Inherent Powers of the Court

There exists an age-old and well-established principle that every court has power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists. Also, it has an inherent duty to prevent abuse of the existing processes of the court. [1] The Code of Civil Procedure is not exhaustive [2] , the reason for this being that the legislature is incapable of pre-empting all possible circumstances which may arise in future litigation, and consequentially for providing the procedure for the same. [3] The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of possession of inherent power. This well established principle receives legislative recognition in Section 151 of the Code of Civil Procedure which states that:

S. 151. Saving of inherent powers of the Court.- 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.

NATURE AND SCOPE OF S.151

The section does not confer any powers, but only indicates that there is a power to make such orders as may be necessary for achieving the ends of justice, and also to prevent an abuse of the process of the court. [4] The court is not powerless to grant relief when the ends of justice and equity so demand, because the powers vested in the court are of a wide scope and ambit. [5] The Supreme Court in the case of Raj Bahadur Ras Raja v Seth Hiralal [6] 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’.

But, this power of the court is limited to the extent that it cannot be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred under the Code. [7] If there are express provisions exhaustively covering a particular topic, that give rise to a necessary implication that no power shall be exercised in respect to that topic in any manner other than that prescribed by the said provision. [8] Further, the power under S.151 cannot be exercised as an appellate power [9] and it cannot be invoked to pass administrative and ministerial orders. [10]

In the subsequent chapters an effort will be made to understand when inherent power can be exercised and when not; when invocation of the section is proper and when it is not; a few specific cases where S.151 finds application. An analysis in these areas will be made in context of existing case law.

CHAPTER 2: INHERENT POWER WHEN CAN BE EXERCISED

There are two major objectives the court must take into consideration while exercising inherent powers recognised under S. 151. Firstly, the powers are to be exercised only for the ends of justice and secondly, to prevent abuse of process of the court. The powers are not to be exercised when prohibited or excluded by the Code or other statutes as well as in situations when there exist specific provisions in the Code applicable to the litigation at hand. In this chapter an attempt will be made to analyse each of these aspects in some detail.

2.1 TO BE EXERCISED ONLY FOR THE ENDS OF JUSTICE

Courts have inherent power to pass interim orders for ends of justice or to prevent failure of justice. [11] It has been observed by the Supreme Court that the interests of justice are the prime consideration in granting or not granting prayers in a petition under S.151 and no rule or procedure can curtail that power of the court. Where the order of the court below is in the interest of justice, the higher court can refuse to interfere under S.115, even if the court below has no jurisdiction to pass such an order. The interference in revision is discretionary and should be used only in interest of justice and not in a case where interference is not in the interest of justice. [12] Illustrations of this principle can be found in judgments such as the Patna High Court holding that, the fact that the dismissal could be reviewed or revised under O 47, should not come in the way of exercising power under this section. [13] Likewise, interference on the grounds of safeguarding the rights of the minor as envisaged by S.31 of the Guardians and Wards Act 1890 was held necessary. [14] The court can also interfere, in the interest of justice, with an order especially an ex parte order, which has been issued through its mistake, even suo motu. [15] Like, any other case even in such situation the court cannot grant a relief under inherent jurisdiction, if the same relief can be granted by another court, under an express provision of the Code. [16]

2.2 TO PREVENT ABUSE OF PROCESS OF THE COURT

According to Mulla [17] 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. [18] The term is generally used in connection with action for using some process of court maliciously to the injury of another person.

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. [19] 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. [20]

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’. [21] 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. [22]

2.3 NOT APPLICABLE WHEN PROHIBITED BY THE CODE OR OTHER STATUTES

Through a plethora of judgments, it is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to. [23] A court has no inherent power to do what is prohibited by the Code. Thus, a court has no power, after the judgment is signed, to alter or to add to it, as, doing so, would be in direct contravention of O 20, r 3. [24] Further, this section does not invest in the court, jurisdiction over matters which are not in its cognisance. Thus, a court cannot under this section, entertain a suit relating purely to caste, such a suit not being of civil nature. [25] ; or entertain a rent suit which can by special law, only be tried by a revenue court. The court also cannot ignore the provisions of law of limitations by appealing to this section. The court cannot, by exercise of its inherent powers extend the period of limitation on any grounds of equity and justice.

A remand of the entire case to the trial court for the purpose of taking additional evidence and then disposing it off according to law, would not be valid, it being in contravention of specific provisions of the CPC. Similarly, a court cannot, in the exercise of the powers under this section, compel a person to undergo a medical examination. [26] Similarly, where the Representation of the People Act prohibits condonation in filing of a petition, the same cannot be cured by exercising the inherent powers in the interest of justice. [27]

2.4 NOT APPLICABLE WHEN THERE ARE SPECIFIC PROVISIONS IN THE CODE

In the case of Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal [28] it has been held that the inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by S.151 but that jurisdiction cannot be used so as to nullify the provisions of the Code of Civil Procedure. Where the CPC deals expressly with a particular matter, the provisions should normally be regarded as exhaustive.

