
v. The Commissioner of Income Tax, New Delhi 11 as regards to whether the High Court has
inherent power to recall Order made in absence of party and to dispose of reference on merits
the court noted that a party or its counsel may be prevented from appearing at the hearing of a
reference for a variety of reasons. In case such a party shows, subsequent to the order made
by the High Court, declining to answer the reference, that there was sufficient reason for its
non-appearance, the High Court, in our opinion, has the inherent power to recall its earlier
order and dispose of the reference on merits. We find it difficult to subscribe to the view that
whatever might be the ground for non-appearance of a party, the High Court having once
passed an order declining to answer the question referred to it because of the non-appearance
of that party, is functus officio or helpless and cannot pass an order for disposing of the
reference on merits. The High Court in suitable cases has, as already mentioned, inherent
power to recall the order made in the absence of the party and to dispose of the reference on
merits. There is nothing in any of the provisions of the Act which, either expressly or by
necessary implication, stands in the way of the High Court from passing an order for disposal
of the reference on merits. The courts have power, 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. To hold otherwise would result in quite a number of cases
in gross miscarriage of justice. Suppose, for instance, a party proceeds towards the High
Court to be present at the time the reference is to be taken up for hearing and on the way
meets with an accident. Suppose, further, in such an event the High Court passes an order
declining to answer the question referred to it because of the absence of the person who meets
with an accident. To hold that in such a case the High Court cannot recall the said order and
pass an order for the disposal of the reference on merits, even though full facts are brought to
the notice of the High Court, would result in obvious miscarriage of justice. It is to meet such
situations that courts can exercise in appropriate cases inherent power. In exercising inherent
power, the courts cannot, override the express provisions of law. Where however, as in the
present case. there is no express or implied prohibition to recalling an earlier order made
because of the absence of the party and to directing the disposal of the reference on merits,
the courts, in our opinion, should not be loath to exercise such power provided the party
11
AIR 1977 SC 1348

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concerned approaches the court with due diligence and shows sufficient cause for its non-
appearance on the date of hearing.

There is however another view about the nature of the inherent power of the court which
states that the section does not confer any power but only indicates that there is a power to
make such orders as may be necessary for the ends of justice an to prevent an abuse of the
power of the court. The Supreme Court observed in Manohar Lal v. Seth Hari Lal

“the inherent power has not been conferred on the court it is a power inherent in the court by
virtue of its duty to do justice between the parties before it”. In a similar case where the
prices of levy sugar was reduced by the government, the mill owner obtained stay of the
government order and charged excessive price, the order of the government was upheld by
the High Court, the consumers who had paid the price, held, must be repaid. The inherent
power of the court has its root in necessity and its breath is co-extensive with the necessity.12

12
AIR 1976 SC 1152 (1155)

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CHAPTER TWO: SPECIFIC INSTANCES OF INHERENT POWERSS: CASE LAW

APPROACH

When and when not can the court invoke its inherent power has always remained a judicial
enigma. Though there have been numerous Supreme Court pronouncements on this point, the
issue still remains largely unresolved. In this chapter the researcher will discuss some of these
cases and the position of law laid down by them.

According to MP Jain on Civil Procedure Code, the various instances where the court has an
inherent power are:13

1. To order joint trial

2. To postpone hearing of a suit

3. To stay cross suits

4. To ascertain whether the proper parties are before it

5. To entertain the application of a third person to be made a party

6. To set aside a sale brought about by fraud practiced in court

7. To correct its own mistake

8. To review an interlocutory order made in chambers

9. To direct the parties to deposit additional fees to a Commissioner

It has been held in Cotton Corporation v. United Industrial Bank14 that the court can in
appropriate cases grant temporary injunction in exercise of its inherent power in cases not
covered by Order 39. But the court while exercising this power should not overlook the
13
MP Jain, Civil Procedure Code, Wadhwa and Company, 2004 p. 405
14
AIR 1983 SC 1272

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statutory provision which clearly indicate that injunction to restraint initiation of proceeding
cannot be granted. It must be remembered that the inherent power of the court cannot be
invoked to nullify a statutory provision.

