CODE OF CIVIL PROCEDURE II

PROJECT REPORT

Topic:

“Inherent Power of Courts”

SUBMITTED TO:
Dr. Karan Jawanda,
Professor, UILS,
Panjab University, Chandigarh.

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 TABLE OF CONTENTS

CHAPTER-1: Introduction

 1.1 CPC- A Procedural Law………………………………………………………..………3

 1.2 Nature and Scope…………………………………………………………....................4
 1.3 Power of Court…………………………………………………………………………4
 1.4 Conclusion……………………………………………………………………………..4

CHAPTER-2: Inherent Power of Court

 2.1 Introduction……………………………………………………………………………5
 2.2 Meaning of Inherent power of Court………………………………………………….5
 2.3 Need for Inherent Power………………………………………………………………6
 2.3.1 Enlargement of time…………………………………………………………………6
 2.3.2 Payment of court fees………………………………………………………………..8
 2.3.3 Transfer of Business…………………………………………………………………9
 2.3.4 Ends of Justice……………………………………………………………………….9
 2.3.5 Amendments of judgment, decrees, orders and other records…………………….10
 2.4 Conclusion……………………………………………………………………………11

CHAPTER-3: Exercise of Inherent power by the Court

 3.1 Introduction………………………………………………………………………….12
 3.2 When to exercise inherent power……………………………………………………12
 3.3 Judicial Interpretation……………………………………………………………….13
 3.4 Conclusion…………………………………………………………………………..14
 3.5 Limitations………………………………………………………………………….15

CHAPTER-4: Conclusion……………………………………………………………………..…16

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Bibliography…………………………………………………………………………………….17

CHAPTER-1

INTRODUCTION

1.1 CPC- A Procedural Law

Laws can be divided into two groups:

 Substantive law
 Procedural law

Whereas substantive law determines rights and liabilities of parties, procedural law prescribes
the practice, procedure and machinery for the enforcement of those rights and liabilities.1

In Halsbury’s Laws of England, it has been stated,

“There is at the outset a vital and essential distinction between substantive law and procedural
law. The function of the substantive law is to define, create or confer substantive legal rights or
to impose and define the nature and extent of legal duties. The function of procedural law is to
provide the machinery or the manner in which the legal rights or status and legal duties may be
enforced or recognized by a court of law or other recognized constituted tribunal.”2

Procedural laws prescribe procedure for the enforcement of rights and liabilities. The efficacy of
substantive laws, to a large extent, depends upon the quality of procedural laws. Unless the
procedure is simple, expeditious and inexpensive, substantive laws, however good are bound to
fail in achieving their object and reaching the goal.

1
Glanville William, Learning the Law (1982) at pp. 13-19; Law Commission’s 45th report at p. 18
2
Halsbury’s law of England (4th Edn.) Vol. 37 at pp. 18-19, para 10

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Procedural law is thus an adjunct or an accessory to substantive law. The two branches are
complementary to each other and interdependent, and the interplay between them often conceals
what is substantive law and procedural law. It is procedural law which puts life in substantive
law by providing a remedy and implements the well known maxim ubi jus ibi remedium.3

1.2 Nature and Scope

A procedural law is always in aid of justice, not in contradiction or to defeat the very object
which is sought to be achieved. “A procedural law is always subservient to the substantive law.
Nothing can be given by a procedural law what is not sought to be given by a substantive law
and nothing can be taken away by the procedural law what is given by the substantive law.”4

The code extends to the whole of India, except the state of Jammu and Kashmir and the state of
Nagaland and the Tribal areas.

