1

TITLE
A study with reference to
Section 2 of Code of civil
Procedure

Subject Civil Procedure Code

Submitted to:Asst. Prof. Pankaj Umbarkar

Submitted by:Priyanka Jain

Roll No. MU113BBALLB05
BBA.LL.B (3rd year, 6th SEMESTER)

MATS Law School

MATS University, Raipur

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Acknowledgement

I am fortunate to be provided with an opportunity to write my paper under the kind

supervision of Mr. Pankaj Umbarkar (Asst. Prof., MATS Law School) and I am thankful to him
for providing me with the appropriate guidance while writing the paper.
This paper would not have been possible without his valuable inputs, honest remarks and
earnest effort to guide me throughout the drafting of the paper. I would like to extend my sincere
thank to him for giving me his valuable time to view my research from his busy schedule.
I am highly indebted to the library staff to help me find the relevant books and journals,
and other officials and office staffs, who have also extended their help whenever needed.
I would like to extend my sincere thanks to my friends and for their review and honest
remarks.

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Table of Contents
i) Introduction....iv
ii) Meaning of Inherent Powers ....v
iii) Principle ..vi
iv) Scheme of Inherent Powers of the Court ...vii
v) Ends of Justice ...vii
vi) Abuse of the Process of the Court ...vii
vii) Nature and Scope of Section 151...viii
viii) Inherent Power when Invoked ..xi
ix) Inherent Power when not Invoked ..xii
x) Conclusion............xiii
xi) Bibliography..xv

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INTRODUCTION

At the outset few of the basic aspects of the code of civil procedure, 1908 requires to
be illumined and one of the important aspects of it is the nature of the code. The code of
civil procedure is a procedural law notwithstanding it also deals with certain substantive
rights and to quote the view of the apex court qua procedural law in the case of Saiyad
Mohd. Bakar v. Abdulhabib Hasan, AIR 1998 SC 1624, wherein it stated, A procedural law
is always in aid of justice, not in contradiction or to defeat the very object which is sought to
be achieved. A procedural law is always subservient to the substantive law. Nothing can be
given by a procedural law what is not sought to be given by a substantive law and nothing
can be taken away by the procedural law what is given by the substantive law.
The object of the code is to facilitate justice and further its ends 1. What culls out
from the above mentioned object is that emphasis must be to do complete justice and
adjudicate the dispute in a manner that no party suffers from the vice of injustice. Meaning
thereby, to some extent elasticity/flexibility of interpretation should be maintained, so, the
justice can be done by stretching the provisions of the code within permissible limits. As
such there is no hurdle faced in furtherance of justice but the situation which the courts
sometimes face is the absence of provision to meet with certain reliefs, it is with this object
to grant bonafide reliefs or exercise of power to do justice i.e. which can be exercised ex
debito justitiae, in absence of express provisions in the code and in absentia of any
procedure, inherent powers of court and the scheme there under is engrafted under the code
of civil procedure.
In other words 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 the court is free to exercise them for the ends of justice or to prevent the abuse of the
process of the court2.

1 Sangram Singh v. Election Tribunal, AIR 1955 SC 425

2 Takwani C K, Civil Procedure, 6th Edn, 2009, Eastern Book Company at pg 729

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.
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.
MEANING OF INHERENT POWERS:If we take dictionary meaning of the word inherent then it alludes its meaning as
Natural, existing and inseparable from something, a permanent attribute or quality,