In another case the landlord filed a suit for eviction on the allegation that tenancy of tenant is
determined and he is not entitled to protection of Karnataka Rent Control Act 1961. Prior to
the institution of this suit, the appellant claiming to be a tenant had filed an application before
the Rent Controller for fixation of fair rent. In the suit filed by the landlord subsequent to the
filing of application for fixation of fair rent an application was moved for an interim stay of
further proceedings in the suit till the disposal of the application for fixation of fair rent,
pending before the Rent Controller. This application was rejected and a revision petition at
instance of the appellant to the High Court also was rejected by the court. In appeal the
Supreme Court held that the application of tenant, if allowed and fair rent if fixed he would
be entitled to the protection of the Act. Disposal of the application thus had impact on the
suit. In the circumstances stay was granted.15

A court as has already been mentioned has the right to correct its own mistakes. The Apex
court has noted that no court or tribunal can be regarded as powerless to recall its own order
if it is convinced that the order was wangled through fraud or misrepresentation of such a
dimension as would affect the very basis of the claim.16

There has also been various instances where this power of the court has been used wrongly.
The researcher will discuss some of those cases where these powers have been used in a
manner not envisaged by the authors of the CPC.

The inherent power of the court under this section can be exercised in th e following 2 ways:-

1. For the ends of justice

2. To prevent the abuse of the process of the court

Under the former two rules relating to the ends of justice may be noted namely- it is in the
ends of justice that an enquiry should be remedied and needless expense and inconvenience

15
AIR 1982 SC 83
16
AIR 2000 SC 1165 (1167)

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to parties avoided and it will not be in the ends of justice to exercise inherent powers if it
would interfere with the rights of third parties or cause mischief.

Under the latter the court has no power to override the express provision of the law. Hence no
appeal can be allowed from a non-appealable order by invoking the aid of this section. In this
regard the Supreme Court has in Arjun Singh v. Mohindra Kumar and Ors. noted that it is
sufficient if we proceed on the accepted and admitted limitations to the existence of such a
jurisdiction. It is common ground that the inherent power of the Court cannot override the
express provisions of the law. In other words, if there are specific provisions of the Code
dealing with a particular topic and they expressly or by necessary implication exhaust the
scope of the powers of the Court or the jurisdiction that may be exercised in relation to a
matter the inherent power of the Court cannot be invoked in order to cut across the powers
conferred by the Code. The prohibition contained in the Code need not be express but may be
implied or be implicit from the very nature of the provisions that it makes for covering the
contingencies to which it relates.”

It has been held that the High Court has no inherent power to stay to grant stay of the
realisation of the income tax in the reference pending before it 17 nor can the court circumvent
the provision of Section 10 of the Code.18

It has been held that the court cannot make use of the special provisions of Section 151 of the
Code where a party had his remedy provided elsewhere in the Code and he neglected to avail
himself of the same. The inherent power under Section 151 of the Code cannot be exercised
as an appellate power. The review of the remand order, falling under Section 105(2) in
exercise of inherent power is erroneous.19

Section 151 cannot give power to the court to direct the arbitrator to make a fresh award. 20
This power can also not be used to grant stay of the realisation of the income tax in the
reference pending before it. Also as per Section 34(2) of the Code the court cannot grant
future interest after the date of the decree of the decree is silent on the point. In another case
where a Selection Committee was constituted to conduct the written test and interview of the
candidates for recruitment in a religious trust it was held that it is not proper for the Court to

17
CIT Delhi v. Bansi Dhar AIR 1986 SC 421
18
Manohar v. Hiralal AIR 1962 SC 527
19
Nain Singh v. Koonwarjee and Ors. AIR 1970 SC 997
20
AIR 1962 SC 551(559)

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associate itself with the said process of conducting the examinations by nominating its
judicial officer in the process of selection.21

