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Inherent Powers of Civil Courts
Question: Civil courts should invoke inherent powers in order to for the ends of justice or to prevent abuse of the process of the Court- do you agree with this statement? Answer with relevant law and example.
Answer:
Application of inherent power
I agree with the statement that-Civil courts should invoke inherent powers in order to for the ends of justice or prevent abuse of the process of the Court. Because, there is a principle - actus curiae neminem gravabit meaning 'any act of court cannot infringe any legal right of any person'. Based on such principle, it has been held that if any party is aggrieved by any process of the court, he must have a relief. In the same way, any party of the suit may be guilty the abuse of the process of the court, for example, any party may obtain any advantage by fraud. Inherent power of the court means the application of special jurisdiction of court to conduct its judicial proceedings equitably. Courts use their inherent power only for ensuring justice. According to section 151 of the Code, inherent power can be used in 2 cases-
1. Exercise of inherent power in the interest of justice
2. To prevent abuse of the process of the court.
Exercise of inherent power in the interest of justice:
Every civil court may exercise inherent power in the interest of justice under section 151. The matter is discussed briefly-
To adjourn the case:
In case it is not possible to stay the case filed on the same subject-matter under Section 10 of the Code of Civil Procedure, then the subsequent case can be adjourned under Section 151.
Granting temporary injunction:
When it is not possible to grant a temporary injunction in accordance with Rule 1 or 2 of Order 39 of the Code of Civil Procedure, a temporary injunction can be granted by exercising inherent powers.
Set aside an exparte decree:
If the plaintiff has fraudulently obtained an exparte decree, then the respondent can apply under section 151 to set aside the decree.
Restitution:
If a suit is to be dismissed by the court, an order cannot be made under section 144 for restitution. In such case the court may order the restitution by exercising the powers vested in it under section 151.
In case of hearing:
The court decides whether two of the suits or appeals will be heard together or separately.
Every case must end:
The principle of justice is to complete the judicial process of each case. But in many cases when the decision is complicated by the law or due to legal ambiguity, the court can dispose of the case by exercising its inherent power.
To amend or cancel own decision:
In addition to the provisions of section 152 of the Code of Civil Procedure, the court may also cancel or amend its own order under section 151.
To prevent abuse of the process of the court:
Section 151 of the Code of Civil Procedure, 1908, has adopted provisions relating to the inherent power of the court and its interpretation. This section states 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.
Courts have been created for the noble purpose of establishing a justice. It is pertinent to note that all possible rules relating to the manner in which civil cases are to be conducted and adjudicated have been incorporated in the Code of Civil Procedure. But in reality, there are situations that lawmakers could not even think of when making laws. For all these reasons, the section states that the court may, in its own discretion, make any order for justice. After all, lawmakers were probably aware of the flaws and limitations of the Code of Civil Procedure. That is why the court has been given inherent powers under Section 151 of the Code of Civil Procedure so that the court can administer justice. So, we can say that section 151 of the Code of Civil Procedure has given a huge power to the court. The court has the power to make any order as per its inherent power to administer justice or to prevent abuse of power.
Question: If a suit is dismissed for the absence of the plaintiff, can the court set aside such order by invoking the inherent power of the court? Discuss.
Answer:
If a suit is dismissed due to the absence of the plaintiff, the dismissal order can be set aside by exercising the inherent power of the court. However, the general rule of application of inherent power is that if there is a clear provision for remedy in the Code of Civil Procedure, no remedy can be given under Section 151. However, to save the party from unnecessary waste of time, it would be fair to give remedy under section 151.
If a case is dismissed under Rule 8 of Order-9 due to the absence of the plaintiff, the plaintiff has to apply within 30 days as per Rule 9 of Order-9 for setting aside of the said dismissal order and reinstatement of the original case. However, if any party for any reason fails to apply for reinstatement of the case in time, the plaintiff may apply later under section 151, and the court may grant it for the ends of justice. In Abdul Quddus (MD) vs. Md. Mobarak Hossain, 51 DLR (AD) (1999) 54, the case is dismissed for the absence of the plaintiff. The plaintiff files an application for setting aside the dismissal order explaining the reason of absence. The Appellate Division decides to give relief under section 151 of the Code of Civil Procedure.
Question: How the principle 'Audi alteram partem' is reflected in the Code of Civil Procedure? Answer with the relevant provisions of law.
Answer:
'Audi alteram partem' is a Latin phrase meaning "listen to the other side", "let the other side be heard as well". It is the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. That is, no person can be tried without a hearing. If a trial is held without a hearing, it would be contrary to justice. This provision has been highlighted in various sections and orders of the Code of Civil Procedure. The following are some of the provisions discussed-
Summons to the Defendant:
After properly filing a case under Section 27 of the Code of Civil Procedure, the defendant has to be informed by issuing a summons that a case has been issued against him and he has to defend himself in his case.
Summons to witnesses:
According to Section 31 of the Code of Civil Procedure, witnesses are summoned for giving testimony.
Notice in case of arrest and seizure before judgment:
In case of arrest of a defendant under Order-38 or seizure of his property, the court shall give him first notice to show cause.
In case of setting aside of dismissal order:
If the plaintiff files a miscellaneous case seeking setting aside of the dismissal order as per Rule-9 of Order-9, the court will also give notice to the respondent and give him a chance to be heard.
In case of setting aside of exparte decree:
If the respondent files a miscellaneous case seeking setting aside of exparte decree of the case as per Rule-13 of Order-9, the court will also give notice to the plaintiff and give him opportunity to be heard. From this discussion we can say that the principle of audi alteram partem has been reflected in various sections and rules of civil procedure.
Question: What do you understand by the cost of the suit? When a court can order the payment of compensation costs and up to what amount.
Answer:
Cost of the suit:
Generally, the cost which the court has ordered to be paid at different times is the cost of the case. The party that wins the case gets the cost of the case. These expenses are ordered to compensate for the expenses incurred in the case. The court orders who will get the cost of the case.
According to section 35 of the Code of Civil Procedure-
The terms and conditions as may be determined and the costs and incidental costs of the case subject to the provisions of any law currently in force will depend on the will of the court. When a court orders that no costs be incurred as a result of a lawsuit, the court will state its reasons in writing. The court may order payment of interest not exceeding 6% per annum on the cost of the case and this interest will be added to the cost and will be recoverable as usual.
When a court may order payment of the cost of compensation and to what extent:
(1) If in any suit or other proceeding, including an execution proceeding, not being an appeal, any party objects to the claim or defence on the ground that the claim or defence, or any part of it, is false or vexatious, and if, thereafter, such claim or defence is disallowed, in whole or in part, the Court shall, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector, such cost by way of compensation which may, without exceeding the limit of the Court's pecuniary jurisdiction, extend upto 20,000/- (twenty thousand) taka.
(2) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
(3) The amount of any cost awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.