Important Provisions of CPC(Part 2 ) (S 96 to S 153-B of CPC)

 96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

200[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [ten]201 thousand rupees.]

97. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder 204[or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court:

205[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

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Whether the trial court can grant restitution of property if the case did not fall within the ambit of S 144 of CPC?

 In the case of Mrs. Kavita Trehan and another v. Balsara

Hygiene Products Ltd., reported in AIR 1995 SC 441, in paragraph

nos. 13 and 15, the Supreme Court has made the following

observations:

“13. The Law of Restitution encompasses all claims

founded upon the principle of unjust enrichment.

'Restitutionary claims are to be found in equity as well as

at law'. Restitutionary law has many branches. The law of

quasi-contract is "that part of restitution which stems

from the common Indebitatus counts for money had and

received and for money paid, and from quantum meruit

and quantum vale bat claims." [See 'The Law of

Restitution" - Goff & Jones, 4th Edn. Page 3]. Halsburys

Law of England, 4th Edn. Page 434 states :

“Common Law. Any civilised system of law is

bound to provide remedies for cases of what has

been called unjust enrichment or unjust benefit,

that is, to prevent a man from retaining the

money of, or some benefit derived from, another

which it is against conscience that he should

keep. Such remedies in English law are

generically different from remedies in contract

or in tort, and are now recognised to fall within

a third category of the common law which has

been called quasi contract or restitution.”

For historical reasons, quasi contract has traditionally

been treated as part of, or together with, the law of

contract. Yet independently, equity has also developed

principles which are aimed at providing a remedy for

unjustifiable enrichment. It may be that today these two

strands are in the process of being woven into a single

topic in the law, which may be termed "restitution”.

Recently the House of Lords had occasion to examine some

of these principles in Woolwich Equitable Building Society

v. Inland Revenue Commissioners, [1993] A.C. 70.

14. ......

15. Section 144 CPC incorporates only a part of the

general law of restitution. It is not exhaustive. (See

Gangadhar v. Raghubar Dayal, AIR 1975 All 102 (FB)

and State Govt. of Andhra Pradesh v. M/s. Manickchand

Jeevraj & Co., Bombay , AIR 1973 Andhra Pra. 27).

The jurisdiction to make restitution is inherent in every

court and will be exercised whenever the justice of the

case demands. It will be exercised under inherent powers

where the case did not strictly fall within the ambit of

Section 144. Section 144 opens with the words, "Where

and in so far as a decree or an order is varied or reversed

in any appeal, revision or other proceeding or is set aside

or modified in any suit instituted for the purpose,...." The

instant case may not strictly fall within the terms of

Section 144; but the aggrieved party in such a case can

appeal to the larger and general powers of restitution

inherent in every court..............”

In view of the above observations, even if the cases not

falling within the ambit of Section 144 of CPC, restitution can be

made under inherent powers.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 WRIT PETITION NO. 269 OF 2018

CHANDRAKALABAI  BAPURAO SHIRSAT  Vs HABIB KHAN 

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Whether court can set aside exparte order passed in civil revision?

However, the Learned Counsel for the Respondents urged that, although there is a rule about restoration to file of a revision petition dismissed in default, there is no similar rule for setting aside an ex-parte order passed in a civil revision. Therefore, the contention is that this Court has no jurisdiction to set aside an ex parte order. In my opinion, a resort to exercise of inherent powers would be necessary to meet such a situation; otherwise we are led to the anomalous situation created by the view as expressed by Byers J. in A. Rirnxmwrti Iyer and Ors. v. T.A. Meenakshisundarammil and Anr. (Supra), as this Court would have the power to do damage to a party, but would be supposed not to undo it. 

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

Misc. Civil Case No. 94 of 1963

Decided On: 12.12.1963

 Dhullchand Bhuraji  Vs.   Chainsingh Bachusingh and Ors.

Hon'ble Judges/Coram:

P.K. Tare, J.

Citation: 1965 JLJ 997,= ILR (1966) MP 169=1966 MP LJ 65, MANU/MP/0146/1963

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Whether court can condone delay in execution of decree as per S 5 of limitation Act?

It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

It is well-settled that when a power is to be exercised by a civil court under an express provision, the inherent power cannot be taken recourse to.

An application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. Application of the said provision has, thus, expressly been excluded in a proceeding under Order XXI of the Code. In that view of the mater, even an application under Section 5 of the Limitation Act was not maintainable. A fortiori for the said purpose, inherent power of the court cannot be invoked.

