INHERENT POWERS OF CIVIL COURT U/S.151 OF CODE OF CIVIL PROC

Inherent powers of Civil Court U/s.151 of Code of Civil Procedure, 1908[1]

      INTRODUCTION:-

At the outset few of the basic aspects of the code of civil procedure, 1908 requires to be illumined and one of the important aspects of it is the nature of the code. The code of civil procedure is a procedural law notwithstanding it also deals with certain substantive rights and to quote the view of the apex court qua procedural law in the case of Saiyad Mohd. Bakar v. Abdulhabib Hasan, AIR 1998 SC 1624, wherein it stated, “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”.

The object of the code is to “facilitate justice and further its ends[2]”. What culls out from the above mentioned object is that emphasis must be to do complete justice and adjudicate the dispute in a manner that no party suffers from the vice of injustice. Meaning thereby, to some extent elasticity/flexibility of interpretation should be maintained, so, the justice can be done by stretching the provisions of the code within permissible limits. As such there is no hurdle faced in furtherance of justice but the situation which the courts sometimes face is the absence of provision to meet with certain reliefs, it is with this object to grant bonafide reliefs or exercise of power to do justice i.e. which can be exercised ex debito justitiae, in absence of express provisions in the code and in absentia of any procedure, inherent powers of court and the scheme there under is engrafted under the code of civil procedure.

In other words 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[3].

It is made clear that the contents of this article has been confined to the subject matter or instances covered by the provisions of section 151 of the code only and whole scheme is not made the subject matter of this article.

      PRINCIPLE:-

The underlying principle behind envisaging of section 151 is that every court is constituted for the purpose of doing justice according to law and must be deemed to posses, as a necessary corollary and has in its very constitution of such powers as may be necessary to do the right and undo the wrong in the course of administration of justice.

      SCHEME OF INHERENT POWERS OF THE COURT:-

The substantive provisions dealing as such with the inherent powers are Section 148 to 153-B of the Code of Civil Procedure, 1908. Section 148 and 149 provide for grant and enlargement of time while section 151 preserves inherent powers of courts. Sections 152, 153, 153-A deal with amendments in judgment, decrees, orders and in other proceedings while section 153-B declares the place of trial to be an open court, Section 150, however, provides for transfer of business.     

      MEANING:-

1) INHERENT POWERS:-

If we take dictionary meaning of the word “inherent” then it alludes its meaning as ‘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[4]”.

Now, coming to the meaning of the word “power”, the meaning drawn out in the case of Seth Lookasan Sethiya v. Ivan E John[5], is that power means authority, whether any discretion is left or not and whether any direction is imperative or directory relates to the manner and exercise of the power and not to the basic ingredient of the authority itself. Without authority, a valid act cannot be done irrespective of whether the act is discretionary on the part of the doer of the act, or he is bound to do it. In both situations, he must have authority.

Thus, if the connotation of the both the words are clubbed together it elicits that “inherent power” is the natural or essential power conferred upon irrespective of any conferment of discretion, meaning thereby if this connotation is read out in terms of section 151 it comes to it that as such there is no conferment of power on court but there is declaration that inherent power of the court exists and this power is not limited or affected by anything in the code.

Even otherwise the language of section 151 is very clear in terms that it specifically states that “the court can make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the court”. The importance attributed to this provision is manifest from its judicial exposition.

In the end it would be palpable to say that powers necessary to do right and undo wrong in the course of the administration of justice constitute an inherent power of the court[6].

2) ENDS OF JUSTICE:-

One of the objects underlying Section 151 of the code is for “ends of justice” in other words it can be termed as the objectives of justice.

In the case of Debendranath v. Satya Bala Dass[7], the phrase “ends of justice” was explained and it was held that “ends of justice are solemn words and not mere polite expression in juristic methodology and justice is the pursuit and end of all law. But these words do not mean vague and indeterminate notions of justice according to statutes and laws of the land”.

Thus, from the above explanation it can be said that one of the reasons for invoking inherent powers by the court is to do justice when injustice is highly manifest. In other words the inherent powers of a court can be invoked only for the attainment of the ends of substantial justice; court may do what is fair and equitable[8].

