TAMIL NADU NATIONAL LAW SCHOOL

“Inherent Power of Courts and Avoidance of Delay in Civil Litigation”

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A. L.L.B (Hons.), SEVENTH SEMESTER

Submitted to: Prof. K. Govindarajan Submitted by: Abhijeet Singh Rathore

Course Faculty: Code of Civil Procedure Registration no: BA0140001

Course: B.A.LLB (Hons)

Year: Fourth, VII Semester

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 TABLE OF CONTENTS

CHAPTER-1: Introduction

 1.1 CPC- A Procedural Law………………………………………………………..………3

 1.2 Nature and Scope…………………………………………………………....................4
 1.3 Power of Court…………………………………………………………………………4
 1.4 Conclusion……………………………………………………………………………..4

CHAPTER-2: Inherent Power of Court

 2.1 Introduction……………………………………………………………………………5
 2.2 Meaning of Inherent power of Court………………………………………………….5
 2.3 Need for Inherent Power………………………………………………………………6
 2.3.1 Enlargement of time…………………………………………………………………6
 2.3.2 Payment of court fees………………………………………………………………..8
 2.3.3 Transfer of Business…………………………………………………………………9
 2.3.4 Ends of Justice……………………………………………………………………….9
 2.3.5 Amendments of judgment, decrees, orders and other records…………………….10
 2.4 Conclusion……………………………………………………………………………11

CHAPTER-3: Exercise of Inherent power by the Court

 3.1 Introduction………………………………………………………………………….12
 3.2 When to exercise inherent power……………………………………………………12
 3.3 Judicial Interpretation……………………………………………………………….13
 3.4 Conclusion…………………………………………………………………………..14

CHAPTER-4: Avoidance of delay in Civil Litigation

 4.1 Introduction…………………………………………………………………………15
 4.2 Danger of delay…………………………………………………………………….15
 4.3 Causes of delay……………………………………………………………………..16
 4.4 Methods to reduce delay……………………………………………………………17
 4.5 Conclusion………………………………………………………………………….18

CHAPTER-5: Conclusion……………………………………………………………………..…19

Bibliography……………………………………………………………………………………..20

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 CHAPTER-1

INTRODUCTION

1.1 CPC- A Procedural Law

Laws can be divided into two groups:

 Substantive law
 Procedural law

Whereas substantive law determines rights and liabilities of parties, procedural law prescribes
the practice, procedure and machinery for the enforcement of those rights and liabilities.1

In Halsbury’s Laws of England, it has been stated,

“There is at the outset a vital and essential distinction between substantive law and procedural
law. The function of the substantive law is to define, create or confer substantive legal rights or
to impose and define the nature and extent of legal duties. The function of procedural law is to
provide the machinery or the manner in which the legal rights or status and legal duties may be
enforced or recognized by a court of law or other recognized constituted tribunal.”2

Procedural laws prescribe procedure for the enforcement of rights and liabilities. The efficacy of
substantive laws, to a large extent, depends upon the quality of procedural laws. Unless the
procedure is simple, expeditious and inexpensive, substantive laws, however good are bound to
fail in achieving their object and reaching the goal.

Procedural law is thus an adjunct or an accessory to substantive law. The two branches are
complementary to each other and interdependent, and the interplay between them often conceals
what is substantive law and procedural law. It is procedural law which puts life in substantive
law by providing a remedy and implements the well known maxim ubi jus ibi remedium.3

1
Glanville William, Learning the Law (1982) at pp. 13-19; Law Commission’s 45th report at p. 18
2
Halsbury’s law of England (4th Edn.) Vol. 37 at pp. 18-19, para 10
3
Ibid

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1.2 Nature and Scope

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.”4

The code extends to the whole of India, except the state of Jammu and Kashmir and the state of
Nagaland and the Tribal areas.