Supreme Court of India

Damodaran Pillai & Others vs South Indian Bank Ltd on 8 September, 2005

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Whether the court can restore suit dismissed in default in the exercise of inherent powers?

Overruling the view taken by the learned Single Judge of this Court and answering the reference by declaring that Section 151 of the Code could be invoked to seek restoration of a Suit dismissed under Sub-Rule (1) of Rule 5 of Order IX of the Code, we lodge the caveat. The caveat would be that the Plaintiff would have to show a sufficient cause. The previous conduct of the Plaintiff would also require to be considered. The inconvenience and the prejudice caused to the served defendants or the defendant who was not served as a consequence of restoration of the Suit would also have to be kept in mind.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 896 of 2007, 7552 of 2009 and Civil Application Stamp No. 901 of 2019

Decided On: 16.10.2019

Hariba Tatyaba More  Vs.  Dada Ekhatnath More and Ors.

Hon'ble Judges/Coram:

Pradeep Nandrajog, C.J., M.S. Karnik and Bharati H. Dangre, JJ.

Citation: 2019(6) MHLJ 511(FB)

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Whether De novo proceeding is to be initiated after return of plaint?

The provisions of Section 151 would come to the aid of the Court, as no Code can possibly make provisions so as to meet every situation which may arise during the pendency of the suit. It is a situation where inherent jurisdiction of this Court would come to the aid and supply the vacuum. The inherent jurisdiction of the Court would normally be exercised in the interest of justice and for attainment of object of expeditious disposal of suits. May be it is the creation of the applicants themselves that the Court has lost pecuniary jurisdiction and the applications under Order 7 Rule 10 and 10(A) are pending or that the order has been passed for return of plaint but the plaint as a matter of fact has not been returned to the plaintiffs as of today. Thereafter interim orders in the present petitions were passed in favor of the petitioners. In these circumstances, it is difficult for this Court to hold that there is no suit or proceedings in the suit, pending before the trial Court. The Legislature in its wisdom has worded the language of Section 24 in wide terms by empowering the High Court to transfer any suit or appeal or other proceedings pending before it for trial or disposal to any Court subordinate to it. In other words, the meaning of the word "such or other proceedings pending in any court" cannot be restricted or construed so as to exclude the proceedings as contemplated under Order 7 Rule 10, 10(A) of the Act.

17. The present are the cases which have been filed by the plaintiffs in the Court of Competent jurisdiction. However, earlier they were transferred to the District Courts in view of the notification and now the district courts have lost pecuniary jurisdiction as a result of the order of the Court at the behest of the parties. The interim orders, undertakings have continued for years together. In some cases evidence has been recorded. It will be travesty of justice if the proceedings have to commence de novo right from the stage of filing a written statement as the plaintiff would be returned only plaint, to be presented before the court of competent jurisdiction there is nothing in the provisions of Order 7 Rule 10 which on its plain reading or by necessary implication be construed as a bar to maintainability of a petition under Section 24 of the Code....

27. It is held, on the basis of the above reasoning, and the line of decisions following Joginder Tuli (supra) and Aviat Chemicals (supra), the proceedings in the present case do not have to commence de novo, but from the stage they were in the court of the Additional District Judge.

IN THE HIGH COURT OF DELHI

FAO(OS) 64/2013 and C.M. APPL. 1784/2013

Decided On: 28.11.2013

 Narendar Singh Vs. The Indian Institute of Architects

Hon'ble Judges/Coram:

S. Ravindra Bhat and Najmi Waziri, JJ.

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Basic concepts of CPC-S 148 to S 153B of CPC

S 148 of CPC-Enlargement of time

It lays down that where any period is fixed or granted by court for doing of any act prescribed or allowed by this code,the court may in its discretion, from time to time enlarge such period but not exceeding 30 days in total even though period originally fixed or granted may have expired.

S 148 A of CPC Right to lodge caveat

Caveat is a caution or warning given by a party to the court, calling upon it not to give any relief to another party, without notice or intimation to the party lodging the caveat. It remains in force within ninety days of lodging.Caveat can be filed in all proceedings including appeal .Stranger to proceeding can not file caveat.

Read important judgments on caveat:
Click here

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Whether order of abatement can be altered at subsequent point of time?

