DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE – RESTORATION OF SUIT: INHERENT POWER

SUBJECT: CIVIL PROCEDURE CODE

NAME OF THE FACULTY: BHAGYALAXMI MA’AM

NAME OF THE STUDENT: SANSKAR JAIN

ROLL NO. 2018080

SEM 5
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher who gave me the golden
opportunity to do this wonderful project on the topic which also helped me in doing a lot of research
and I came to know about so many new things I am thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project within
the limited time frame.
 CHAPTERISATION

1. ABSTRACT
2. INTRODUCTION
3. THE PROVISIONS ASSOCIATED WITH THE INHERENT POWERS
4. ABUSE OF PROCESS OF THE COURT
5. LIMITATIONS ON THE INHERENT POWERS
6. CASE ANALYSIS
7. CONCLUSION
ABSTRACT

Inherent powers of the Court are a crucial feature of our legal structure because they enable
the Courts to fulfil its prerogative, by upholding the ends of justice. Law is captured through
the provisions that have been codified, for judges to determine their decisions in various
cases. However, sometimes situations arise where the circumstances compel the Court to go
beyond the sections of the legislation and act in good faith, so that no abuse of the process of
the Courts may occur.

At this time, Courts have the ability to invoke their inherent powers, in order to provide
complete justice to all stakeholders. This article explains the inherent powers of the court
through a trajectory of relevant case laws, as well as analyzes the limitations placed on these
powers.

Courts duty to do justice in all cases, whether provided for or not, carries with it the
necessary power to do justice in the absence of express provision. This power is referred to as
the inherent power possessed by the court, though not conferred. Sec 151 of the Civil
Procedure Code deals with the inherent powers. This provision being a part of procedural law
requires a liberal interpretation to advance the cause of justice and further it ends or to effect
enforcement of substantive rights. The inherent powers are considered necessary to do the
right and undo the wrong in the course of administration of justice and to be regarded as
supplementary to specially conferred powers. Inherent powers have roots in necessity and
they are co-extensive with necessity in order to do complete justice.
INTRODUCTION

Inherent refers to a permanent and fundamental part of something, which if separated, loses
its essence in totality. Inherent powers of the courts are the powers which the Court possesses
in order to provide justice to the fullest extent of the law, as that is the duty of Courts.

When laws were drafted they could not possibly imagine every potential circumstance that
could affect a case, which is why it is necessary for Courts to have the authority to use these
inherent powers, if something needs to be done in the interest of justice but the Courts feel
restricted due to a lack of specific provisions. Inherent powers of the Court are stated in
Section 151 of the Civil procedure Code.

To understand the purpose of the inherent powers of the Court, we must look at the case
of State of Haryana v. Bhajan Lal.1 The Supreme Court held that inherent powers of the
Courts are for preventing the abuse of the Court’s processes as well as to ensure justice is
served.

The obligation of Courts to ensure justice in every case, whether or not it is backed through
an express provision, makes these inherent powers of the Court a necessary feature of the
Indian judicial system. It is essential to note that these powers are not conferred. There are a
liberal interpretation and broad understanding that is lent to this section of Procedural law, as
it is intended to facilitate enforcement of substantive rights in law.

These inherent powers are required so that administrative restrictions do not cause injustice to
occur. They are seen as complementary to specially conferred powers. They co-exist with
them in the interest of justice.

The Code of Civil Procedure is a procedural law, which is why it is important for the
provisions thereof should be broadly construed and comprehended in the context of the
matter. The Code of Civil Procedure recognizes not just the powers but their limitations and
restrictions as well.

However, inherent powers are those which are vested in Court even without a specific
codification. The Court has the liberty to apply them to prevent abuse and to advance justice.

1
State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335.
If there are defined and separate sections of the law to address a given issue, then the Courts
do not have the authority to invoke inherent powers. These powers can be invoked to aid the
provisions of the law but not to override or bypass express provisions.

