Inherent Powers, Caveat and Miscellaneous

Three details that answers commonly get wrong, and all three come straight from the section: it is the caveator who serves notice on the prospective applicant, not the court; the applicant must supply the papers, but at the caveator's expense; and the life of a caveat is ninety days.

Inherent powers: section 151

Section 151: 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.

Two purposes, and both should be named: the ends of justice, and preventing abuse of the process of the Court.

The section does not confer power; it saves a power the court already has as a court. That is why it is headed "Saving of inherent powers". The distinction matters, because it explains the limits.

The limits, which are the examinable part:

Section 151 cannot be used where the Code provides a remedy. Where the Code has dealt with a matter, the court acts under that provision, not under its inherent power. Inherent power fills gaps; it does not override.

It cannot be used to do what the Code forbids. A power saved by the Code cannot contradict the Code.

It is exercised sparingly, in cases the Code did not foresee, and not as a general discretion to depart from procedure.

Typical uses, none of them controversial: to restore a case wrongly dismissed, to set aside an order obtained by fraud on the court, to consolidate suits, to stay proceedings that are an abuse, and to correct its own ministerial errors where no other provision applies.

Correcting errors: sections 152 and 153

Section 152: clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any 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.

This is the door left open by Order XX Rule 3, which otherwise forbids any alteration of a signed judgment. See [Judgment and Decree].

The boundary is what matters. Section 152 corrects the expression of what the court decided; it does not let the court change its mind. A figure wrongly added up, a name misspelt, a survey number mistyped, a relief granted in the judgment but omitted from the decree: all correctable. A different view of the evidence: not correctable, and the remedy is review or appeal.

Section 153: the Court may at any time, and on such terms as to costs or otherwise as it thinks fit, amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

Section 153A allows a Court of appeal to amend a decree or order where an appeal is summarily dismissed. Section 153B provides that the place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as it can conveniently contain them; with a proviso allowing the presiding Judge, if he thinks fit, to order at any stage of an inquiry into or trial of any particular case that the general public or any particular person shall not have access to or be or remain in the room or building used by the Court.

Enlargement of time and court fees: sections 148 and 149

Section 148: where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code, the Court may in its discretion, from time to time, enlarge such period, not exceeding thirty days in total, even though the period originally fixed or granted may have expired.

Two points. The cap of thirty days in total was inserted by amendment and is easy marks. And the section applies to a period fixed or granted by the Court, not to a period fixed by statute; extending a statutory period is a matter for the Limitation Act. See [Bar of Limitation and Condonation of Delay].

Section 149: where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person by whom the fee is payable to pay the whole or part, and upon such payment the document shall have the same force and effect as if the fee had been paid in the first instance.

The closing words are the useful part: payment under section 149 operates retrospectively, so a plaint insufficiently stamped when filed is treated as properly stamped from the beginning once the deficiency is made good. That can save a suit that would otherwise be out of time.

Order XLVIII: process and miscellaneous

Order XLVIII Rule 1: every process issued under the Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

Rule 2 provides that every such process shall be served or executed in the manner and by the officer the rules prescribe, and Rule 3 that where the Code requires anything to be done which the Court has no express power to do, the Court may do it in the manner the rules provide.

The rest of Part XI, briefly

These are short sections, and a student meets them as one-line answers rather than essays. They are here so the Part is complete.

Section 141, miscellaneous proceedings, is the widest of them: the procedure provided in this Code in regard to SUITS shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. That is why the Code's machinery reaches proceedings that are not suits at all. The Explanation added in 1976 puts the limit on it: the expression "proceedings" does not include any proceeding under Article 226 of the Constitution.

Section 146, proceedings by or against representatives: save as otherwise provided, where any proceeding may be taken or application made by or against any person, it may be taken or made by or against any person claiming under him. A short section with a long reach: it lets a successor in interest step into a proceeding without a fresh start.

Section 147, consent by persons under disability: a consent or agreement given by the next friend or guardian with the express leave of the Court binds as if the party were under no disability. See [Suits by and against Minors, Corporations, Firms and Others].

Section 150, transfer of business: where the business of a Court is transferred to another Court, the receiving Court has the same powers and duties as the Court from which it was transferred.

Section 142 requires orders and notices to be in writing; section 143 governs postage; section 119 provides that nothing in the Code authorises a person to address the Court in its original civil jurisdiction on another's behalf, or to examine witnesses, except as the Court's charter allows; and section 140 allows a Court in an admiralty or vice-admiralty cause of salvage, towage or collision to summon assessors to its assistance.

Section 93 completes the public-interest suits in [Appeals from Orders]: the powers conferred on the Advocate-General by sections 91 and 92 may, outside the presidency-towns, be exercised with the previous sanction of the State Government by such officer as the Government appoints.

Sections 137 and 138, language: the language of a Court subordinate to a High Court continues as it was at the commencement of the Code until the State Government otherwise directs, and a High Court may require evidence in any subordinate Court to be recorded in English.

Sections 157 and 158, the savings: notifications, rules, appointments and powers made under the repealed enactments continue as if made under this Code, and a reference in any older enactment to the repealed Codes is read as a reference to the corresponding provision of this one.

