Legal Service India.

com

Law Articles SEARCH

The Inherent Powers of the Court

The abuse of the process of the court must be prevented by court as an inherent duty of the court.
The Code of Civil Procedure is not exhaustive

Author Name:   umangraj

Ad closed by
Stop seeing this ad

Why this ad? 

Law & Judiciary Coaching Delhi

Highly experienced faculty,
classes by Senior practicing
advocates & judges, 22 years exp.

The abuse of the process of the court must be prevented by court

as an inherent duty of the court. The Code of Civil Procedure is not
exhaustive

The Inherent Powers of the Court

The abuse of the process of the court must be prevented by court as an inherent
duty of the court. The Code of Civil Procedure is not exhaustive, the reason for this
is that the legislature cannot be expected of pre-empting all possible
circumstances which may arise in future litigation, and thus for providing the
procedure for it. The court has as a result in quite a number of cases, where it is
required by the circumstances, acted upon the assumption of possession of
inherent power. This well known principle of law has been legislatively recognised
in Section 151 of the Code of Civil Procedure, 1908 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 provision contained in this section is merely indicative of the power of the
court 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 and does not confer any Top
power. The court has been vested with such powers t make it capable to grant
relief when the ends of justice and equity so demand as such powers are of a wide
relief when the ends of justice and equity so demand, as such powers are of a wide
scope and ambit. The Supreme Court in the case of Raj Bahadur Ras Raja v Seth
Hiralal 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’.

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. 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. Also, the power
under S.151 cannot be exercised as an appellate power and it cannot be invoked
to pass administrative and ministerial orders.

When Can An Inherent Power Be Exercised

Under S. 151 there are two major principles the court must take into consideration
while exercising its inherent powers. The first being that the powers are to be
exercised only for the ends of justice and second, it should be to prevent abuse of
process of the court. Such power must not be exercised when prohibited or
excluded by the Code or other statutes and in situations when there exist specific
provisions in the Code applicable to the litigation at hand.

Power 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. 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 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 it is not. Illustrating example of this principle can be
found in the judgement of the Patna High Court. It held 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. 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. 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. As in the case of 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.

Power To Prevent Abuse of Process of The Court

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.

The High Court has inherent power under S.151, under Letters patent, and under
Art 215 of the Constitution to prevent abuse of its process. For an instance, it is an Top
abuse of the process of the court when the facts germane to the issue are either
not disclosed to the court or are not stated in the true sense of it Inaccurate facts
not disclosed to the court or are not stated in the true sense of it. Inaccurate facts
must be of such nature so as to enable the plaintiff to obtain the relief which he
would not have got had he disclosed the correct facts. Inaccuracies which did not
have such a result would not be sufficient to dismiss the cause.

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.

When Prohibited By The Code Or Other Statutes

It is well-settled through a lot number of judgments that when a power is to be

exercised by a civil court under an express provision, the inherent power cannot be
taken recourse to. A court has inherent power unless it is not prohibited by the
Code. Further, this section invests such power in the court, over matters which are
in its jurisdiction and cognizance. The court also cannot ignore the provisions of
law of limitations by appealing to this section. The period of limitation cannot be
extended by the court in exercise of its inherent powers.

When There Are Speci c Provisions In The Code

In the case of Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal 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 has express provision
with regards to 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, 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. The limitations imposed by construction on
the provision of section 151 do not control the undoubted power of the court to
make a suitable order to prevent abuse of the process of the court.

Appeal, Review And Revision

Appeal

The Madras High Court has held that an appeal and a second appeal lies 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. 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 Order 39 rule 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, with the property in possession of the defendant and the Top
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.

Review

The review/recall petition against the consent decree does not lie. If the evidence
on record discloses that one party has played fraud on the other party, in such
event the party against whom the fraud is played has the only remedy 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 review petition is
maintainable under S. 151 CPC. The court has no inherent power to review its
decision where order allowing amendment of plaint was absolutely clear and
unambiguous and was duly pronounced.

Revision

Supreme Court on carefully examining the various provisions of the Code of Civil
Procedure which provides or contemplates filing of an appeal, came to an
conclusion that there are 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. In consideration of the above view, revision petition against the said order
was not maintainable. There is neither any merit nor any scope for interference by
high court, particularly when the application is under Order 21 rule 29 read with
S.151 was not tenable. There is no power 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.

Conclusion
It cannot be expected that the legislator will be capable in forming of the Code of
Civil Procedure of foreseeing every possible situation which may arise or of
creating an exhaustive list of circumstances in which an existing provision may
apply. To counter the situations of abuse of the process of the court, certain
inherent powers have been recognized to be vested with the courts. This is to
meet the ends of justice and equity in cases where provisions of law are not
explicit or applicable. Such powers have also been granted to the court to assist in
obtaining the motive of avoiding the abuse of the process of the court as it one of
the most substantial duties of the court. Though, this power of the court is not
unduly far-reaching and unrestricted. S.151 which gives legislative recognition to
inherent powers is restricted by certain construction the section where the court
cannot exercise its powers when provision for any action or matter 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. Through an analysis of the various case
laws 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.

Under the Indian judiciary, a codified statute such as the Code of Civil Procedure
aims at making the judicial process uniform and unbiased. Working in this view the
legislative process takes due cognizance of the fact that not all situations can be
pre-empted and it holds good for even for their procedures to be followed. S.151 is
in essence validates this fact by recognsing the courts ability in granting justice in
even those situations where the Code of Civil Procedure or any other statute is not
applicable and or finds itself unequipped to render proper justice and avoid Top
misuse of the process of the court, if any.
  

