 PROJECT:- INHERENT POWER OF CIVIL

COURTS
 NAME:- AMAN KUMAR.
 SEMESTER:- 10(X)
 ROLL NUMBER:- 10
 SECTION:- A

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  TABLE OF CONTENTS
 Acknowledgement…………………………………...……………….….3

 Introduction…………………………………………………..……………4

 Reason and Purpose behind the Inherent power of the court……….4

 Section Regarding to Inherent power of the court…………………….5

• Enlargement of the time of Section 148…………………………….5
• Payment of court fees Section 149………………………………….7
• The reason for saving the Inherent powers ………………………..8
➢ End of the justice…………………………………………………….10
➢ To prevent the abuse of the process of the courts.......................10
➢ Section 152 and 153………………………………………………….11
 Limitation to the exercise of inherent powers…………………………11
 Conclusion………………………………………………………………..13

 Bibliography……………………………………………………...............15
 Table Of Cases……………………………………………………………15

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  Acknowledgement
I would like to express my special thanks of
gratitude to my Prof. A.K.Mehrotra sir who
gave me the golden opportunity to do this
project on the topic INHERENT POWER OF
CIVIL COURTS . It helped me in doing a lot
of Research and I came to know about a lot
of things related to this topic.

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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 privilege1 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 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 Mahendra3. It was said in this case
that in unforeseen circumstance and in ex debito justitiae in absence of

1.Concise oxford English dictionary(2002)

2 Kedar Nath Bajoria and Anr. vs The State Of West Bengal AIR 1954 SC 660
3 AIR 1965 SC 364 at p. 399

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 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 Raghuveer Dayal every court is made for providing 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 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 or different from the
procedure expressly provided in the Code."

➢ Section Relating to Inherent power of the court:

Five section of the Code of Civil Procedure are most related to this concept
of the Inherent power of the court. Out of five sections,section 151
preserve the inherent power of the courts.
Section 151 gives the wide scope to court to use this inherent power of
the court. Another sections are just focusing on the same 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 place 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.
4 1962 AIR 527, 1962 SCR Supl. (1) 450

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 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 show the intention of the
legislator that they are not compelling to do so they are just leaving on the
judiciary so that they can use it according to circumstances or facts of the
case. In general one rule can‟t be applied 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 Singh 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 Das5 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. Ayyavoo6 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
5 Air 1961 SC 882 at. p. 883
6 (1982)1 SCC 159 at p.168

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 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 section 54 and 582-
A of the old civil procedure code and section 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 section 4 of the court fees act..Generally
this section is not used by the parties as a right it is allowed by the court
after Perusal of 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. Mianjan7,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.
Veenakataskrishana8 and by the Patna High court in the case of Gaya
loan office v. Awadhh Behari9. But on this descending opinion is given by
the Bombay High court in the case of Achtt v. Nagappa10 and Punjab
chief court in the case of Jiwan Das v. Khusabi Ram11 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 & Anr12 .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
7 29 I.C. 571
8 27 I.C. M.L.J. 677 at p.678
9 pat.L.J. 420 at pp. 423
10 I.L.R. 38 Bom. 41
11 27 P.L.R. 1917 et seq
12 A.I.R. 2006 S.C. 811 at p. 817

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 should use this discretion. It was held in the case of Jagat Ram v. Misar
Kharaiti Ram13 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.14 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 in the case of Buta singh v. Union of India15 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.

13 A.I.R. 1938 Lah.361

14 A.I.R. 1975 Raj. 150 at p. 53
15 A.I.R. 1995 S.C. 1945 at p. 1947

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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 “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.
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 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.
The purpose of this section also discussed in the case of Zandu
Pharmaceutical works Ltd. V. Mohd. Sharaful Haque16. In this 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 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 sah17 it was said The
section merely furnished legislative recognised of an age-old and well

16 (2005) 1 S.C.C. 122at p.127

17 A.I.R. 2006 Raj. At p. 204

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 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.
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 find 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.

