Inherent Powers of the Civil Court Under Section 151 of the Code of Civil Procedure,1908: A Detailed Legal Study
Dr. Y. Srinivasa Rao,
M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts,
Principal Senior Civil Judge, Tirupati, Andhra Pradesh.
The case of Rash Behari Mazumdar v. Kasum Kumari Guha (3) AIR 1925 Cal 1145 appeared to be the earliest precedent, in which it was held that invocation of inhrent powers of the Court under section 151 of CPC to make an order necessary for the ends of justice, is independent of the locus standi of the applicant. In order to administer justice, Courts have all necessary powers as inherent in them. Under its inherent powers, a Court can correct its own orders. It is pertinent to note that where fraud committed is upon a party and not upon court, same is not a case where section 151 of CPC could be invoked as was laid down in Ram Prakash Agarwal and another Vs. Gopi Krishan (Dead through L.Rs.) and others, 2013 (3) SCJ 811 (DB). As laid down in Satyanarayana Tiwari’s case (1982 (2) ALT 161), Section of 151 reserves the inherent power of the Court. Article 226 of the Constitution goes a step further and vests extraordinary jurisdiction in the High Court of a State to issue not only a writ of Mandamus but also appropriate writs, directions or orders for the enforcement of any of the right conferred by Part III and for any other purpose. See. B. Chandra Sekhar Reddy and others Vs. K. Naga Raju Yadav and anr, 2013 (1) ALT 532. No direction contrary to scheme of CPC can be granted by Court invoking inherent powers. In State of Punjab Vs. Davinder Pal Singh Bhullar and others etc., 2012 (5) SCJ 210 (DB), it was held that The provisions of Section 482 Cr.P.C. closely resemble SECTION 151 of Code of Civil Procedure, 1908, and, therefore, the restrictions which are there to use the inhrenet powers under section 151 of CPC are applicable in exercise of Powers under Section 482 Cr.P.C. and one such restriction is that there exists no other provision of law by which the party aggrieved could have sought relief.
Some key principles to invoke section 151 of the Code:-
- Inherent powers may be exercised ex debito justitiae in those cases where there is no express provision in the Code, 1908 as was held in Durgesh Sharma v. Jayshree, 2008 (6) ALT (SC) 11. Courts shall not exercise inherent powers when there is specific provisions for grant of relief sought as was held in M/S. Ultra Drytech Engineering Private Limited Vs. M/S. Niraj Petro-Chemicals Ltd., 1993 (3) ALT 624 (DB).
- In Vinod Seth Vs. Devinder Bajaj and anr, 2010 (7) SCJ 493, (Db), it was observed that a direction to plaintiff to deposit amount as security section 151 is not a provision of law conferring power to grant any kind of substantive relief.
- A decree may, therefore, be corrected by the Court both in exercise of its power under Section 152 as also under Sec. 151 of the Code,1908 – Such a power of the Court is well recognized. See. Niyamat Ali Molla Vs. Sonargon Housing Co-operative Society Ltd. and ors, 2008 (5) ALT (D.N.)(SC) 3.4 (DB).
- Civil Court is competent to suspend a declaratory decree even if it is inexecutable, in exercise of inherent powers under section 151 r/w Section 94, CPC if such decree affects the rights of third parties, as was held in Khaja Safiullah v.Mettu Baga Reddy and ors, 2007 (1) ALT 33.
- Civil Courts competent to grant interim maintenance under SECTION 151 even though there is no provision under the Act.1985 (3) APLJ (DNC) 22 (SC) – Followed.AIR 1972 A.P. 62. See. Yellapu Satyanarayana Petitioner (Defendant). vs. Yellapu Vijayalakshmi and another Respondents (Plaintiffs). 1996 (3) ALT 451.
- Where Section 10 of CPC is not applicable, party can file a petition in course of proceedings pending before Court invoking Section 151 for stay of trial of independent suit. See. Karri Satyanarayana and others vs. Pichika Veerraju and Ors, 1996 (1) ALT 177.
- It is now well settled that where Order 39 does not apply, the Court has inherent power to grant injunction in appropriate cases in exercise of inherent power under section 151 of CPC. Madduri Padmavathi Vs. Chintala Abbai, 1994 (2) alt 477.
- Restitution Court can order restitution in exercise of inherent powers under section 151 CPC in cases where they would not strictly fall within the scope of Section 144, CPC, to do justice as was observed in T. Penchalaiah v. Jaladanki Saroja (died) per L.Rs. and ors, 2006 (6) ALT 411.
