Part-III
The preceding part examined situations where recourse to Section 151 is neither permissible nor desirable, underscoring the principle that inherent powers cannot be employed to override or circumvent the express provisions of the Code. However, the converse is equally significant. There remain numerous situations in which the Code is silent, yet judicial intervention is indispensable to prevent abuse of the process of the court or to secure the ends of justice. It is in this interstitial space that Section 151 assumes its true significance, not as an unfettered reservoir of judicial discretion, but as a carefully circumscribed source of authority that enables courts to address procedural exigencies without compromising the legislative framework. This part of the blog examines such situations, highlighting the circumstances in which the exercise of inherent powers is not merely permissible but necessary for the effective administration of civil justice.
Securing personal presence of defendant and striking off defence when he doesn’t comply
In Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhaya Lal Bhargava, MANU/SC/0263/1966, the suit was filed by Kanhya Lal Bhargava for recovery of the sum of Rs. 45,112.94 against Messrs Ram Chand and Sons Pvt. Ltd. Kanhaya Lal (Respondent-plaintiff) filed an application to the Court under Order XI, rule 21 read with Order XXIX, rule 3 to direct Jugal Kishore, a director of Appellant Company, to appear in court. The court made an order for the same by 14th December, 1964 Ramchand & Sons (Appellants-defendants) took member of adjournment to produce Jugal Kishore on the ground that he was ill. The court gave final opportunity to present Jugal Kishore on 3rd February, 1965. Even so, the appellant took two more adjournments to produce him but did not do so on ground he was ill. The Trial Court on 16th March, 1965 hearing the arguments held that Jugal Kishore had failed to comply and it struck off the defence of the appellant.
The High Court, on revision, held that Jugal Kishore did not appear in court in spite of orders to that effect and the trial court had jurisdiction to strike out the defence of the appellant. It also negatived the contention of Ramchand and Sons that the trial court has no power to compel Jugal Kishore to appear in court on ground he was director of the company, and Ramchand and Sons could not say that one of the directors did not obey the orders of the court.
As the counsel of Appellant Company contended that the Code of Civil Procedure, 1908 provided express power for a court to strike out defence against a party under specified circumstance, and, therefore section 151 thereof cannot be invoked to strike out the defence in other circumstances for to do so will be to overside the provisions of the Code of Civil Procedure, 1908. Order XXIX, rule 3 of the Code of Civil Procedure, 1908 does not empower the court to require the personal appearance of the director other than a director who signed and verified the pleadings within Order XXIX, rule 1, thereof.The Supreme Court discussed section 151 at length and came to conclusion:
There is nothing in Order XXIX of the Code of Civil Procedure, 1908, which expressly or by necessary implication, precludes the exercise of the inherent power of the Court under section 151 of the Code of Civil Procedure, 1908. In a case of default made by a director who failed to appear in court when he was so required under Order XXIX, rule 3 of the Code of Civil Procedure, 1908 the court can make suitable consequential order under section 151 of the Code of Civil Procedure, 1908 as may be necessary for the ends of justice or to prevent the abuse of the process of the court.
Key Observations of the Apex Court
The inherent power of the court are in addition to the powers specially conferred on the court by the Code. They are complementary to those powers and, therefore it must he held that the court is free to exercise them for the purposes mentioned in section 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the code, or against the intentions of the Legislature. 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 said topic otherwise than in the manner prescribed by the said provisions whatever limitations are imposed by construction on provision of section 151 of the Code, they do not control the 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.
Dismissal of Suit on the happening of subsequent events
In M/s. Ram Chand & Sons Sugar Mills Pvt. Ltd. Barabanki (U.P.) v. Kanhayalal Bhargava, the appellant contended that during the pendency of the first suit, certain subsequent events had taken place due to which the first was not fruitful and in law the said suit could not be kept pending and continued solely for the purpose of continuing an interim order made in the said suit. While examining the question the Supreme Court was to consider whether the court can take cognizance of a subsequent event to decide whether the pending suit should be disposed or not. The question arose was whether a defendant could make an application under Section 151 CPC for dismissing the pending suit on the ground that the said suit has lost its cause of action. The Court upheld the contention.
Using Inherent Powers when the suit becomes infructuous
Thus, it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 of CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not. For the reasons stated above, continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court and interest of justice requires such suit should be disposed of as having become infructuous. The application under Section 151 of CPC in this regard is maintainable. (Shipping Corporation of India Ltd Vs. Machado Brothers and another, AIR 2004 SC 2093 : 2004(4)SCALE 39)
Court can take notice of subsequent events after presentation of suit
In Pasupuleti Venkateswarlu vs. The Motor & General Traders (1975 1 SCC 770 at para 4) has held thus:
“We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-`-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equality justifies bending the rules of procedure, where no specific provision or fairplay is not violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad.
