This article has been written by Shreya Sharma.
***Re-published
ABSTRACT
This study deals with those provisions of the civil procedure code, 1908 which talk about the inherent powers of the court. These inherent powers are an addition to the powers which are already granted by this code on civil courts. The Civil Procedure Code is not comprehensive in nature. The rationale behind this is that the legislature is incapable to foresee all the circumstances which may arise in future litigation and therefore it is not feasible to provide with the procedure of the same. These inherent powers can come in rescue of the court and can be exercised when such unforeseen circumstances arise. The meaning of the word inherent is “something which is essential and is vested as a right in someone.” Therefore, inherent powers are those powers which are vested absolutely and inviolably in the hands of civil courts and it is expected that the civil courts will exercise them to provide full and complete justice to the parties before them.
Keywords: Inherent Powers, Civil Procedure Code, 1908, Civil Courts, Section 151 CPC, Judicial Discretion, Complete Justice, Procedural Law, Unforeseen Circumstances, Indian Judiciary.
OBJECTIVE
Firstly, the aim of this research is to study and analyze the inherent powers of the court, and how are they exercised. Secondly, to analyze the limitations which are attached to these inherent powers.
RESEARCH METHODOLOGY
The methodology adopted for this paper is doctrinal method of research and the entire study is in the form of analysis of the established procedures, thereby following analytical mode of research. The primary sources for this research are The Code of Civil Procedure, 1908 and the relevant judicial decisions.
RESEARCH QUESTION
This research paper tries to answer the question as to what are Inherent Powers and which provisions of The Code of Civil Procedure, 1908 have given such wide powers to the civil court.
Introduction
The origin of law in our country can be rooted back to the Vedic period. Since then, it has been a vital part of the society. It was there when men were uncivilized and it is still there when men have grown sophisticated. As the society has evolved so has law simultaneously. The evolution of law can be seen in India as it evolved from the customary and religious practices to modern day well codified law which is based on the Constitution of India. One thing which hasn’t changed is the reason why the concept of law was brought in the first place, to provide justice to all irrespective of the status of the person. But making law isn’t the solution as there has to be a body which will administer proper implementation of law. For this very reason courts were established. Courts are not as old as law but law gets its recognition through courts only. So therefore, Courts must have the power which is necessary to do what is right and to stop and undo the wrong while administering Justice.
In Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth[1] it was held that “It is the courts duty to do justice in all cases, whether provided for or not, carries with it the necessary power to do justice in the absence of express provision.” This power is referred to as Inherent powers of the Court. The word “Inherent” has a broad meaning. It means an inseparable, permanent, essential right or privileged which is vested in someone. Hence Inherent Powers are those powers which are vested in the courts and it can be used by the Courts to provide justice to the aggrieved parties. The Civil Procedure Code is a procedural law in India which was enacted in the year 1908. This legislation was brought to administer the Civil proceedings in our Country. Section 148 to section 153 of The Code of Civil Procedure, 1908 talks about these Inherent powers which are vested in the Courts. In Shreenath vs Rajesh AIR (1998) SC 1827, it was held that “These provisions being a part of procedural law requires a liberal interpretation to advance the cause of justice and further it ends or to effect enforcement of substantive rights.” In State of U.P. vs Roshan Singh (2008) SCC OnLine SC 124, it was held that “The inherent powers are considered necessary to do the right and undo the wrong in the course of administration of justice” and In Mulraj vs Murti Raghonathji Maharaj[2] it was held that “Inherent powers are to be regarded as supplementary to specially conferred powers.” In Newab Ganj Sugar Mills Vs. Union of India AIR (1976) SC 1152 it was held that “Inherent powers have roots in necessity and they are co-extensive with necessity in order to do complete justice.”
The literal meaning of the legal maxim ex debito justitiae is from what is owed. Ex debito justitiae is basically a debt which the court owes to the litigant as to correct its judgements or orders to prevent the abuse of power. This is a remedy which is available with the litigant as a matter of right. The Civil Procedure Code is not comprehensive in nature. The rationale behind this is that the legislature is incapable to foresee all the circumstances which may arise in future litigation and therefore it is not feasible to provide with the procedure of the same. Thus, when the need arises the courts have to exercise the Inherent powers which are vested in them. The Supreme Court in the case of Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth[3] observed that “The inherent power has not been conferred on the court; it is a power in the court by virtue of its duty to do justice between the parties before it.”
Let us now look into the provisions of the Inherent Powers as provided under The Code of Civil Procedure, 1908.