1.3 Power of court

The court has inherent power on those matters which are not specifically dealt with it in the code
as legislature cannot foresee all the possible circumstances which may arise in future litigation
and consequently for providing procedure for them.5 It must be exercised in accordance with
principles of justice, equity and good conscience. The code specifically provides that, “Nothing
in this 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.”6

1.4 Conclusion

Courts hold very high position in the society by virtue of its duty to do justice between the
parties. The procedure to be adopted to do such duty must not be complex as court are for all so
even an illiterate person must be in a position to understand it, if the procedures would be simple
then the matters will be disposed of easily and people will get speedy justice. Since courts are
constituted for the purpose of administering justice, they should possess all such powers as may
be necessary to do the right and to undo the wrong in the process of administering the justice. If
these powers are not specifically given in the code then the court has inherent power which must
be exercised to meet the ends of justice. So the important question which needs to be answered is
what inherent powers are available to the court.

4
Saiyad Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343
5
Padam Sen v. State of UP, AIR 1961 SC 218
6
Sec. 151 of the code

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 CHAPTER-2

INHERENT POWER OF COURT

2.1 Introduction

Every court is constituted for the purpose of administering justice between the parties and,
therefore, must be deemed to possess, as a necessary corollary, all such powers as may be
necessary to do the right and to undo the wrong in the course of administration of justice. 7 The
Code of Civil Procedure is a procedural law and the provisions thereof must be liberally
construed to advance the cause of justice and further its ends.

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 court. As the legislature is
incapable of contemplating all the possible circumstances which may arise in future litigation
inherent power come to the rescue in such unforeseen circumstances.8

2.2 Meaning of Inherent power of court

According to dictionary meaning, “inherent” means “natural”, “existing and inseparable from
something”, “a permanent attribute or quality”, “an essential element, something intrinsic, or
essential, vested in or attached to a person or office as a right of privilege.”9

Inherent powers are thus powers which may be exercised by a court to do full and complete
justice between the parties before it.

As justice Raghubar Dayal10 rightly states, “The inherent power has not been conferred upon the
court; it is a power inherent in the court by virtue of its duty to do justice between the parties
before it.” Thus, this power is necessary in the interest of justice. The inherent power has its
roots in necessity and its breadth is coextensive with the necessity.

7
State of UP v. Roshan Singh, (20087) 2 SCC 488
8
Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527
9
Chamber’s 20th century dictionary (1992), p. 647
10
State of WB v. Indira Debi, (1977) 3 SCC 559

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2.3 Need for Inherent power

Sec 151 of the CPC provides for exercise of inherent powers to prevent the abuse of the process
of court. The abuse of the power may be at the instance of a party or at the instance of the court
itself. Abuse of the powers of the court’s which results in injustice to party needs to be remedied
on the ground that the act of a court shall not prejudice anyone.11 When a party practices fraud
on the court or on a party to a proceeding, the remedies have to be provided on the basis of
inherent powers. Circumventing statutory proceedings or resorting to multiplicity of proceedings
or by instituting vexations, obstructive or dilatory tactics 12 have to be prevented by use of
inherent powers. Similarly, trying to secure an undue advantage over the opposite party or
introducing scandalous or objectionable matter in the proceedings have to be prevented 13 to
ensure that the process of the court is not abused.

2.3.1 Enlargement of time

Section 148 provides that where any period is fixed or granted by the court for the doing of any
act, the court has the power to enlarge the said period even if the original period fixed has
expired.

Where the court in the exercise of its jurisdiction can grant time to do a thing, in the absence of
the specific provision to the contrary curtailing, denying or withholding such jurisdiction, the
jurisdiction to grant time would include in its ambit the jurisdiction to extend time initially fixed
by it.14

The use of the word “may” indicates that the power is discretionary, and the court is therefore,
entitled to take into account the conduct of the party praying for such extension. The principle of
equity is that when some circumstances are to be taken into account for fixing a length of time
within which a certain action is to be taken, the court retains to itself the jurisdiction to re-
examine the alteration or modification of circumstances which may necessitate extension of

11
Forasal Vs. ONGC, AIR 1984 SC P.241.
12
Mula Vs. Balu Ram AIR 1960 ALL P.573.
13
Shanker Lal Vs. Ramniklal, AIR 1951 Kant P.23.
14
Ramesh Bijoy v. Pashupati Rai, (1979) 4 SCC 27

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time. If the court by its own act denies the jurisdiction to do so, it would be denying to itself the
jurisdiction which, in the absence of the negative provision, it undoubtedly enjoys.15

As justice Desai states, “The danger inherent in passing conditional orders becomes self-evident
because that by itself may result in taking away jurisdiction conferred on the court for just
decision of the case. The true purport of conditional orders is that such orders merely create
something like a guarantee or sanction for obedience of the court’s order but would not take
away the court’s jurisdiction to act according to the mandate of the statue or on relevant
equitable considerations if the statue does not deny such consideration.”16

Before extension of time is granted by a court, two conditions must be fulfilled:

1) A period must have been fixed or granted by the court and

2) Such period must be for doing an act prescribed or allowed by the code.

