Indian Civil Procedure Code

In this blog post, Abdul Kalam Azad, a student pursuing M.A. in Business Laws from NUJS, Kolkata, describes the 10 things every Indian should know about Indian Civil Procedure Code.

Indian Civil Procedure Code

The law can be broadly classified as –

  1. Substantive Law, and
  2. Procedural Law.

The Substantive Law, whether it is based on statute law or common law, defines what facts are constituting a fact or liability.[1] To say, in other words, the Substantive law defines various principles regarding the rights and liabilities. (Example: The Indian Penal Code, 1860 which describes various offenses punishable under Criminal acts).

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).

The Law regulating the procedure to be followed in civil court is governed by the Civil Procedure Code and this Civil Procedure Code is one of the most important branches of the procedural law.

As we all know, “Ignorance of law is not a defense” and every Indian should know the laws of this nation.

The following are 10 important things every Indian should know about Civil Procedure Code 1908.

  1. Civil Procedure Code: Historical Background

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.

  • These Courts in Mofussil areas and Presidency towns were governed by different systems of Civil procedure through various rules, regulations and special acts and those were changed on time to time basis on the basis of circumstances and needs.[3]
  • 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.

a)  Civil Procedure Court: Meaning and Object

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 Aim of the Procedural law is to implement the principles of Substantive law.[5] This Code ensures fair justice by enforcing the rights and liabilities.

b)  Extent and Application

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[6]

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.

This code is applicable in the scheduled areas of the erstwhile State of Madras (Lakshadweep), the East Godavari, West Godavari and Visakhapatnam agencies (Now in Andhra Pradesh State).

2. Civil Procedure Code: Scope

The Code is exhaustive on the matters directly dealt by it but it is comprehensive in other issues. The framers of the code could not foresee the possible circumstances which may arise in the future litigations and could not provide the procedure for such situations. Hence the framers of the code (legislature) provided inherent powers to the court to meet such circumstances (where the code could not provide a procedure) according to the principles of natural justice, equity and good conscience.

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]

3)  Civil Procedure Code: Scheme

The Code has two parts and they are –

  1. The Body of the Code
  2.  The Schedule

The Body of the Code has 12 parts containing 158 sections.[8] The Schedule is the second part containing orders and rules.

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 –
  • Pleadings (Plaint and Written Statement formats)
  • Process formats
  • Discovery, Inspection and Admission
  • Decrees
  • Execution
  • Supplemental Proceedings
  • Appeal, Reference and Reviews
  • Miscellaneous
  • 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.

4) Civil Procedure Code: Salient Features

It is a territorial law. It extends to whole of India except –

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

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 Amendments of 1999 and 2002 brought in many changes to the procedure to be followed.

5) Changes brought by Amendments of 1999 and 2002

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.

According to the amendment,

  • Summons should be delivered to the defendant within 30 days from the date of filing of the suit.
  • 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.
  •  In case of attachment while executing a decree, the monthly salary up to Rs.1000/- and two third of the remaining salary exceeding Rs.1000/- will not be attached.
  • 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.
  •  If the case is adjudicated by a single judge of a high court whether in the original or appellate jurisdiction, no appeal will be entertained against the order of the single judge of the high court.
  • 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.

6) Difference between Decree, Judgment and Order

When a Court adjudicates a dispute, after the hearing, it has to either pronounce its decision by way of a decree or dismiss the case. Such decision is called Decree. While arriving to such decision, the court will explain the grounds because of which the court came to such conclusion. Such grounds for the decision is called Judgment.

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.

There are no second appeal for the Appealable orders.

To constitute a decree, there should be an adjudication by a court in which the rights or liabilities of the parties have been determined conclusively. It should have been formally expressed by the Court.

7) Jurisdiction & Important Doctrines

Jurisdiction means the authority through which a court entertain suits, appeals and applications, and the court administer justice according to the provisions of the law.

Jurisdiction of the Civil Court may be categorized as follows –

  1. Territorial or Local Jurisdiction
  2. Pecuniary Jurisdiction
  3.  Jurisdiction over subject matter
  4. Original and Appellate Jurisdiction
  • Territorial or Local Jurisdiction: Every Court has a territorial limit beyond which it cannot exercise the power vested upon it. This limit based on the territory is called territorial jurisdiction. Example: The district judge at East Godavari District can exercise his powers only within the district of East Godavari. He cannot exercise his powers in any other district. In the same way, the High Courts will exercise the powers within the state in which it is situated and the neighboring Union Territories attached with the same High Court.
  • Pecuniary Jurisdiction:  Pecuniary means “involving money“. Civil Courts, according to their grades, have some limitation to try suits and entertain appeals for the value of money not exceeding some stipulated amount. The High Courts and the Court of Sessions have unlimited pecuniary jurisdiction. Junior Civil Judges have pecuniary jurisdiction of Rs.3,00,000 and Senior Civil Judges have pecuniary jurisdiction of Rs.10,00,000.
  • 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
  • Original and Appellate Jurisdiction:

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.