- Section 148 deals with “Enlargement of Time”
- Section 149 deals with “Power to make up deficiency of Court fees”
- Section 150 deals with “Transfer of Business”
- Section 151 deals with “Saving of Inherent Powers of Court”
- Section 152 deals with “Amendments of Judgements, Decrees or Orders”
- Section 153 deals with “General powers to amend”
Enlargement of Time
“Section 148 states that 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, [not exceeding thirty days in total,] even though the period originally fixed or granted may have expired.”[4]
In simple words it basically means that when there is a time period fixed by the court to do a certain act which is provided under this code, then the court has the power to extend that period up to 30 days. This extension of time can be in relation to circumstances which may arise due to the conduct of the parties or in case where there is any requirement of modification or alteration in the pleadings etc. This section is a discretionary power which is vested in the hands of the court and can’t be used by the parties as a matter of right.
Power to make up deficiency of court fees
“Section 149 states that Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.”[5]
According to the Court Fees Act of 1870 the payment of the requisite court fees is mandatory. So, section 149 of the code of civil procedure, 1908 basically gives court the power to relax that criterion and allow the party to pay the court fees even after the limitation period for filing the suit or appeal has expired. The legislation gave a retrospective effect to this section. In Jugal Kishore vs Dhanno Devi[6] the court held that “Such payment made within the time fixed by the court retrospectively validates a defective document.” The section is a discretionary power which is vested in the court and can only be exercised when the court thinks that there was a reasonable reason for the delay. This section can’t be used as a matter of right by the parties. In A. Nawab John vs V.N. Subramaniyam (2012) 7 SCC 738 it was held that “Section 149 of the Code confers power in the court to accept the payment of deficit court fee even beyond period of limitation prescribed for the filing of a suit. If the plaint is otherwise filed within the period of limitation. However, exercise of discretion by the court is conditional upon satisfaction of the court that plaintiff offered a legally acceptable explanation for not paying the court fees within the period of limitation”
Transfer of Business
“Section 150 states that Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.”[7]
In simple words this means that for example the business of Court A is transferred to Court B, then in this case the powers and the duties which have been conferred on Court A by this code will now be transferred to Court B.
In Narayan Swamy G.V. vs Union of India (1998) 5 Kant LJ 279, the court held that “The transfer of business contemplated by section 150, CPC. would arise where cases are transferred under section 24 CPC. or where on account of reorganisation of the courts or by creation of new courts, certain areas are tacked on to new court on account of which the business pertaining to that area pending on the file of one court is transferred to the file of any newly constituted court.”
Saving of Inherent Powers of Court
“Section 151 states 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.”[8]
The Inherent power in Section 151 of this code can be exercised only in the case of these two situations. Number one when such powers are necessary to provide for the ends of justice and second one being when such powers are necessary to be used to prevent the abuse of the process of the Court. In Debendra Nath Dutt vs Sm. Satyabala Dasi AIR (1950) Cal 217, Calcutta High Court explained the meaning of “ends of justice”. The court said that “Ends of justice – are solemn words and no mere polite expression in juristic methodology and here secreted in the solemn words is the aspiration that justice is the pursuit and end of all law. But the words ”ends of justice” wide as they are do not, however, mean vague and indeterminate notions of justice, but justice according to the statutes and laws of the land. They cannot mean that express provisions of the statute can be overridden at the dictates of what one might by private emotion or arbitrary preference call or conceive to be justice between the parties.”
In National Institute of Mental Health and Neuro Science v. C Parameshwara[9] it was held that “Inherent powers cannot be exercised so as to nullify provisions of the code. Where court deals expressly with a particular matter, the provisions should normally be regarded as exhaustive.” In Abdul Rahim Attar v. Atul Ambalal Barot[10] it was held that “Recourse to inherent powers in face of or in conflict with specific provision of statute is not permissible. Inherent power cannot be exercised to nullify effect of any statutory provision.” This section gives a wide power to the Civil Courts.
Certain circumstances mentioned below can illustrate the ambit of the power of this section.
- If any situation where the court has passed some erroneous order then in that case the court may recheck it and resolve the errors.
- The court can even issue temporary injunctions in the cases which are not covered under by Order XXXIX and can even set aside an “ex-parte” order.
- The Court can set aside any illegal orders or any order which was passed by them when they did not have the jurisdiction to do so.
- The court may take into consideration any subsequent event which may arise in the case at a future stage.
- The court may order to continue the trial “in camera.”
- The court may order that its proceedings will not be published.
- The court can even annihilate any statement directed towards the judge.