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an essential element, something intrinsic or essential, vested in or attached to a person or
office as a right of privilege3.
Now, coming to the meaning of the word power, the meaning drawn out in the
case of Seth Lookasan Sethiya v. Ivan E John4, is that power means authority, whether any
discretion is left or not and whether any direction is imperative or directory relates to the
manner and exercise of the power and not to the basic ingredient of the authority itself.
Without authority, a valid act cannot be done irrespective of whether the act is discretionary
on the part of the doer of the act, or he is bound to do it. In both situations, he must have
authority.
Thus, if the connotation of the both the words are clubbed together it elicits that
inherent power is the natural or essential power conferred upon irrespective of any
conferment of discretion, meaning thereby if this connotation is read out in terms of section
151 it comes to it that as such there is no conferment of power on court but there is
declaration that inherent power of the court exists and this power is not limited or affected
by anything in the code.
Even otherwise the language of section 151 is very clear in terms that it specifically
states that the court can make such orders as may be necessary to meet the ends of justice
or to prevent the abuse of the process of the court. The importance attributed to this
provision is manifest from its judicial exposition.
In the end it would be palpable to say that powers necessary to do right and undo
wrong in the course of the administration of justice constitute an inherent power of the
court5.
PRINCIPLE:-

3 Concise Oxford English Dictionary (2002); Chambers 20th Century Dictionary

(1992) at pg 647; Websters Encyclopedic Unabridged Dictionary (1994) at pg 732
4 AIR 1975 ALL 113 at pg 121; P Ramanatha Aiyar, Concise Law
Dictionary, 3rd Edn, 2009, Lexis Nexis Butterworths Wadhwa, Nagpur
5 P. Sirajuddin v. Government of Madras, AIR 1962 Mad 117 at pg 131, 132; also
see Doabia T S Justice, MLJs Code of Civil Procedure, Vol.2, 13thEdn, 2008

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The underlying principle behind envisaging of section 151 is that every court is
constituted for the purpose of doing justice according to law and must be deemed to posses,
as a necessary corollary and has in its very constitution of such powers as may be necessary
to do the right and undo the wrong in the course of administration of justice.

SCHEME OF INHERENT POWERS OF THE COURT:The substantive provisions dealing as such with the inherent powers are Section 148
to 153-B of the Code of Civil Procedure, 1908. Section 148 and 149 provide for grant and
enlargement of time while section 151 preserves inherent powers of courts. Sections 152,
153, 153-A deal with amendments in judgment, decrees, orders and in other proceedings
while section 153-B declares the place of trial to be an open court, Section 150, however,
provides for transfer of business.
ENDS OF JUSTICE:One of the objects underlying Section 151 of the code is for ends of justice in other
words it can be termed as the objectives of justice.
In the case of Debendranath v. Satya Bala Dass6, the phrase ends of justice was
explained and it was held that ends of justice are solemn words and not mere polite
expression in juristic methodology and justice is the pursuit and end of all law. But these
words do not mean vague and indeterminate notions of justice according to statutes and laws
of the land.
Thus, from the above explanation it can be said that one of the reasons for invoking
inherent powers by the court is to do justice when injustice is highly manifest. In other
words the inherent powers of a court can be invoked only for the attainment of the ends of
substantial justice; court may do what is fair and equitable7.

6 AIR 1950 Cal 217 at pg 233

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ABUSE OF THE PROCESS OF THE COURT:-

Ground no.2 upon which the court can invoke its inherent power is to prevent abuse
of the process of the court. Here, abuse of process means the frivolous and vexatious use of
legal proceedings8 and abuse of the process of the court also means the malicious and
improper use of some regular legal proceedings to obtain an unfair advantage over an
opponent9. The term is generally used in connection with action for using some process of
the court maliciously to the injury of another person.
The question which strikes the mind is that whether abuse may be committed by
court or a person/party to a proceeding?
Now, in answer to the above question it is submitted that abuse may be committed by
a court or by a party10. For instance, where a court employs a procedure in doing something
which it never intended to do and there is miscarriage of justice, there is an abuse of process
by the court itself. The only way to fill this vacuum of injustice is to remedy the party on the
basis of doctrine actus curiae neminem gravabit-an act of court shall prejudice no one.
Secondly, a party to litigation may also be guilty of an abuse of the process of the
court and the same is explained with the help of following cases:The party may be guilty of an abuse of the process of court

By obtaining benefits by practicing fraud on the court

By resorting to or encouraging multiplicity of proceedings
By instituting vexatious, obstructive or dilatory tactics;
By introducing scandalous or objectionable matter in proceedings
By trying to secure an undue advantage over the opposite party, etc.
Thus, on this ground of abuse of process of the court also the provisions of section

151 can be invoked.