1.3 Power of court

The court has inherent power on those matters which are not specifically dealt with it in the code
as legislature cannot foresee all the possible circumstances which may arise in future litigation
and consequently for providing procedure for them.5 It must be exercised in accordance with
principles of justice, equity and good conscience. The code specifically provides that, “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.”6

1.4 Conclusion

Courts hold very high position in the society by virtue of its duty to do justice between the
parties. The procedure to be adopted to do such duty must not be complex as court are for all so
even an illiterate person must be in a position to understand it, if the procedures would be simple

3
Ibid
4
Saiyad Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343
5
Padam Sen v. State of UP, AIR 1961 SC 218
6
Sec. 151 of the code

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then the matters will be disposed of easily and people will get speedy justice. Since courts are
constituted for the purpose of administering justice, they should possess all such powers as may
be necessary to do the right and to undo the wrong in the process of administering the justice. If
these powers are not specifically given in the code then the court has inherent power which must
be exercised to meet the ends of justice. So the important question which needs to be answered is
what inherent powers are available to the court.

CHAPTER-2

INHERENT POWER OF COURT

2.1 Introduction

Every court is constituted for the purpose of administering justice between the parties and,
therefore, must be deemed to possess, as a necessary corollary, all such powers as may be
necessary to do the right and to undo the wrong in the course of administration of justice. 7 The
Code of Civil Procedure is a procedural law and the provisions thereof must be liberally
construed to advance the cause of justice and further its ends.

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 the court is free to exercise them for
the ends of justice or to prevent the abuse of the process of the court. As the legislature is
incapable of contemplating all the possible circumstances which may arise in future litigation
inherent power come to the rescue in such unforeseen circumstances.8

2.2 Meaning of Inherent power of court

According to dictionary meaning, “inherent” means “natural”, “existing and inseparable from
something”, “a permanent attribute or quality”, “an essential element, something intrinsic, or
essential, vested in or attached to a person or office as a right of privilege.”9

Inherent powers are thus powers which may be exercised by a court to do full and complete
justice between the parties before it.

7
State of UP v. Roshan Singh, (20087) 2 SCC 488
8
Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527
9
Chamber’s 20th century dictionary (1992), p. 647

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As justice Raghubar Dayal10 rightly states, “The inherent power has not been conferred upon the
court; it is a power inherent in the court by virtue of its duty to do justice between the parties
before it.” Thus, this power is necessary in the interest of justice. The inherent power has its
roots in necessity and its breadth is coextensive with the necessity.

2.3 Need for Inherent power

Sec 151 of the CPC provides for exercise of inherent powers to prevent the abuse of the process
of court. The abuse of the power may be at the instance of a party or at the instance of the court
itself. Abuse of the powers of the court’s which results in injustice to party needs to be remedied
on the ground that the act of a court shall not prejudice anyone.11 When a party practices fraud on
the court or on a party to a proceeding, the remedies have to be provided on the basis of inherent
powers. Circumventing statutory proceedings or resorting to multiplicity of proceedings or by
instituting vexations, obstructive or dilatory tactics 12 have to be prevented by use of inherent
powers. Similarly, trying to secure an undue advantage over the opposite party or introducing
scandalous or objectionable matter in the proceedings have to be prevented 13 to ensure that the
process of the court is not abused.

2.3.1 Enlargement of time

Section 148 provides that where any period is fixed or granted by the court for the doing of any
act, the court has the power to enlarge the said period even if the original period fixed has
expired.

Where the court in the exercise of its jurisdiction can grant time to do a thing, in the absence of
the specific provision to the contrary curtailing, denying or withholding such jurisdiction, the
jurisdiction to grant time would include in its ambit the jurisdiction to extend time initially fixed
by it.14

10
State of WB v. Indira Debi, (1977) 3 SCC 559
11
Forasal Vs. ONGC, AIR 1984 SC P.241.
12
Mula Vs. Balu Ram AIR 1960 ALL P.573.
13
Shanker Lal Vs. Ramniklal, AIR 1951 Kant P.23.
14
Ramesh Bijoy v. Pashupati Rai, (1979) 4 SCC 27

