Prof. Dr. Annam Subrahmanyam, and (Dr.) Mohan Rao B.,
The Code of Civil Procedure, 1908 (CPC) consolidated and amended the laws relating to the procedure of the Courts of Civil Judicature in India. All the rules of procedure are the handmaids of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing the procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. Justice is the goal of jurisprudence, processual, as much as substantive.
The Concept of inherent power vested in the Courts under Section 151 CPC is a hand maid to meet the ends of justice.
The expression ‘inherent’ means inbuilt, embedded, implicit or implied. The expression ‘inherent’ contemplates something latent though not directly expressed. Inherent powers are powers, which are resident in all Courts. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court’s business.
The civil courts have inherent power to do all that is necessary to meet the ends of justice. Therefore, it is a common practice for the clients to add a sweeping prayer in any petition ‘to pass such other orders necessary and expedient for the Court to meet the ends of justice’ besides praying for something expressly sought’. Almost all the petitions contain such an expression in view of the inherent power granted under Section 151 of the CPC.
Section 151 CPC
Section 151 of the CPC reads:
“Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers 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 “.
Section 151 deals with saving of inherent powers of the Court and provides that nothing in Civil Procedure 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.
Section 151 delineates that the inherent power of the Court. It enables the Court to make orders necessary i) for the ends of justice or ii) to Prevent of abuse of process of the Court and iii) there is no limitation on such inherent power under the Code. But, Section 151 of the Code has not created any new power but has preserved the power to act in the ends of justice and to prevent abuse of the processes of the court, which the courts had been exercising from before.
Very wide power of necessity- In Gokul Mandar v. Pudmanand Singh, it was observed that the inherent power has been preserved in order to enable the courts to deal with matters and situations which are not covered by any specific provision of the Code. It was neither practicable nor desirable to define the limits or to enumerate the circumstances in which this power can be exercised. As, however, the power is, of necessity, very wide, the courts have to be very cautious and vigilant in exercising it. It may also be safely laid down that the Court has no inherent power to override express provisions of the Code.
Alternative for ‘No other remedy’– Further, in the absence of some special circumstances which amount to abuse of the process of the Court, it cannot grant a relief in exercise of its inherent power when the ends of justice can be served by another remedy provided by the Code which is available to the party concerned. The mere fact that the procedure for following the other remedy is longer or more costly will not entitle the Court to disregard this rule because its order will not be necessary either in the ends of justice or to prevent abuse of the processes of the court.
To Advance Interests of Justice– Section 151 C.P.C. can always be exercised to advance interests of justice and the technicalities will have no place in such matters. In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava, the appellant contended that during the pendency of the first suit, certain subsequent events had taken place which made the first suit infructuous and in law the said suit could not be kept pending and continued solely for the purpose of continuing an interim order made in the said suit. While examining the question the Supreme Court was to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed of or kept alive. The question arose was whether, a defendant could make an application under Section 151 CPC for dismissing the pending suit on the ground the said suit had lost its cause of action. The Court answered it affirmative.
Continuation of Infructuous Suit Amounts to Abuse of the Process of the Court -The Apex Court opined that continuation of a suit which had become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit should be disposed of as having become infructuous. The application under Section 151 of CPC in this regard was held maintainable. It was also held that there was nothing in Order XXXIX of the Code which expressly or by necessary implication precluded the exercise of inherent power of Court under Section 151 CPC. Accordingly, it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court.
Not to Nullify or By Pass any Provisions of the Code – Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal indicates the wide scope of Section 151 CPC where as per the majority view, in the facts and circumstances of the case, it was open to pass an injunction order under Section 151 CPC where it may not be in conflict with any provision of Order XXXIX of the Code or other provision of law. It has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code, where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. It was held that Section 10 CPC had no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC.
Complementary to Powers Expressly Conferred– The Supreme Court after considering its various previous judgments on the scope of Section 151 CPC, held: “The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not 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. 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 prescribed by the said provisions. 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 conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.”
It was clarified that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Pertinently, the Supreme court observed that the court exercising the power under section 151 CPC, has to consider first whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition, then the Court will consider whether such power should be exercised or not on the basis of facts mentioned in the application.
