The Powers of the Court to Do Justice or Redress Along in the

Absence of an Express Provision in the Suit?

Introduction
"Ubi jus ibi remedium" (Where there is a right, there is a remedy)

The judiciary, often referred to as the courts, plays a central role in any
functioning democracy. Courts act as impartial arbiters, interpreting
laws, enforcing them, and ensuring justice is served. Pakistan's legal
system is based on common law, with a foundation in British legal
practices. The court system in Pakistan is hierarchical, with various
levels of courts, each with its designated jurisdiction. The Supreme
Court stands as the highest court in the country, followed by High Courts
in each province, and subordinate courts at district and lower levels. The
powers of courts in Pakistan are outlined in the Constitution and are
further elaborated by legal statutes and judicial precedents. courts wield
inherent and discretionary powers that complement the codified
provisions of law, enabling them to ensure justice.
Inherent Powers of the Courts:

Inherent powers are those possessed by courts by their very nature,

essential for functioning and upholding the rule of law. These powers are
not explicitly mentioned in any statute but are recognized by the courts
themselves. Some key inherent powers include:

 Power to regulate its proceedings: Courts can establish procedures

to ensure orderly and efficient conduct of cases. This includes issuing
directions, controlling the presentation of evidence, and maintaining
decorum.

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 Power to punish for contempt: This power safeguards the court's
authority and dignity. It allows courts to take action against those who
willfully interfere with court proceedings or disrespect the court.

The concept of inherent jurisdiction refers to the residual power of a court

to manage its proceedings and ensure the fair and efficient administration
of justice. This power is not explicitly granted by any statute but arises
from the very nature of a court as an institution entrusted with the
dispensation of justice. While Pakistan's legal system is based on a mix of
common law and Islamic law, the concept of inherent jurisdiction finds
application within its court structure.

Arguments for Inherent Jurisdiction in Pakistan

There are several arguments supporting the existence of inherent

jurisdiction in Pakistan:

1. Constitutional Framework: The Constitution of Pakistan, 1973,

establishes an independent judiciary (Article 175). This implies the
courts possess the inherent power to manage their affairs and ensure fair
proceedings, which aligns with the concept of inherent jurisdiction.
2. Absence of Specific Legislation: Unlike some common law
jurisdictions, Pakistan does not have a codified law explicitly outlining
inherent jurisdiction. However, the absence of such legislation does not
negate its existence. The courts, through their rulings, can shape and
define the scope of inherent jurisdiction.
3. Case Law Precedents: courts have exercised powers that could be seen
as inherent jurisdiction. For instance, in Motiwala vs. Federation of
Pakistan [PLD 1964 SC 682], the Supreme Court prevented abuse of
process by striking down a petition deemed frivolous. This action can be

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 viewed as an exercise of inherent jurisdiction to maintain the integrity of
judicial proceedings.

Discretionary Powers of Courts:

The legal system strives for a balance between achieving justice in

individual cases and maintaining the predictability and consistency of the
law. Courts, as the interpreters and enforcers of the law, are often granted
discretionary powers to navigate this balance. This essay will delve into
the concept of judicial discretion, exploring how courts use existing legal
provisions to achieve a just outcome in a particular case.

Lawmakers strive to create comprehensive legal codes that address a wide

range of situations. However, the complexities of human interaction and
the ever-evolving nature of society make it impossible to anticipate every
scenario. Discretionary powers equip judges with the flexibility to adapt
existing laws to the specific facts and circumstances before them. This
allows for:

 Fairness: Laws may have unintended consequences in certain situations.

Discretion allows judges to tailor outcomes to prevent undue hardship or
ensure a more equitable result.
 Innovation: Legal principles can evolve through judicial interpretation.
By applying existing laws to new situations, courts can pave the way for
legislative reforms.
 Efficiency: Discretion enables judges to manage courtroom proceedings
effectively. They can control the pace of the case, determine the
admissibility of evidence, and impose sanctions for misconduct.