- Court has no inherent power to direct defendant-tenant to deposit future rents in a suit filed for arrears of rent. See. Mohd. Younus v. Barad Lingusa, 2002 (5) ALT 523.
- An appellate court may extend time fixed for deposit of suit costs while granting stay of operation of suit decree, by exercising inhrent power under section 151 of the Code, 1908 as was held in P. Hari and others v. Anjuru Yellappa, 2010 (5) ALT 125.
- As was observed in M. Satyanarayana @ Pedda Raju v. Katama Raju and anr, 2009 (6) ALT 93, A bona fide mistake committed can be rectified under section 151 of Code,1908 in the interests of justice when no prejudice is caused thereby to other side.
- It was held in that the power under section 151 of Code,1908, can be exercised for purpose of consolidation or clubbing of suits.
- Civil Court can exercise inherent power under section 151 CPC to recall its own order if order is obtained by a party by practising fraud on court, as was laid down in P. Vijaya Laxmi v. Joint Collector, Ranga Reddy Dist., Hyderabad and ors, 2009 (4) ALT 767. There is no statutory bar to correct a procedural error in exercise of inherent power under section 151 of CPC where it violated entire proceedings resulting in miscarriage of justice, as was held in Mahalingappa and others v. Kariyanna, 2009 (4) ALT 564.
Certain consequences how the power under section 151 of CPC can be exercised:–
As was held in Salem Advocate Bar Assoriation, Tamil Nadu v. Uninon of India, AIR 2005
SCW 3827, for proceedings in execution taken under Order 21, Section 5 of the Indian Limitation Act has no application. No inherent power to condone such application. Section 151 of the Code of Civil Procedure, 1908 gives inherent power to the court to do justice unless expressly prohibited as was held in Cheedella Padmavathi (died) per LRs and others Vs. Cheedella Lakshminarasimha Rao (died) per LRs & Ors, 2015 (5) ALT 634. When there is no specific provision, then inherent powers under section 151 Code of Civil Procedure,1908 can be invoked, as was held in Narahari Kamala Sastry, Correspondent, Siddardha College of Education, Nellore district and another vs. State of A.P. rep. by its Secretary, Department of Labour and Employment, Viajawada and others, 2019 (3) ALT 380. In SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others, 2019 (2) ALT (SC) 48 (DB), it was pointed out that the clear, definite and mandatory provisions of Order 5 read with Order 8 Rules 1 and 10 cannot be circumvented by recourse to the inherent power under section 151 to do the opposite of what is stated therein. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under s.151 is not justified…” See. Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (10)  Suppl 1 SCR 450. In Ajanta LLP Vs. Casio Keisanki Kabushiki Kaisha d/b/a Casio Computer Co. Ltd. and anr, 2022 (1) Andhra Law Times Online (SC) 2774 (D.B), it was held that Undoubtedly, the Court can entertain an Application under section 151 of the CPC for alterations/ modification of the consent decree if the same is vitiated by fraud, misrepresentation, or misunderstanding. In Talla Srinivas Goud Vs. Ghanapuram Srinivas Reddy, 2022 (1) ALT 189, it was observed that Courts have got ample power to invoke section 151 C.P.C. to prevent abuse of process of law. It was further observed that an application under section 151 C.P.C. to grant police aid to prevent breach of an order of temporary injunction is well maintainable.
The Supreme Court in case titled Abdul Gafur and another v. State of Uttarakhand and others (2008) 10 SCC 97 has laid down that the application under Order 7 Rule 11 for rejection of the plaint can be filed at any stage and even in a case where parties have adduced evidence, if the Court feels that the plaint is liable to be rejected on any of the grounds mentioned under the said section, it can do so. The purpose of this interpretation is only to highlight that the Court should not be found to be powerless in cutting short the
journey of a trial by rejecting the plaint in a given case if the Court feels so. On the basis of same analogy sec.151 can be used by the Court at any stage of the trial, as it is repository of inherent powers of the Court to pass such orders in the interest of justice as the situation may warrant in a given case including the trial of the case.” See. K. Eswaraiah Vs. Bagadi Ganesh and others , 2019 (1) ALT 52. The inherent power can only be exercised for rendering justice and to do all things necessary to secure the ends of justice, as was pointed out in Velugu Eswaramma and another Vs. Velugu Shoba Rani, 2019 (3) ALT 367. While exercising the said power circumspection and care must be taken and the power should be sparingly used and particularly when the Court feels it is absolutely necessary to do so. The power and majesty of the Courts would depend upon the quick implementation of the orders. Valluru Samba Siva Rao and another Vs. Krishna Apartments Association rep. by its President, V. Mahendrnath and others, 2019 (3) ALT 298.
