Padam Sen v State of Uttar Pradesh (1960)

Section 151 CPC says nothing in the Code shall limit the court's inherent power to make orders "necessary for the ends of justice or to prevent abuse of the process of the Court". Students tend to read that as a blank cheque. This case, decided on appeal from a criminal conviction for bribery, gives the classic statement of what s. 151 does and does not do:

• the inherent powers are in addition to and complementary to the powers the Code confers, and can be used where they do not conflict with the Code or the intention of the legislature; but
• they are powers over procedure, not over the substantive rights of litigants. A civil court has no inherent power to seize a party's property.

Both halves are regularly cited together as "the Padam Sen principle".

Genda Mal (father of the second appellant) sued Mithan Lal and others in the court of the Additional Munsif, Ghaziabad, on promissory notes. The defendants, fearing that the plaintiff would fabricate his account books about payments they had made, applied for the books to be seized. On 27 March 1954 the Additional Munsif appointed Raghubir Pershad, a vakil, as Commissioner to recover the plaintiff's bahi khatas for 1951 and produce them in court. The Commissioner seized the books.

On 30 March 1954 the appellants went to the Commissioner's office and offered him Rs. 900 for an opportunity to tamper with the books. The Special Judge, Meerut convicted them under s. 165-A IPC (abetment of bribery of a public servant) and the Allahabad High Court upheld the conviction.

Before the Supreme Court the appellants did not dispute the facts. Their only point was that the Commissioner was not a public servant, because the Munsif had no power to appoint a commissioner to seize account books, so the appointment was void.

1. Could the Munsif appoint a commissioner to seize a party's account books in exercise of the court's inherent powers under s. 151 CPC?
2. Was the order supportable under any specific provision of the Code — Order XXXVIII r. 5, Order XXXIX rr. 1(b) and 7, or Order XL r. 1?
3. If the appointment was void, was the Commissioner nevertheless a public servant under Explanation 2 to s. 21 IPC, as a person "in actual possession of the situation of a public servant"?

For the appellants (N.C. Chatterjee): the court's powers must be found within the four corners of the Code; since s. 75 and Order XXVI deal expressly with commissions, the court cannot use s. 151 to add to them.

For the State: the Code is not exhaustive; the court may, under its inherent powers, adopt any procedure not prohibited by the Code expressly or by necessary implication if it is necessary for the ends of justice or to prevent abuse of process. In the alternative, the Commissioner was in actual possession of the situation of a public servant.

The appeal was allowed and the appellants were acquitted of the offence under s. 165-A IPC.

The nature of inherent power

The Court rejected the appellants' "four corners of the Code" argument and stated the relationship between s. 151 and the rest of the Code:

"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."

(The reported text reads "puposes"; the misspelling has been corrected in the quotation above.)

It added the limit: "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."

Procedure, not substantive rights

That did not save the Munsif's order, because of the kind of power s. 151 preserves:

"The inherent powers saved by s. 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party."

Applied here: "A party has full rights over its books of account. The Court has no inherent power forcibly to seize its property. If it does so, it invades the private rights of the party." The Code lays down a specific procedure for getting documents before the court — a party may be called on to produce them, may be penalised for not doing so, and may have a presumption drawn against it — but even where a document is summoned the court has no power to take it forcibly. The defendants had no right to the books; their request amounted to asking the court to collect evidence for them, and "it is no business of the Court to collect evidence for a party". If the plaintiff forged entries, the defendants could dispute them at trial.

So the Munsif had no inherent power to appoint a commissioner to seize the books, and the order "was therefore an order passed without jurisdiction and was therefore a null and void order."

No specific provision applied either

The Court rejected the alternative argument. The order was plainly made under the inherent powers, not under any specific rule. Order XXXVIII r. 5 prevents a decree being rendered infructuous and Order XXXIX r. 1(b) applies where a defendant threatens to dispose of property to defraud creditors; neither fitted. Order XXXIX r. 7 allows detention, preservation or inspection of property which is the subject-matter of the suit, but "The account books of the plaintiffs were not ' property ' which were the subject-matter of the suit" — at best they were a piece of evidence.

Not a public servant

Explanation 2 to s. 21 IPC applies only to a person "in actual possession of the pre-existing office of a public servant". It "does not apply when there is no pre-existing post or when the person appointing has no authority to appoint." There was no office of Commissioner in existence and the Munsif had no power to make the appointment, so the Commissioner was not a public servant and offering him money was not an offence under s. 165-A.

The inherent powers of a civil court saved by s. 151 CPC are in addition to and complementary to the powers expressly conferred by the Code, and may be exercised for the ends of justice or to prevent abuse of process where their exercise does not conflict with what the Code expressly provides or with the intention of the legislature. But they relate only to the procedure by which the court decides the cause before it; they are not powers over the substantive rights of litigants. A court therefore has no inherent power to seize a party's property, such as its account books, to collect evidence for the other side, and an order doing so is without jurisdiction and void.

• Direct question: Discuss the scope and limits of the inherent powers of a civil court under s. 151 CPC. Quote the "in addition to ... complementary" passage, then the procedure/substantive-rights limit, and illustrate with the seizure of account books.
• Problem question: a court, on a defendant's application, orders a bailiff to take the plaintiff's ledgers into court custody to stop them being altered. Apply Padam Sen: no inherent power over a party's property; the remedy is to call for production, draw a presumption, and dispute any forged entries at trial.
• Link: in Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal (1962) the Supreme Court applied the Padam Sen principle to hold that the Code is not exhaustive and that s. 151 can support an injunction in cases not covered by Order XXXIX — read the two cases together.