Needless to mention that the order of abatement is not so sacrosanct or inviolable that the same cannot be altered at a subsequent point of time inspite of sufficient cause being shown by the plaintiffs or any other party to the suit. If the party to the suit is able to satisfy the Court that the requirements of Rule 4A or Rule 4(4) are attracted in a given case then the Court may in its inherent powers pass appropriate orders including an order of setting aside abatement on such ground. If the aforesaid rules permit prosecution of the suit in absence of legal representatives of the deceased party, and yet the judgment passed would bind the estate of such deceased party, then surely it would be preposterous to contend that suit against such a person would abate in law. Both these situations would be antithesis to each other. In my view it would defeat the legislative intent behind the Amendment Act of 1976.

11. Understood thus, the Court below ought to examine the subject application in wider perspective. In such a situation, to do substantial justice to the parties the Court ought to exercise inherent powers under section 151 of the Code of Civil Procedure and pass appropriate orders. Incase defendants 2 to 5 are justified in contending and there is material on record to support the contention that they were the heirs of deceased Pragji and could represent the estate of the defendant No. 1 the Court could suitably modify the abatement order and permit the defendants 2 to 5 to represent the estate of defendant No. 1. All questions are left open to be decided by the Trial Court. The Court may re-examine the application in the wake of observations made hereinbefore and decide the same in accordance with law.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6294 of 1995

Decided On: 28.06.2001

Gulabben wd/o Chimanlal Maniar and Ors. Vs. Narendra Balchandra and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 Vol 103(4) BOM L R 540

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When court can permit recalling of witness for cross examination?

 I have given due consideration to the rival submissions. It is true that on plain reading of provisions of 0.18 R. 17 of the Code, it appears that only the Court is empowered to recall the witness to put such questions to elicit any clarification. However, the Supreme Court in case of K.K. Velusamy, [2011(3) ALL MR 455 (S.C.)] (supra) had an occasion to consider the provisions of 0.18 R.17 and also the provisions of Section 151 of the Code. Upon considering the said provisions, the Supreme Court in para 9 of the judgment held that, the inherent powers of the court u/s 151 of the Code is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the Court to put such question to elicit any clarifications. The Supreme Court, in para 11 of the judgment has also considered that, the Code earlier had a specific provision in Order 18 Rule 17A for production of evidence not previously known or the evidence which could not be produced despite due diligence. It enabled the court to permit a party to produce any evidence even at a belated stage, after the conclusion of his evidence, if he satisfied the court that even after the exercise of due diligence, the evidence was not within his knowledge and could not be produced by him when he was leading the evidence. That provision was deleted with effect from 1.7.2002. It is held that, deletion of the said provision does not mean that no evidence can be received at all, after a party closes his evidence. It only means that the amended structure of the Code found no need for such a provision, as the amended Code contemplated little or no time gap between completion of evidence and commencement and conclusion of arguments. Another reason for its deletion was the misuse thereof by the parties to prolong the proceedings under the pretext of discovery of new evidence. In para 12 of the said judgment, the Supreme Court has observed that, in appropriate cases, the Court may exercise its inherent powers u/s 151 of the Code, permitting the production of such evidence if it is relevant and necessary in the interest of justice, subject to such terms as the court may deem fit to impose.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 9626 of 2011

Decided On: 18.07.2012

Anand S/o Rangrao Ingle & Anr. Vs. Govind S/o Rangrao Ingle & Ors.

Hon'ble Judges/Coram:
S.S. Shinde, J.

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Whether it is permissible for defendant to claim injunction?

 In any event of the matter, it is now settled law that injunctions can even be sought by the defendants and granted against the plaintiff under Order XXXIX Rule 1 read with Section 151 or Section 94(e) of the Code of Civil Procedure, in exercise of inherent powers of courts when circumstances warrant such exercise. Being an equitable relief, the grant or refusal of an injunction will ultimately rest in the sound judicial discretion of the courts, to be exercised on the facts and circumstances of each case. It is also now settled that the provisions of the Code of Civil Procedure are not exhaustive, because, the legislature is incapable of contemplating all possible circumstances which may arise in future and there is no expression in Section 94 of the CPC which prohibits the issue of temporary injunction in circumstances which are not even covered by Order XXXIX Rule 1. Further, Section 151 provides that nothing in the Code shall deem to limit or otherwise effect the inherent power of the Court to make necessary orders for ends of justice.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

F.A.O. Nos. 53 and 55 of 2017

Decided On: 29.06.2017

 K.P. Shibu  Vs. P. Rajammal and Ors.