7 AIR 1925 Mad 42

8 P Ramanatha Aiyar, concise law dictionary, 3rd Edn, reprint 2009, Lexis Nexis
9 ibid
10 Takwani C K, Civil Procedure, 6th Edn, 2009, Eastern Book Company at pg
734

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NATURE AND SCOPE OF SECTION 151:-

The marginal note of section 151, itself signifies that by engrafting the provisions of
section 151 nothing new has been introduced and in contra to that the section has just
confirmed the pre-existing powers to act ex debito justitiae11. The pre-existing power over
here means the power inherent in the court by virtue of the duty to do justice between the
parties before it. Even otherwise the court is a court of law and equity and even when equity
and justice demands the court can pass such orders as may be necessary to do complete
justice in absentia of express provisions to do so. Meaning thereby the power has already
been vested with the courts and as such nothing new has been conferred upon the courts by
virtue of section 151 besides expressly saving the inherent powers of the court.
With regard to nature of this section the issue was whether the powers so expressed
under section 151 are in addition or complementary to powers conferred by the
code and whether they can override the other provisions of the code?
In answer to this issue the Supreme Court of India has by catena of decisions on this
point held that the powers are in addition and complementary to the powers conferred by
this code and by no stretch of imagination it can be said that these powers can override the
provisions of the code12. In other words section 151 is intended to supplement the other
provisions of code and not to evade or ignore them or to invent a new procedure 13 and thus
inherent power cannot prevail over statute. Moreover, the only thing which needs to be kept
in mind while exercising the inherent powers is that they when exercised do not come in
conflict with what has been expressly provided for or those exhaustively covering a
particular topic or against the intention of the legislature.

11 AIR 1974 Pat 7; AIR 1976 ALL 150

12 Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993
13 Nandi and Sengupta Justice, the Code of Civil Procedure, 1908, 3rd Edn, Vol.1,
2009

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The scope of Section 151 CPC has been explained by the Supreme Court in the case
K.K. Velusamy v. N. Palanisamy14 as follow:
(a) Section 151 CPC is not a substantive provision which creates or confers any power or
jurisdiction on courts. It merely recognises 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) As the provisions of the Code are not exhaustive, Section 151 recognises 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 coextensive with the need to exercise such power
on the facts and circumstances.
(c) 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 by necessary implication exhaust the
scope of the power of the court or the jurisdiction that may be exercised in relation to that
matter, the inherent power cannot be invoked in order to cut across the powers conferred by
the Code or in 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) 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.

14 (2011) 11 SCC 275

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(e) 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 in 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) 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.

INHERENT POWER WHEN INVOKED: While exercising inherent powers the court can expunge defamatory remarks in the will.
It has been well settled by now because if the person alleged to be defamed will be
left with no recourse for redressal as person who had made the libelous or scandalous
or defamatory statement has since died and no civil or criminal proceedings can be
initiated against such a person. Also the law does not perceive a situation where a
person is rendered remediless.
Power of restitution not confined to section 144, court can order restitution in exercise of
its inherent powers.
Defendants forcibly dispossessed plaintiff in violation of interim injunction, passing of
order of mandatory injunction under sec.151 for restoration of possession to the
plaintiff proper.
Suits or proceedings having different causes of action can be consolidated under inherent
powers without consent of parties, question of limitation remained unaffected.
Court can set aside its order of rejection of plaint and in case it is rejected on the ground
of failure to pay the deficit court fee the court can restore the plaint u/s 151.