These powers rest on the notion of Judicial Interpretations Alternative. If there is no other
remedy available in law if abuse of procedures of the court occurs, these powers are invoked
to address and overcome the malicious act. They are not substantive rights and cannot be
used at the cost of substantive law. 2

THE PROVISIONS ASSOCIATED WITH THE INHERENT POWERS

The Various Sections of Civil Procedure Code which are linked to inherent powers of Court
include the following –

Section 148 and Section 149 refers to granting of time or extending the time limit for a
situation.

Section 150 is related to the transfer of business. It mentions that if the business of any Court
is transferred to another Court, the recipient Court will have the same authority and shall
perform the same duties which were initially conferred and imposed upon the Court from
which the business was so transferred.

Section 151 guards the inherent powers of the Court. Section 152, Section 153 and Section
153A is concerned with amendments in judgments, decrees and orders.

Section 148 provides Courts with the liberty to expand time limits for certain situations if
that extension is needed. It is a discretionary power and not the right of the litigant. This
provision provides Courts with the power to enlarge a period which may have been fixed
initially or may have even expired. The court can extend the period up to 30 days.

2
http://bvpnlcpune.org/Article/Inherent%20Powers%20of%20a%20Civil%20Court-
Prof%20_Dr_%20Mukund%20Sarda.pdfhttp://bvpnlcpune.org/Article/Inherent%20Powers%20of%20a%20Civi
l%20Court-Prof%20_Dr_%20Mukund%20Sarda.pdf
In the matter of Ram Chand and Sons Sugar Mills v. Kanhayalal Bhargava3, the Apex
Court said that Court cannot exercise its inherent power if it is incompatible and contrary
with given sections of law or the powers conferred through other provisions of the Act.

In the case of M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T4.,
Court upheld the same notion. It did so by stating that unless there is an express or implied
restriction or prohibition, Courts have the authority to pass an order that it deems imperative
to prevent the abuse of the court’s process.

The petitioner argued that while the first suit was pending, certain events had occurred which
led to the first suit’s failure and in law that said the suit could not be kept pending and was
continued only for the sake of continuing an interim order made in it. This presented a key
question of law to the Supreme Court – whether or not the court has the authority to take
cognizance of a subsequent event to determine whether the pending suit should be disposed
or not.

Could the defendant make an application under Section 151 of the Civil Procedure Code to
dismiss the pending suit, on the basis of the said suit losing its cause of action? The Court
answered in his favour.

According to Section 149 of the CPC, if any part of the fee prescribed for any document by
the law for the time being in force relating to court fee is unpaid, the Court has a
discretionary power to permit the individual, by whom such fee is due, to pay the fee. Upon
the payment, the document will emerge with the same force and effect as if the fee had been
paid on time when it was initially due.

In the case of Bahadur Pradhani v. Gopal Patel5, it was about the plaint of a Money suit
getting rejected because the deficit court fee had not been paid in the time duration granted by
Court. The appellant filed a petition under Section 151 of the Code, to seek restoration of the
suit. The court permitted the restoration of the suit and assessed the ambit of the inherent
powers. The Court went on to say that sections of the Code do not dictate the inherent powers
of the Court nor restrict them. It is a power that is fundamental and intrinsic to the courts by
virtue of the Court’s duties and prerogative for justice.

3
Ram Chand and Sons Sugar Mills v. Kanhayalal [1961] 1 S.C.R. 884.
4
M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T AIR 1977 SC 1348.
5
Bahadur Pradhani v. Gopal Patel, AIR 1964 Ori 134.
Similarly, in the matter of Manorharlal v. Seth Hiralal6, the court held that the sections of
the Code are not exhaustive. This is because the legislature cannot ever foresee all potential
situations when it is drafting law. All future circumstances cannot be conceived when the
codification of law occurs, which is why it is important to give certain leeway and liberty to
Courts.