Part X, sections 121 to 131, is the rule-making power: it covers the Rule Committee reporting to the High Court (section 124), the approval of rules by the State Government (section 126), their publication (sections 127 and 131), the matters rules may provide for (section 128), and the power of the chartered High Courts and of other High Courts to make rules for their own procedure (sections 129 and 130): the rules in the First Schedule have the same force as the body of the Code until annulled or altered, a Rule Committee reports to each High Court, rules are subject to the approval of the State Government and must be published, and sections 129 to 131 preserve each High Court's power to make rules for its own original civil procedure. This is why the Code is cited as "section X" for the body and "Order Y Rule Z" for the Schedule, the distinction [Definitions] opens with.

A worked example

Manoj learns that Nisha is about to apply for an injunction restraining him from using a right of way.

What can he do before anything is filed? Section 148A(1): he may lodge a caveat, because an application is expected to be made in a proceeding about to be instituted.

What must he do next? Section 148A(2): he must serve notice of the caveat on Nisha, by speed post with registration and proof of delivery. The court does not do this for him.

Nisha then files her application. Section 148A(3): the Court shall serve notice of the application on Manoj, so no ex parte order can be made behind his back.

What is Nisha obliged to give him? Section 148A(4): forthwith, a copy of her application and of any papers or documents filed in support, at Manoj's expense.

Nisha waits four months before filing. Section 148A(5): the caveat lapsed after ninety days, and Manoj must lodge a fresh one if he still wants protection.

Change the facts. Suppose the decree in Manoj's favour records the wrong survey number for the land. Section 152: a clerical error or accidental slip may be corrected at any time, by the Court of its own motion or on application, notwithstanding Order XX Rule 3.

Suppose instead he says the judge misunderstood the evidence. Section 152 does not reach it. His remedies are review under section 114 or an appeal.

Suppose he was given fourteen days to file something and needs longer. Section 148: the Court may enlarge the period, even after it has expired, but not by more than thirty days in total.

Suppose his plaint was filed on insufficient stamp paper and the limitation period has since run out. Section 149: the Court may allow him to make good the deficiency at any stage, and the document then has the same force and effect as if the fee had been paid in the first instance.

Suppose an order was obtained against him by a fraud practised on the court, and the Code provides no specific remedy. Section 151 preserves the Court's inherent power to make such orders as are necessary for the ends of justice or to prevent abuse of its process.

What it does not mean

A caveat is not filed by the applicant. It is lodged by the person who fears an order, and he must notify the prospective applicant.

A caveat does not last indefinitely. Ninety days, unless the anticipated application is made within that time.

The applicant does not pay for the copies. He must furnish them at the caveator's expense.

Section 151 does not confer power. It saves an existing power, and cannot be used where the Code provides a remedy or to do what the Code forbids.

Section 152 does not allow a change of mind. It corrects clerical or arithmetical mistakes and accidental slips or omissions.

Section 148 is not unlimited. The total enlargement may not exceed thirty days, and it applies only to periods fixed or granted by the Court.

Quick revision

Section 148A, caveat: lodged by any person claiming a right to appear, where an application is expected or has been made, in a proceeding instituted or about to be instituted. The caveator serves notice by speed post with registration and proof of delivery; the Court then serves notice of any application on him; the applicant furnishes a copy of the application and supporting papers at the caveator's expense; and the caveat lapses after ninety days unless the application is made within that time.

Section 151: inherent power saved, for the ends of justice and to prevent abuse of the process of the Court. Not where the Code provides a remedy, not against the Code, and exercised sparingly.

Section 152: clerical or arithmetical mistakes and accidental slips or omissions correctable at any time, on the Court's own motion or on application. Section 153: amendment of any defect or error in a proceeding, to determine the real question or issue. Section 153B: the Court is an open Court, with power to exclude the public in a particular case.

Section 148: enlargement of a period fixed or granted by the Court, even after expiry, not exceeding thirty days in total. Section 149: deficient court fee may be made good at any stage, and the document then has effect as if the fee had been paid in the first instance.

Test yourself

1. What is a caveat? Under section 148A, where an application is expected to be made or has been made in a suit or proceeding instituted or about to be instituted, any person claiming a right to appear before the Court on the hearing of that application may lodge a caveat in respect of it, so that the Court must give him notice of the application before making any order on it.

2. Who serves notice of the caveat, and on whom? The caveator serves notice of the caveat, by speed post with registration and proof of delivery, on the person by whom the application has been or is expected to be made: section 148A(2).

3. How long does a caveat remain in force? Ninety days from the date on which it was lodged, unless the application referred to in section 148A(1) has been made before the expiry of that period.

4. What must the applicant furnish to a caveator? Forthwith, a copy of the application made by him and copies of any paper or document which has been or may be filed by him in support of it, at the caveator's expense: section 148A(4).

5. What is the scope of section 151? It saves 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. It confers no new power, cannot be invoked where the Code provides a remedy, cannot be used to do what the Code forbids, and is exercised sparingly.

6. What errors may be corrected under section 152? Clerical or arithmetical mistakes in judgments, decrees or orders, and errors arising in them from any accidental slip or omission, which may be corrected at any time by the Court of its own motion or on the application of a party. It does not permit the Court to alter its decision.

7. By how much may the Court enlarge a period it has fixed? By not more than thirty days in total, under section 148, and it may do so from time to time in its discretion even though the period originally fixed or granted has expired.