Consolidation of Suits to Avoid Duplication – In Chitivalasa Jute Mills vs Jaypee Rewa Cement, the cause of action alleged in the two plaints referred to the same period and the same transactions, i.e., the supply of jute bags between the period 07.01.1992 and 31.12.1993. What is the cause of action alleged by one party as foundation for the relief prayed for and the decree sought for in one case is the ground of defense in the other case. The issues arising for decision would be substantially common. Almost the same set of oral and documentary evidence would be needed to be adduced for the purpose of determining the issues of facts and law arising for decision in the two suits before two different courts. Thus, there will be duplication of recording of evidence if separate trials are held. The two courts would be writing two judgments. The possibility that the two courts may record finding inconsistent with each other and conflicting decrees may come to be passed cannot be ruled out.
It was observed by the Apex Court that the CPC does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the Court flowing from Section 151 of the CPC. Unless specifically prohibited, the Civil Court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In the instant case, consolidation of suits was ordered for meeting the ends of justice as it would save the parties from multiplicity of proceedings, delay and expenses. Accordingly, complete or even substantial and sufficient similarity of the issues arising for decision in two suits would enable the two suits to be consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need be addressed followed by one common judgment. However, as the suits are two, the Court may, based on the common judgment, draw two different decrees or one common decree to be placed on the record of the two suits. This is how the Trial Court at Visakhapatnam shall proceed consequent upon this order of transfer of suit from Rewa to the Court at Visakhapatnam.
Recall Judgment /Order Obtained by Fraud– In Indian Bank v. Satyam Fibres (India) Pvt. Ltd. , the Supreme Court after referring to Lazarus Estates observed that since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court, it also amounts to an abuse of the process of the Court. It was also held that the Courts have inherent power to set aside an order obtained, by practicing fraud upon the Court, and that where the Court was misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. The Court held:
“The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud” on Court, In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court’s business.”
No Business to Collect Evidence (Documents/Books) Forcibly -In Supreme Court Bar Association & … v. B.D. Kaushik Section 151 deals with saving of inherent powers of the Court and provides that nothing in the CPC 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. A party has full rights over its books of account. The Court has no inherent power forcibly to seize its property. If it does so, it invades the private rights of the party. Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence. A party is free to produce such documents or books in support of its case as be relevant. A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession. If a party does not produce the documents it is lawfully called upon to produce, the Court has the power to penalize it, in accordance with the provisions of the Code. The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession, especially after it has been summoned from it. Even in such cases where the Court summons a document from a party, the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party.
The Apex Court held that the defendants had no rights to these account books. They could not lay any claim to them. They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court. The defendants’ request really amounted to the Court’s collecting documentary evidence which the defendants considered to be in their favour at that point of time. It is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac. count books. If the plaintiff does forge entries and uses forged entries as evidence in the case, the defendants would have ample opportunity to dispute those entries and to prove them forgeries.
Not Powers over the Substantive Rights – Thus, the inherent powers saved by s. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.
In Ram Chand and Sons Sugar Mills v. Kanhayalal the Supreme Court held that the Court would not exercise the 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 Union of India v. Ram Charan & Ors., the issue was what would be the period of limitation for making an application for setting aside the abatement. It was held that the limitation for application to set aside abatement should start from the date of death and not from the date of appellant’s knowledge of death. The said application was filed by the appellant to bring legal representatives of the respondent on record. It was further held that there is a specific provision under Order 22 Rule 9 of the CPC and recourse cannot be had to Section 151 of the Code of Civil Procedure. It was held that the Court cannot invoke its inherent powers under Section 151 of the Code of Civil Procedure for the purpose of impleading legal representatives of the deceased respondent if the suit had abated on account of the appellant for not taking appropriate steps within time.
The Apex Court in M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T, has categorically maintained 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.
Restoration of Money Suit – The earliest decision of this Court dealing with the aforesaid question of law is the case of Bahadur Pradhani v. Gopal Patel. In that case the plaint in a Money Suit was rejected for non-payment of deficit court fee within the time granted by the court. The plaintiff filed a petition under Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the petition and the suit was restored to file. Against the said order a revision was carried up to this court. This Court examined the scope of the inherent powers of the Court saved by Section 151 of the Code and expressed that the provisions of the Code do not control the inherent powers of the court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its duties to do justice between the parties before it.