The section is not applicable when the time has not been fixed or granted by the court or a
particular act has not been prescribed or allowed by the code.

The power conferred by the code on the court is discretionary. The court “may” use it for
securing the ends of justice. It cannot be claimed by the party as of right. Before exercising the
power, therefore, the court may take into account all the facts and circumstances including the
conduct of the applicant.17

If a party seeks enlargement of time on the ground that for some valid reason it could not
perform the act which it was required to perform within the time granted by the court, it is for the
party to move an application under s. 148 of the code and convenience the court that the interest
of the justice would required extension of time whether prospectively or retrospectively. It is not
obligatory to move such an application in all cases. Where the omission on part of the party is
trivial and the mistake committed by him is not of serious nature and does not adversely affect

15
Jogdhayan v. Babu Ram, (1983) 1 SCC 26
16
Advocate Bar Assn. v. Union of India, (2005) 6 SCC 344
17
Johri Singh v. Sukh Pal Singh, (1989) 4 SCC 403

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the rights of the parties, the court may itself extend the time under s. 148, so that the technical
defects may be removed and the hearing of the court may proceed in accordance with law.18

2.3.2 Payment of court fees

Section 149 empowers the court to allow a party to make up the deficiency of court fees payable
on a plaint, memorandum of appeal, etc. even after the expiry of the period of limitation
prescribed for the filling of such suit, appeal etc. section 4 of the Court Fees Act, 1870 provides
that no document chargeable with court fees under the act shall be filled or recorded in any court
of justice, unless the requisite court fee is paid.

Section 149 of CPC is a sort of proviso to that rule by allowing the deficiency to be made good
within a period fixed by it. If the proper court fee is not paid at the time of filling of a
memorandum of appeal, but the deficit court fee is paid within the time fixed by the court, it
cannot be treated as time barred.19 Thus, the defective document is retrospectively validated for
the purposes of limitation as well as court fees.

It is a discretionary provision given to the court; this discretionary power has to be exercised
keeping in view the rights of the respondent/decree holder and public interest in a given case.
When the exemption and extension of the court fees is a discretionary power to this court, bona
fide of the ground should be established beyond all reasonable doubt. 20 The discretion conferred
by this section is to be normally exercised in favor of the litigant except in cases of malafide or
ground of similar nature.21 For exercising power under this section the court is bound to record
the reasons for doing so. In a case where there is a delay of 9 months in deposit of court fees and
no reason was furnished for the delay except that the appellate was a poor person, it was held
that since no details of his financial position and source of earning have been furnished and no
details of his properties have been given, the court in its discretion cannot condone such huge
delay.22

18
Mohd. Yousuf v. Bharat Singh, AIR 1999 Raj 185
19
Mohd. Mahibulla v. Seth Chaman Lal, (1991) 4 SCC 529
20
Kalahandi v. Sumbaru Bariha, AIR 1994 Ori 90
21
Collector Land Acquisition v. Dina Nath, AIR 1977 J&K 11
22
Ritesh Kumar v. Smt Chandrakanta, AIR 2007Raj 192

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2.3.3 Transfer of Business

Section 150 of the Code declares that where the business of any court is transferred to any other
court, the transferee court will exercise same powers and discharge same duties conferred or
imposed by the court upon the transfer court.

