Introduction to Civil Procedure Code – 1908

Basics Of Civil Procedure Code:

  • The Civil Procedure Code was passed in 1908 and which was came into force from 1st January 1909.
  • C.P.C. is in force since 1908. At the time of passing of this act,our constitution was not in existence that’s why C.P.C. is a pre-Constitutional law.
  • C.P.C. and any other laws which has been in existence before the commencement of the constitution, they derives its validity from article 372 of the Indian constitution.
  • In Article 372 of Indian constitution is clearly mention that all pre-constitutional law will continue remain in force unless and until it altered or repealed or amended by a competent Legislature or by any competent authority. 

Division of Civil Procedure Code

Civil Procedure Code is Divided into two parts –

(1)    Sections

(2)   Orders and Rules mentioned in first schedule.

Sections

  • There are total 158 sections under Civil Procedure Code
  • Sections are the main provisions but these are not elaborated, so details of those are given in various rules.

Orders

  • There are total 51 Orders in Civil Procedure Code.
  • The order are the compilation of various rules.
  • The rules are the elaboration of the proceedings.
  • Rules converted into various chapter and these chapters are called orders.

 

  • Sections under C.P.C. can be amended by the Parliament and by the State Legislatures but State Legislature can amend only as per the provisions of Article 254 of Indian constitution.
  • Rules can be amended by the Parliament, State Legislature and even by the High courts.
  • C.P.C. comes under Entry Number 13, List 3 , of 7th Schedule of the Indian ConstitutionList 3 is a Concurrent list, in which Parliament and State Legislature can make law to that topic which is mention in this list.

Types of Laws

Law can be Divided into two Groups:

  (1)  Substantive law.

  (2 ) Procedural or adjective law.

 

  • Substantive law determines rights and liabilities of parties while Procedural or Adjective law prescribes the practice, procedure and machinery for the enforcement of those rights and liabilities.
  • Civil Procedure Code is a Procedural /Adjective Law. It neither creates nor takes away any right. Its motive is to regulate the procedure to be followed by the civil court.
  • Procedure is considered to be a hand made of Justice and therefore, procedural law cannot be applied without the principal of natural justice.
  • The principles of equity and justice are the parts of the basic structure of the constitution and therefore they have to be found, to be implicit in the C.P.C. and any other law as well.

  History of the Code

  • Before 1859 there was uniform code of Civil Procedure, the first uniform Code of Civil Procedure was enacted in 1859.
  •  Prior to 1859, there was different systems of Civil Procedure in different parts of the country.
  • Though, the Act of 1859 was not made applicable to the Supreme Court and the presidency towns and to the presidency small cause court were made some amendments  in the Code and the code was applied to the whole of British India but there were many defects in it and therefore a new code was enacted in 1977.
  • Therefore another code was enacted in 1882 which was also amended from time to time.
  • In 1908, the present code of civil procedure was enacted. It was amended by two important amendment acts of 1951 and 1956, the following amendment were made in it:

  1. A litigant should get a fair trial in accordance with the accepted principles of natural justice.

  2.  Every effort should be made to expedite disposal of civil suits and proceedings, so that justice may not be delayed.

  3.  The procedure adopted should not be complicated, and should, to the utmost extent possible, ensure a fair deal to the poorer sections of the community who do not have means to engage a pleader to defend their cases.

 Later there was again Some  important changes made under C.P.C. by the Amendment Act, 1976 which are as under-

  1.   The doctrine of Res – Judicata is being made more effective.
  2.   Power to transfer proceedings from one High Court to another High court is given to the Supreme Court.
  3.  Freedom has been granted from attachment of a portion of salary to all salaried employees.
  4.  Provisions of giving notice under section 80 before the institution of a Suit against the Government or a  public officer is made less stringent.
  5.  Restrictions are imposed on the right of appeal and revision.
  6.  Provisions are made to ensure that written statements and documents were filed without delay.
  7.  New order 32(A) which has been inserted to provide a special procedure in litigation concerning the affairs of a family.
  8.  Scope of Summary Trial is substantially widened.
  9.  Important changes have been made to provide relief to poorer sections of the community.