Another important case on this point involved a dispute regarding a notification under
Section 4 of the Land Acquisition Act, 1894 for acquiring land in the village Bhatotarwan for
defence purposes. The award was made by the Land Acquisition Collector. Against the
award, the District Judge arbitrator by his award enhanced the compensation and further
awarded Rs. 700 per acre for loss of livelihood/profession. Against this the State filled a writ
petitions in the High Court which furthur enhanced the compensation. Against this an
application under Sections 151 and 152, Civil Procedure Code was filed before High Court
for amendment of the decree in the cross-objections. The High Court allowed the application.
This was challenged in the Supreme Court. The court noted that the point was no longer res
integra. It considered the scope of the power of the High Court under Ss. 151 and 152, CPC
and also under Section 13(A) of the Act. It further noted that once civil court made an award
as per law then in force which became final and that there is no error of law as on that date.
Subsequent amendment does not give power to the court to amend that decree under Ss. 151
and 152, CPC. This was held in State of Maharashtra v. Maharau Sravan Hetkar, [1955] 3
SCC 316 as well as Union of India and Ors. v. Pratap Kaur. In Maharau Sravan Hetkar's
case, this Court held that the civil court lacked inherent jurisdiction and was devoid of the
power to entertain an application to award additional benefits under the Amendment Act 68
of 1984. The facts therein were that the award had become final and the Amendment Act 68
of 1984 had come into force on September 24, 1984. The respondents made an application
under Sections 151 and 152, CPC to award enhanced solatium and additional benefits etc.
and the civil court allowed and granted the same. In that context, considering the civil court's
power under Sections 151 and 152, CPC. this Court laid the above law. In Pratap Kaur's case,
after the award became final, the respondents filed miscellaneous application to demarcate
and award compensation on the rates were ordered by the High Court which were
accordingly granted and the jurisdiction of the District Court was challenged. Though the
High Court had affirmed the order, this Court held that after the award became final, the civil
court was devoid of power or jurisdiction and there was no arithmetical or clerical error in the
award. The exercise of the power was independent of reference. Therefore, there civil court
ceased to have any power after the award became final, to alter or correct clerical or

21
Guruvayoor Devaswom Managing Committee Vs. Charirman, Guruvayoor Devaswom Managing Committee
AIR 1996 SC 3337

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arithmetical errors. The civil court was, therefore, devoid of jurisdiction and power to award
or order additional benefits. Basing its foundations on these judgments the court held that the
claimant was not entitled to the additional benefits and Sections 151 and 152, CPC cannot be
invoked to award the additional benefits under the Amendment Act 68 of 1984. The High
Court, therefore, had no power to amend the decree to award enhanced statutory benefits. The
decree passed by the High Court was declared to be without jurisdiction and hence a nullity.22

CONCLUSION:

The judgments of the courts that has been discussed in the previous chapter clearly suggest
that the position of law as to when can inherent powers be invoked remains largely unclear.
The Civil Procedure Code is a procedural or adjective law and the provision thereof must be
liberally construed to advance the cause of justice and further its end. The inherent powers
are powers complementary to the other powers. The reason is obvious. The provisions of the
court are not exhaustive for the simple reason that the legislature is incapable of
contemplating all the possible circumstances that may arise in future litigation. Inherent
powers come to the rescue in such unforeseen circumstances.

22
Union of India Vs. Rangila Ram AIR 1996 SC 206

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BIBLIOGRAPHY

PRIMARY SOURCES

(1) Code of Civil Procedure, 1908.

(2) Limitation Act, 1963.

SECONDARY SOURCES

BOOKS:-

(1) Babcock, B.A. et al. (1997) Civil Procedure: Cases and Problems. Boston, Little,
Brown and Company.
(2) Myneni, S.R. (2004) Code of Civil Procedure and Limitation Act. Hyderabad, Asia
Law House.
(3) Paul, S. et al. (2001) Mulla Code of Civil Procedure. 16th ed. Vol.1. New Delhi,
Butterworths India.

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(4) Saha, A.N. (2004) The Code of Civil Procedure. 6th ed. Vol.1. Allahabad, Premier
Publishing Company.
(5) Sarkar, S.C. (2000) The Law of Civil Procedure. 9th ed. Vol.1, Nagpur, Wadhwa and
Company.
(6) Takwani, C.K. (2005) Civil Procedure. 5th ed. Lucknow, Eastern Book Company.
(7) Tandon, R. (2005) The Code of Civil Procedure. 26th ed. Allahabad, Allahabad Law
Agency.
(8) Thakker, C.K. (2000) Code of Civil Procedure. Vol.1, Lucknow, Eastern Book
Company.

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