Inherent power of the court under CPC

The code of civil procedure 1908 is not an exhaustive law there it is obvious that some difficult situation can arise where the general law is silent or not so clear. In that situation for the sake of justice, court holds some special power being a court it can use some additional power for the ends of justice if needed.

 

Inherent power of a court

Inherent power is the authority of the court to do just as being the Court of law using his judicial mind which is not specially empowered to him by any law. It’s the inseparable, natural and negative power of a court.

In some situations where the law is not clear or where for the legal complexity law can be explained otherwise then the purpose and where such use of law severely prejudices any party inherent power of the court can be exercised with care to provide proper relief and prevent such injustice.

Inherent power is that power which may be exercised by the court to provide full and complete justice between parties before it.

Inherent power of the court

Inherent power of the court in CPC

Inherent power under CPC [when to use]

In the Code of Civil Procedure, 1908 the inherent power is expressly given to the court under section 151 of the code.

Section 151 provides that, nothing in this code shall be deemed to limit or otherwise affect the inherent power of the court to make such order as may be necessary for the ends of justice or to prevent the abuse of power.

So there are two points to focus

  • for the ends of Justice
  • to avoid the abuse of process of the court

For the ends of justice

In Mohon Lal vs. Sethe Hiral – AIR 1962 (SC) 23 provided that, Inherent power can be used to secure the hands of Justice. A court can recall its own order, correct its mistake, and can set aside ex-parte decree in the matter that is not covered under Order 39. It can add, delete or transpose any party to the suit. Inherent power can set aside illegal orders or orders passed without jurisdiction etc.

To prevent abuse of the process of the court

In Mohon Lal vs. Sethe Hiral – AIR 1962 (SC) 23 it was also provided that, Inherent power can be used to prevent the abuse of process of the court whether committed by any court or any party. Here abuse of process means fabulous and vexatious use of legal proceeding, it also means malicious or improper use of legal proceedings to obtain unfair advantage over the opponent.

 

When inherent power cannot be exercised

Inherent power of the court is very wide in nature and they are in addition to the power conferred on the court. however, it is equally true that the inherited power can only be used in absence of express provisions.

On the other hand, inherent power cannot be exercised by a trial court where the remains of appeal are available.

It must be also noted;

  • Inherent power cannot be used in disregard to established principles and norms of law.
  • Inherent power cannot be exercised where the subject is regulated by special law.

Inherent power is a powerful tool of a court to ensure the ends of justice where the law is simply absent or where abuse of law is evident however a court must use utmost care before using inherent power as it can be challenged in a higher court where it could be president to could mark as abuse of courts power.

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Rayhanul Islam

Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

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