Hon'ble Judges/Coram:

P.N. Ravindran and Devan Ramachandran, JJ.

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Whether court can direct tenant to deposit rent amount in court under inherent powers U/S 151 of CPC?

 The attempt was made on the part of the learned counsel to contend that if the landlord-plaintiff is not getting any amount and the defendant is enjoying the property, it would cause great injustice pending the proceedings and the suit may take long time for its decision and therefore, the power could be exercised under Section 151 of CPC.

9. In my view, the process of law in the normal circumstance as is applicable to any property under the Transfer of Property Act should be the same either eviction or recovery of the rent or for recovery of possession. It is true, if the decree is to remain as the paper decree, there are express provisions made under CPC to protect the interest of the plaintiff but, such is not the situation in the present case nor such power of the Court was invoked.

10. The power under Section 151 as observed earlier, cannot be exercised in absence of substantive statutory provision available under Transfer of Property Act or in absence of express provision made authorizing Court or the mechanism to direct the lessee to deposit the amount.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 44943/2016 (GM-CPC)

Decided On: 20.10.2016

B.V. Nagakannika

Vs.

 Dastagir S. Haroon

Hon'ble Judges/Coram:

Jayant M. Patel, J.

Citation:AIR 2017 Karnat 48

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Whether court can grant temporary injunction under inherent powers?

It is now a well-settled principle of law that Order 39, Rule 1 of the Code of Civil Procedure (Code) is not the sole repository of the power of the court to grant injunction.

Section 151 of the Code confers power upon the court to grant injunction if the matter is not covered by Rules 1 and 2 of Order 39 of the Code. [See Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 and India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. (2007) 5 SCC 510]

Supreme Court of India

Tanusree Basu & Ors vs Ishani Prasad Basu & Ors on 5 March, 2008

Bench: S.B. Sinha, V.S. Sirpurkar

           CASE NO.:
Appeal (civil)  1767 of 2008

Citation:(2008) 4 SCC 791

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Whether court can permit recall of witness using its inherent powers U/S 151 of CPC?

There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

Reportable

Supreme Court of India

K.K. Velusamy vs N. Palaanisamy on 30 March, 2011

Bench: R.V. Raveendran, A.K. Patnaik

Citation:2011 AIR SCW2296

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When court can recall its own order under its inherent powers?

Supreme Court in Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396, held that what is a power to recall? Inherent power to recall its own order vesting in tribunals or courts and set aside an orders:- 
(i) obtained by fraud practised upon the court, 
(ii) when the court is misled by a party, or 
(iii) when the court itself commits a mistake which prejudices a party. 
13. In the present case, Narendra Kumar Sharma filed an application (registered as Misc. Case No. 16/74/2006) under Order 21 Rule 97 C.P.C., which was dismissed by Executing Court by order dated 04.09.2009. Executing Court should have allowed execution case and directed that decree holders be put into possession of the property, in view of Order 21 Rule 98 (2) C.P.C. on same day. Later on, ejectment of the petitioners was stayed in Writ-C No. 74825 of 2010, by order dated 22.12.2010, which was operative till 03.12.2014. Due to interim order of this Court, Executing Court was unable to pass any order in execution case except adjourning it. Order dated 15.10.2011 was passed during continuance of interim order of this Court. Executing Court committed two mistake, firstly on 04.09.2009, while dismissing application under Order 21 Rule 97 C.P.C., he would have allowed the execution case under Order 21 Rule 98 (2) C.P.C. on the same day and secondly due to interim order of this Court dated 22.12.2010, Executing Court was unable to pass any order, except adjourning execution case; although order dated 22.12.2010 was operative till 03.12.2014 but execution case was dismissed in default on 15.10.2011. This mistake of court can be rectified, exercising inherent powers under Section 151 C.P.C. Supreme Court in Om Prakash Marwaha v. Jagdish Lal Marwaha, (2009) 1 SCC 510, relying upon in Jang Singh v. Brij Lal, AIR 1966 SC 1631, held that a litigant should not suffer on account of the lapse made by an officer of the Court. Applying the well-known maxim actus curiae neminem gravabit, that an act of court should do no harm to a litigant, this Court held that the mistake should be rectified by the Court and the parties relegated to the position on the date when the mistake occurred. Madhya Pradesh High Court in Khoobchand Jain Vs. Kashi Prasad, AIR 1986 MP 66 and this Court in Arjun Prasad Smt. Ameer Jahan Begum, 2007 (8) ADJ 726 and Matter Under Article 227 No. 7036 of 2015 State of U.P. Vs. Saifi Abdul Hasan (decided on 11.12.2015) also held that if due to mistake committed by Court case was dismissed in default then order can be recalled. 
HIGH COURT OF JUDICATURE AT ALLAHABAD 