Important Principles:  There are some important principles related to jurisdiction of courts. These principles are there to improve the efficiency of the courts and to avoid any delay.

  •  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”.

According to Section 10 of the Civil Procedure Code, 1908, when a suit is pending before a competent court, between the same parties and under the same title then, no other court in India should entertain and try such suits.

This Section 10 of the Civil Procedure Code, 1908 is based on the principleRes Sub-Judice” and the object of this section is to prevent multiple instances of suits relating to the same issue between same parties. This prevents the courts from trying two parallel suits simultaneously. [13]

  •  Res Judicata:

Res‘ means “a matter“. ‘Judicata‘ means “already decided“. The expression ‘Res Judicata’ means “a matter already decided by a competent court“.

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.

This is based on the following principles:

  1.  A person should not be vexed twice for the same cause.
  2. There should be an end to a litigation, in the interest of the state.
  3. Every decision of the court must be accepted as correct and conclusive.

Sometimes Res Judicata is considered as a kind of Principle of Estoppel. Estoppel is related to evidence, and it stops a person from saying some other thing contrary to what he has said earlier. [14]

Additional Read: Exclusive Jurisdiction Clauses

8) Interlocutory Applications

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.

If a party files an interlocutory application, the opposite party will be given an opportunity to file the counter for the same. [15]

9) Special Suits

  •  Suits by Indigent Persons:

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:

In fact, “Inter-pleader Suits” is not defined in the Code of Civil Procedure, 1908. ‘Inter-plead’ generally means to litigate with each other to find a solution concerning a third party.

In “Inter-pleader” suits, the dispute is not between the plaintiff and defendants. In fact, the plaintiff in such suits has no interest in the subject matter of the dispute. The dispute is between the defendants and they inter-plead against each other. [16]

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.

In “Inter-pleader” suits, the plaintiff must be in lawful possession of a property belonging to some other person. The property may be movable or immovable, and the plaintiff must not have any interest in the property. There shall be two or more claimants for the property and the plaintiff must be ready to hand over the property to the right claimant based on the decision of the court.

10) Appeals & Other Important Provisions

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]

Revision: Section 115 of the Code of Civil Procedure, 1908 deals about Revision. The Higher Courts have revision jurisdiction and can call for the record of any case which is already decided. This power is given for the efficient exercise of supervisory jurisdiction of Higher Courts.

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.

The Code of Civil Procedure is one of the important branches of procedural laws and it is the one regulating the procedure to be followed by the Civil Courts in India. Although it may have some limitations, but it is still efficient, simple, clear and enables the courts to deliver impartial justice.

Also Read:

What are your views Indian Procedure code? Drop a comment & Share the post with your friends.

 

Works Cited – Bibliography

Sir Dinshaw Fardunji Mulla: The Code Of Civil Procedure (Abridged).

Sarkar’s: Civil Court Practice & Procedure Manual. Second edition, 2015.

Das J K: Code of Civil Procedure.

D.N. Mathur: Code of Civil Procedure. Third Edition, 2015

Y.P.Bhagat: The Code of Civil Procedure with Exhaustive Case Law. 2012

Ministry of Law & Justice: Law Commission of India – 163rd Report on Amendments on The Code of Civil Procedure (Amendment) Bill, 1997

 

References –

[1] Mulla – The Code Of Civil Procedure
[2] Mulla – The Code Of Civil Procedure
[3] Herbert Cowell – The History and Constitution of the Courts and Legislative Authorities in India
[4] K. Rai – History of Courts, Legislature & Legal Profession of India
[5] LexisGreen Civil Procedure: Law Books & Bare Acts on a Pen Drive
[6] LexisGreen Civil Procedure: Law Books & Bare Acts on a Pen Drive
[7] Sukumar Ray – Textbook On The Code Of Civil Procedure
[8] Bare Act – Code of Civil Procedure, 1908
[9] Bare Act – Code of Civil Procedure, 1908
[10] LexisGreen Civil Procedure: Law Books & Bare Acts on a Pen Drive
[11] Bare Act – Code of Civil Procedure, 1908
[12] Mulla – Code of Civil Procedure (Abridged)
[13] Sarkar’s – Code of Civil Procedure
[14] Dr V Nageswara Rao – The Indian Evidence Act
[15] V S R Avadhani – A Treatise on Interlocutory Applications
[16] The Law Times Reports – Volume 27 – Page 334
[17] M.P. Jain – The Code Of Civil Procedure-Incorporating The Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 As Applicable To Commercial Dispute

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