As J. Desai stated,

“The danger inherent in passing conditional orders becomes self-evident because that by
itself may result in taking away jurisdiction conferred on the court for just decision of the
case. The true purpose of conditional orders is that such orders merely create something like
a guarantee or sanction for the obedience of the court’s order but would not take away the
court’s jurisdiction to act according to the mandate of the statute or the relevant equitable
considerations if the statute does not deny such considerations”.

To fully understand the impact of Section 151, we must take a look at the possible situations
arising from it –

1. The court may review its orders and resolve errors;

2. The Court has authority to issue provisional sanctions if the case is not included by
Order 39 or to place alongside an ‘ex parte’ order.
3. Unlawful orders or orders that have been passed without requisite jurisdiction can be set
aside
4. Ensuing situations or events in the case can be taken into consideration as per the
discretion of the Court
5. The Court has the authority to conduct an ‘in camera’ trial and/or prevent disclosure of
the proceedings
6. The Court may remove comments made against a Judge
7. The Court has the power to improve, review, or re-hear the suit on merit and re-examine
its order accordingly.

To understand the scope of Section 151, it is crucial to understand what ‘ends of justice’
truly means. This was addressed in the case of Debendranath v. Satya Bala Dass7. The

6
Manoharlal v. Seth Hiralal, 1962 AIR 5271.
7
Debendranath v Satya Bala Dass, AIR 1950 Cal 217.
court held that ‘ends of justice’ are not sheer words or a legal term but they carry the idea that
justice is the pursuit and end of all law.

ABUSE OF PROCESS OF THE COURT

Section 151 of the Civil Procedure Code refers to the exercise of the inherent powers to deals
with situations where abuse of the process of the court occurs. Abuse of the powers of the
Court essentially means unfairness to a party. In that case, the party needs a remedy or a
relief to resolve the injustice that it may have endured. This is based on the doctrine of actus
curiae neminem gravabit, which is a maxim for the court shall prejudice no one.

The ‘abuse’ of the court’s power occurs when a party may commit fraud in a proceeding. The
remedy for that lies in the inherent powers of the court. The perpetrator or the beneficiary of
the abuse is the party that derives an undue advantage from the fraud on Court or the
proceeding. In the case of Anup Kumar v. State8, the Supreme Court held that High Courts
can exercise their inherent powers under Section 482 of CrPC, 1973 to squash an FIR if
multiple FIRs are repeatedly filed on the same ground, as this amounts to an abuse of the
process of the Court.

In a 2018 Supreme Court Judgment, the bench had to decide whether or not the Jammu and
Kashmir High Court had the authority to permit a petition under Section 561-A of CrPC
1989. The petitioner had sought quashing if the FIR registered against him. The question of
law that arose was whether or not the High Court had the inherent power to quash the FIR in
the absence of a trial.

The Supreme Court held that allowing the proceeding to continue would be an abuse of the
process of the Court and it was in the interest of justice that the proceedings were quashed.
The primary take away from the case of Nisar Ahmad v. State of J&K9 was that the ambit
of inherent powers conferred upon High Courts is not restricted to the specific cases laid
down under criminal and civil laws.

8
Anup Kumar v. State, 2018 SCC OnLine Del 7069.
9
Nisar Ahmad v. State of J&K, 2018 SCC OnLine J&K 516.
LIMITATIONS ON THE INHERENT POWERS

The restrictions on Inherent Powers are an important part of ensuring that Courts do not
exceed their authority or misuse their liberties in the name of justice. The Limits on Inherent
Powers are mentioned below –

1. They can be invoked only in a situation where there is a lack of specific provisions in
the Code, to deal with that matter.
2. They cannot override any section that has been specifically mentioned in the code.
3. They cannot be applied if they are incompatible with what has been expressly mentioned
in the Code.
4. Inherent powers are supposed to be invoked in rare cases where exceptional
circumstances compel for their application, and not on a frequent basis.
5. They should abide by the principle of Res Judicata. Inherent powers cannot be used to
re-open a case which has already been decided.
6. When courts are applying the inherent powers, they must abide by the process given by
the legislation.
7. The court must pick a mediator to make an award afresh.
8. Inherent powers cannot override substantive rights in law. 10