 

Case :- MATTERS UNDER ARTICLE 227 No. - 7035 of 2015 

Narendra Kumar SharmaV Nand Kishore Sharma 

Hon'ble Ram Surat Ram (Maurya),J. 
DATED: 20.5.2016 

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Whether court can permit recalling of witness U/S 151 of CPC?

 It has been argued by the learned counsel for the petitioner
that even if such power may not expressly been read in the
provisions contained under Order 18 Rule 17, the Court can
exercise its inherent power under Section 151, therefore, to
do complete justice in the matter the trial Court should have
allowed the application.13. It is not a case where the CPC has not made any provision
for recalling the witness. Once a provision has made in form
of Rule 17 Order 18 of the CPC restricting the same to be
invoked by the Court for putting some questions to the
witness, but not allowing any party to the litigation to recall a
witness, in such a situation provision contained under
Section 151 of the CPC cannot be applied for recalling a
witness, which is otherwise not made permissible in CPC.
HIGH COURT OF CHHATTISGARH : BILASPUR

Single Bench : Hon’ble Shri Prashant Kumar Mishra, J.

Writ Petition (Art.227) No.918 of 2013

Ajay Kumar Agrawal
Versus

Smt. Sushila Bai and another

 (Passed on this 6th day of January, 2015)

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Whether inherent power U/S 482 of CRPC can be exercised to recall a matter which has been finally disposed of by court?

There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is dis-entitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. ( Vide Hari singh Mann Vs. Harbhajan Singh Bajwa, 2001 (1) SCC 169).

Moreover the prohibition contained in Section 362 Cr.P.C is absolute; after the judgement is signed, even the High Court in exercise of its inherent power under Section 482 CrP.C has no authority or jurisdiction to alter/review the same ( vide Moti Lal Vs. State of M.P. (2012) 11 SCC 427).

If a judgement has been pronounced without jurisdiction or in violation of principle of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions ofSection 362 Cr.P.C would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.( vide Chitawan Vs. Mahboob Ilahi, 1970 Cri. LJ 378( All), Asit Kumar Kar Vs. State of West Bengal (2009) 2 SCC 703 ).

Supreme Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself ( Vide State Vs. K.v. Rajendran, 2008(8) SCC 673.

In Sooraj Devi Vs. Pyare Lal, 1981 (1) SCC 500, apex court held that the prohibition in Section 362 CrPC against the court altering or reviewing its judgment, is subject to what is "otherwise provided by this code or by any other law for the time being in force". These words, however, refer to those provisions only where the Court has been expressly authorized by the code or other law to alter or review its judgement. The inherent power of the court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail.

Thus, the law on the issue can be summarized to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law (Refer State of Punjab Vs. Davinder Pal singh Bhullar, (2011) 14 SCC 770).

The same principle is applicable while considering an application for recall /modification/review of an order passed under Section 482 Cr.P.C.

The inherent power under Section 482 Cr.PC is intended to prevent the abuse of the process of the court and to secure the ends of justice. Such power, cannot be exercised to do something which is expressly barred under the code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there are no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a view which is expressly barred under Section 362 CrPC.

Allahabad High Court

Virendra Kumar Anand @ V.K. Anand vs State Of U.P. And 2 Others on 30 May, 2016

Bench: Suneet Kumar

Crl. Misc. Recall Application No. 126367 of 2016
 
IN
 
Case :- APPLICATION U/S 482 No. - 5938 of 2016
 

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Whether court can permit re-opening of evidence using inherent powers U/S 151 of CPC?