We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.”
In the case of J.M.Biswas vs. N.K.Bhattacharjee & Ors. (2002 (4) SCC 68) wherein Court held:
“The dispute raised in the case has lost its relevance due to passage of time and subsequent events which have taken place during the pendency of the litigation. In the circumstances, continuing this litigation will be like flogging a dead horse. Such litigation, irrespective of the result, will neither benefit the parties in the litigation nor will serve the interests of the Union.”
For continuing interim orders infructuous suit cant be allowed to run and no interim order survives after dismissal of suit
While so considering the said question one basic principle that should be borne in mind is that interlocutory orders are made in aid of final orders and not vice versa. No interlocutory order will survive after the original proceeding comes to an end. This is a well established principle in law as could be seen from the judgment of Court in Kavita Trehan (Mrs.) & Anr. vs. Balsara Hygiene Products Ltd. (1994 5 SCC 380) wherein it is held:
“Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible.”
Therefore, in our opinion, the courts below erred in continuing an infructuous suit just to keep the interlocutory order alive which in a manner of speaking amounts to putting the cart before the dead horse.
Fraud upon the court and not approaching the court with clean hands
The plaintiffs have not approached the court with clean hands and are guilty of fraud, suppression of facts and misrepresentation and as such they are not entitled for any relief. Fraud is proved when it is shown that a false representation has been made
- knowingly, or
- without belief in its truth, or
- recklessly, careless whether it be true or false.
Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. Although negligence is not fraud but it can be evidence on fraud. A “fraud” is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage as has been held by the Apex Court in S.P. Chengalvaraya Naidu Vs. Jagannath. This aspect of the matter has also been considered by the Hon’ble Supreme Court in its decisions in Roshan Deen Vs. Preeti Lal; Ram Preeti Yadav Vs. U.P. Board of High School and intermediate Education; Ashok Leyland Ltd. Vs. State of T.N. and State of A.P. and Anr. Vs. T. Suryachandra Rao. In view of the settled legal position of law, the case of the plaintiffs has to be thrown out at the threshold and in this case, it is the duty of the court to reject the Plaint. (Poppat Jamal And Sons Rep. By Its … Vs. N. M. Venkatachalapathy @ Babulal, 2006 (5) CTC 251: (2007) 2 MLJ 379, Para 10)
Dismissal of Frivolous Litigation Under Section 151 CPC:
In the famous case of Temple of Thakur Shri Mathuradassji v. Shri Kanhaiyalal & Ors, 2008 (3) WLC (Raj.) 534: 2008 (2) RLW 1390 (Raj.) the factswere like this that one Krishna Kumar sold his properties via sale deed to defendants. Out of the sold properties some properties were leased to govt. So defendants after purchasing the property filed suit for eviction against state which was decreed by HC by way of compromise decree. Defendants provided state alternative building to run the school and state gave the possession to defendants of their land. One Ishwar chand filed PIL in HC against shifting of school which was dismissed and the same person on behalf of temple filed the suit for declaring the sale deed null and void and declaring the temple the owner of property. This suit was dismissed as frivolous and abuse of the process of court by trial court under Section 151 CPC. The Court held that if the suit is in abuse of process of Court and cannot be dismissed under Order 7 Rule 11 C.P.C, the Court is not helpless and a can accordingly invoke the powers under Section 151 C.P.C and can dismiss the suit under Section 151 C.P.C to avoid frivolous litigation to this Court.
The case adjudicated by the Hon’ble Rajasthan High Court on February 18, 2008, presents a significant examination of the judicial approach towards frivolous litigation and abuse of court processes. The core dispute revolves around the ownership and rightful possession of a property initially sold in 1978, subsequent tenancy issues, and the eventual dismissal of suits deemed to be misusing the judicial process. The parties involved include the plaintiff, Temple of Thakur Shri Mathuradassji, representing the interests of the temple, and the respondents, Shri Kanhaiyalal & Ors., who are the purchasers of the property and hold eviction decrees against their tenants.
The court held that the original suit filed by the temple was an abuse of the court process and thus prescribed dismissal under Section 151 of the Code of Civil Procedure (CPC). The court applied Section 151 of the CPC, which empowers courts to make such orders as are necessary for the ends of justice or to prevent abuse of the court’s process. The key aspects of the court’s reasoning include:
- Abuse of Process: The court determined that the plaintiffs’ multiple litigations, including the original suit and subsequent execution applications, were intended to obstruct the enforcement of eviction decrees, thereby constituting an abuse of the judicial process.
