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  • Anika Kumar & Ichchhit Goswami

Exploring the Limitation of Section 151 of the Civil Procedure Code

Introduction

Section 151 of the Civil Procedure Code (“CPC”) is an integral statutory provision that equips the court to ensure justice and fairness. It is based on the legal maxim actus curiae neminem gravabit and stipulates that the court may act in a way which prevents the abuse of the process of court or to meet the ends of justice. This provision echoes Order 92, Rule 4 (RC), Section 839 of the Ceylon Civil Procedure Code of 1921 and the Malaysian RHC of 1980. All of them operate similarly and are recognised as ‘inherent powers’ of the court.


It is common knowledge that with respect to any provision, one of the courts foremost concerns is to act as a bulwark against perversion of court procedure such that there is no miscarriage of justice. It calls upon these inherent powers to effectuate this obligation. However, these powers are discretionary and are to be observed only if they meet the amorphous standards of courts’ “justice”.


The first part of this piece shall address this issue by highlighting the pitfalls of this unregulated approach in the invocation of inherent powers. The authors further buttress their assertions by setting forth two arguments which underscore the shortfalls inherent in the section. The second part shall contain the concerns associated with the current jurisprudential approach to section 151 and provide possible solutions to mitigate its inevitable abuse.


Need for Reform and Issues with Section 151

Pragmatically, in the current legal paradigm, Section 151 is used by litigants “as though it were the joker in a pack of cards, possessed of no specific designation and used only when one did not have the specific card required”. It is used as a Hail Mary by parties when they are unable to make their case under specified provisions and serves only to delay justice and pester innocent litigants i.e., ensures compounding of litigation and results in a wastage of courts’ resources and time. For example- it was used in UoI v. Ram Charan to surpass a limitation, in Velayudhan Nair v. Kerala Kshemam Yunik Kuries, as a substitute for appeal, revision and review and in Manoharlal v. Seth Hiralal when there was no scope of getting a relief.


Further, the absence of a regulated schema is the Achilles’ heel of this provision, as a narrow interpretation is unjust and a wide one borders on judicial overreach. This leaves the court with the impossible task of balancing between the two alternatives.


While Indian courts so far have adopted a conservative approach, the disposition to do as one sees fit with Section 151 places them above the other statutory organs and gives them the power to make, rather than follow laws.


Tussle between Substantive vs Procedural Provision 


Substantive law is defined as “that part of law which creates, defines, and regulates rights and duties of parties, as opposed to adjective, procedural, or remedial law”. It bestows rights on a person whereas procedural law determines the mode in which he should move the court. This distinction between substantive and procedural law is often blurry and is interwoven together, because the mode of law often gives rise to a right or duty to parties and vice versa. This invites ambiguities in the interpretation of various provisions.


Accordingly, with respect to Section 151, the Supreme Court, in the recent case of K.K. Velusamy v. N. Palaanisamy held that Section 151 is not a substantive provision. The rationale of the court was that it is not a substantive provision as it does not confer any power or jurisdiction on courts and merely recognizes the discretionary power of every court for rendering justice in accordance with law.


However, it is submitted that the interpretation of the court to exclude the substantive provision is incorrect insofar as the practical application of the provision is concerned. When the court holds that the provisions are reasonably necessary in order for justice to be done in a case or to prevent any abuse of the process of the court, it can be logically inferred that, that may extend to making substantive orders. Further, in practice, the cases pertaining to Section 151 cover a far greater variance which signals the courts’ inherent power beyond the narrow ‘procedural’ power. This is indicated in the judgments given in the cases of- (i) Padam Sen v. State of UP where the court had stated that “the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code”. [This opinion arguably alludes to the substantive nature of the provisions or the substantive consequences that follow from the provision] and in (ii) Mul Raj v. Bura Mal where the court stated that when it is empowered to make an order, it has inherent jurisdiction to see that the order is carried into effect [again it alludes to the existence of substantive consequences that can impose liabilities/take away certain rights].


Lack of a strict metric/guidelines to evaluate cases falling under Section 151 and the problems emanating from such absence


Section 151 as it stands today does not lay out a template for the courts which can indicate its contours and limitations. It merely lays down a rough yardstick of the power of the court by virtue of the terminology used in Section 151.  This becomes especially problematic as it affects substantive rights as seen above and so it is argued that it must be governed on a higher threshold.


Further, while Section 151 is useful for being flexible, flexibility can also become a source of uncertainty since it assumes that a uniform spectrum of “need”, “justice” and “abuse of process” runs without distinction and without variation. This is wholly untrue since the courts’ inherent power (the way it is used) admits three possible scenarios- its inherent jurisdiction (in the ‘authority’ sense) to hear matters in the first place (for instance to entertain the application of third parties), its inherent powers to affect substantive rights (as indicated in the case of KK Modi v. KN Modi when principles of res judicata– a substantive provision were applied to cases not falling under Section 11 of CPC and the court gave itself more powers than is envisioned under Section 11) and; its powers to affect procedural rights (As indicated in the case of Alabhai v. Bhura Bhaya that added/transposed a party).


Additionally, the provision also invites the risk of duplicity. This was observed in the case of Jaipur Mineral Development Syndicate v. The Commissioner of IT where the court had passed an ex parte order and recalled and altered it at a subsequent time under Section 151 itself and not under the specific provision provided for (i.e., Order 9 Rule 13 of CPC which allows for a defendant to appeal an order passed ex parte and gives the court the power to set it aside). This creates a dichotomy, which even when clarified by the apex court (as done in the case of Nain Singh v. Koonwarjee  and State of UP v. Roshan Singh) ceases to trickle down to the magistrates with the rigour that it needs and so has the potential to disadvantage the litigants.