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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. The principle of
equity is that when some circumstances are to be taken into account for fixing a length of time
within which a certain action is to be taken, the court retains to itself the jurisdiction to re-
examine the alteration or modification of circumstances which may necessitate extension of
time. If the court by its own act denies the jurisdiction to do so, it would be denying to itself the
jurisdiction which, in the absence of the negative provision, it undoubtedly enjoys.15

As justice Desai states, “The danger inherent in passing conditional orders becomes self-evident
because that by itself may result in taking away jurisdiction conferred on the court for just
decision of the case. The true purport of conditional orders is that such orders merely create
something like a guarantee or sanction for obedience of the court’s order but would not take
away the court’s jurisdiction to act according to the mandate of the statue or on relevant
equitable considerations if the statue does not deny such consideration.”16

Before extension of time is granted by a court, two conditions must be fulfilled:

1) A period must have been fixed or granted by the court and

2) Such period must be for doing an act prescribed or allowed by the code.

The section is not applicable when the time has not been fixed or granted by the court or a
particular act has not been prescribed or allowed by the code.

The power conferred by the code on the court is discretionary. The court “may” use it for
securing the ends of justice. It cannot be claimed by the party as of right. Before exercising the
power, therefore, the court may take into account all the facts and circumstances including the
conduct of the applicant.17

If a party seeks enlargement of time on the ground that for some valid reason it could not
perform the act which it was required to perform within the time granted by the court, it is for the
party to move an application under s. 148 of the code and convenience the court that the interest

15
Jogdhayan v. Babu Ram, (1983) 1 SCC 26
16
Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344
17
Johri Singh v. Sukh Pal Singh, (1989) 4 SCC 403

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of the justice would required extension of time whether prospectively or retrospectively. It is not
obligatory to move such an application in all cases. Where the omission on part of the party is
trivial and the mistake committed by him is not of serious nature and does not adversely affect
the rights of the parties, the court may itself extend the time under s. 148, so that the technical
defects may be removed and the hearing of the court may proceed in accordance with law.18

2.3.2 Payment of court fees

Section 149 empowers the court to allow a party to make up the deficiency of court 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 4 of the Court Fees Act, 1870 provides
that no document chargeable with court fees under the act shall be filled or recorded in any court
of justice, unless the requisite court fee is paid.

Section 149 of CPC is a sort of proviso to that rule by allowing the deficiency to be made good
within a period fixed by it. If the proper court fee is not paid at the time of filling of a
memorandum of appeal, but the deficit court fee is paid within the time fixed by the court, it
cannot be treated as time barred.19 Thus, the defective document is retrospectively validated for
the purposes of limitation as well as court fees.

It is a discretionary provision given to the court; this discretionary power has to be exercised
keeping in view the rights of the respondent/decree holder and public interest in a given case.
When the exemption and extension of the court fees is a discretionary power to this court, bona
fide of the ground should be established beyond all reasonable doubt.20 The discretion conferred
by this section is to be normally exercised in favor of the litigant except in cases of malafide or
ground of similar nature.21 For exercising power under this section the court is bound to record
the reasons for doing so. In a case where there is a delay of 9 months in deposit of court fees and
no reason was furnished for the delay except that the appellate was a poor person, it was held
that since no details of his financial position and source of earning have been furnished and no

18
Mohd. Yousuf v. Bharat Singh, AIR 1999 Raj 185
19
Mohd. Mahibulla v. Seth Chaman Lal, (1991) 4 SCC 529
20
Kalahandi v. Sumbaru Bariha, AIR 1994 Ori 90
21
Collector Land Acquisition v. Dina Nath, AIR 1977 J&K 11

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details of his properties have been given, the court in its discretion cannot condone such huge
delay.22

2.3.3 Transfer of Business

Section 150 of the Code declares that where the business of any court is transferred to any other
court, the transferee court will exercise same powers and discharge same duties conferred or
imposed by the court upon the transfer court.