CASE ANALYSIS OF BAHADUR PRADHANI V. GOPAL PATEL11

FACTS OF THE CASE

Defendant is the petitioner. The facts leading to the Civil Revision may be stated in a narrow
compass. Money suit No. 28 of 1961 in the Court of the Subordinate Judge of Bolangir was
filed on 1st August, 1961 with deficit court-fee. Time was granted to pay the deficit court-fee
till 24th August 1961 in the first instance and then again till 12th September 1961. On the
latter date the Court passed orders to the effect--

"Deficit court-fee not filed nor any requisites filed. Plaintiff is absent on repeated calls. No
steps taken by him. His pleader is also not present. . Plaint is rejected for non-payment of
deficit court-fee."

10
Paliwala M, ‘Inherent Powers Of The Court Under Civil Procedure Code, 1908’ (iPleaders, 2020)
11
AIR 1964 ORI 134 (India).
Just a day after on 13th September 1961 the pleader for the plaintiff filed a petition for
restoration of the suit under Section 151 C. P. C. The pleader Sri Sidheswar Sai himself filed
an affidavit solemnly affirming that though he himself took the adjourned date for 12th
September 1961, due to inadvertence he entered the date in his diary for 14th September
1961. As the mistake was purely of his own, he could not take steps on 12-9-1961 and that
for the ends of justice the suit should be restored to file and that the party who had paid
money to the lawyer to take steps would be highly prejudiced if the suit was not restored.
This application was registered as Misc. Case No. 57 of 1961. The plaintiff filed court-fee of
Rs. 194/-on 11-11-1961. The application under Section 151, C. P. C. was allowed and the suit
was restored to file by an order dated 21st November 1961.

The defendant challenges this order dated 21-11- 1961 restoring the suit. His case is that after
service of notice In the suit, he appeared on 11th January 1961 and on inspection of the
record came to know the afore said state of affairs. After taking a copy of the order he has
filed this Civil Revision.

ISSUES CONTENDED

Whether the plaintiff is precluded from resorting to reliefs under Section 151 C. P. C. if he
has not filed an appeal or asked for reliefs prescribed under Order 20 Rule 3 C. P. C.

ARGUMENTS BY THE PARTIES

Mr. Panda contends that the order of restoration under Section 151, C. P. C. is without
jurisdiction. This argument is based on, Rameshwardhari Singh v. Sadhu Saran and
Saratchandra Sen v. Mritun-jay.

The basis of the aforesaid view requires examination. The order dated 12-9-1961 rejecting the
plaint is one under Order VII, Rule 11 (c), C. P. C. which lays down that the plaint shall be
rejected where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so. A decree shall be
deemed to include the rejection of a plaint under Section 2(2) C. P. C. There can be no
dispute that the order of the learned Subordinate Judge dated the 12th September 1961
rejecting the plaint is a decree.
REASONING OF THE COURT

There are different opinions amongst the High Courts in India as to the applicability of
Section 151 when there are specific provisions in the Code with regard to particular reliefs
sought. In a recent decision of the Supreme Court reported in Manohar Lal v. Seth Hiralal
their Lordships held that Section 151 itself says that nothing in the Code shall be deemed to
limit or otherwise affect the inherent power of the Court to make orders necessary for the
ends of justice.

In the face of such a clear statement, it is not possible to hold that the provisions of the Code
control the inherent power by limiting it or otherwise affecting it. The inherent power has not
been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do
justice between the parties before it. Further, when the Code itself recognises the existence of
the inherent power of the Court, there is no question of implying any powers outside the
limits of the Code. The provisions of the Code are not exhaustive as the Legislature is
incapable of contemplating all possible circumstances which may arise in future litigation and
consequently may provide procedure for them. In the face of the aforesaid decision of the
Supreme Court, it is difficult to uphold the Patna and Calcutta views as laying down good
law. Those authorities lay down the contrary view which had been specifically overruled by
the Supreme Court. In my view, Section 151 is applicable to the facts of this case.

