P L D 1989 Karachi 635 (PLP)

"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 therefore it must be held that the Court is free to exercise them for the purposes mentioned in S.151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well-recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." The Supreme Court of India again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal A I R 1962 S C 527 considered the question whether a Court had inherent power under section 151 of the Code to issue a temporary injunction restraining a State. In that context Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observation thus: "These observations have no bearing on the question of the Court's exercising its inherent powers under 5.151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice." The Supreme Court of India again in Arjun Singh v. Mohindra Kumar A I R 1964 S C 993 at p. 1003 considered the scope of section 151 of the Code. One of the questions raised was whether an order made by a Court under a situation to which Order IX, Rule 7 of the Code did not apply, could be treated as one made under section 151 of the Code. Rajagopala Ayyangar, J., made the following observations: "It is common ground that the inherent power, of the Court cannot override the express provisions of the law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates." In Mohiuddin Molla v. The Province of East Pakistan and others P L D 1962 S C 119 at p.123 it was held as under: "The Court has inherent jurisdiction to preserve the property of the judgment-debtor in order that it may be available for realization of the decretal amount. This principle has been recognized in Order XXXVIII, rule 5 of the Civil Procedure Code which empowers the Court to attach the property of the defendant in order that any decree that is passed in the suit may be satisfied by the sale of the attached property. If the Court has power to attach the property of the defendant at a time when there is only a possibility of a decree in favour of the plaintiff, it will be anomalous to hold that after he has actually secured a decree the Court cannot act to protect his interests just because the execution of the decree has been postponed. The jurisdiction of the Court to attach the property of the defendant truly arises from the fact that the Court has power to grant relief. A power to grant relief necessarily implies powers to take all such steps as may be needed to ensure the grant of relief to the plaintiff. Full relief is not granted to a plaintiff by a paper decree. It is only when the decree is satisfied that he gets full relief and the Court has power to pass all such orders as may be required for the satisfaction of the decree unless any such order be expressly or by necessary implication prohibited. Order XXXVIII, rule 5, should be regarded as a provision which recognizes a power rather than a provision which confers a power. The Civil Procedure Code, generally speaking, does not create new powers but regulates the exercise of power already possessed by the Court. Even before the Civil Procedure Code was enacted the Civil Court possessed powers of the kind mentioned in the Civil Procedure Code. It possessed these powers because the Civil Court has jurisdiction to determine and protect civil rights and for the protection of those rights the exercise of such powers is essential." In Imtiaz Ahmad v. Ghulam Ali and others P L D 1963 S C 382 at p.399 B.Z. Kaikaus, J., observed: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." In a similar context, Cornelius, C.J. observed in the case of Province of the East Pakistan v . Sirajul Haq Patwari (1967) 1 P SC R 35, as follows: "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valeat quam pereat that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say let justice prevail though the heavens should fall." These observations were adopted and followed by our Supreme Court in the case of Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C