ISBN No: 978-81-928510-1-3

Print this Article

Author Bio:   Bangalore Institute of Legal Studies

Email:   rajbils@gmail.com Website:   http://www.legalserviceindia.com
Views:  7273
Comments  :  

How To Submit Your Article:

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles
Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!

Online Copyright Registration in India

Call us at: 9891244487 / or email at: admin@legalserviceindia.com

File Divorce in Delhi - Right Now!

File Your Mutual Divorce -
Call us Right Now at: 9650499965 / or email at: tapsash@gmail.com

Top
Clear IAS Exam in 1st Attempt - Join
Delhi's Best IAS Coaching
Ad vajiraoinstitute.com

Law & Judiciary Coaching Delhi

Ad Juris Academy

The Inherent Powers of the High Court

legalservicesindia.com

Restitution W.r.t. to Civil Procedure Code

1908
legalservicesindia.com

Necessary Party And Proper Party in CPC

legalservicesindia.com

Judgment on Admissions

legalservicesindia.com

Award of Cost

legalservicesindia.com

Section 151 CPC, Discretionary powers a

Judge - Legal Articles in India
legalservicesindia.com

Amendment to Pleadings and the

approach of the Judiciary
legalservicesindia.com

Procedure to Investigate suits by or

against Government
legalservicesindia.com

Top
 Lawyers in India - Search By City

Delhi Mumbai Kolkata Chennai

Chandigarh Pune Siliguri Chandigarh
Allahabad Nagpur Durgapur Hyderabad
Lucknow Nashik Janjgir Coimbatore
Noida Ahmedabad Jaipur Eluru
Gurgaon Surat Ludhiana Belgaum
Faridabad Indore Dimapur Cochin
Jalandhar Agra Guwahati Rajkot
Vapi Jalgaon Amritsar Jodhpur

327 Comments Sort by Top

Add a comment...

Kartik Bagchi
The Union Cabinet is all poised to table an amendment to the marriage laws, which, in the event of a
divorce, would give the wife an equal share of not only the property acquired by the husband during or
before the marriage, but also his inherited or inheritable property. This proposed amendment is already
creating a furore.
Like · Reply · Mark as spam · 17 · 5y

Mallikarjuna Sharma
That is quite insane proposal. Self-acquired property can be disposed of at will - is the
established law and this contradicts it. Even if elements of social or public interest are there,
those should not totally drown the established law. The maintenance provisions should be
made more stringent and adequate by reform but not such divesting of property for a song.
Like · Reply · Mark as spam · 8 · 2y

Veeraswami Panjan
Mallikarjuna Sharma It is not divesting of property for a song Sharmaji, when two join in
wedlock, they flurish and family become established. This society was men dominated, is being
men dominated and I feel bad and continue to be men dominated. Hence, to safeguard the
interest of women folk who have to face so many illtreatment are protected through this
historic measure. Why not we support.
Like · Reply · Mark as spam · 2 · 47w

Lakshmirajyam Jonnalagadda
Execute documents of all the property in the name of your beloved wife and then you will face
the music. men are the strong enemeies of the men and idiotically they see cruelity in men and
the regular and continuous female mess in houses which lead to the disastrous state of affairs
for the men folk and it has become a regular irony and more than 90% of women who seek
divorce recite the stupid stanza that their live is full of thorns and many impedements espeically
after marriage as if their life at their parental houses ran on golden carpet. Present day should
be taken into consideration to ascertain present day oproblems and the days of great great Top
grand fathers or the inception times of this Kali Yuga.
 Like · Reply · Mark as spam · 6 · 36w

Show 2 more replies in this thread

Tukaram Gaude
hi
Like · Reply · Mark as spam · 5 · 5y

Angel Vijayvidya
Can anyone help me.i am suffering from dowry harassment.i am mentally have depressed from my
husband.
Like · Reply · Mark as spam · 3 · 5y

Nilesh Pawar
Go to Police Station and file Section 498A of IPC
if getting Physical harrasment you can file Domestice Violence in the appropriate Court and get
Protection from Husand & relatives of husband
Like · Reply · Mark as spam · 8 · 2y

Abhinav Vishnu
What's ur actual problem, u r not mentioned facts here
Like · Reply · Mark as spam · 2 · 1y

Abhinav Vishnu
Is it belongs to dowry ,or, cruelty,or , harrassment, domestic violence,or ,adultry,or, desertion,
what is ur actual problem
Like · Reply · Mark as spam · 1 · 1y

Show 9 more replies in this thread

Anita Rao
India being democratic country and having protective laws for women , its high time to have special
courts for women to try cases exclusively women cases only...........
Like · Reply · Mark as spam · 17 · 5y

Sharon Chatterjee
woman courts is no solution it fact we need capable judges who are not appointed politically
Like · Reply · Mark as spam · 25 · 3y

A Singh
Sharon Chatterjee Right
Like · Reply · Mark as spam · 6 · 1y

Muneeta Dhiman
By demanding women courts, we ourselves are encouraging gender discrimination in our
country. We can't encourage and demand gender discrimination at the same time. It's time to
have more courts and efficient judicial system. Let's demand and create that!!!
Like · Reply · Mark as spam · 11 · 41w

Show 10 more replies in this thread

Top
 Load 10 more comments

Facebook Comments Plugin

Top