When there is no scope for getting any relief -It was further explained in Manoharlal v. Seth Hiralal that the provisions of the Code are not exhaustive as the legislature is incapable of contemplating all possible circumstances which may arise in future litigation. The Lordship while dealing with the applicability of Section 151 of the Code observed that although the order rejecting the plaint was a decree and was appealable, there was hardly any scope for getting any relief in the appeal, as the sufficient cause to be established for setting aside the order rejecting the plaint and for restoration of the suit can be brought to the notice of the trial court more appropriately and more effectively (by invoking the inherent power) and, therefore, Section 151 of the Code could be made applicable for providing the remedy in such a situation.
Summarized Scope of Section 151
In the very recent verdict Justice R.V. Raveendran, in K.K. Velusamy v. N. Palaanisamy the Apex Court opined that Section 151 of the Code recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is ‘right’ and undo what is ‘wrong’, that is to do all things necessary to secure the ends of justice and prevent abuse of its process. The Court summarized the scope of Section 151 of the CPC as follows:
(a) Not a substantive provision – Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognizes the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is `right’ and undo what is `wrong’, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) co-extensive with circumstances -As the provisions of the Code are not exhaustive, section 151 recognizes and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is co-extensive with the need to exercise such power on the facts and circumstances.
(c) Not to act inconsistent with the Code/Law- A Court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or necessary implication exhaust the scope of the power of the court or the jurisdiction that may exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.
(d) complementary power – The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the Legislature.
(e) Not a carte blanche- While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and the facts and circumstances of the case. The absence of an express provision in the code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) Out of absolute necessity – The power under section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
The Court in the instant case finally ruled that in the interests of justice and to prevent abuse of the process of court, the trial court ought to have considered whether it was necessary to re-open the evidence and if so, in what manner and to what extent further evidence should be permitted in exercise of its power under section 151 of the Code. The court ought to have also considered whether it should straightway recall the witnesses and permit the appellant to confront the said recorded evidence to the said witnesses or whether it should first receive such evidence by requiring its proof of its authenticity and only then permit it to be confronted to the witnesses (PW1 and PW2).
From the above analysis it may be understood that Section 151 CPC is not a substantive provision. Section 151 CPC is also not an independent provision. In the matters with which the CPC does not deal with, the Court will exercise its inherent power to meet the ends of justice utilizing the hand maid residuary power of the Court. It confers very wide power out of absolute necessity. It is not a carte blanche, but a complementary power. It is a provision supplementary to all the other provisions in the Code. It is an enabling provision but not to act inconsistent with the code/law. It can be utilized even when there is no scope for getting any relief to meet the ends of justice. There could be a recall judgment /order obtained by fraud. Stoppage of continuation of infructuous suit and consolidation of suits to avoid duplication are inter alia made possible to prevent the abuse of the process of the court. It is not meant to nullify or by pass any provisions of the Code.It can never be utilized contrary to the specific provisions of law.
Expediency suggests including a routine prayer before the Courts that the Court may be pleased to pass any order expedient/deems fit in view of the inherent power granted under Section 151. As was rightly pointed out in Rajendra Prasad Gupta v. Prakash Chandra Mishra & Ors,. if there are specific provisions of the CPC dealing with the particular issue and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked. The Kolkata High Court opined that ‘Inherent power of the Court must be exercised sparingly in exceptional cases for securing the ends of justice and not in a routine manner.’
The provision has frequently been misunderstood and various applications before the civil Courts are made under this section which does not properly fall within its purview. The two phrases used in Section 151 of the CPC viz., ‘the ends of justice’ ‘abuse of the process of the Court’ must have not been defined in the CPC. However, the Principles which regulate the exercise of inherent powers by a Court have been highlighted in many cases particularly, the recent leading decision in K.K. Velusamy v. N. Palaanisamy. The courts have been cautiously and diligently utilizing the inherent power as a hand maid of justice.