The   respondent   contended   that   section   151
cannot be used for re­ opening evidence or for recalling
witnesses. We are not able to accept the said submission
as   an   absolute   proposition.   We   however   agree   that
section 151 of the Code cannot be routinely invoked for
reopening evidence or recalling witnesses. The scope of
section 151 has been explained by this Court in severaldecisions (See : Padam Sen vs. State of UP­AIR 1961 SC
218; Manoharlal Chopra vs. Seth Hiralal ­ AIR 1962 SC
527;  Arjun Singh vs. Mohindra Kumar  ­ AIR 1964 SC
993;   Ram  Chand  and   Sons  Sugar   Mills  (P)   Ltd.  vs.
Kanhay   Lal   ­   AIR   1966   SC   1899;  Nain   Singh   vs.
Koonwarjee ­ 1970 (1) SCC 732; The Newabganj Sugar
Mills Co.Ltd. vs. Union of India  ­ AIR 1976 SC 1152;
Jaipur   Mineral   Development   Syndicate   vs.
Commissioner of Income Tax, New Delhi ­ AIR 1977 SC
1348;  National   Institute   of   Mental   Health   &   Neuro
Sciences vs. C Parameshwara ­ 2005 (2) SCC 256; and
Vinod Seth vs. Devinder Bajaj  ­ 2010 (8) SCC 1). We
may summarize them as follows: 
(a) 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) 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 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   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)   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) 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) 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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7688 OF 2013

M/s. Mukund Iron Staff Association Vs Vasant Ramchandra Patil 

CORAM : R. M. SAVANT, J.
DATE   : 18th February 2015
Citation:2016 (3) ALLMR 721

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Whether appeal is tenable if trial court has issued show cause notice in application for temporary injunction? -

Section 94 of the CPC provides, inter alia, that in order to
prevent the ends of justice from being defeated the court may, if
it is so prescribed, inter alia, grant a temporary injunction and in
case of disobedience committ a person guilty thereof to the civil
prison and/or make such other interlocutory orders as may appear
to the court to be just and convenient. Section 94 inescapably
refers to Rules 1 and 2 of Order 39 of the CPC which have been
set out hereinabove. (30) It may not be proper to say that the court derives its
jurisdiction to pass an order of injunction from Section 94. It is too
well established that the Court has an inherent power to pass an
order of injunction where the facts and circumstances of a case
so warrant to do complete justice between the parties. Section
151 of the CPC recognises such inherent power. Section 94 of the
CPC expressly recognises the court’s power to issue an order of
injunction and Order 39 Rules 1 and 2 indicate the circumstances
in which the court may exercise its power to grant temporary
injunction. If circumstances which are not covered by Rules 1 and
2 of Order 39, warrant issuance of injunction, the court can still do
it in exercise of its inherent jurisdiction.
(31) In the case of Manoharlal-vs.-Seth Hiralal reported in AIR 1962
SC 527 it was held as per the majority view that it is well settled
that the provisions of the Code are not exhaustive, for the simple
reason that the legislature is incapable of contemplating all the
possible circumstances which may arise in future litigation and
consequently for providing the procedure for them. The effect of
the expression ‘if it is so prescribed’ in Section 94 of the Code is
only this that when the Rules in Order 39 prescribe the circumstances in which temporary injunction can be issued,
ordinarily the court is not to use its inherent power to make the
necessary orders in the interest of justice, but is merely to see
whether the circumstances of the case bring it within the
prescribed rule. If the provisions of Section 94 were not there in
the Code, the Court could still issue temporary injunctions, but it
could do that in the exercise of its inherent jurisdiction. It is in the
incidence of the exercise of the power of court to issue temporary
injunction that the provisions of Section 94 of the Code have their
effect and in not taking away the right of the court to exercise its
inherent power. The court has inherent jurisdiction to issue
temporary injunctions which are not covered by the provisions of
Order 39 of the Code if the court is of the opinion that the interest
of justice requires the issuance of such interim injunction.

(41) Since I have come to the conclusion that an order refusing
grant of ex parte injunction and directing issuance of notice to the
defendant is also an order passed in exercise of power under
Section 94 read with Section 39 Rules 1 and 2 of the CPC, it follows
that such an order is an appealable order as provided in Order 43
Rule 1 (r) of the Code. I am of the opinion that a remedial
provision in a statute, whether by way of an original proceeding or by way of an appeal should be construed in a liberal and
expansive manner rather than in a restrictive way.
(42) In view of the aforesaid, I am unable to sustain the judgment
and order whereby the appellate court dismissed the petitioner’s
appeal on the ground that the order of the Ld. Trial Judge was not
an appealable order. According to the view, I have taken the Ld.
Trial Court’s order was an order under Order 39 Rules 1 and 2 of
the CPC and hence appealable as provided in Order 43 Rule 1 (r)
of the Code. The further view of the appellate court that it did not
have the power to pass ad interim injunction is also erroneous in
law. Section 107 (2) of the CPC provides that the appellate court
shall have the same powers as are conferred by CPC on courts of

original jurisdiction.

