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INTRODUCTION OF CODE OF CIVIL PROCEDURE
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INTRODUCTION OF CODE OF CIVIL PROCEDURE
Laws can be divided into two groups:
1. Substantive law, and
2. Adjective or procedural law.
Whereas substantive law determines rights and liabilities of parties, adjective or procedural law prescribes the practice, procedure and machinery for the enforcement of those rights and liabilities.
Procedural law is thus an adjunct or an accessory to substantive law.
The two branches are complementary to each other and interdependent.
It is procedural law which puts life into substantive law by providing a remedy and implements the well-known maxim ubi jus ibi remedium.
INSTANCES OF SUBSTANTIVE LAW
Following are the instances of substantive law.
The Indian Contract Act,
The Transfer of Property Act,
The Industrial Disputes Act,
The Indian Penal Code.
INSTANCES OF PROCEDURAL LAW.
Following are the instances of procedural law.
Indian Evidence Act,
Limitation Act,
Code of Civil Procedure,
Code of Criminal Procedure.
The Code of Civil Procedure is an adjective law.
It neither creates nor takes away any right.
It is intended to regulate the procedure to be followed by civil courts.
HISTORY
Before 1859 There was no uniform Code of Civil Procedure. There were different systems of civil procedure in different parts of the country.
The first uniform Code of Civil Procedure was enacted in 1859. But that Code was also not made applicable to the Supreme Courts in the Presidency Towns and to the Presidency Small Cause Courts.
New Code in 1877 Some amendments were made therein 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 1877.
New Code in 1882 Another Code was enacted in 1882, which was also amended from time to time.
Year 1908, The present Code of Civil Procedure was enacted in 1908.
Amendments of 1951 and 1956 Code of Civil Procedure 1908 was amended by two important Amendment Acts of 1951 and 1956. On the whole, this Code worked satisfactorily, though there were some defects in it.
Amendments of 1976 The Law Commission in its various reports made many recommendations, and after carefully considering them, the Code of Civil Procedure, 1908, was again amended in 1976. The amendments made in 1976 were not found sufficient.
Amendments of 1999 and 2002 With a view to dispose of civil cases expeditiously Justice Malimath Committee was appointed by the Government. In pursuance of recommendations of the Committee, the Code was amended by the Amendment Acts of 1999 [Act 46 of 1999.] and 2002. [Act 22 of 2002.]
Civil Procedure Code (Amendment) Act 2015
Repealing amendment Act 2017
Civil Procedure Code (Amendment) Act 2018
The Jammu And Kashmir Reorganisation Act, 2019
OBJECTIVE OF THE CODE - PREAMBLE OF THE CODE
Whereas it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows: -
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. To consolidate means to collect all the laws relating to a particular subject and to bring it down to date in order that it may form a useful Code applicable to the circumstances existing at the time when the consolidating Act is enacted.
The Code of Civil Procedure is a consolidated Code as to procedure to be followed by civil courts.
PREM LALA NAHATA V. CHANDI PRASAD SIKARIA, [AIR 2007 SC1247.]
The Code consolidates and amends the laws relating to the procedure of the Courts of Civil Judicature. No doubt it also deals with certain substantive rights. But its essential object is to consolidate the law relating to civil procedure.
SCHEME OF THE CODE: -
The Code can be divided into two parts:
1. The body of the Code containing 158 sections; and
2. The (First) Schedule, containing 51 Orders and rules.
The sections deal with provisions of a substantive nature, laying down the general principles of jurisdiction. The (First) Schedule relates to the procedure and the method, manner and mode in which the jurisdiction may be exercised.
AMENDMENT OF THE CODE AND SCHEDULE
The body of the Code containing sections is fundamental and cannot be amended except by the legislature. The (First) Schedule of the Code, containing Orders and Rules, can be amended by High Courts.
The amendments made by High Courts in the Rules contained in the (First) Schedule also become part of the Code for all purpose “as if enacted in the Code”. The sections and the rules, therefore, must be read together and harmoniously construed but if the rules are inconsistent with the sections, the latter will prevail.
WHETHER THE CODE IS EXHAUSTIVE
The Code is exhaustive on matters specifically dealt with by it. For example, definition of decree shall as given in CPC shall be taken as given in herein, its exhaustive in that sense.
However, it is not exhaustive on the points not specifically dealt with therein. With regard to those matters, the court has inherent power to act according to the principles of justice, equity and good conscience.
The Code specifically provides that, "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court." [S. 151.]
DOES THE CPC HAS RETROSPECTIVE OPERATION?
NANI GOPAL MITRA V. BIHAR
It is a well-settled principle of interpretation of statutes that procedural laws are always retrospective in operation unless there are good reasons to the contrary.
ANANT GOPAL V. STATE OF BOMBAY.
MOHANLAL JAIN V. SAWAI MAN SINGHJI, AIR 1962 SC 73:
Provisions of procedural laws will apply to proceedings already commenced at the time of their enactment. The reason is that no one can have a vested right in forms of procedure.
CASE LAWS ON THE INTERPRETATION OF CPC / PROCEDURAL LAWS
1. The object of the Code is to consolidate and amend the laws relating to the procedure of Courts of Civil Judicature. It is a consolidated Code collecting all the laws relating to the procedure to be adopted by civil courts.It is 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. Too technical a construction of sections which leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided that justice is done to both the sides. (Sangram Singh v. Election Tribunal, AIR 1955 SC 425 at p. 429:)
2. "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."(Saiyad Mohd. Bakar v. Abdulhabib Hasan, (1998) 4 SCC 343 at p. 349)
3. A "hyper technical view" should be avoided by the court.A "hyper technical view" should not be adopted by the court in interpreting procedural laws. (Ganesh Trading Co. v. Moji Ram (1978) 2 SCC 91 at p. 96: N.T. Veluswami v. G. Raja Nainar, AIR 1959 SC 422 at p. 426)
4. The provisions of the Code, therefore, should be construed liberally and technical objections should not be allowed to defeat substantial justice. (Hukum Chand v. Kamalanand Singh, ILR (1906) 33 Cal 927.])
5. The rules of procedure are intended to be a handmaid to the administration of justice and they must, therefore, be construed liberally and in such manner as to render the enforcement of substantive rights effective. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. (Jai jai Ram Manohar v. National Building Material Supply, (1969) 1 SCC 869 at p. 871:)
6. “Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it.” ( Raj Narain v. Indira Nehru Gandhi, AIR 1972 SC 1302 at p. 1307.)
7. Our laws of procedure are based on the principle that, as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities. The provisions 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. (Ghanshyam Dass v. Dominion of India, (AIR 1984 SC 1004 at p. 1010.])
8. The principle underlying interpretation of procedural laws has been succinctly laid down by the Supreme Court in this case. Krishna lyer, J. observed: “We must always remember that procedual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where non-compliance, though procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end product of technicalities.” ( State of Punjab v. Shamlal Murari [ AIR 1976 SC 1177.], wherein, speaking for the Court,)
9. The Code is exhaustive on matters specifically dealt with by it. However, it is not exhaustive on the points not specifically dealt with therein. The legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently providing procedure for them. (Manohar Lal v. Seth Hiralal, Padam Sen v. State of U.P.)