Part II


In the first segment of this two-part series, the authors had discussed the problems of an untrammelled approach to the invocation of inherent powers under section 151 and provided two arguments to demonstrate the defects of such an approach. The second part of this piece brings up probable concerns intrinsic to the current jurisprudence surrounding section 151 and concerns which may manifest in the future. The authors suggest plausible changes to the current model of Section 151, in an attempt to proscribe the volition exercisable by the courts, which should limit the potential of misuse that flows from it. They call concomitantly upon judicial restraint and legislative intervention as the twin pillars to prevent its abuse.


Probable Concerns

It is evident that, in the absence of expansive legislative guidance (apart from the inherent powers given in Section 151), the exercise of inherent power is largely a question of fact dependent upon the discretion and wisdom of the court. Due to this reason the jurisprudence for Section 151 is on wobbly legs and can potentially become problematic if it is not mitigated/limited. At a foundational level India has started to depart from a careful application of the provision. This is indicated by the aforementioned cases of Padam Sen v. State of UP and Jaipur Mineral Development Syndicate v. The Commissioner of I.T. where the courts are overreaching their power.


This danger may be imminent as Section 151 is often criticised on the grounds that it can be exercised only in the absence of express provisions of the code, cannot be exercised in conflict with what has expressly been given in the code or set aside an order which was right at the time of its issuance etc.  These limitations instead of being construed as a positive impediment which protects the essence of the provision are being negatively connoted, which is a dangerous trend.


Further, other more challenging limitations and departures from the codified provision are being echoed in other jurisdictions and if Indian courts are not meted out with directives and regulations, it may find itself juggling with similar issues. For instance, in Singapore the scope of the inherent power of the courts has become expansive. In certain situations, it is giving the courts the power to perform the legislative action of investigating and controlling the conduct and practices of individual members of the bar (despite the presence of specific provisions). Further, the courts have recognised that the lawmakers may prescribe rules in aid of the courts, but that the inherent judicial power may not be impinged upon by such regulations.


This is quite problematic since the fundamental independence granted to the three organs of the state comes in question i.e., one organ of the state moves beyond the system of checks and balances by undermining the power of the other.


Possible Solutions

It is said that all governmental power not granted by the constitution to the executive or to the judiciary, nor reserved to the people, is vested in the legislature. Accordingly, for Section 151 as well, in the absence of a regulatory authority that has been expressly granted by the constitution to the courts, must now reside with the legislature.


While the authors agree with the ratio in Hukum Chand v. Kamalanand Singh, Durga Dihal Das v. Anorak and Manoharlal v. Seth Hiralal that the CPC is not exhaustive and there will always be cases and precedents which are not enclosed by the express provisions of the code and which the legislature cannot foresee, we fail to consider it as a strong reason for not creating certain indicative tests. It is true that the legislature cannot envisage every situation where Section 151 will be applicable, but it can certainly envisage the degree of need for which it should be employed.


It can give directives to the following effect:


(1) The provision of Section 151 can distinguish between the controls that the court should exert. It can be determined if Section 151 should be implemented for (a) control over process; (b) control over power or (c) control over the powers of inferior courts and tribunals. After this determination, the structure of the provision should also be established. For instance- the provision can be split up into further subsections to provide for control over process and control over courts individually.

Another way of classifying and directing these powers can also be according to the functions they play i.e. (a) ensuring convenience and fairness in legal proceedings; (b) preventing steps being taken that would render judicial proceedings inefficacious.


(2) The concept of need-based approach can be refined and it can be clarified whether Section 151 is to be used to further a ‘specific need’ or a ‘general need’ i.e., if it is to be used for specifically aggrieved individuals for unique situations or in public interest i.e., to cater for provisions absent in CPC, which can affect the society.


(3) It is also submitted that a directive list can be given (which may follow the principle of ejusdem generis) and the terminology of the provision can be limited. Accordingly,  the word strictly can be added to limit the powers of the court to read- 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 strictly necessary for the ends of the justice or to prevent abuse of the process of the court.


Such a metric may help prevent the problem of excessive judicial activism and avoid cases such as Padam Sen. It shall render the power of delving into substantial law sacrosanct, to be used only in exigencies, and give the court, reason to pause and reflect on its approach, which is absent thus far. 


Similarly, the need for the provision to account for substantive powers may be considered in light of its practical application and a clarification should be provided. For instance, if the intention is to use it for strict procedural power it can be read as- “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 to prevent abuse of the due process of the court as envisaged by this Code.”


Conclusion

It is amply clear that Section 151 of CPC as it is positioned today is unsatisfactory. Even though, it is established that the abuse of the power may be at the instance of a party or at the instance of the court itself- Section 151 bases itself on the concept that abuse of the powers of the court which results in injustice to party needs to be remedied on the ground that the act of a court shall not prejudice anyone. Ironically, the court fails to notice that the very provision that is meant to rectify abuse of power at the instance of the court may be given overarching powers so as to inflict further abuse.


One of the key objectives of CPC is to ensure uniformity, clarity of procedure and doing away with uncertainty. The present Section 151 impairs this objective. The precedent-based approach followed by courts in their interpretation of “inherent powers” paints the broad contours of this section, leaving the centre to be filled as the presiding judge sees fit. The presence of a strict framework which provides some guidelines would benefit both the courts, and the litigating parties immensely.

 

This article has been authored by Anika Kumar and Ichchhit Goswami, third-year students at Jindal Global Law School, Sonipat.


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