In the High Court At Calcutta
Civil Revisional Jurisdiction
Appellate Side
CO 2191 of 2013

Nanda Roy & Ors. -Vs.- Gynanidhi Trust & Ors.

Coram : The Hon’ble Justice Arijit Banerjee

Judgment : 09/09/2015
Citation: AIR 2016(NOC)289 Cal

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Whether court can take legal heirs on record using inherent powers when suit is abated?

If the appropriate steps are not taken for substitution and bringing the legal representatives of deceased party in time when the right to sue survives abatement of the suit takes place automatically. Abatement of a suit takes place of its own force by the passage of time and no specific order is required to be passed. In other words legal consequence of abatement takes place if a party to a suit dies and application for substitution is not made in time. Such legal consequence cannot be set at naught indirectly by invoking either provisions of Order 1, Rule 10 or section 151 of Code of Civil Procedure by applying for impleadment of legal representatives of deceased party at any time after the suit has abated and the said abatement has not been set aside. What has not been done directly be seeking substitution and bringing on record the legal representatives under Order XXII, Rule 3 or 4 as the case may be or for setting aside the abatement under Order XXII, Rule 9, a party cannot be permitted to invoke the inherent jurisdiction under section 151 C.RC. or the provisions of Order 1, Rule 10(2) C.P.C. indirectly. The law provides 90 days time to apply for bringing the legal representatives on record of deceased party to save the suit from abatement. If such an application is not made within time, an application has to be made for setting aside the abatement and if the party is able to show sufficient cause which prevented him from making the application in time, the courts may pass appropriate order setting aside the abatement. But the specific provisions of Order XXII cannot be negated by indirectly making an application after lapse of time either under section 151 C.P.C. or under Order 1, Rule 10(2) C.P.C. or suo motu invocation of such power by the Court. The wide powers given to the Court under Order 1, Rule 10(2) are not intended to override the specific provision of Order XXII, Rule 3 or 4 or 9 C.RC. After the abatement of suit the Court has no jurisdiction to substitute the heirs by indirect method of impleadment as necessary parties under Order 1, Rule 10 C.RC. or by invocation of inherent jurisdiction under section 151 C.P.C. since nothing remains to be decided or adjudicated by the Court. In view of the aforesaid legal position which seems to me to be clear and admits of no doubt, the trial Court seriously erred and rather committed a grave error of jurisdiction in allowing the application for impleadment of legal representatives of deceased party when the suit had abated and the said abatement was not set aside.

Bombay High Court

Smt. Jayalaxmi Janardhan ... vs Lalchand Laxmichand Kapasi & ... on 18 August, 1998

Equivalent citations: 1998 (4) BomCR 665, (1998) 3 BOMLR 169, 1998 (3) MhLj 618

Bench: R Lodha

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Whether application for re-examination of witness is permissible when matter is posted for judgment?

S. 151, Or. 18 R. 17 and Or. 7 R. 14 - Recall of witness - Filing of application for re-examination of witness, when matter

posted for judgment - Exercise of inherent powers - Impermissibility of - Respondent-plaintiff filing suit for recovery of an

amount - When matter posted for judgment, respondent-plaintiff filed application to submit some more documents and

recall of PW 1 for proving those documents - Trial court rejected that application whereas High Court permitted it -

Unsustainability of - Held, though application was filed for filing of original copies of bills but they were not placed on

record even though they were in the exclusive possession of respondent-plaintiff - At such belated stage, when evidence

had concluded and arguments were heard, submission of bills was improper and respondent-plaintiff cannot be permitted

to fill up its lacunae in its case - No acceptable reasons or causes made out for accepting that application at the belated

stage despite sufficient opportunity being given to respondent-plaintiff to prove its case - When such application filed at a

very belated stage, even inherent powers under S. 151 cannot be used,

          REPORTABLE

          IN THE SUPREME COURT OF INDIA

          CIVIL APPELLATE JURISDICTION
            CIVIL APPEAL NO.  1787  OF 2013

M/s Bagai Construction          V M/s Gupta Building Material Store     

Citation;(2013)14SCC1:AIR 2013 SC1849

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