- Frivolous Litigation: The repeated filings, despite prior dismissals and criticisms of frivolity, were deemed to lack substantive legal grounds and were primarily aimed at delaying justice.
- Consistency with Previous Orders: The plaintiffs failed to adhere to the prior judgments and were seen as intentionally disregarding the court’s attempts to curb their misuse of legal avenues.
- Jurisdictional Authority: Citing the Rajasthan Public Trust Act, 1959, the court emphasized the necessity for rightful representation and management of trust properties, which was bypassed in the plaintiffs’ actions.
The court concluded that there was no specific provision under Order 7 Rule 11 CPC to dismiss the plaintiffs’ suit, thereby invoking Section 151 CPC as a necessary remedy to prevent the continuation of frivolous litigation.
When Order VII R11 CPC is not exhaustive
In the case of Nesammal And Another vs Edward And Another, it was held that apart on a reading of the plaint, it is clear that the petitioners wants to re-agitate the entire matter once again. It is for that reason the Lower Court held that the plaint is liable to be rejected. It is this conduct on the part of the litigant is commonly known as abuse of process of Law. It is stated.
“(1) The initiation of a proceedings in a Court of Justice for the purpose of mounting a collateral attack on a final decision adverse to the intending plaintiff reached by a Court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the matter is, as a matter of public policy, an abuse of the process of the Court;
(2) The fact that collateral attack is by means of a civil action raising an identical issue decided against the plaintiff in a competent court of criminal jurisdiction is immaterial since if the issue was proved against the plaintiff beyond all reasonable doubt in the Criminal Court it will be wholly inconsistent if it is not decided against him on the balance of probability in the civil action. The plaintiff’s civil action therefore is liable to be struck out as an abuse of the process of the Court. (See: Hunter v. Chief Constable of west Midland, 1981 (3) All: E.R 727.
Sometimes the provisions of Order 7, Rule 11 are not exhaustive and the Court has got inherent powers to see that the vexatious litigations are not allowed to take or consume the time of the court. In appropriate cases, directions can be given by this court as well as the Court in which the suit is filed not to entertain the suit, if on reading the allegations in the plaint it reveals that the same is abuse of process of law. In this case all the grounds are made out and the very same plaintiff who got defeated in the litigation has agitated the very same issue by filing the present plaint.
As early as in Lakshmanan Chetty v. Lakshmanam Chettiar and others, A.I.R. 1915 Mad. 483, their Lordships held that the provisions of Order 7, Rule 11 of Code of Civil Procedure are not exhaustive. That is a case where the next friend filed the suit on behalf of the minor. The Court found that the litigation is not for the benefit of the minor and rejected it. The said decision was followed in R. Shanmughavelu Pillai v. R. Karuppannan Ambalm, A.I.R. 1976 Mad. 289. A Court has jurisdiction in a proper case to dismiss a suit filed by the next friend of a minor on the ground that it is not in the interests of the minor that the suit should be allowed to go on. In Radhakishen v. Wali Md., AIR 1956 Hyd 133, wherein also a Bench of the Hyderabad High Court has held that:-
“The instances given in order Rule 11 cannot be regarded as exhaustive of all the cases in which a court can reject a plaint or as limiting the inherent powers of the Court in respect thereof.”
Plaint Rejected under Order VII Rule 11 CPC and under Inherent Powers-What is the remedy now
The proposition that against the rejection of the plaint, only appeal lies, has been made clear in the decision reported in Lakshmanam v. Lakshmanam, AIR 1915 Mad. 483 and in Badri Nath v. State of Pepsu, AIR 1957 Pepsu 14. Even reading Section 2(2) C.P.C. it does not say the rejection of the plaint under Order 7, Rule 11 C.P.C. On the other hand, it generally states that decree will include rejection of plaint. Thus it is clear both from the Section and also the decisions cited above that only appeal will lie against the rejection of the plaint and it is not limited to such cases wherein the plaint was rejected for the reasons stated under order 7, Rule 11, C.P.C. The revision is also not maintainable since the order rejecting the plaint is a decree under the Code of Civil Procedure. Even if the plaint is rejected on some other grounds not covered by Order 7, Rule 11 Code of Civil Procedure, the remedy is only an appeal under Section 96 of Code of Civil Procedure. The same is so declared in the decision reported in R. Shanmughavelu Pillai v. R. Karuppannan Ambalam, AIR 1976 Mad. 289.
Rest to follow in the next part