Introduction to Civil Procedure Code

By | June 20, 2018
ILNU

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Civil Procedure Code neither creates nor takes away any right. It is intended to regulate the procedures followed by the civil court.

INTRODUCTION

Laws can be divided into two groups –

  1. Substantive law
  2. Adjective or Procedural Law

The substantive law determines rights and liabilities of parties and adjective or procedural law prescribes the practice, for the enforcement of those rights and liabilities. The efficiency of substantive laws depends upon the quality of procedural laws. Thus, procedural laws are an accessory to substantial laws. These two are complementary to each other and they are interdependent. Procedural laws give life to substantial laws by providing the remedy and by implementing the maxim ubi jus ibi remedium. Some examples of the procedural law are the Civil Procedure Code, Code of Criminal Procedure, and Indian Evidence Act. Indian Penal Code, Indian Contract Act, the Transfer of Property Act are examples of substantive law.

The Code of Civil Procedure neither creates nor takes away any right. It is intended to regulate the procedures followed by the civil court.

HISTORY OF THE CODE

Before 1859, there was no uniform civil procedure applicable for the entire country. Sir Charles Wood was responsible, then President of the Board for the affairs of India instructed the Second Law Commission to prepare a simple code for applicability in all Indian courts. Although it was not applicable in Presidency Supreme Courts and Presidency Small Cause Courts. This code had several issues and was amended and reacted in 1877. Another amendment was made in 1892. There existed a conflict of judicial opinion and interpretation of certain procedures of the Code. In 1908, with the assent of the Governor-General, The Code of Civil Procedure of 1908 was implemented. The Civil Procedure Code has been amended several times to meet the needs and requirements which are dynamic and changing from time to time. Between 1909 to 1976, the Code has been amended for more than 30 times.

Two important amendments were made in 1951 and 1956. Despite there being some defects in it, the Code was enforced satisfactorily. The Law Commission submitted several reports with the requirement of what changes should be made while keeping in mind the following necessities –

  1. The procedure must not be complex and must allow a fair deal to economically weaker sections of the society.
  2. A litigant must get a fair trial in accordance with the accepted principles of natural justice.

In 2002, several considerable changes were made to the CPC of which some of the changes are listed below –

  1. Number of adjournments to be restricted
  2. Provision for outside of court settlement to be introduced
  3. Provision for recording evidence by Court commissioner has been made
  4. A provision is made for the filing of an appeal in the court where the decree has been passed.

CONSOLIDATION AND CODIFICATION

The Preamble of the code that it was enacted to consolidate and amend the laws relating to the procedure to be followed in the civil courts having civil jurisdiction in India. The main reason why some parts of law are codified is that the law should be ascertained from the language used in the enactment and not from the preceding act. In Prem Lal Nahata v. Chandi Prasad Sikaria, the court consolidates and amends laws relating to Courts of Civil Judicature. It Also deals with substantive rights but mainly aims to consolidate the law relating to civil courts and procedures.

EXTENT AND APPLICABILITY

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Code is applicable to the whole country except –

  1. The State of Jammu and Kashmir
  2. The state of Nagaland and the tribal areas

Through the amendment of 1976, the provision has also been extended to scheduled areas.

OBJECT AND SCOPE

The main object of this civil procedure code is to consolidate and amend the laws relating to the procedures of Court of Civil Judicature. It collects all the laws that should be adopted by the civil courts. The main aim of the CPC is to facilitate justice and seek an end to the litigation rather than provide any form of punishments and penalties. The procedural law is always subservient to and is in aid to justice. 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 be the procedural law what is given by the substantive law, was stated in Saiyad Mohammad Bakar v. Abdul Habib Hasan Arab [(1998) 4 SCC 43]

The Code is exhaustive on the matters directly dealt by it but does not expand much upon the points that it does not specifically deal with. The writers of the code could not foresee the possible circumstances which may arise in the future litigations and could not as a result, provide the procedure for such scenarios. Hence, inherent powers were awarded to the court to meet such circumstances according to the principles of natural justice, equity and good conscience.

RETROSPECTIVE OPERATION

The principle of interpretation of statutes that procedural laws are well-settled are always retrospective in operation unless there are good reasons to the contrary. Their provisions will already apply to the proceedings commenced at the time of enactment. This is so because no can have a vested right in forms of procedure. The CPC is not retrospective in operation

CODE AT A GLANCE

The Body of the Code has 12 parts containing 158 sections. Sections 1-8 are preliminary as Section 1 deals with the extent of applicability and Section 2 deals with definitions. Sections 3-8 talk about the constitution of different courts and their jurisdictions.

Part I which includes Sections 9 to 35-B and Orders 1 to 20 of the (First) Schedule deal with suits. Section 9 enacts that a civil court has jurisdiction to try all suits of a civil nature unless they are barred expressly or impliedly. Whereas Section 10 provides for stay of suit. Section 11 deals with the well-known doctrine of res judicata. Sections 13 and 14 relate to foreign judgments. Sections 15 to 21-A regulate the place of suing. They lay down rules as to jurisdiction of courts and objections as to jurisdiction. Sections 22 to 25 make provisions for transfer and withdrawal of suits, appeals and other proceedings from one court to another.