3) ABUSE OF THE PROCESS OF THE COURT:-

Ground no.2 upon which the court can invoke its inherent power is to prevent abuse of the process of the court. Here, abuse of process means the frivolous and vexatious use of legal proceedings[9] and abuse of the process of the court also means the malicious and improper use of some regular legal proceedings to obtain an unfair advantage over an opponent[10]. The term is generally used in connection with action for using some process of the court maliciously to the injury of another person.

The question which strikes the mind is that whether abuse may be committed by court or a person/party to a proceeding?

Now, in answer to the above question it is submitted that abuse may be committed by a court or by a party[11].

For instance, where a court employs a procedure in doing something which it never intended to do and there is miscarriage of justice, there is an abuse of process by the court itself. The only way to fill this vacuum of injustice is to remedy the party on the basis of doctrine “actus curiae neminem gravabit[12]”-an act of court shall prejudice no one.

Secondly, a party to litigation may also be guilty of an abuse of the process of the court and the same is explained with the help of following cases:-

·         The party may be guilty of an abuse of the process of court[13]

·         By obtaining benefits by practicing fraud on the court[14];

·         By resorting to or encouraging multiplicity of proceedings[15];

·         By instituting vexatious, obstructive or dilatory tactics[16];

·         By introducing scandalous or objectionable matter in proceedings[17];

·         By trying to secure an undue advantage over the opposite party[18], etc.

Thus, on this ground of abuse of process of the court also the provisions of section 151 can be invoked.

      NATURE AND SCOPE OF SECTION 151:-

The marginal note of section 151[19], itself signifies that by engrafting the provisions of section 151 nothing new has been introduced and in contra to that the section has just confirmed the pre-existing powers to act ex debito justitiae[20]. The pre-existing power over here means the power inherent in the court by virtue of the duty to do justice between the parties before it. Even otherwise the court is a court of law and equity and even when equity and justice demands the court can pass such orders as may be necessary to do complete justice in absentia of express provisions to do so. Meaning thereby the power has already been vested with the courts and as such nothing new has been conferred upon the courts by virtue of section 151 besides expressly saving the inherent powers of the court.

With regard to nature of this section the issue was whether the powers so expressed under section 151 are in addition or complementary to powers conferred by the code and whether they can override the other provisions of the code?

In answer to this issue the Supreme Court of India has by catena of decisions on this point held that the powers are in addition and complementary to the powers conferred by this code and by no stretch of imagination it can be said that these powers can override the provisions of the code[21]. In other words section 151 is intended to supplement the other provisions of code and not to evade or ignore them or to invent a new procedure[22] and thus inherent power cannot prevail over statute. Moreover, the only thing which needs to be kept in mind while exercising the inherent powers is that they when exercised do not come in conflict with what has been expressly provided for or those exhaustively covering a particular topic or against the intention of the legislature.

The next issue which needs to be addressed under the caption of scope is that whether the power conferred by section 151 is a blanket and a plenary one?

In answer to this issue one thing is made clear that the exercising of these powers are subject to certain restrictions as mentioned in above Para’s, secondly, this issue can be answered by addressing the points to be kept in mind while granting relief U/s 151 and they are that firstly, these powers are in addition and complementary to the powers expressly conferred, secondly, they are not meant to enable the courts to create rights in parties but to invoke as and when justice demands[23], thirdly, and lastly the most important point to be remembered always is to look into the contents of the application and the prayer made on such basis and to determine whether the applicant is entitled for reliefs prayed in the facts and circumstances of the case?      

Thus, these above mentioned points are by and large used as guiding factors for determination of an application U/s 151 of the code. Notwithstanding with these aforesaid points one thing is made clear that even if all the above issues/factors are answered in negative even then the court can grant the relief prayed for if the ends of justice and equity demands because the powers vested U/s 151 are of wide scope and ambit[24].

      INHERENT POWER WHEN INVOKED:-

Ø  Where the cause of action not barred on the day on which restoration application was filed, the suit is liable to be restored[25].

Ø  It is true that O.39 R.2A of the code deals with consequences of disobedience or breach of injunction, but that does not mean that the court below was not competent to provide police protection in exercise of its inherent powers U/s 151 of the code. Civil revision petition dismissed[26].

Ø  While exercising inherent powers the court can expunge defamatory remarks in the will. It has been well settled by now because if the person alleged to be defamed will be left with no recourse for redressal as person who had made the libelous or scandalous or defamatory statement has since died and no civil or criminal proceedings can be initiated against such a person. Also the law does not perceive a situation where a person is rendered remediless[27].

