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On the contrary, the Procedural law or adjective law, on the other hand,
prescribes the procedure and machinery for the enforcement of those rights
and liabilities. To say, in other words, the procedural law is concerned with
enforcement of those rights and liabilities determined in accordance with the
rules of the substantive law.[2] (Example: The Code of Civil Procedure 1908,
The Code of Criminal Procedure, 1973 etc).
Till 1859, in India, there was no uniform codified law for the procedures to be
followed in Civil Courts. In those old days, under the British rule, there were
Crown Courts in Presidency towns and Provincial Courts in Mofussils.
For the first time in 1859, a uniform civil procedure Code was introduced by
passing the Civil Procedure Code (Act VII of 1859). But this code could not
serve the purpose as this code was not made applicable to the Supreme
Courts (Crown Courts under the Royal Charter) and the Sadar Diwani Adalats
(Principal Courts under the Judicial Plan by the Governor General).
In 1861, the Indian High Courts Act was passed and the Supreme Courts and
Sadar Diwani Adalats were abolished.[4] Then the High Courts were
established by replacing the Supreme Courts at Madras, Bombay and
Calcutta. Then the Civil Procedure Code 1859 made applicable to these newly
established High Courts.
The Code of 1859 was amended regularly from time to time and was replaced
by passing the Civil Procedure Code, 1877. This code of 1877 was amended
in 1878 and 1879 and the third civil procedure Code was enacted in 1882,
which replaced the previous code. The Code of Civil Procedure 1882 was also
amended several times and ultimately the present code of Civil Procedure,
1908 was passed overshadowing the defects of the Code of 1882.
The Law relating to the practices and procedure to be followed in the Civil
Courts is regulated by the Code of Civil Procedure, 1908. The
word CODE means ‘a systematic collection of statutes, body of laws so
arranged as to avoid inconsistency and overlapping‘.
The main object of this civil procedure code is to consolidate and amend the
laws relating to the procedure and practices followed in the Civil Courts in
India. As such, it was enshrined in 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 Civil
Procedure Code regulates every action in civil courts and the parties
before it till the execution of the degree and order.
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 –
There is also a provision that the concerned state governments may make
the provisions of this code applicable to the whole or part of the State of
Nagaland or such tribal areas by notification in the official gazette.
As this Code is a general procedural law, it does not contradict with the local
or special law in force. In the event of any conflict between the civil
procedure code and the special law, the special law will prevail over the
civil procedure code. In case the local or general law is silent on any
matter, then the provisions of the civil procedure code will prevail.[7]
The Body of the Code lays down general principles relating to Power of
the court, and in the case of the second part, that is, the
Schedule provides for the procedures, methods and manners in which
the jurisdiction of the court may be exercised.
In fact, there were five schedules when this code was enacted. Later the
Schedules II, III, IV and V were repealed by the subsequent amendments of
the code. The
The first schedule which is the only schedule to the code now has 51 orders.
Each order contains rules that vary in numbers from order to order. There are
eight appendices giving model formats (Forms), such as –
The various High Courts are empowered to alter or add any rules in
the schedules under Section 122 to 127, 129, 130 and 131 and such new
rules should not be inconsistent with the provisions of the body of the code.[9]
The Provisions of the Body of the code can be amended only by the
legislature and the Courts can not alter or amend the body of the code.
It also gives a provision that the concerned state government may extend
the provisions of the Civil Procedure Code by notifying in the Official
Gazette.[10] The code can be extended to the whole state or any part of the
state using this provision.
The Civil Procedure Code made the procedure to be followed in the Civil
Courts very simple and effective. Enforcement of rights, liabilities and
obligations of the citizens are dealt by this code. To say, in other words, the
Civil Procedure Code provides the mechanism for enforcement of rights and
liabilities.
The Civil Procedure Code is a general law and will not affect local or special
laws which are already in force. In case of any conflict with local or special
laws, the local or special law will prevail over the Civil Procedure Code. In
case, if the local or special law is silent about any particular issue, then the
Civil Procedure Code will apply.
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.
The main object of the amendments is to ensure fair and natural justice
and providing a speedy remedy by eliminating untoward delay in disposal of
the cases.
The written statement should be filed within 30 days. The court may extend
this period up to 90 days. [11]
The penalty for non-appearance and default has been increased to Rs.5000/-
In case of decree for payment, if the judgment debtor does not pay, he can
be detained in civil prison. If the default is for payment up to Rs.2000, he will
not be detained in civil prison.
The amendments paved the way to the new and efficient methods for
settlement of disputes, like Arbitration, Conciliation and Mediation. Lok Adalat
is a very good example for this.
There is a provision for the defendant to get compensation for the
expenses incurred, loss or injury including the loss of reputation caused to him
because of his arrest or attachment of his property.
After the amendments, if the value of subject matter of the suit is below
Rs.1000, such disputes cannot be appealed.
There is no second appeal if the subject matter of the suit is for the recovery
of money not exceeding Rs.25,000/-
The Court may adjourn the framing of issues for a period not exceeding
seven days while examining the witnesses or examining the documents
presented before the court.
Any party to the suit will not be given more than 3 adjournments during the
hearing of any suit.