The provisions of Order IX have no application to the facts of this case. If Section 151 does
not apply, the result would be that the plaintiff would be completely deprived of all remedies
to bring to the notice of the Court the fact that for any sufficient reason he was unable to
attend the Court or to take necessary steps. It is only by way of an application under Section
151, these matters should be brought to the notice of the Court, and if the Court would so
require, the plaintiff would Be called upon to establish the same. In my view, the correct
approach is to be found in Sita Ram v. Kedarnath . There their Lordships held that the Courts
have got the jurisdiction to recall an order which has been made earlier in the suit and that the
Court has, always the power to recall an order which has the effect of perpetrating an
injustice on a party. It is open to the Court to reconsider its order refusing to grant further
time to the plaintiff to make good the deficiency which was made on the assumption that the
sufficient cause stated by the plaintiff was not genuine.

It can recall when it is found that the order had been made in the absence of materials on
record, materials which are subsequently put to the Court. Once the order itself is withdrawn,
then the order rejecting the plaint automatically falls. The order dated 12-9-1961 could not
have taken notice of the fact as alleged in the affidavit of Sri S. Sai as to how due to an
inadvertent mistake no steps could be taken. Such a matter cannot be brought to the notice of
the Court appropriately and effectively except by way of an application for restoration under
Section 151 C. P. C.

There is another broad principle why this order of restoration of the suit should not be
interfered with in revision. The revisional powers are discretionary. It is consistently held that
the revisional powers should not be exercised in a case where the exercise of the power is
likely to cause injustice to a party. If the discretion is used to interfere with the order, the suit
is to be dismissed and the plaintiff would have no opportunity to get his case investigated into
by the Court, Once the trial Court has exercised the discretion in favour of the party, it would
be unusual for the High Court to interfere with the exercise of discretion unless it is
injudiciously exercised.

JUDGEMENT

The court permitted the restoration of the suit and assessed the ambit of the inherent powers.
The Court went on to say that sections of the Code do not dictate the inherent powers of the
Court nor restrict them. It is a power that is fundamental and intrinsic to the courts by virtue
of the Court’s duties and prerogative for justice.

CASE ANALYSIS OF POORANCHAND MULCHAND JAIN V. KOMALCHAND

BENIPRASAD JAIN12

FACTS OF THE CASE

THE petitioner Pooranchand's suit was dismissed for default in appearance under order 9
Rule 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for
restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon
on 30th November 1959 the petitioner made an application for setting aside the dismissal of
his application for restoration. This application was rejected by the trial Court on the ground
of limitation relying on pitambar Lal v. Dodee Singh, ILR 46 All 319: (AIR 1924 All 503). In
the Allahabad case it was held that an application for setting aside the dismissal in default of
an application for restoration under Order 9 Rule 9 could itself be treated as an application for

12
AIR 1962 MP 64 (India).
restoration of the suit and would be governed by Article 163 of the limitation Act. From what
the learned Judge has said in the order of reference, it appears that before him it was not
disputed that an application for setting aside the dismissal in default of an application for
restoration under Order 9 Rule 9 was competent under section 151 C. P. C.

ISSUES CONTENDED

Whether an application for invoking the inherent powers of the Court under Section 151 was
governed by Article 163 or by Article 181 of the Limitation Act.

