Gujarat National Law University
Inherent Power of the Civil Courts
SUBMITTED BY- H ARI MOHAN MEENA (10A044) Email id:
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Abhishek Meena (10A003) Email id:
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Gujarat National Law University
TABLE OF CONTENTS
Acknowledgement…………………………………...……………….….. Abstract…………………………………………………………................ Table Of Cases…………………………………………………………… Table Of Statutes……………………………………….......................... Research Plan………………………………………………..………….. Introduction…………………………………………………..…………… Reason and Purpose behind the Inherent power of the court………. Section Regarding to Inherent power of the court……………………..
Enlargement of the time of Section 148………………………… Payment of court fees Section 149……………………………… The reason for saving the Inherent powers …………………….
End of the justice …………………………………………………………. To prevent the abuse of the process of the courts............................. Bibliography……………………………………………………...............
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Acknowledgement
We wish to express our deep sense of gratitude to our instructor Mrs. Chandreshwari Minhas, asst. professor of law, Gujarat National Law University for her able guidance and useful suggestions, which helped us in completing the project work, in time. Words are inadequate in offering my thanks to the Project instructor and the payroll of library, GNLU for their cooperation in carrying out the project work. Finally, yet importantly, we would like to express our heartfelt thanks to our beloved parents for their blessings, our friends, classmates for their help and wishes for the successful completion of this project.
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Abstract This project deals with the Inherent power of the court as in the section 151 of the Civil Procedure Code, 1908 described. Firstly this project gives the introduction of this concept of the Inherent power of the court. After this project discusses the reason for this concept is enacted. This project also discusses the nature of this inherent power that what extend court can use it and what kind of limitation imposed on the court for exercise this power. It will also look into the some related case laws of the courts where this concept described. This project will analyze all related section in detail and also summed the authorities‟ views on the mentioned topics. In the last it will conclude with describing the nature of this power.
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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
Statue(s) referred
Civil Procedure Code, 1908
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Research Plan The research methodology followed in the research of this project has been the doctrinal method, using materials gathered from the Gujarat National Law University, GNLU library, as well as personal materials accompanied by extensive use of Internet resources. It is assured that no part of this project has been plagiarised from any other source. The aim of the researchers in this project is to trace, through the various articles, journals‟, Committee‟s (which was established by government) report and Indian law commission report and through the judgment of the Apex courts and lower court the concept of equality of opportunity.
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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 privilege 1 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 1 2
Concise oxford English dictionary(2002) Kedar Nath Bajoria and Anr. vs The State Of West Bengal AIR 1954 SC 660
American Government and Politics Today: The Essentials By Barbara A. Bardes, Mack C. Shelley, II, Steffen W. Schmid 2011-12 edition at page no. 385
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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 Mahendra 3. It was said in this case that in unforeseen circumstance and in ex debito justitiae in absence of 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 Raghuverr Dayal every court is made for the provide 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 s. 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 Regarding to Inherent power of the court: Five section of the C.P.C. are the most related to this concept of the Inherent power of the court. Out of five sections 151 is the preserve the inherent power of the courts. Section 151 gives the wide scope to court use this inherent power of the court. Another section is just focusing on the some points like section 148 focuses upon enlargement of the time, section 149 focus upon matter related to the payment of the court fees and 3 4
AIR 1965 SC 364 at p. 399 1962 AIR 527, 1962 SCR Supl. (1) 450
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section 152, 153 deal with amendments in judgments, decree orders and in other proceeding. Section 153-b declares a palace 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. 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 is show the intention of the legislator that they are not compelling to do so they just leaving on the judiciary so they can use it according to circumstances or facts of the cases. In general one rule can‟t be apply 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 Singh5 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 Das6 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 6
Air 1961 SC 882 at. p. 883
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expired. So after this judgment court has the power to enlarge the time even after original time has expired. In another case Chinnamarkathian v. Ayyavoo7 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 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 sec.54 and 582-A of the old civil procedure code and sec. 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 sec.4 of the court fees act.9 Generally this section don‟t use by the parties as a right it is allowed by the court according 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.