2.3.4 Ends of Justice

The inherent powers under section 151 can be used to secure the ends of justice. Thus, the court
can recall its own orders and correct mistakes, can set aside ex-parte order passed against the
party, can add, delete or transpose any party to a suit, can set aside illegal orders passed without
jurisdiction, can hold a trial in camera, can allow amendments of pleadings, can correct errors
and mistakes etc. what would meet ends of justice would always depends upon the facts and
circumstances of each case and the requirements of justice.23

The court has ample power under section 151 of the code to make such order as may be
necessary for the ends of justice. But the power must be exercised with caution and due diligence
with the object to prevent miscarriage of justice or to prevent the abuse of the process of cour t.
The limits within which the power is to be exercised has been summed up in the case of
Nawabganj Sugar Mills Co Ltd v. UOI24 as 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 principles. He is not to yield to spasmodic sentiments, 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 discretion that remains.

22
Ritesh Kumar v. Smt Chandrakanta, AIR 2007Raj 192
23
Naresh Shridhar v. State of Maharastra, AIR 1967 SC 1348
24
Nawabganj Sugar Mills Co Ltd v. UOI, AIR 1976 SC 1152

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To get the order of stay of a suit on the ground of abuse of process, the applicant must show that
plaintiff would not succeed but that he could not possibly succeed on the basis of the pleading
and in the circumstances of the case i.e. the defendant would be required to show a very strong
case in his favor. The power would be exercised by the court if the defendant could show to the
court that the action impugned is frivolous or is taken simply to harness the defendant. The
power of the court restraining the proceedings are to be exercised sparingly or only in
exceptional cases.25

TO PREVENT ABUSE OF POWER

According to Mulla the words ‘abuse of process of courts’, is defined as follows:

Abuse of process of court, is the malicious and improper use of some regular legal proceedings
to obtain an unfair advantage over an opponent. Nothing short of obvious fraud on the part of a
debtor would render him liable to have his petition for insolvency dismissed on the grounds of
‘abuse of process of court. The term is generally used in connection with action for using some
process of court maliciously to the injury of another person.26

The High Court has inherent power under S.151, under Letters patent, and under Art.215 of the
Constitution to prevent the abuse of its powers. It is an abuse of the process of the court when the
facts germane to the issue were either not disclosed to the court or were misstated. However,
inaccurate facts must be such as to enable the plaintiff to obtain the relief which he would not
have gotten had he disclosed the correct facts. But inaccuracies which did not have such a result
would not be sufficient to dismiss the cause.

Where the court is bound to grant an application, and has no discretion to refuse it, it has no
power to dismiss it on so treacherous a ground of decision, as an ‘abuse of the process of the
court’. Also, where a decree of the first appellate court has become final, by its not having been
interfered with in the second appeal, an application for stay of its execution cannot be granted on
the ground, either of abuse of process of court or in the interest of justice, merely because a
review application against such a decree is pending.

25
Mayur ltd v. owners and parties, vessel MV Fortune Express, AIR 2006 SC 1828
26
Pradeem Kumar, Inherent power of court,Lawteacher,(Sept
2,2016,21:53),http://www.lawteacher.net/free-law-essays/constitutional-law/inherent-powers-of-the-court-co
nstitutional-law-essay.php

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2.3.5 Amendments of judgment, decrees, orders and other records

Section 152 enacts that clerical or arithmetical mistakes in judgments, decrees or orders arising
from accidental slip or omission may at any time be corrected by the court either of its own
motion or on the application of any of the parties. In Master Construction Co. Ltd v. State of
Orissa27 it was observed that the arithmetical mistake is a mistake of calculation, a clerical
mistake is a mistake in writing or typing whereas an error arising out of or occurring from
accidental slip or omission is an error due to careless mistake on the part of the court liable to be
corrected. The section is based on two important principles:

1) An act of court should not prejudice any party, and

2) It is the duty of the courts to see that their records are true and they represent the correct state
of affairs.