2.3.4 Ends of Justice

The inherent powers under section 151 can be used to secure the ends of justice. Thus, the court
can recall its own orders and correct mistakes, can set aside ex-parte order passed against the
party, can add, delete or transpose any party to a suit, can set aside illegal orders passed without
jurisdiction, can hold a trial in camera, can allow amendments of pleadings, can correct errors
and mistakes etc. what would meet ends of justice would always depends upon the facts and
circumstances of each case and the requirements of justice.23

The court has ample power under section 151 of the code to make such order as may be
necessary for the ends of justice. But the power must be exercised with caution and due diligence
with the object to prevent miscarriage of justice or to prevent the abuse of the process of court.
The limits within which the power is to be exercised has been summed up in the case of
Nawabganj Sugar Mills Co Ltd v. UOI24 as under:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is
not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiments, to
vague and unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system and subordinate to the primordial necessity of
order in social life. Wide enough in all conscience is the field of discretion that remains.

To get the order of stay of a suit on the ground of abuse of process, the applicant must show that
plaintiff would not succeed but that he could not possibly succeed on the basis of the pleading
and in the circumstances of the case i.e. the defendant would be required to show a very strong
case in his favor. The power would be exercised by the court if the defendant could show to the

23
Naresh Shridhar v. State of Maharastra, AIR 1967 SC 1348
24
Nawabganj Sugar Mills Co Ltd v. UOI, AIR 1976 SC 1152

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court that the action impugned is frivolous or is taken simply to harness the defendant. The
power of the court restraining the proceedings are to be exercised sparingly or only in
exceptional cases.25

2.3.5 Amendments of judgment, decrees, orders and other records

Section 152 enacts that clerical or arithmetical mistakes in judgments, decrees or orders arising
from accidental slip or omission may at any time be corrected by the court either of its own
motion or on the application of any of the parties. In Master Construction Co. Ltd v. State of
Orissa 26 it was observed that the arithmetical mistake is a mistake of calculation, a clerical
mistake is a mistake in writing or typing whereas an error arising out of or occurring from
accidental slip or omission is an error due to careless mistake on the part of the court liable to be
corrected. The section is based on two important principles:

1) An act of court should not prejudice any party, and

2) It is the duty of the courts to see that their records are true and they represent the correct state
of affairs.

In the words of Bowen, LJ, “Every court has inherent power over its own records so long as
those records are within its power and that it can set right any mistake in them. An order even
when passed and entered may be amended by the court when the order was made. It can be done
at any time.”27

As a matter of fact such inherent powers would generally be available to all courts and
authorities irrespective of the fact whether the provisions contained under s. 152 may or may not
strictly apply to any particular proceedings. In a matter where it is clear that something which the
court intended to do but the same was accidently slipped or any mistake creeps in due to clerical
or arithmetical mistake, it would only advance the ends of justice to enable the court to rectify
such mistake. But before exercising such power the court must be legally satisfied and arrive at a
valid finding that the order or decree contains or omit something which was intended to be
otherwise, that is to say while passing the decree the court must have in its mind that the order or

25
Mayur ltd v. owners and parties, vessel MV Fortune Express, AIR 2006 SC 1828
26
Bishnu Charan Das v. Dhani Biswal, AIR 1977 Orissa 68
27
Ss. 152, 153 of the Code

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the decree should be passed in a particular manner but accidental slip. The facts and
circumstances may provide clue to the fact as to what was intended by the court but
unintentionally the same did not mention in the order or the judgment or something which was
intended to be there stands added to it. The power of ratification of clerical, arithmetical errors or
accidental slip does not empower the court to have a second thought over the matter and to find
that a better order or decree could or should be passed.

2.4 Conclusion

It is the sole duty of the court to provide justice to the people and for the same various
procedures has also been prescribed. Sometimes there may arises a situation where complying
with the procedure becomes difficult and the courts have given power that it can take some
liberal view on the same as justice must not be denied on mere irregularities and the nature of
irregularities can be determined by facts and circumstances of the courts. So the code has
invested very wide and extensive powers to minimize litigation, avoid multiplicity of
proceedings and to render full and complete justice between the parties before them. However
the courts are not allowed to use the inherent power arbitrarily and when to exercise this power
has been discussed in the next chapter.

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 CHAPTER-3

EXERCISE OF INHERENT POWER OF THE COURT

3.1 Introduction

It is true that the inherent powers of the court are very wide and residuary in nature and they are
in addition to the powers specifically conferred on the court by the code. It is, however, equally
true that these inherent powers can be exercised ex debito justitiae only in the absence of express
provisions in the code. They cannot be exercised in conflict with what has been expressly
provided in the code or against the intentions of the legislature.