7
(1982)1 SCC 159 at p.168 Civil Procedure Code ,c.k. Takwani sixth addition 9 th Commentary on Civil Procedure Code, 1908 5 edition, Delhi Law publication 8
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In the case of Priya Nath v. Mianjan, 10it 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. Veenakataskrishana11 and by the Patna High court in the case of Gaya loan office v. Awadhh Behari12. But on this descending opinion is given by the Bombay High court in the case of Achtt v. Nagappa13 and Punjab chief court in the case of Jiwan Das v. Khusabi Ram14 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 & Anr15 .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 should use this discretion. It was held in the case of Jagat Ram v. Misar Kharaiti Ram16 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.17 also the condition or we can say manner of the courts to use this 10
29 I.C. 571 27 I.C. M.L.J. 677 at p.678 12 1 pat.L.J. 420 at pp. 423 13 I.L.R. 38 Bom. 41 14 27 P.L.R. 1917 et seq 15 A.I.R. 2006 S.C. 811 at p. 817 16 A.I.R. 1938 Lah.361 17 A.I.R. 1975 Raj. 150 at p. 53 11
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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.18 It was discussed in the case of Buta singh v. unoion of India19 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.
18 19
th
Commentary on Civil Procedure Code, 1908 5 edition, Delhi Law A.I.R. 1995 S.C. 1945 at p. 1947
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3. The reason for saving the Inherent powers under
section 151of 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.20 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 procedure21 (AIR 1962 SC 527) 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.22 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 Haque23. In this case it was said that all courts whether civil or criminal possess in the 20
(1989) 4 SCC 403 at p. 415 (AIR 1962 SC 527) 22 th Sarkar‟s civil court practice & procedure manual 11 edition 2011 23 (2005) 1 S.C.C. 122at p.127 21
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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 sah24 it was said The section merely furnished legislative recognised of an age-old and well 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. 24
A.I.R. 2006 Raj. At p. 204
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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 found 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.25 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. In the case of Kanai Law Shaw v. Bhathu Shaw26 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 Reddi27 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 25
Inherent power of the courts by Anil Sachdeva 2008 editoin A.I.R. 1984 SC 241 at p. 259-60 27 I.L.R. 32 Mad. 242 26
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true and that they represent the correct state of the affairs28 . 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 when 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 India29, In the judgment of this case Krishna Iyer j approved a passage of from Benjamin cardozo‟s the judicial process30 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 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.31 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:
28
Bishun Charan Das v. Dhani Biswal A.I.R. 1977 Orissa 68 at p. 69 A.I.R. 1976 SC 1152 30 Benjamin Cardozo‟s the Nature of the judicial process, Yale university Press, 1921 31 th Mulla the Code of Civil Procedure 17 Edition 2007 29
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1. It should not be used where the Code of Civil Procedure deals expressly with a particular matter32. 2. It should not be used when prohibited or excluded by the code or other statutes.33 3. It can‟t be used for reopen the settled matter.34 4. It should be used only for the end of the justice and prevent the abuse the process of the court.35 5. Inherent jurisdiction should not be guilty of laches and has to be diligent.36 6. If the discretion is exercised by suppression or concealment, the same must be withdrawn and the benefit recalled37 7. It should not affect the substantive rights of the parties.
32
Manoharlal Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 Daromodaran Pillai v. South Indian bank ltd. AIR 2005 SC 3460 34 State of Wb v. Karan Singh Binayak AIR 2002 SC 1543 35 Ganesh v. Purushottam (1910) 34 Bom 135 36 Somar Bhuiya v. Kapil Kumar AIR 1974 Pat 289 37 Hindustan Thermo prints ltd. V. DRG (UK Ltd) AIR 1999 Del.202 33
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Conclusion 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 Subbo Rao 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 court.38 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.
38
Ram Chand v. Kanhayalal AIR 1966 SC 1899
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Bibliography
Books Mulla the Code of Civil Procedure 17th Edition 2007 Inherent power of the courts by Anil Sachdeva 2008 edition Sarkar‟s civil court practice & procedure manual 11th edition 2011 Commentary on Civil Procedure Code, 1908 5th edition, Delhi Law Civil Procedure Code, C.K. Takwani sixth addition Benjamin Cardozo‟s the Nature of the judicial process, Yale University Press, 1921 Concise oxford English dictionary (2002)
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