In the words of Bowen, LJ, “Every court has inherent power over its own records so long as
those records are within its power and that it can set right any mistake in them. An order even
when passed and entered may be amended by the court when the order was made. It can be done
at any time.”28

As a matter of fact such inherent powers would generally be available to all courts and
authorities irrespective of the fact whether the provisions contained under s. 152 may or may not
strictly apply to any particular proceedings. In a matter where it is clear that something which the
court intended to do but the same was accidently slipped or any mistake creeps in due to clerical
or arithmetical mistake, it would only advance the ends of justice to enable the court to rectify
such mistake. But before exercising such power the court must be legally satisfied and arrive at a
valid finding that the order or decree contains or omit something which was intended to be
otherwise, that is to say while passing the decree the court must have in its mind that the order or
the decree should be passed in a particular manner but accidental slip. The facts and

27
Bishnu Charan Das v. Dhani Biswal, AIR 1977 Orissa 68
28
Ss. 152, 153 of the Code

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circumstances may provide clue to the fact as to what was intended by the court but
unintentionally the same did not mention in the order or the judgment or something which was
intended to be there stands added to it. The power of ratification of clerical, arithmetical errors or
accidental slip does not empower the court to have a second thought over the matter and to find
that a better order or decree could or should be passed.

2.4 Conclusion

It is the sole duty of the court to provide justice to the people and for the same various
procedures has also been prescribed. Sometimes there may arises a situation where complying
with the procedure becomes difficult and the courts have given power that it can take some
liberal view on the same as justice must not be denied on mere irregularities and the nature of
irregularities can be determined by facts and circumstances of the courts. So the code has
invested very wide and extensive powers to minimize litigation, avoid multiplicity of
proceedings and to render full and complete justice between the parties before them. However
the courts are not allowed to use the inherent power arbitrarily and when to exercise this power
has been discussed in the next chapter.

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CHAPTER-3

EXERCISE OF INHERENT POWER OF THE COURT

3.1 Introduction

It is true that the inherent powers of the court are very wide and residuary in nature and they are
in addition to the powers specifically conferred on the court by the code. It is, however, equally
true that these inherent powers can be exercised ex debito justitiae only in the absence of express
provisions in the code. They cannot be exercised in conflict with what has been expressly
provided in the code or against the intentions of the legislature.

3.2 When to exercise inherent power

If there are provisions specifically covering a particular topic, they give rise to necessary
implication that no power shall be exercised in respect of the said topic otherwise than in the
manner prescribed by the said provisions. The inherent powers are to be exercised by the court in
very exceptional circumstances. The restrictions on the inherent powers are not because they are
controlled by the provisions of the code, but because it should be presumed that the procedure
provided by the legislature is dictated by the interests of justice.

In the case of Ram Chand & Sons Sugar Mills Ltd v. Kanhayalal Bhargava 29 the court laid down
correct principle regarding the ambit and scope of the inherent powers of a court which is as
follows:

“The inherent power of a court is in addition to and complimentary to the powers expressly
conferred under the code. But that power will not be exercised if it is inconsistent with, or comes
into conflict with, any of the power expressly on 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 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
29
Ram Chand & Sons Sugar Mills Ltd v. Kanhayalal Bhargava, AIR 1966 SC 1899

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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.”

3.3 Judicial Interpretation

In the absence of any special circumstances which amount to abuse of the process of the Court,
it cannot grant a relief in exercise of its inherent power when the justice can be served by another
remedy available to the party concerned provided by the Code. The inherent powers saved by s.
151 of the Code are not over the substantive rights which any litigant possesses. Specific powers
have to be conferred on the Courts for passing such orders.

The Apex Court in M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T,30 has
maintained that the Courts had power under Section 151, 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.

In Bahadur Pradhani v. Gopal Patel31 the plaint of a Money Suit was rejected for non-payment
of deficit court fee within the time granted by the court. The plaintiff filed a petition under
Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the
petition and the suit was restored to file. The Court examined the scope of the inherent powers of
the Court and expressed that the provisions of the Code do not control the inherent powers of the
court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its
duties to do justice between the parties before it.