S.151 gives inherent power to the court to make such order as may be necessary for the ends of justice or o prevent abuse of the process of the court; however same is required to be exercised by the court when there is no other statutory remedy available to parties to redress their grievances. In Ram Chand & Sons Sugar Mills Pvt Ltd v Kanhayalal Bhargav [29] , the court observed that, the inherent power of the court ‘is in addition to and complimentary to the powers expressly conferred, but that power will not be exercised if its exercise is inconsistent with, or comes in conflict with any of the powers expressly or by necessary interpretation 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 provided by the said provision. [30] Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the court to make a suitable order to prevent abuse of the process of the court.

The inherent powers cannot be used to reopen the settled matters. These powers cannot be restored to when there are specific provisions in the Act to deal with the situation. [31]

CHAPTER 3: APPEAL, REVIEW AND REVISION

3.1 APPEAL

An appeal and a second appeal have been held, by the Madras High Court to lie from an order made under S.151, in execution, or for the restitution; whereas the Lahore and Patna High Courts have held that no appeal lies from an order made by a court in its inherent jurisdiction. [32] No appeal lies against an order of remand under S.151 but revision is maintainable. [33] Orders granting temporary injunction ex parte or refusing to grant injunction under S.151 is not appealable. When the order purports to have been passed under S.151 and not under O 39 r 1 only a revision will lie against the order.

It is well-settled that when an application for maintenance is submitted in partition suit by the plaintiff, in view of the fact that the property is in possession of the defendant and the plaintiff is entitled to have maintenance out of the joint family property, such application is entertained in view of S.151 and not under O 39 or any other provision. Therefore, as against such order, the miscellaneous appeal is misconceived since O 42 is not applicable to such orders. Thus, the miscellaneous appeal as against the order against the order of maintenance was not tenable in law. [34]

3.2 REVIEW

The review/recall petition against the consent decree would not lie. If the evidence on record discloses that one party has played fraud on the other party, in such event the only remedy left over to the party against whom the fraud is played to file a separate suit for setting aside the decree obtained by fraud. But, if it proved that one of the parties has played fraud on the court, then only the review petition is maintainable under S. 151 Code of Civil Procedure. [35]

Where order allowing amendment of plaint was absolutely clear and unambiguous, the court has no inherent power to review its decision duly pronounced.

3.3 REVISION

After carefully examining the various provisions of the Code of Civil Procedure which provides or contemplates filing of an appeal, Supreme Court found no such provisions available to the appellant to file an appeal against the order made by the trial court on an application filed under S.151. Therefore, revision petition against the said order was not maintainable. Order rejecting application under O 26 r 9, read with S.151 for appointment of approved value to fix valuation of plaint and machinery is not revisable, in view of provisions of S. 115 and considering the fact that the impugned order rejecting the application has not disposed off the suit or proceeding. There is neither any merit nor any scope for interference by high court, particularly when the very application under O 21 r 29 read with S.151 was not tenable. There is no justification to interfere with the impugned order in the exercise of revisional jurisdiction under S.115. The order if not regular may not be interfered with revision if it is made irregularly or even improperly unless grave injustice or hardship would result from a failure to do so. Where the interference is likely to work, not in the interest of justice but rather against it, the high court will not interfere in its revisional jurisdiction. [36]

CHAPTER 4: CONCLUSION

The legislators in forming of the Code of Civil Procedure are incapable of foreseeing every possible situation which may arise or of creating an exhaustive list of circumstances in which an existing provision may apply. [37] In the absence of such mechanical application of law, the court has been recognised to have certain inherent power. This is to perform the functions of administering justice [38] in cases where provisions of law are not explicit or applicable. Also in the cases where parties take unfair advantage of process of the court, [39] it is the courts responsibility to prevent such blatant misuse. Though, this power of the court is not unduly far-reaching and unrestricted. S.151 which gives legislative recognition to ‘inherent powers’ also makes clear the fact that the powers can be exercised only when such action 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. [40] Through various case laws an analysis has been made in this project to understand the guiding principles for the court in entertaining a matter under S.151. 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.

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 cognisance of the fact that not all situations can be pre-empted and procedures laid down for the same. S.151 is a mere reiteration of this very fact as it recognises the courts ability in best granting justice in all those situations where the Code of Civil Procedure or any other statute is not applicable.