The arbitral Tribunal is not vested with inherent power as vested in a Court under the Code of Civil Procedure. Therefore, the order under appeal is not traceable to section 151 C.P.C. – Islamia Academy of Education v. State of Karnataka (6) (2003) 6 SCC 697 . In Royal Mindz Infra Pvt Ltd., Hyderabad, rep. by its Managing Director-Satya Venkata Srinivas Borusu Vs. M/s. Coastal Ceramics and Clay Works Pvt. Ltd., Rajahmundry, 2017 (6) ALT 502 (DB). The arbitral Tribunal is not vested with inherent power as vested in a Court under the Code of Civil Procedure. Therefore, the order under appeal is not traceable to section 151 C.P.C. In Naredla Jayasri Vs. Dr. N. Ravi Kumar, 2015 (3) alt 65, it was held that Court can exercise its inherent powers under section 151 of CPC to prevent abuse of the process of the Court.
Third person brings facts/truth to the notice of Court :- In Dulhin Suga Kuer v. Deorani Kuer (4) 1952 AIR (Pat) 72, an ex parte decree was set aside on the application of a transferee subsequent to the ex parte decree and the learned Judge opined that the true test is whether the transferee is affected by the order or decree in question and the transferees were considered to be vitally interested in setting aside the ex parte decree. Of course, they were also held to be entitled to prefer an appeal. More directly on the point was Santosh Choptra v. Teja Singh Sardul Singh (5) AIR 1977 Del. 110, wherein the question was the locus standi of a subsequent assignee of the rights of previous landlord to move an application under Order IX Rule 13 of CPC. The Delhi High Court was of the opinion that a reading of Order IX Rule 13 of CPC itself makes it clear that it is only the defendant in an action who can move an application under this provision of law and a person who is not a party, though he may be interested in the suit, is not entitled to apply under the Rule. It was stated that indeed, even a person who is formally a party but against whom nothing is said in the operative portion of the decree or who has been expressly exempted from a decree cannot apply under this Rule to set aside an ex parte decree. The decision in Susil Chandra Guha v. Gouri Sundari Devi (6) AIR 1926 Calcutta 1015 was followed and the decisions in Dulhin Suga Kuer v. Deorani Kuer (4 supra) and Balaji Govinda Narain v. Hira Lal (7) AIR 1957 (3) A.P. 364 were refused to be followed. The decision of High Court of Andhra Pradesh in Balaji Govinda Narain v. Hira Lal (7 supra) was rendered by a Division Bench. The Delhi High Court also refused to invoke the inherent powers under section 151 of CPC, as the question involved was the locus standi of the applicants. The Allahabad High Court taking a contrary view in Surajdeo v. Board of Revenue (8) AIR 1982 Allahabad 23 exhaustively dealt with the question as to whether a person not a party to the suit in which the ex parte decree was passed, had any right to make an application for setting aside the ex parte decree. The Court referred to the earlier decision in Laraiti Devi v. Sia Ram (9) AIR 1957 All 820, wherein it was held that there is no hard and fast rule that the petitioner could not bring the correct facts to the notice of the Court concerned that fraud had been practised upon the Court and that the Court had committed patent illegality in passing the ex parte decrees, specially when the petitioner was likely to be affected by the ex parte decrees in favour of the contesting opposite parties. The Court held that it was not correct to contend that the trial Court could not exercise powers under section 151 of CPC in such circumstances. Distinguishing some other decisions, the Court observed that there may be cases where a third person can bring correct facts to the notice of the Courts concerned and the Courts concerned are fully justified in acting upon the information received and in exercising powers under section 151 of CPC and the party having some right was fully entitled to bring correct facts to the notice of the Courts concerned. The Allahabad High Court had also placed reliance on Rash Behari Mazumdar v. Kasum Kumari Guha. In Subahu Kumar Jain v. Jagdish Prasad Choudhury (10) 1990 AIR (Gau) 66, the view expressed by Allahabad
High Court in Surajdeo v. Board of Revenue (8 supra) was dissented from, while following the earlier decision of Gauhati High Court in B.N.C.L.M. Saha v. S.R. Dev (11) AIR 1976 Gau 7. Observing several decision, in this case of Pathlavath Bichya and others Vs. V. Hanya Naik & oRS, 2012 (1) ALT 261 it was held that Avoidance of an ex parte judgment and decree by a third party, not a party to the suit, can also be by filing an appeal with the leave of the Court or by bringing a regular suit for such reliefs on any permissible grounds available to the third party under law in such a suit. The availability of such remedies to such aggrieved and affected third parties is not seriously disputed during hearing. Hence, an application to set aside an ex parte judgment and decree under Order IX Rule 13 and/or section 151 of CPC, an appeal with the leave of the Court and a suit for appropriate reliefs on grounds permitted under law are the alternatives open to an aggrieved third party against an ex parte judgment and decree adversely affecting his rights and interests.