ARGUMENTS BY THE PARTIES

Shri Verma, learned counsel appearing for the opponent, said that in 28 Nag LR 83 : (AIR
1932 Nag 101), (supra) a doubt was expressed as to whether an application for setting aside
the dismissal for default of an application to restore a suit under Order 9 Rule 9 C. P. C. was
maintainable under Section 151 C. P. C. We do not find any such doubt expressed in the
opinion delivered by the learned judges in Brijmohan's case, 28 Nag LR 83 : (AIR 1932 Nag
101) (supra). The doubt that was expressed by Niyogi, A. J. C. , was on the question whether
an application to set aside the dismissal of an application for restoration of a suit dismissed
for default could be regarded as an 'original matter' to which Section 141 C. P. C. could be
applied. But the learned Judges were emphatic on the point that even if Section 141 were to
be made applicable to cases of applications to set aside the dismissal of an application for
restoration of a suit dismissed in default, that would not give the substantive right of making
an application for restoration under Order 9 Rule 9, and that in the absence of any express
provision in the code the right to make such applications is implied in Section 151.

Learned counsel for the opponent said that an application invoking the inherent powers under
Section 151 would be subject to the limitation prescribed by Article 163 of the Limitation
Act.

REASONING OF THE COURT

it is necessary to determine the provision under which an application for setting aside the
dismissal for default of an application for restoration under Order 9 Rule 9 C. P. C. is
maintainable. In Brijmohan v. Raghoba, 28 Nag LR 83 : (AIR 1932 Nag 101) it has been held
by a Division Bench of the Nagpur Judicial commissioner's Court that no appeal lies from an
order rejecting an application to set aside the dismissal for default of an application for
restoration of a suit dismissed in default, and that the dismissal of such an application can be
set aside under Section 151. The learned Judges based this conclusion on the reasoning that
Section 104 (1) (i)and Order 43 Rule 1 C. P. C. did not provide for an appeal against an order
of dismissal for default of an application for restoration of a suit under Order 9 Rule 9; that
the right of appeal being a substantive right could not be inferred by the application of
Section 141 which only made the procedure in the Code applicable, in so far as it could be, in
all proceedings in any court of civil jurisdiction and did not give any substantive right; and
that, therefore, an under of dismissal for default of an application for restoration of a suit
under Order 9 Rule 9 was not appealable under Order 43 Rule 1 (c). On the same reasoning
the learned Judges treating the remedy under Order 9 Rule 9 as a substantive one held that it
was not available by resorting to Section 141 C. P. C. , for setting aside the dismissal in
default of an application for restoration of a suit under Order 9 Rule 9. This decision was
followed by a Single Judge of the Nagpur High Court in Prem Shankar v. Rampyarelal, ILR
(1944) Nag 558: (AIR 1944 Nag 317).

As an application made to invoke the inherent powers of the Court under Section 151 is not
an application under the code which a party is required to make, Article 163 has no
applicability. That apart, reading Articles 163 and 164 together it is clear that Article 163
prescribes limitation for an application to set aside the dismissal for default of a suit and not
for an application to set aside the dismissal for default of an application for restoration of a
suit under Order 9, Rule 9, C. P. C. The view that an application invoking the inherent
powers of the Court under Section 151, C. P. C. is not governed by Article 181 or any other
article of the Limitation Act is fortified by the decisions in Goverdhan v. Hemrajsingh, ILR
(1944) Nag 408: (AIR 1944 Nag 335), Annada Prasad v. Sushil Kumar. AIR 1942 Cal 390,
and Shyam Sunder v. Nilakantha Das, AIR 1956 Orissa 165. Though there is no limitation for
invoking the inherent powers of the court under section 151, the party invoking that
jurisdiction must be diligent and not guilty of laches.

JUDGEMENT

The dismissal for default of an application for restoration of a suit under Order 9 Rule 9, C. P.
C. can be set aside in exercise of the inherent powers of the Court under Section 151, C. P. C.
and that the exercise of inherent powers is not fettered by any rule of limitation.
CONCLUSION

Inherent Powers are the powers of the court that help shorten the usually lengthy litigation
process and also discourage multiplicity of proceedings which helps save time for not just the
parties but the already overburdened Court. Most importantly, these powers are rooted in the
Court’s prerogative to provide complete justice to the litigants and stakeholders.

Inherent Powers of the Court are invoked through Section 151 of the Code but expand over
other Sections ranging from Section 148 to 153B of Civil Procedure Code.