In Manoharlal v. Seth Hiralal32 it was held that the provisions of the Code are not exhaustive as
the legislature is incapable of contemplating all possible circumstances which may arise in future
litigation.

30
M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T, AIR 1977 SC 1348
31
BahadurPradhani v. Gopal Patel,  AIR 1964 Ori 134
32
Manoharlal v. Seth Hiralal, 1962 AIR 527

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3.4 Conclusion

There is a wide discretionary power conferred to the court in the way of inherent power which
can be used by the court to meet the ends of justice. However this power must not be exercised
by the court in each and every situation, where the code has not been specifically dealt with any,
matter or is silent then the court can exercise this power taking into consideration various
circumstances and also have to mention special reason for the same. It has been specifically said
that where the code specifically give any remedy than the same must be resorted to and in that
circumstances court must not use its inherent power this is because of the reason that it is
assumed that legislature had made law for the welfare of the people, and major law making body
is legislature only and where specific law has been provided than the court must not change the
same until such conditions prevails.

LIMITATIONS

It can be clearly seen that the inherent powers of the court are extensively wide and residuary in
nature. Though, one cannot rule out the fact that the same inherent powers can be exercised ex
debitojustitae only in the absence of express provisions in the code.[xvi] The restrictions on the
inherent powers are not there because they are controlled by the provisions of the Code, but
because of the fact that it shall be presumed that the procedure provided by the legislature is
dictated by ends of justice.

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 CHAPTER-5

CONCLUSION

The judiciary forms a fundamental pillar on which a democracy such as India rests. Codified
statutes such as the Code of Civil Procedure aim to make the judicial process as uniform and
unbiased as possible. Yet the legislative process takes due cognizance of the fact that not all
situations can be pre-empted and procedures laid down for the same. The inherent power of the
court is in recognisation of courts ability in best granting justice in all those situations where the
Code of Civil Procedure or any other statute is silent. It is the duty of the court to exercise this
power wisely so as to met ends of justice and must not be exercised arbitrarily. It also saves
multiplicity of suits, money and helps in quick disposal of cases which is the demand of the time.
Speed trial helps people to get quick remedy and confidence of people towards justice delivery
system is also retained. Hence it can be concluded that inherent power of the court is of vital
importance in providing justice.

In a democratic country like India there are proper laws and procedures but still there are
enormous numbers of cases which are pending in India some of the reason are as follows; there
is shortage of judges, though there are many cases pending but the seats of judges is very less
comparative to this in many states there is no vacancies in judge post so the first and foremost
thing which must be done is to increase the post so that cases can be disposed of quickly.

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 BIBLIOGRAPHY

Primary Sources:

 Code of Civil Procedure, 1908

 Halsbury’s law of England, 4th Edn., Vol. 37
 Concise oxford English dictionary (2002)

Books:

 Mulla, The Code of Civil Procedure, 17th Edition 2007

 Anil Sachdeva, Inherent power of the courts, 2008
 Sarkar’s, civil court practice & procedure manual, 11th edition, 2011
 Commentary on Civil Procedure Code, 1908, Fifthth edition, New Delhi
 C.K. Takwani, Law Civil Procedure Code, sixth Edition

Websites :

 http://www.legalservicesindia.com/article/article/the-inherent-powers-of-the-court-1736-
1.html
 http://www.lawteacher.net/free-law-essays/constitutional-law/inherent-powers-of-the-
court-constitutional-law-essay.php
 http://www.lawyersclubindia.com/articles/INHERENT-POWERS-OF-CIVIL-COURT-
U-S-151-OF-CODE-OF-CIVIL-PROC-3071.asp
 https://indiankanoon.org/doc/1126109/
 http://www.lawctopus.com/academike/inherent-powers-court-cpc/
 http://www.lawctopus.com/academike/inherent-powers-court-cpc-2/

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