- The Court can also restore the suit and conduct its rehearing on its merits and can also to review its order
The power which lies under section 151 of this code does not make it a substantive provision. This power does not extend to any substantive rights that a litigant may have. In Ramji Gupta v. Gopi Krishan Agarwal AIR (2013) SC 3099 the court held that “Section 151 of the Code is not a substantive provision that confers right to get any relief of any kind. It is mere procedural provision which enables a party to have the proceedings of a pending suit conducted in a manner that is consistent with justice and equity. Similarly, inherent powers cannot be used to re-open settled matters.” In M/S. Ram Chand and Sons Sugar Mills vs Kanhaya Lal Bhargava AIR (1966) SC 1899, the Hon’ble Supreme Court held that “the Court would not exercise its inherent power under S.151 CPC if it was inconsistent with the powers expressly or impliedly conferred by other provisions of Code. It had opined that the Court had an undoubted power to make a suitable order to prevent the abuse of the process of the Court.” In Jaipur Mineral Development vs. The Commissioner of Income Tax[11] the Hon’ble Supreme Court held 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.”
Amendments of Judgements, Decrees or Orders
“Section 152 states that Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any 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.”[12]
It basically means that the court can either Suo moto or on the application of any of the parties correct any clerical or arithmetical mistake made by the court while pronouncing any of its judgements, decree or orders which may have arisen from any unexpected lapse or imperfection.
The court under this section under no circumstance shall make any correction which is based on the merit of the case. The Hon’ble Supreme Court in Sarup Singh v. Union of India (2011) 11 SCC 198 held that the “correction as contemplated under Section 152 CPC which goes to the merit of the case is beyond the scope of Section 152 CPC.” In Century Textiles Industries vs Deepak Jain (2009) 5 SCC 634, the court held that “A bare reading of Section 152 CPC makes it clear that the power of the court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be reconsideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man.” In Jayalakshmi Coelho v. Oswald Joseph Coelho[13], the Hon’ble Supreme Court placed reliance upon its earlier judgments in State of Bihar v. Nilmani Sahu (1996) 11 SCC 528 and Bai Shakriben v. Special Land Acquisition Officer (1996) 4 SCC 533 and held that “the inherent powers as exemplified in Section 152 CPC generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under Section 152 CPC may or may not strictly apply to any particular proceeding.”
General powers to amend
“Section 153 states that The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.”[14]
The major difference between section 152 and 153 of this code is that section 152 talks about the amendments of judgements, decree or order while on the other hand section 153 talks about the general power of the court to amend any error in the proceedings of a suit. In Jai Jai Ram Manohar Lal v. National Building Material Supply[15], the Supreme Court referring to the earlier expression in Purushottam Umedbhai & Co. v. Manilal and Sons AIR (1961) SC 325 held that “A party cannot be refused relief merely because of same mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which cannot be compensated for by an order of costs. However negligent or careless may have been the first motion and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to other side. Any mis-description even amendment can be allowed under Section 153 CPC and need not always be under Order VI Rule 17 CPC. The well settled rule is that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side. The power to grant amendment of pleadings is intended to serve the ends of justice and is not governed by narrow or technical limitation. There was in fact an observation of Court without even application for amendment has power to grant leave to rectify any mis-description or bonafide mistake.”
Limitation
As we have already discussed above that the sections of Inherent power give civil courts a wide power. Besides these powers there are certain limitations which are attached to the exercise of these powers. Some of which are:
- These powers can’t be applied to cases where the express provisions are already provided,
- These powers can only be applied in certain rare cases or circumstances if and when they arise, and
- These powers can’t be applied so that the principle of Res Judicata can be followed. The concept of Res Judicata simply means that all the issues which have already been decided can’t be reopen.
Conclusion
Section 148 to 153 of Civil Procedure Code, 1908 talks about the Inherent Powers which are vested in the hands of the Civil Courts. These sections confer the civil courts with very wide and extensive powers which helps them to minimize litigation, avoid multiplicity of proceedings and render full and complete justice between the parties before them. These powers have to be exercised “Ex debito justitiae” which means “in the interest of justice.” These powers cannot in any way override the statute or laws of the land and therefore they are not a substantive provision.
[1] AIR 1962 SC 527
[2] AIR 1967 SC 1386
[3] AIR 1962 SC 527
[4] The Civil Procedure Code, 1908 (Act 5 of 1908), s.148
[5] The Civil Procedure Code, 1908 (Act 5 of 1908), s.149
[6] 1973 2 SCC 567
[7] The Civil Procedure Code, 1908 (Act 5 of 1908), s.150
[8] The Civil Procedure Code, 1908 (Act 5 of 1908), s.151
[9] AIR 2005 SC 242
[10] AIR 2005 Bom 120
[11] AIR 1977 SC 1348
[12] The Civil Procedure Code, 1908 (Act 5 of 1908), s.152
[13] AIR 2001 SC 1084
[14] The Civil Procedure Code, 1908 (Act 5 of 1908), s.153
[15] AIR 1969 SC 1267