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The court has power to grant interim relief considering the merit of each case and such
relief is subject to adjustment upon final determination in the suit. Such interim relief
is also granted to avoid abuse of process of court.
Order passed by mistake may be corrected by the same court and the court can do it even
apart from sec.151. Court can set aside the decree under its inherent powers after
passing it where it is a nullity or passed due to mistake by the court.
If due to absence of advocate no cross examination is made and later advocate appears
and prays for cross examination, the prayer can be granted under inherent powers.

INHERENT POWER WHEN NOT INVOKED:When there is no case of grant of a particular relief under a particular statute, power
under sec.151 need not be exercised. Where in a case claiming maintenance by a Hindu
woman married to a Hindu Male having a living lawful wedded wife, it cannot be granted
U/s 25 of Hindu Marriage Act, 1955, the marriage being void under section 5(1) thereof, and
such reliefs cannot be granted by invoking sec.15115.
A court cannot override the express provision of law but if there is no express
provision in the statute, then the apex court has held that the court can exercise its power in a
suitable case. Hence as per the judgment in the case of Ram Chand & Sons Sugar Mills (p)
Ltd. v. Kanhaya Lal Bhargava16, the power u/s 151 cannot 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.

15 Abbayolla M Subba Reddy v. Padmamma, AIR 1999 AP 19

16 AIR 1966 SC 1899

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Inherent powers can be exercised when no other remedy is available. Sec.151 hence
cannot be invoked as substitute for appeal, revision or review. In exercise of inherent powers
however, the court cannot override general principle of law. It could only be for securing
ends of justice and prevent abuse of process of court17.
The inherent powers of the court u/s 151 also cannot be invoked to grant a relief
beyond scope of law. For instance if in an auction proceedings once the law has fixed 15
days time to deposit the full amount of purchase money in the court, such period cannot be
extended u/s 15118

17 Velayudhan Nair v. Kerela Ksheman Yunik Kuries Pvt. Ltd, Trichur, AIR 1988
Ker 223
18 United Commercial Bank v. Mani Ram & Ors, AIR 2003 HP 63

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CONCLUSION
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.
In the conclusion I would like to state that after studying the judicial trend/various
judicial pronouncements one thing is made clear by the courts that barring few exceptions
the court has a plenary power to grant relief u/s 151 if it is facilitating in the ends of justice
or preventing from the abuse of process of court.
Secondly, if few basics are followed by every court then it would not be difficult or
confusing job to determine the stage as to when the inherent powers should be invoked.
Thirdly, it seems that the ground of having vested with inherent powers can be used
as positive weapon to condone few lapses in procedural aspects of a case by the courts in the
matters where the counsels come and argue on technicalities. Moreover after the case study
it is manifest that the courts are even cautious enough as regards the stage and circumstances
for invoking inherent powers and have strictly followed the principles governing the
provisions of section 151.
Fourthly, as regards the proper use of inherent powers the courts have invoked them
in appropriate cases and yes it does not mean that there are no instances where the courts

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have misused it but one can say that there is less misuse and in many cases the Apex court or
the High courts have rectified such misuse and have compensated the parties.
Thus, in my view inherent powers are of utmost importance and are the best example to
show the cautiousness of the legislature to enable all the people have access to justice even under
such circumstances where there is no express provision and a problem or issue at law has arisen.
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.

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BIBLIOGRAPHY
Books

Takwani C K, Civil Procedure, 6th Edn, 2009, Eastern Book Company

Concise Oxford English Dictionary (2002) Chambers 20th Century Dictionary (1992)

Websters Encyclopedic Unabridged Dictionary (1994)

P Ramanatha Aiyar, 3rd Edn, 2009, Lexis Nexis Butterworths Wadhwa, Nagpur

Doabia T S Justice, MLJs Code of Civil Procedure, Vol.2, 13thEdn, 2008

Nandi and Sengupta Justice, the Code of Civil Procedure, 1908, 3rd Edn, Vol.1, 2009

Basus, The Code of Civil procedure, 10th Edn, Vol.II, 2007, Ashoka Law House, New
Delhi