Ø  Power of restitution not confined to section 144, court can order restitution in exercise of its inherent powers[28].

Ø  Defendants forcibly dispossessed plaintiff in violation of interim injunction, passing of order of mandatory injunction under sec.151 for restoration of possession to the plaintiff proper[29].

Ø  Suits or proceedings having different causes of action can be consolidated under inherent powers without consent of parties, question of limitation remained unaffected[30].

Ø  Court can set aside its order of rejection of plaint[31] and in case it is rejected on the ground of failure to pay the deficit court fee the court can restore the plaint u/s 151[32].

Ø  Execution petition is dismissed for failure to take steps, sec.151 applies to revoke order of dismissal and O.21 R.106 is no bar. Dismissal for default on the date of hearing O.21 R.106 applies[33].

Ø  There is nothing in order 39 of the code which expressly or by necessary implication precludes the exercise of inherent power of the court under sec.151 and it is open to the court to pass a suitable consequential order under section 151 as may be necessary for the ends of justice or to prevent abuse of process of the court[34].

Ø  The court has power to grant interim relief considering the merit of each case and such relief is subject to adjustment upon final determination in the suit. Such interim relief is also granted to avoid abuse of process of court[35].

Ø  Order passed by mistake may be corrected by the same court and the court can do it even apart from sec.151. Court can set aside the decree under its inherent powers after passing it where it is a nullity or passed due to mistake by the court[36].

Ø  If due to absence of advocate no cross examination is made and later advocate appears and prays for cross examination, the prayer can be granted under inherent powers[37].

Ø  Under section 151 the jurisdiction to stay an otherwise competent suit is to be sparingly exercised and only for the ends of justice and to prevent abuse of process of court and thus when all the evidence is available in D place a suit in C can be stayed notwithstanding competence of latter court for the ends of justice[38].

      INHERENT POWER WHEN NOT INVOKED:-

When there is no case of grant of a particular relief under a particular statute, power under sec.151 need not be exercised. Where in a case claiming maintenance by a Hindu woman married to a Hindu Male having a living lawful wedded wife, it cannot be granted U/s 25 of Hindu Marriage Act, 1955, the marriage being void under section 5(1) thereof, and such reliefs cannot be granted by invoking sec.151[39]

Ø  A court cannot override the express provision of law but if there is no express provision in the statute, then the apex court has held that the court can exercise its power in a suitable case. Hence as per the judgment in the case of Ram Chand & Sons Sugar Mills (p) Ltd. v. Kanhaya Lal Bhargava[40], the power u/s 151 cannot be exercised 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.

Ø  Inherent powers can be exercised when no other remedy is available. Sec.151 hence cannot be invoked as substitute for appeal, revision or review. In exercise of inherent powers however, the court cannot override general principle of law. It could only be for securing ends of justice and prevent abuse of process of court[41].

The inherent powers of the court u/s 151 also cannot be invoked to grant a relief beyond scope of law. For instance if in an auction proceedings once the law has fixed 15 days time to deposit the full amount of purchase money in the court, such period cannot be extended u/s 151[42].

      CONCLUSION:-

In the conclusion I, would like to state that after studying the judicial trend/various judicial pronouncements one thing is made clear by the courts that barring few exceptions the court has a plenary power to grant relief’s u/s 151 if it is facilitating in the ends of justice or preventing from the abuse of process of court.

Secondly, if few basics are followed by every court then it would not be difficult or confusing job to determine the stage as to when the inherent powers should be invoked.

Thirdly, it seems that the ground of having vested with inherent powers can be used as positive weapon to condone few lapses in procedural aspects of a case by the courts in the matters where the counsels come and argue on technicalities. Moreover after the case study it is manifest that the courts are even cautious enough as regards the stage and circumstances for invoking inherent powers and have strictly followed the principles governing the provisions of section 151.

Fourthly, as regards the proper use of inherent powers the courts have invoked them in appropriate cases and yes it does not mean that there are no instances where the courts have misused it but one can say that there is less misuse and in many cases the Apex court or the High courts have rectified such misuse and have compensated the parties.

Thus, in my view inherent powers are of utmost importance and are the best example to show the cautiousness of the legislature to enable all the people have access to justice even under such circumstances where there is no express provision and a problem or issue at law has arisen.