3.2 When to exercise inherent power

If there are provisions specifically covering a particular topic, they give rise to necessary
implication that no power shall be exercised in respect of the said topic otherwise than in the
manner prescribed by the said provisions. The inherent powers are to be exercised by the court in
very exceptional circumstances. The restrictions on the inherent powers are not because they are
controlled by the provisions of the code, but because it should be presumed that the procedure
provided by the legislature is dictated by the interests of justice.

In the case of Ram Chand & Sons Sugar Mills Ltd v. Kanhayalal Bhargava28 the court laid down
correct principle regarding the ambit and scope of the inherent powers of a court which is as
follows:

“The inherent power of a court is in addition to and complimentary to the powers expressly
conferred under the code. But that power will not be exercised if it is inconsistent with, or comes
into conflict with, any of the power expressly on by necessary implication conferred by the other
provisions of the code. If there are express provisions exhaustively covering a particular topic,
they give rise to necessary implication that no power shall be exercised in respect of the said
topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are
imposed by construction on the provisions of section 151 of the code, they do not control the

28
Ram Chand & Sons Sugar Mills Ltd v. Kanhayalal Bhargava, AIR 1966 SC 1899

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undoubted power of the court conferred under section 151 of the code to make a suitable order
to prevent the abuse of the process of the court.”

3.3 Judicial Interpretation

In the absence of any special circumstances which amount to abuse of the process of the Court,
it cannot grant a relief in exercise of its inherent power when the justice can be served by another
remedy available to the party concerned provided by the Code. The inherent powers saved by s.
151 of the Code are not over the substantive rights which any litigant possesses. Specific powers
have to be conferred on the Courts for passing such orders.

The Apex Court in M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T,29 has
maintained that the Courts had power under Section 151, in the absence of any express or
implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the
abuse of the process of the Court.

In Bahadur Pradhani v. Gopal Patel30 the plaint of a Money Suit was rejected for non-payment
of deficit court fee within the time granted by the court. The plaintiff filed a petition under
Section 151, C.P.C. for restoration of the suit in the ends of justice. The court allowed the
petition and the suit was restored to file. The Court examined the scope of the inherent powers of
the Court and expressed that the provisions of the Code do not control the inherent powers of the
court by limiting it or otherwise affecting it. It is a power inherent in the court by virtue of its
duties to do justice between the parties before it.

In Manoharlal v. Seth Hiralal31 it was held that the provisions of the Code are not exhaustive as
the legislature is incapable of contemplating all possible circumstances which may arise in future
litigation.

29
M/s Jaipur Mineral Development Syndicate v. The Commissioner of I.T, AIR 1977 SC 1348
30
BahadurPradhani v. Gopal Patel, AIR 1964 Ori 134
31
Manoharlal v. Seth Hiralal, 1962 AIR 527

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3.4 Conclusion

There is a wide discretionary power conferred to the court in the way of inherent power which
can be used by the court to meet the ends of justice. However this power must not be exercised
by the court in each and every situation, where the code has not been specifically dealt with any,
matter or is silent then the court can exercise this power taking into consideration various
circumstances and also have to mention special reason for the same. It has been specifically said
that where the code specifically give any remedy than the same must be resorted to and in that
circumstances court must not use its inherent power this is because of the reason that it is
assumed that legislature had made law for the welfare of the people, and major law making body
is legislature only and where specific law has been provided than the court must not change the
same until such conditions prevails.

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 CHAPTER-4

AVOIDANCE OF DELAY IN CIVIL LITIGATION

“Justice Delay is justice denied”.

-William E. Gladstone

4.1 Introduction

One of the most vexed and worrying problems in the administration of civil justice is of delay.
John swift in his famous work Gulliver’s Travels sarcastically describes the delay in courts in the
following words:

“In pleading, lawyers studiously avoid entering into the merits of the cause; but are loud, violent
and tedious in dwelling upon all circumstances which are not to the purpose… they never desire
to know what claim or title my adversary hath to my cow, but whether the said cow were red or
black, her horns long or short; whether the field I graze her in was round or square; whether she
were milked at home or abroad; what disease she is subject to; and the like; after which they
consult the precedents, adjourn the cause from time to time, and in ten, twenty or thirty years
come to an issue.