Application for restoration:- As was held in Nallapati Pandu Ranga Rao Vs. Vempati Venkateshwar Rao and another, 2015 (2) ALT 177, when an application is filed for restoration of property invoking Sections 144 and 151, CPC even if the application is not maintainable under Section 144, CPC, the restoration can be ordered under section 151 , CPC.
Reopening of suit under section 151 of CPC :-
In Bagai Construction v. M/s. Gupta Building Material Store (1) 2013 (2) SCJ 754 = AIR 2013 SC 1849 = 2013 (3) ALT 35.3 (DN SC), it was held that though power under section 151 can be exercised if ends of justice so warrant and to prevent abuse of process of the court and Court can exercise its discretion to permit reopening of evidence or recalling of witness for further examination/cross-examination after evidence led by the parties, in the light of the information as shown in the order of the trial court, namely, those documents were very well available throughout the trial, we are of the view that even by exercise of section 151 of CPC, the petitioner cannot be permitted. See also. Kore Gattaiah Vs. Kore Venkataiah and others, 2016 (1) ALT 671. In P. Bhaskara Rao Vs. M.R.Wolfgang Ormeloh & Ors, 2013 (2) ALT 110, it was held that Court in excise of its inherent power under section 151 of CPC can permit a party to recall a witness and examine/cross-examine
Neerudu Srinivas Reddy and another Vs. Neerudu Sunanda @ Sunanda Reddy @ Sripathy Sunanda Reddy rep. by her G.P.A. Neerudu Bharathi Devi, 2016 (3) ALT 288. Having considered the rival submissions one thing may be noticed that the IA was filed invoking inherent powers of the court under section 151 CPC. CPC does not provide any specific provision for reopening of a case after completion of recording evidence. It is only for that reason petitioners had invoked the inherent power under section 151 CPC. The invoking of inherent power under section 151 C.P.C. in the facts of the present case is for bringing of further evidence in the form of an Advocate Commissioner’s report by the petitioners. In that view of the matter, the procedure for adducing and recording of evidence as provided for under Order XVIII may be noticed. Order XVIII C.P.C. deals with the rights of the parties for leading evidence and for further addressing arguments including the power of the Court to examine or cross-examining a witness and also recall and reexamine a witness. Order XVIII Rule 17A C.P.C. where a provision was available for production of evidence not previously known or which could not be produced despite due diligence was repealed by the Act 46 of 1999, Code of Civil Porcedure (Amendment) Act, 1999 with effect from 01.07.2002. In other words, the right of a party to produce evidence not previously known or which could not be produced despite due diligence was also taken away. The effect of the omission of Order XVIII Rule 17A C.P.C. in the context of the other provisions would leave no manner of doubt that the parties to the proceedings are required to be diligent in the first instance and at every stage to protect their interests and bring best possible evidence at the earliest. The same is evident from various other amendments which have been brought in the CPC. The object of various amendments is to curtail the delay in disposal of the suits and to discourage the parties to the suit to prolong the proceedings. In the present case, it is not even the case of the petitioners that the application of the nature seeking appointment of the Advocate Commissioner to note the physical features of the suit schedule land could not have been made at the earliest point of time. We may note that the suit came to be filed in the year 2006, numbered in the year 2007 and the written statement itself came to be filed by the petitioners on 28.03.2007. It is an admitted fact that the suit is at the stage of arguments of the defendants. At this belated stage the relief of the nature cannot be granted.