Courts exercise discretion in various aspects of litigation:

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 Sentencing: Judges have the discretion to impose a sentence within a
range set by law, considering the severity of the crime, the defendant's
background, and potential for rehabilitation.
 Evidentiary Rulings: Judges determine the admissibility of evidence
based on established rules. However, discretion plays a role when
weighing factors like relevance, prejudice, and the reliability of evidence.
 Equitable Remedies: Courts of equity have broader discretion to
fashion remedies beyond simple monetary damages. This allows judges to
tailor solutions that best address the specific circumstances of a case, such
as injunctions or specific performance of contracts.
 Procedural Matters: Judges have the power to manage the flow of a
case, control the behavior of lawyers and parties, and ensure a fair and
efficient trial process.

Statutory Provisions of Court addressed in Civil Procedure

Code 1908:

The CPC which governs civil proceedings respectively, equips courts with
several discretionary powers. Here are some key examples:

 Section 151 of the CPC: This provision empowers 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 broad discretion allows the court to
address situations not explicitly covered by specific rules, ensuring a just
outcome.
 Granting Adjournment: Courts possess the discretion to adjourn
proceedings under specific circumstances, such as to allow a party to
gather evidence, secure legal representation, or due to unforeseen
situations. This flexibility prevents unnecessary hardship and ensures a
fair trial.

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 Awarding Costs: Courts have the discretion to determine who bears the
legal costs of litigation. This power can be used to discourage frivolous
lawsuits or compensate a party for unnecessary expenses incurred due to
the other party's actions.
 Setting Aside Ex Parte Orders: Ex parte orders are issued without
hearing from the opposing party. Courts have the discretion to set aside
such orders if they were obtained through misrepresentation or if justice
demands it.

Statutory Provisions of Court addressed in Criminal

Procedure Code:

The Criminal procedure code grants courts discretion in areas like:

 Granting Bail: Courts can decide whether to grant bail to an accused

person based on the severity of the offense, flight risk, and likelihood of
tampering with evidence.
 Framing Charges: While the prosecution proposes charges, courts have
the discretion to amend or reject them if they deem them inappropriate.
 Awarding Compensation to Victims: Courts can award
compensation to victims of crime from the fines imposed on the accused.

Statutory Provisions of Court Constitutional Framework:

The Constitution of Pakistan plays a crucial role in empowering courts

with discretionary powers. Articles 17 and 25 guarantee fundamental
rights and the right to a fair trial, respectively.

These provisions can be interpreted as granting courts the discretion to

interpret and apply laws in a way that upholds these fundamental rights
and ensures a just outcome.

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For instance, a court might choose to interpret a lawless harshly to prevent
a violation of a fundamental right or disregard technical errors in
procedure if they do not prejudice the other party's case.

Statutory Provisions of Court by Natural Justice & Equity

Principles of natural justice, which include the right to be heard and the
right to an unbiased tribunal, further inform the court's discretionary
powers. These principles ensure fairness in the judicial process and
empower courts to take corrective actions if these principles are not
adhered to.

Natural justice refers to fundamental fairness that every court must

uphold during legal proceedings. It ensures a party can be heard and
defend themselves effectively.

Two Limbs of Natural Justice:

Nemo Judex in Sua Causa (No one can be a judge in their own
cause):
A judge with a personal interest in the case cannot preside over it.
Audi Alteram Partem (Hear the other side):
Each party has the right to a fair hearing, including being informed of the
allegations, presenting evidence, and responding to arguments.

Equity

The source of judicial discretion, allows courts to consider fairness and

good conscience when applying the law. In situations where a strict
application of the law might lead to an unjust outcome, courts can invoke
equitable principles to achieve a more balanced result.

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For example, a court might use its equitable powers to grant specific
performance of a contract, even if the law only provides for monetary
damages, if such damages would be inadequate.

Balancing Discretion with the Rule of Law

While discretionary powers are essential for achieving justice, it is crucial

to maintain a balance with the rule of law. Unfettered discretion can lead
to arbitrary and unpredictable outcomes, undermining the public's
confidence in the judicial system.

To address this concern, courts typically exercise their discretion

judiciously, considering relevant factors, and precedents, and providing
reasons for their decisions. This ensures transparency and promotes
consistency in the application of the law.

In Conclusion, Inherent and discretionary powers are crucial tools for

courts to navigate the complexities of the legal system and deliver just
outcomes. These powers complement existing legal provisions, allowing
courts to consider the specificities of each case and ensure justice is not a
mere technicality but a lived reality. It is important to note that these
powers are not absolute and must be exercised judiciously, with due
regard for established legal principles and procedures.