Distinguish between the discretionary; inherent and amending powers of court under the Code of Civil Procedure. Illustrate

- July 02, 2025

Under the Code of Civil Procedure, 1908 (CPC), courts exercise various powers in the conduct of civil proceedings. These powers can be classified into discretionary powers, inherent powers, and amending powers. Each has its own legal basis, scope, and limitations.

🔹 1. Discretionary Powers

➤ Meaning:

Discretionary powers are those powers which the court may exercise or not, based on the facts and circumstances of a particular case. These are not mandatory.

➤ Source:

Discretionary powers are expressly provided in the CPC in various provisions using terms like "may", indicating judicial discretion.

➤ Examples:

Order 1 Rule 10(2): Power to strike out or add parties.
Order 6 Rule 17: Permission to amend pleadings.
Order 17 Rule 1: Adjournment of hearing.
Section 151: May grant injunction or stay, if not covered under Order 39.

➤ Nature:

Must be exercised judiciously, not arbitrarily.
Subject to appellate or revisional review if misused.

🔹 2. Inherent Powers

➤ Meaning:

Inherent powers are not expressly provided in CPC but are those powers which are necessary for the court to do complete justice or to prevent abuse of process.

➤ Source:

Section 151 CPC – "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court..."

➤ Scope:

To fill procedural gaps not covered by CPC.
Cannot override express provisions of the Code.

➤ Examples:

Granting stay where no specific provision exists.
Consolidating suits.
Restoring proceedings dismissed for default (if not covered by Order 9 Rule 9).
Recalling orders obtained by fraud.

➤ Limitations:

Cannot be used to contravene express provisions.
Used sparingly and cautiously.

🔹 3. Amending Powers

➤ Meaning:

Power to correct clerical or arithmetical errors in judgments, decrees or orders due to accidental slip or omission.

➤ Source:

Section 152 CPC – Amendment of judgments, decrees or orders.
Section 153 CPC – General power to amend any defect or error in any proceeding in a suit.

➤ Scope:

Limited to clerical or accidental errors.
Cannot be used to review or change the substantive reasoning of a judgment.

➤ Examples:

Typographical error in name of party.
Mistake in calculation of awarded amount.
Incorrect date or number in decree.

🔹 Comparative Table:

Basis	Discretionary Powers	Inherent Powers	Amending Powers
Source	Express provisions of CPC	Section 151 CPC	Sections 152 and 153 CPC
Nature	Optional, based on judicial discretion	Implied, necessary for justice	Mandatory when clerical errors exist
Purpose	Ensure fairness and flexibility	Fill gaps and prevent abuse of process	Correct accidental or clerical mistakes
Examples	Grant of adjournment, adding parties	Stay in interest of justice, consolidate suits	Correction of typos in judgment or decree
Reviewable	Yes, if misused	Yes, if misapplied	Yes, if used to alter substantive findings

🔹 Illustrations:

1. Discretionary Power:

In a suit, the plaintiff fails to appear. Under Order 9 Rule 8, the court may dismiss the suit for default, but it is not bound to do so. This is discretionary.

2. Inherent Power:

A party uses the process of the court to delay proceedings with false affidavits. The court may invoke Section 151 to strike out such abuse of process, even though there's no explicit provision.

3. Amending Power:

A decree awards ₹1,00,000 but due to typographical error, it is typed as ₹10,000. The court can correct this error under Section 152.

✅ Conclusion:

The discretionary, inherent, and amending powers enable civil courts to function effectively within the procedural framework of the CPC:

Discretionary powers provide flexibility,
Inherent powers ensure justice when CPC is silent, and
Amending powers ensure accuracy and remove clerical defects.

Each must be exercised within limits to ensure fairness, prevent abuse, and preserve the sanctity of the judicial process.

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