The Court will pronounce the judgment once the trial is over. The Court shall
endeavor to pronounce judgment within 30 days from the conclusion of
hearing. But, in the case of exceptional or extraordinary circumstances,
the court may fix a day beyond 30 days but before 60 days from
the conclusion of the hearing.
An Order is also a decision of the court but which will not come under the
head ‘Decree’. [12]
1. An order will not determine the rights or liabilities of the parties.
2. Any number of orders can be passed in one suit.
3. The Order can be passed on a suit as well as on application.
4. There are –
Appealable orders.
Non-appealable orders.
Jurisdiction over the subject matter: There are civil courts established to try
suits or cases of particular nature. For example, the small cases courts can try
only non-contentious cases, like suits relating to promissory notes etc.
Similarly, there are Industrial tribunals and labor courts having jurisdiction to try
suits related to industrial and labor disputes only.
The Administrative tribunals are there to try only the service related matters of
the Government employees. These tribunals are not courts but they have been
conferred judicial powers to try the matters and enforce the orders
The Court in which the suit is filed initially and if the court has
jurisdiction to try the original suits (the initial suit regarding the
subject matter), such jurisdiction is called original jurisdiction.
Once the case is decided, the aggrieved party may prefer an appeal in
appropriate court. Such jurisdiction of the court to hear the appeal is
called the Appellate jurisdiction. The Supreme Court, High Court and
District Courts are having both original and appellate jurisdiction and can
hear both appeals and original suits.
Res Sub-judice:
‘Res‘ means “a matter“. ‘Sub-judice‘ means “pending judicial inquiry“.
The expression‘Res Sub-judice’ means “a matter which is pending
judicial enquiry”.
Res Judicata:
Section 11 of the Civil Procedure Code, 1908 deals with the Res
Judicata. According to Section 11, a court shall not try any issue in which
the parties and subject matter are same and already been decided by a
competent court.
The Civil Procedure Code provides for many interlocutory applications under
various sections and rules. Interlocutory applications are used in almost
every civil proceedings. It is usually considered as an integral part of the
suit.
Usually, from the time of institution, till the disposal of suits, any number of
interlocutory applications can be filed. These applications are essential to
the efficient and judicious disposal of suits. An Interlocutory application
can be filed by any party to the suit and is indicated by abbreviation
‘I.A.’ and consequently numbered.
9) Special Suits
When a suit is filed before a competent civil court, the party has to pay the
prescribed court fee. If the suit is filed without the prescribed court fee, the
suit is liable to be rejected.
In some cases, the plaintiff may not be able to pay the prescribed court fee
due to poverty, etc. In such circumstances, to help such persons to protect
their rights, the Civil Procedure Code, 1908 has provisions under Order
XXXIII to provide an exemption from the court fee. An Indigent person is
the one who is poor and cannot afford to pay the court fee. This kind
of suits are also called as “Pauper Suits”.
Inter-Pleader Suits:
For Example: ‘X’ is having lawful possession of a Gold Chain in which he has
no interest. ‘Y’ and ‘Z’ are independently claiming the Gold Chain. ‘Y’ is
claiming that he is the rightful owner of the Gold Chain and ‘Z’ claims the
same. In such circumstances ‘X’ sues ‘Y’ and ‘Z’ to find out the decision of
the court as to the ownership of the Gold Chain. In such suits, defendants ‘Y’
and ‘Z’ will adversely claim and litigate. Plaintiff ‘X’ will be silent and be the
spectator in such disputes. Hence the real dispute lies between the
defendants in the “Inter-pleader” suits.
When a suit is heard by the trial court, the trial court enquires the issue,
arrives at a conclusion and pronounces a decree either in favor of the plaintiff
or the defendant.
In such suits, the aggrieved party may prefer to appeal against the decision
of the trial court. The term ‘appeal‘ is not defined in Civil Procedure Code,
1908. An Appeal cannot be claimed as the inherent right and can be
preferred only where it is expressly provided by the statute. But any person
can bring in a suit of civil nature as it is an inherent right.
Reference: Section 113 and Order XLVI of the Code of Civil Procedure,
1908 deals with reference. Reference means referring a case to the higher
court to seek the opinion of the higher court when there is a doubt in
the question of law.
Review: Section 114 and Order XLVII of the Code of Civil Procedure, 1908
deals with the Review. According to this, a Court may reconsider a decision
given by the same court. But a court cannot review its decision Suo moto.
[17]
Conclusion
To enable the courts to deliver impartial and unbiased justice, the
Code of Civil Procedure, 1908 provides simple and clear procedures
to be followed by the Civil Courts. In case of no provisions relating to
some issue or matter, the court will not be able to decide efficiently.
Hence the Code of Civil Procedure, 1908 incorporated the provisions for
inherent powers. When there is no legislation, the court, in the interest of
justice may exercise the discretionary power by acting beyond the powers
conferred on them under the Code of Civil Procedure. It is called
the Inherent powers of the Court.
Also Read:
Works Cited –
Sir Dinshaw Fardunji Mulla: The Code Of Civil Procedure (Abridged).
Sarkar’s: Civil Court Practice & Procedure Manual. Second edition, 2015.
Y.P.Bhagat: The Code of Civil Procedure with Exhaustive Case Law. 2012
References –