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 In the case of Kanai Law Shaw v. Bhathu Shaw18 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 Reddi19 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 affairs.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 whereas 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 India20, In the judgment of
this case Justice Krishna Iyer approved a passage of from Benjamin
cardozo‟s 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

18 A.I.R. 1984 SC 241 at p. 259-60

19 .L.R. 32 Mad. 242
20 A.I.R. 1976 SC 1152

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 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 matter21.
2:-It should not be used when prohibited or excluded by the code or other
statutes.22
3:-It can‟t be used to reopen the settled matter.23
4:-It should be used only for the end of the justice and prevent the abuse of
process of the court.24
5:-Inherent jurisdiction should not be guilty of laches and has to be
diligent.25
6:-If the discretion is exercised by suppression or concealment, the same
must be withdrawn and the benefit recalled26
7:-It should not affect the substantive rights of the parties.

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

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➢ CONCLUSION:-
It cannot be expected that the legislator will be capable in forming of the
Code of Civil Procedure of foreseeing every possible situation which may
arise or of creating an exhaustive list of circumstances in which an existing
provision may apply. To counter the situations of abuse of the process of
the court, certain inherent powers have been recognized to be vested with
the courts. This is to meet the ends of justice and equity in cases where
provisions of law are not explicit or applicable. Such powers have also been
granted to the court to assist in obtaining the motive of avoiding the abuse
of the process of the court as it one of the most substantial duties of the
court. Though, this power of the court is not unduly far-reaching and
unrestricted. Section 151 of Code of Civil Procedure which gives legislative
recognition to inherent powers is restricted by certain construction where the
court cannot exercise its powers when provision for any action or matter is
explicitly prohibited by the Code or any other statute; or where there exists a
provision of the Code applicable to the matter at hand. Through an analysis
of the various case laws it has been established that inherent powers must
be exercised only for the ends of justice or to prevent abuse of the process
of court as long as it is not in contravention of any other existing law or
provision.
Under the Indian judiciary, a codified statute such as the Code of Civil
Procedure aims at making the judicial process uniform and unbiased.
Working in this view the legislative process takes due cognizance of the fact
that not all situations can be pre-empted and it holds good for even for their
procedures to be followed.
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 SubbaRao 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

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court.27

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.

27 Ram Chand v. Kanhayalal AIR 1966 SC 1899

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➢Bibliography
• Books

1:-Mulla the Code of Civil Procedure 17th Edition 2007

2:-Inherent power of the courts by Anil Sachdeva 2008 edition
3:-Sarkar‟s civil court practice & procedure manual 11th edition 2011
4:-Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law
5:-Civil Procedure Code, C.K. Takwani sixth addition
6:-Benjamin Cardozo‟s the Nature of the judicial process, Yale University
Press, 1921
7:-Concise oxford English dictionary (2002)

➢ Table of Cases
1. Kedar Nath Bajoria And Anr. vs The State Of West Bengal
2. Mahendra Manilal v. Sushlila Mahendra
3. Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal
4. Johri Singh v. Sukh Pal Singh
5. Mahanth Ram Das v. Ganga Das
6. Chinnamarkathian v. Ayyavoo
7. Priya Nath v. Mianjan
8. Narayana v. Veenakataskrishana
9. Gaya loan office v. Awadhh Behari
10. Achtt v. Nagappa
11. Jiwan Das v. Khusabi Ram
12. K.C. Skaria vs The Govt. Of State Of Kerala & Anr
13. Jagat Ram v. Misar Kharaiti Ram
14. Gulam Abbas v. Shri Kalayan Finance co
15. Buta singh v. unoion of India
16. Zandu Pharmaceutical works Ltd. V. Mohd. Sharaful Haque
17. Mohammad salim v. smt. Shahin sah
18. Kanai Law Shaw v. Bhathu Shaw
19. Thathu Naick v. Kondu Reddi
20. Hindustan Thermo prints ltd. V. DRG
21. Daromodaran Pillai v. South Indian bank ltd
22. State of Wb v. Karan Singh Binayak
23. Ganesh v. Purushottam Somar Bhuiya v. Kapil Kumar
24. Nawabgani Sugar Mills co.Ltd. v. Union of India
25. Ram Chand v. Kanhayalal

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