It is likewise to be observed that the society hath a peculiar cant and jargon of their own, that no
other mortal can understand, and wherein all their laws are written; they take special care to
multiply; whereby they have wholly confounded the very essence of truth and falsehood; of right
and wrong; so that it will take thirty years to decide whether the field, left by my ancestors for
six generations, belong to me or to a stranger three hundred miles of.”

4.2 Danger of delay

Delay in disposal of case threatens justice. The lapse of time blurs truth, weakens memory of
witnesses and makes presentation of evidence difficult. This leads to loss of public confidence in
the judicial process which in itself is a threat to Rule of Law and consequently to the democracy.
The rising cost of litigation can also be said to be attributable to delay or compromise for a lesser
or unjust settlement out of court. Besides, expression of society’s moral outrage is essential in an
ordered society that asks its members to rely on legal process rather than self-help to vindicate

15
wrongs. To avoid anarchy, fairness has to be actually felt by the aggrieved persons and it is the
court which provides the systematic outlet. Obedience to law has been described as the strongest
of all the forces making for a nation’s peace existence and progress.32

4.3 Causes of delay

A procedure is the handmaid of justice. It is to be used to advance the cause of justice and not to
thwart it. An essential requirement of justice is that it should be dispensed as quickly as possible.
Delay in litigation is equally proverbial and, though it may sound paradoxical, the facts remains
that the very provisions of the code which are designed to facilitate smooth and speedy trial of
cases are misused and abused in order to delay cases indefinitely and ultimate success in the
cause often proves illusory. As a result there is a huge backlog of cases accumulated in all the
courts. Main causes of delay are as follows:

1) There has been a phenomenal increase in the filing of cases whatever the reason may be but
the facts remains that courts are over flooded with cases and though more and more courts are
being set up, the increase in their number is not sufficient to keep pace with the increasing
number of cases. (number of courts not sufficient wrt filing of suits)

2) The government is not appointing sufficient number of judges to deal with the increasing
work.

3) much of the delay occurs because of the provisions of the code are not properly observed and
followed. After filing a plaint, the process fee is not paid for a long time so that summons to the
defendant is not served in time.(provisions of the code is not followed properly)

4) After the High Courts are empowered under Article 226 of the Constitution of India to issue
prerogative writs and after the definition of state being liberally interpreted by the court there is
soaring rise in litigation against the government, as a result today the government is probably the
biggest litigant in the country. The inefficiency of the government machinery has naturally been
responsible for considerable delay in disposal of cases where government is a party.(powers
given to hc under article 226 and liberal interpretation of definition of state has resulted in rise of
litigation, and lack of proper response on part of govt is also result I delay)

32
Law Commission’s 127th Report at para 2.15

16
5) The attitude of some lawyers is also responsible to some extent for delay. In many cases
where the plaintiff has obtained interim relief, he is naturally interested in delaying the
proceedings so that stay or injunction is continued as far as possible. Similarly, where the
defendant has no defense, he is naturally interested ijn prolonging the trail with the view to put
off the evil day as long as possible.

4.4 Methods to reduce delay

Some of the methods which can be used to reduce delay in civil litigations are as follows:

1) There is one provision, which if used effectively by courts, can help to cut short the litigation.
Order 10 Rule 2 provides that at the first hearing of the suit, the court shall:

a) With a view to elucidating matters in controversy in the suit, examine orally the parties to the
suit appearing in person or present in the court, as it deems fit and

b) May orally examine any person, able to answer any material question relating to the suit, by
whom any party appearing in person or present in court or his pleader is accompanied.

Thus,, this provision casts a duty on court to examine the parties orally before settling the issues.
In practice, however, this provision is simply ignored and issues are invariably raised from the
pleading of the parties. If judge examine the parties orally, it is quite likely that many a time the
truth will come out immediately and this will obligate the need for examining numerous
witnesses.