 

 The amendments made in 1976 were not found sufficient and then for disposal of the Civil Cases expeditiously, Justice Malimath Committee was appointed by the Government, and then on the recommendations of the committee, the code was amended by the amendment act of 1999 and 2002 which came into force 1st July 2002, the amendments are as under-

  1.  A new provision for settlement of disputes outside the court has been introduced.
  2.  Number of adjournments have been restricted.
  3.  A provision for recording of evidence by the Court Commissioner has been made.
  4. In several matters, such as issuing of summons, filing of written statements, amendment of pleadings, production of documents, examination of witnesses, pronouncement of judgement, preparation of decree, etc. a time limit is prescribed.
  5.  A provision is made for filing of appeal in the court which passed the decree.
  6.  Instituting of appeal against the judgement is allowed where the decree is not drawn up.
  7. Scope of first appeal, second appeal, Letters Patent Appeal and revision petitions has been curtailed.

Consolidation and Codification

The Preamble of the code states that the object of the Code is to consolidate and amend the laws relating to the procedure of courts of Civil Judicature.

The code in designed to facilitate, justice and further its ends and is not a penal enactment for punishments and penalties, not a thing designed to trip up people.

 Case:

Prem Lala Nahata VS. Chandi Prasad Sikaria 2007, S.C

The Hon’ble Supreme Court observed that the code consolidated and amends the laws relating to the procedure of the courts of civil judicature, it also deals with certain substantive rights, but its essential object is to consolidate the law relating to Civil Procedure.

Objects of the Code

  • The Object of the code is to consolidate and amend the laws relating to the procedure of courts of Civil Jurisdiction.
  • It is a consolidated code collecting all the laws relating to the procedure to be adopted by all civil courts.
  • It is designed to facilitate justice and further its ends.

Case:

 Saiyad Mohd. Bakar VS. Abdulhabib Hasan, (1998)S.C

The Hon’ble Supreme Court held that “A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law.

Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law”.

Extent and Applicability

  • The Code extends to the whole of India.
  •  From 31 October 2019, it extends to the State of Jammu and Kashmir also.
  • It also extend to the Amindivi Islands and the East Godavari and Vishakhapatnam Agencies in the State of Andhra Pradesh and the Union Territory of Lakshadweep.
  • By the amendment Act 1976,  the application of the provisions of the code have been extended to Schedule Areas also.
  •  It does not extend to the State of Nagaland and the tribal areas.

Provided, the concerned State Government of Nagaland, may by notification in the official Gazette, extends the provisions of this Code to the whole or any part of the State of Nagaland or such tribal areas, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Scope of CPC

  • The Code of Civil Procedure is not Exhaustive and the court has inherent power to act according to the principles of justice, equity and good conscience.
  • All the civil courts has inherent power to make any such order which is necessary for the ends of justice or prevent abuse of the process of the court.
  •  The inherent power which is given to all Civil Courts are mentioned under Section 151 of Civil Procedure Code.

 Interpretation of CPC

  • The Civil Procedure Code, is the procedural or adjective law, the functions of this law is to facilitate justice and further its ends.
  • This law brings out the proper harmony in the conflict of interest between the parties.
  • The procedural law are based on the principles, so that as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities.
  • The purpose of C.P.C. is to make/create a Complementarity with the substantive laws and to make the maxim Ubi Jus Ibi Remedium (means where there is a right there must be a remedy) Effective.

 Case :

Ghanshyam Dass VS. Dominion of India AIR (1984) S.C

The Supreme Court held that “The provision of the Code of Civil Procedure, therefore, must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it”.

Is Civil Procedure Applies Retrospectively ?

  • The code of Civil Procedure 1908, is not retrospective in operation.
  • Retrospective implies, the law which is enacted today but applies to all the pending cases also.

 

Also Read:

Decree

Deemed Decree

 

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