Orders 1 to 4 deal with institution and frame of suits, parties to suit and recognised agents and pleaders. Order 5 contains provisions as to issue and service of summons. Order 6 deals with pleadings. Orders 7 and 8 relate to plaints, written statements, set-offs and counter-claims. Order 9 requires parties to the suit to appear before the court and enumerates consequences of non-appearance. It also provides the remedy for setting aside an order of dismissal of the suit of a plaintiff and of setting aside an ex parte decree against a defendant. Order 10 enjoins the court to examine parties with a view to ascertaining matters in controversy in the suit. Orders 11 to 13 deal with discovery, inspection and production of documents and also admissions by parties.

Order 14 requires the court to frame issues and Order 15 enables the court to pronounce judgment at the “first hearing” in certain cases. Orders 16 to 18 contain provisions for summoning, attendance and examination of witnesses, and adjournments. Order 19 empowers the court to make an order or to prove facts on the basis of an affidavit of a party.

Sections 75 to 78 (Part III) and Order 26 make provisions as to issue of Commissions. Sections 94 and 95 (Part VI) and Order 38 provides for arrest of a defendant and attachment before judgment. Order 39 lays down the procedure for issuing temporary injunction and pass-ing interlocutory orders. Order 40 deals with appointment of receivers.

Order 25 provides for security for costs. Order 23 deals with withdrawal and compromise of suits. Order 22 declares effect of death, marriage or insolvency of a party to the suit. Section 33 and Order 20 deal with judgments and decrees. Section 34 makes provisions for interest. Sections 35, 35-A, 35-B and Order 20-A deal with costs.

Parts IV and V (Sections 79-93) and Orders 27 to 37 lay down procedure for suits in special cases, such as, suits by or against Government or public officers (Section 79 to 82 and Order 27); suits by or against aliens, foreign rulers, ambassadors and envoys (Sections 83 to 87-4 suits by or against soldiers, sailors and airmen (Order 28); suits by or against corporations (Order 29); suits by or against partnership firms (Order 30); suits by or against trustees, executors and administrators (Order 31); suits by or against minors, lunatics and persons of unsound mind (Order 32); suits relating to family matters (Order 32-A); suits by indigent persons (paupers) (Order. 33); suits relating to mortgages (Order 34); interpleader suits (Section 88 and Order 35); friendly suits (Section 90 and Order 36); summary suits (Order 37); suits relating to public nuisances (Section 91) and suits relating to public trusts (Section 92). Section 89 as inserted from 1 July 2002 provides for settlement of disputes outside the court through arbitration, conciliation, mediation and Lok Adalats.

Parts VII and VIII (Sections 96 to 115) and Orders 41 to 47 contain detailed provisions for Appeals, Reference, Review and Revision. Sections 96 to 99-A and Order 41 deal with First Appeals. Sections 100 to 103 and Order 42 discuss law relating to Second Appeals. Sections 104 to 108 and Order 43 contain provisions as to Appeals from Orders. Sections 109, 112 and Order 45 provide for Appeals to the Supreme Court. Order 44 enacts special law concerning Appeals by indigent persons (paupers). Section 113 and Order 46 pertain to References to be made to a High Court by a subordinate court when a question of constitutional validity of an Act arises. Section 114 and Order 47 permit review of judgments in certain circumstances. Section 115 confers revisional jurisdiction on High Courts over subordinate courts.

Part II (Sections 36 to 74) and Order 21 cover execution proceedings. The principles governing execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 (procedural law). Order 21 is the longest Order covering 106 Rules.

Part X (Sections 121 to 131) enables High Courts to frame rules regulating their own procedure and the procedure of civil courts subject to their superintendence.

Part XI (Sections 132 to 158) relates to miscellaneous proceedings. Explanation to Section 141 as added by the Amendment Act of 1976 clarifies that the expression “Proceedings” would not include proceedings under Article 226 of the Constitution. Section 144 embodies the doctrine of restitution and deals with the power of the court to grant relief of restitution in case a decree is set aside or modified by a superior court.

Section 148-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 is an important provision which permits a person to lodge a caveat in a suit or proceeding instituted or about to be instituted against him. It is the duty of the court to issue notice and afford an opportunity of hearing to a caveator to appear and oppose interim relief sought by an applicant.

Sections 148 to 153-A confer inherent powers in every civil court. Section 148 enables a court to enlarge time fixed or granted by it for doing any act. Section 149 authorises a court to permit a party to make up the deficiency of court fees on plaint, memorandum of appeal, etc. Section 151 is a salutary provision. it saves inherent powers in every court to secure the ends of justice and also to prevent the abuse of process of the court. Sections 152 to 153-A empower a court to amend judgments, decrees, orders and other records arising from accidental slip or omission. Section 153-B was added by the Amendment Act of 1976 and it expressly declares that the place of trial shall be open to the public. The proviso, however, empowers the Presiding Judge, if he thinks fit, to order that the general public or any particular person shall not have access to the court.

By – Nirupama V Shankar

(The Tamilnadu Dr. Ambedkar Law University)

REFERENCES

  1. Malik, Shailender., The Code of Civil Procedure, 2014
  2. Takwani, C.K., Civil Procedure, 2009

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