2) The provision regarding statutory notice under section 80 should be deleted for two reasons:

a) The State or Public officer should not have a privilege in the matter of litigation as against a
citizen and should not have a higher status than an ordinary litigant.

b) It is intended to alert the government to negotiate the settlement or atleast have courtesy to tell
the aggrieved person why the claim is being resisted. But it has become an empty formality
because the administration is always unresponsive.

3) In order to provide cheap and expeditious justice, it is necessary to appoint competent judges.
But the present emoluments of judges are so meager that they do not attract competent people to

17
the bench. If society wants cheap and expeditious justice, it must also bear the expenses of
competent judges. The principle that “justice must be cheap but judges expensive” is though
universally recognized, never acted upon.

4) It is possible to reduce the burden of cases on regular courts by exploring the possibilities of
setting up other forums where the dispute between the parties can be settled more informally and
speedily, though under some kind of judicial supervision, for example; separate family courts
have been set up to deal with matrimonial cases and other disputes relating to family affairs.
Members of such courts can be appointed from amongst the serving or retired judges. Lok
Adalats is being carried in many states from time to time and apart from judges and lawyers,
social workers are also invited to attend the proceedings and help the parties in settling their
disputes informally.

5) In many cases the court issues a notice to the Government or Public bodies at the admission
stage so as to settle the case immediately and matter could be decided promptly. Unfortunately,
however, there is no response to the notice and the court is constrained to admit the matter which
remains pending for number of years when it could have been disposed of at the initial stage.

4.5 Conclusion

Speedy trial and quick disposal of cases is the biggest challenge before the Indian judiciary there
are huge number of cases which are pending in the court and people are still waiting for their
turn so that they may also get the justice. Today most of the people avoid going to court as they
considered the same as time consuming and burdensome as a result of which criminals gets
motivation to continue the same as they don’t have any fear of the court which indeed is the
major threat to the society. Though various steps has been taken by the Indian judiciary to
overcome this problem by way of lok adalats and special tribunals where the matters has been
resolved informally and quickly. But there is still a long way to go and it must not only the
responsibility of the court but also the common citizen to cooperate with the court so that a
dream of quick disposal of cases can be achieved.

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 CHAPTER-5

CONCLUSION

The judiciary forms a fundamental pillar on which a democracy such as India rests. Codified
statutes such as the Code of Civil Procedure aim to make the judicial process as uniform and
unbiased as possible. Yet the legislative process takes due cognizance of the fact that not all
situations can be pre-empted and procedures laid down for the same. The inherent power of the
court is in recognisation of courts ability in best granting justice in all those situations where the
Code of Civil Procedure or any other statute is silent. It is the duty of the court to exercise this
power wisely so as to met ends of justice and must not be exercised arbitrarily. It also saves
multiplicity of suits, money and helps in quick disposal of cases which is the demand of the time.
Speed trial helps people to get quick remedy and confidence of people towards justice delivery
system is also retained. Hence it can be concluded that inherent power of the court is of vital
importance in providing justice.

In a democratic country like India there are proper laws and procedures but still there are
enormous numbers of cases which are pending in India some of the reason are as follows; there
is shortage of judges, though there are many cases pending but the seats of judges is very less
comparative to this in many states there is no vacancies in judge post so the first and foremost
thing which must be done is to increase the post so that cases can be disposed of quickly.

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 BIBLIOGRAPHY

Primary Sources:

 Code of Civil Procedure, 1908

 Halsbury’s law of England, 4th Edn., Vol. 37
 Concise oxford English dictionary (2002)

Books:

 Mulla, The Code of Civil Procedure, 17th Edition 2007

 Anil Sachdeva, Inherent power of the courts, 2008
 Sarkar’s, civil court practice & procedure manual, 11th edition, 2011
 Commentary on Civil Procedure Code, 1908, Fifthth edition, New Delhi
 C.K. Takwani, Law Civil Procedure Code, sixth Edition
 Benjamin Cardozo’s, The Nature of the judicial process, Yale University Press, 1921

Articles:

 Bharat Chugh, Litigation and Delays in India.

http://www.legalserviceindia.com/article/l452-Litigation-&-Delays-in-India.html

 Umangraj, The inherent powers of the courts.

http://www.legalservicesindia.com/article/article/the-inherent-powers-of-the-court-1736-
1.html

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