678. It was further observed: "Normally, however, legal technicalities should not be allowed to stand in the way hurdle brushing aside which might lead to unsettlement and uncertainty of law." In Muhammad Hashim Khan v. Major Fazal Ellahi Khan P L D 1959 (W.P.) Quetta 1 it was held: "In my opinion 5.151, provides the best solution. It has been designedly framed to meet a case of this nature. Its provisions being there, there is no necessity for looking for a solution. Once the justness of the cause is recognised, the provisions of section 151 should be called in aid without any hesitation. It will be, in my opinion, just and proper that a person who has failed to appear on the date of hearing through no fault of his, should not be denied a hearing." In Kassamali Alibhoy v. Shaikh Abdul Sattar P L D 1966 (W.P.) Karachi 13, it was held as follows: "It is well-settled that under section 151 a Court cannot act contrary to the specific provisions of the statute. Section 151 is intended to deal with cases which have not been dealt with by the Code. It is clear that the C.P.C. cannot deal with every conceivable case that may arise in Courts of law and section 151 is, therefore, enacted in order to save the inherent powers of the Court to do justice under proper cases." In Lahore Development Authority v. Messrs Own Homes Service Ltd. P L D 1983 Lah. 475 it was observed as under: "It is also settled law that there is no room for the application of the inherent power where there is an express provision negativing the claim of the petitioner. Since no express provision governs the situation, as it arises in this case, and as the relief asked for by the petitioner, in its application, dated 6th October, 1981 should have been granted to it if the petitioner hard, in fact, refused to permit the respondent to deposit the decretal amount, in its account, the benefit of the provisions of section 151, C .P. C . could be made available to the respondent, in the interest of justice, despite its failure to give notice of payment. This is particularly so because the payment had been made within the time provided in the decree. Thus a relief, only to that extent, can be allowed by this Court in this jurisdiction, just to see that justice is not denied to the respondent, if its plea, for the deposit of amount in the Court, was correct." In Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others P L D 1983 Kar. 303, it was observed: "In my view it may be taken as a general rule that in a suit a temporary injunction will not be granted to an applicant if the facts and circumstances of the case are not covered by Order XXXIX and a receiver will not be appointed if the case does not fall within Order XL of the Code of Civil Procedure. However, where there are compelling reasons, and the interests of justice require or demand, the Courts are neither .helpless nor are they fettered by the specific provisions of Order XXXIX or Order XL, C.P.C. and in exercise of their inherent jurisdiction will certainly grant relief by way of temporary injunction or through appointment of a receiver to protect the rights of citizens. It is not possible and I also do not consider it prudent to specify or identify the various situations or reasons, where or when the Courts will exercise their inherent powers under section 94 or section 151, C.P.C. for granting a temporary injunction or appointing a receiver. In each case the Court evaluates the overall situation considering the peculiar facts and circumstances on record and then the decision is taken whether in the interests of justice inherent powers are to be exercised or not. Each case has its own different set of facts and again and again new situations come before the Courts and, therefore, I may repeat, it is not possible to lay down specific principles restricting the power of Courts to exercise their inherent, jurisdiction in certain specified situations or for certain reasons only. If this were done, it would only impede the administration of justice and restrict the development of law." In Durga Dihal Das v. Anoraji (94) 17 All 29 = 1894 AWN 190, it was said by Blair, J. , that the Code is not exhaustive, there are cases which are not provided for in it, and he declined to believe that the High Court must fold its hands and allow injustice to be done. These words were adopted by Woodroffe, J. , in Hukum Chand Boid v. Kamalanand Singh, (1906) 33 Cal. 92 at p.93 = CLJ 67 and he added that "the law cannot (as pointed out by Sir Barens Peacock, C.J.) make express provisions against all inconveniences so that their dispositions shall express all the cases that may possibly happen, and it is, therefore, the duty of a Judge to apply them not only to what appears to be regulated by their express provisions, but to all the cases to which a just application of them may be made and which appear to be comprehended, either within the express sense of the law or within the consequences that may be gathered from it. The Code does not as I have already had occasion to hold, in Punchanon Singh v. Kunuklota Baromoni affect the power and duty of the Court, in cases where no specific rule exists, to act according to equity justice and good conscience, though in the exercise of such power it must 'be careful to see that its decision is based on sound general principles and is not in conflict with them or the intentions of the Legislature. There are also matters, and I do not now deal with them, in which a question may arise whether the right to make an application or the exercise of a power is derived entirely from express legislation, as in the case of the right to prefer and entertain an appeal or to award costs, it being a matter of dispute in the latter case whether a question of costs is one of procedure or one affecting vested rights. The Court has, therefore, in many cases, where the circumstances require it, acted upon the assumption of the possession of an inherent power to act ex debito justitio and to do that real and substantial justice for the administration, for which it alone exists." These observations were adopted and followed in the cases reported in A I R 1920 Lahore 436 and A I R 1940 Allahabad

185. This principle now finds expression in section 151 of the new Civil Procedure Code, which enacts that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Courts to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The following principles are deduced from the above decisions: (1)??????? The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. (2)??????? But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers' expressly or by necessary implication conferred by the other provisions of the Code. (3)??????? If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision. (4)??????? Whatever limitations are imposed by construction on the provisions 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 quitable order to prevent the abuse of the process of the Court. The learned Judge in our view expressed quite accurately the principles governing cases of this kind. He pointed out that the plaintiff /respondent has a prima facie established his case. He further pointed out that the defendant's at last is to the extent of his share which is very nominal i.e. 14/80 as claimed by him. He has stated that the respondent has a just and fair case and it is, therefore, necessary that his interest should be protected so .that the decree which may be passed in the suit may not be frustrated. Directing the defendant/appellant to furnish a security is entirely a matter of discretion with the learned Single Judge and a Court of appeal will be very slow to set aside the discretion unless it is proved that he has misdirected himself as to the facts or on the law. We have taken great care to consider the matter, and have given it our fullest consideration. There is nothing in Order XXXVIII, Rule 5 of the Code, which expressly or by necessary implication precludes the exercise of the inherent power of the Court under section 151 of the Code. We are, therefore, of the opinion that in the instant case the defendant has no assets of his own or is not likely to acquire till the date of decree, the Court can make a suitable order under section 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the Court. We are of the opinion that the learned Single Judge was right in exercise of his discretion on sound principles of law consistently with the facts and circumstances of the case. We must, therefore, affirm the order directing the appellant to furnish a security in the sum of Rs.75,

000. The appeal is dismissed but in the-circumstances of the case, the parties are directed to bear their own costs. The above are the reasons for the short order dated 11-7-1989 dismissing the appeal in limine on conclusion of the arguments. A . A . /N-212/ K??????? Appeal dismissed.