Police aid under section 151,CPC :-
In Yarlagunta Bhaskar Rao and others Vs. Bommaji Danam and Ors, 2014 (2) ALT 319, it was held that The power of section 151 to pass order of injunction in the form of restoration of possession of the code is not res integra now. In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 SC 527) while dealing with the power of the court to pass orders for the ends of justice or to prevent the abuse of the process of the court, this Court held that the courts have inherent jurisdiction to issue temporary order of injunction in the circumstances which are not covered under the provisions of Order 39 of the Code of Civil Procedure. However, it was held by this Court in the aforesaid decision that the inherent power under section 151 of the Code of Civil Procedure must be exercised only in exceptional circumstances for which the Code lays down no procedure. It is also well settled that when parties violate order of injunction or stay order or act in violation of the said order the court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authority to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit and also order police protection for implementation of such order. It is also well settled that when in the event of utter violation of the injunction order, the party forcibly dispossesses the other, the court can order restoration of possession to the party wronged. In this case of Yarlagunta Bhaskar Rao (supra), it was further observed as follows: ” So a party, who obtained temporary injunction orders, and is complaining of violation of such orders, may file not only an execution petition under Order XXI Rule 32 CPC or an application under Order XXXIX Rule 2-A of CPC seeking attachment and/or arrest of the violator for Contempt of Court, but also an application seeking police protection under section 151 CPC from the Civil Court. With great respect to the Division Bench, I do not agree with its view that if a party were to be allowed to seek police protection under section 151 CPC to implement an interim injunction order granted in his favour, it would render Order XXXIX Rule 2A and Order XXI Rule 32 otiose. ”. Police aid cannot be granted to a party under Section 151 in a civil proceeding to protect his possession of property when there is no order in his favour as to possession to maintain as was held in J. Jagannath Reddy Vs. Smt. L. Laxmi
Devi and ors, 1998 (1) ALT 461.
Power of the civil court to direct police officers to provide assistance in the execution of orders or decrees :-
In Kotak Mahindra Bank Limited, rep. by its Authorized Officer, Hyderabad Vs. Station House Officer, Madhapur P.S., Hyderabad and others, 2016 (2) ALT 164 (DB), the power of the Civil Court to direct police officers to render assistance is well recognized. When parties violate orders of injunction or stay, the Court can, by exercising its inherent power, put back the parties in the same position as they stood prior to issuance of the injunction order or give appropriate direction to the police authorities to render aid to the aggrieved parties for the due and proper implementation of the orders passed in the suit, and also order police protection for implementation of such an order. (Meera Chauhan v. Harsh Bishnoi (22) 2007 (7) SCJ 798 = (2007) 12 SCC 201). In Rayapati Audemma (18 supra), a Division Bench of this Court held that, though an order of injunction under Order 39 CPC is only interim in nature, it still clothes the person, who obtained the order, with certain rights which he is entitled to enforce against the party who is bound by the order; in such a case the aggrieved party can, himself, approach the police authorities and seek their assistance to prevent obstruction to the enforcement of the order, or to the exercise of the right which he derives under the order of the Court; there is no reason why, when the same person brings to the notice of the court that enforcement of the order is sought to be prevented or obstructed, the Civil Court should not exercise its iherent power under section 151 CPC, and direct the police authorities to render all aid to the aggrieved party in the implementation of the court order; the exercise of such power is necessary to meet the ends of justice or to prevent abuse of the process of court; the Civil Court has ample jurisdiction to pass such an order under section 151 CPC; and the police are bound to obey such directions.
Conclusion:- The court has to exercise discretionary power vested in it by virtue of section 151 of CPC judiciously basing on sound principles of law in order to secure ends of justice. Subsequent events making suit infructuous ca be brought to the notice of the
Court and then the Court has power to enquire into such matters by using inherent powers as held in the case of Shipping Corp. of India vs. Machado Bros., AIR 2004 SC 2093 Where the Code of Civil Procedure, 1908 is silent pertaining any procedural aspect, the Court can exercise its inherent power to do real and substantial justice. When the Court makes an order for police aid, it must indicate the puRpose specifically. The Court can restore possession under the provision of section 151, despite not under section 144 of CPC. The power under section 151 CPC is not substitute power but it only supplementary and complementary to the powers conferred by the others provisions of the Code, 1908. When advocates quotes section 151 of the Code, relief cannot be refused for not quoting correct provision of law. To prevent abuse of process of Court and do justice, inherent power under section 151 CPC can be exercised. Exercise of inherent power cannot be contrary to any express statutory provision.