Open Access Research Article
“Aim and historical development of Civil Procedural Law” (By-Sakshi Tripathi)
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Article Details
“Aim and historical development of Civil
Procedural Law”
BA.LLB. (Hons.)
Semester 5
Table Of Contents
Abstract
“The more
you study the civil procedure code, the more you realise what an admirable
piece of legislation it is.”
·
Chief Justice M.C. Chagla
We should not forget that procedural
law is to mean to be a servant not a tyrant law. It should not be an obstruction
in giving justice but to aid the justice. The procedural norms in law are very
important. Both the branches of law ie. Substantive and procedural are
complementary to each other and are interdependent. We all know that procedural
law has always been in existence from the very beginning of the judicial system
because it is impossible to perform any law without a procedure. But the point
is before 1859 we had not any codified procedural law in India. In 1859 we had
our first codified procedural law. In this paper I am going to talk about the
object and purpose for enacting the civil procedure code and also how the civil
procedural code has been evolved throughout the years and what are the
important amendments has been done till now.
Introduction
“Procedural
law provides machinery for enforcement of rights created by substantive law.
Procedural law is thus an adjunct or accessory to substantive law.”
The Code
of Civil Procedure of 1908 (CPC) is a colossal piece of legislation by any
criterion. However, out of all its distinguishing characteristics, its
structural framework—which is highly distinctive and not present in the
majority of legislation today—stands out. It governs all procedures and
practices which are followed in Indian civil courts. It talks about all actions
to be followed in all civil courts from filing a civil suit and till the decree
is carried out.
Before
1859 we don’t find any codified, well unified legislation which governs the
procedures to be followed in Indian civil courts. Crown Courts were located in
Presidency towns back when they were under British administration, and
Provincial Courts were located in Mofussil. In those times there were different
systems in different courts which were governed by different rules and regulations.
In 1908 we come up with a well unified code
after
repealing all the previous code. In this there is the distinctive structural
framework: Two heads summarize the entire CPC. The first heading is titled
"Sections," and it describes the statutory rules governing how
lawsuits can be brought and how they should be adjudicated. The "First
Schedule" is found in the second head and lists several "Rules"
that govern every part of a civil trial, from how to file a lawsuit to how to
handle the ultimate appeal against a ruling.
So, the
question arises that what were those major flaws in the CPC, 1859? Why did the
code get repealed many times? How this code has evolved till now with such a
unique framework? What was the purpose of making this code so structured and
unique? To get the answer of these critical questions we need to get back to
the colonial era to get an idea of the historical development of this code.
KEYWORDS
Procedural
law, substantive law, development, historical background, amendments, case study
etc.
What Is The Code Of Civil Procedure ?
According
to Black’s Law Dictionary a civil procedure is “A body of law concerned with
the methods, procedures and practices used in civil litigation.”
·
A code is a set of regulations that direct how a matter
proceeds in court, according to Section 2 (1) of the Code of Civil Procedure,
1908.
·
The Code of Civil Procedure, 1908, which is a
procedural law by definition, is acknowledged as a Code because it regulates
civil procedures in Indian territory.
·
While the orders and rules specify the process and
mechanism for managing civil cases in India, the sections of the Code of Civil
Procedure address general principles of jurisdiction.
The Aim Of Civil Procedural Law
The aim of
the Civil Procedure Code lies in the preamble of this code itself which says-
“An act to consolidate and amend the laws
relating to the procedure of the courts of civil judicature.”
Here
consolidate means that this code collects all the laws which deal with the
particular subject and assemble it in a very proper way so that I can form a
useful code.[1] The Code
of Civil Procedure is a codified set of rules for civil court procedures. The
Code consolidates and changes the statutes relating to the process of the
Courts of Civil Judicature, as stated in Prem Lala Nahata v. Chandi Prasad
Sikaria[2].
It undoubtedly also covers certain substantive rights. However, the
consolidation of the law governing civil procedure is its main goal. It is not
a punitive statute for punishments and penalties, nor is it something made to
mislead people; rather, it is created to promote justice and further its goals.
Therefore, it is important to avoid overly technical section constructions that
don't allow for any reasonable flexibility of interpretation, as long as both
parties are treated fairly.[3]
Therefore,
the code's provisions should be generously interpreted, and technical
challenges shouldn't be allowed to undermine the administration of substantive
justice.[4]
The court should refrain from taking a "hypertechnical view."[5]
The Code's provisions have developed over many years of experience stemming
from English common law.[6]
In the
case of Saiyad Mohd. Bakar El-Edroos v Abdulhabib Hasan Arab[7]
the H’ble Supreme Court stated 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.”[8]
Historical
Background
Following the Revolt of 1857, the British Crown declared India to be a
British colony in 1858 by Queen Victoria's Proclamation. This provided the
codification of laws a considerable boost, and civil procedure was the first to
get enacted. The Indian Penal Code, which is sometimes cited as the
pinnacle of legal achievement, was drafted in 1837 but didn't become a statute
until 1860.
There was no unified, codified legislation governing the civil court's
procedure in India before to 1859. The provincial courts in Mofussils and the
crown courts in presidential towns were controlled by various systems of civil
procedure in those days. These systems included specific rules, regulations,
and special acts that were occasionally applicable to them. These Courts in the
Mofussil areas and the Presidency towns were governed by numerous civil
procedure rules, regulations, and special acts, which were periodically altered
to meet the needs and conditions. A uniform and codified civil procedure
code was created for the first time in 1859 by passing the Civil Procedure
Code. (1859 Act VII). However, because the Supreme Courts (Crown Courts under
the Royal Charter) and the Sadar Diwani Adalats were not supposed to be covered
by this legislation, it was unable to serve its intended purpose (Principal
Courts under the Judicial Plan by the Governor General). However, this law was
unable to fulfil its primary objective because the Supreme Courts (Crown
Courts under the Royal Charter) and the Sadar Diwani Adalats were not intended
to be subject to it. The very first act which was of 1859 was divided into 12
chapters and has 388 sections. This code had a lot many lacunas so after
passing 18 years; a new code of 1877 was enacted after repealing the previous
one. In this decade a lot many important legislation were enacted for example
Indian Contract Act and Indian Evidence Act. The code of 1877 was very vast
which contained 652 sections as it was inspired by a lot of development that
took place in that time period.
The 1877 CPC was a very thorough and well-intentioned law, but it
existed for a very short time. The duration was roughly five years. The
British made a third attempt at establishing a comprehensive statute to address
the wide range of issues that a civil trial invariably brought up. Thus, the
1877 CPC was abolished and a new CPC was formed in 1882. The 1882 CPC was
another lengthy piece of law with nearly 650 sections.
If we compare CPC with other laws present in India, unfortunately it was
repealed three times in a very short period of 23 years because of its
shortcomings, which was not the case with other laws. After this a special
committee submitted a report along with a draft of new CPC on 31st
Aug, 1907, which published in the Gazette of India on 7th Sept,
1907.This new CPC became law in March 1908 and it came into the force on 1st
Jan, 1909.
Amendments Of 1951 And 1956
The existing Code of Civil Procedure was adopted in 1908. Two
significant Amendment Acts from 1951 and 1956 brought a lot of changes
in it. Although it had several flaws, this code generally functioned
properly. After carefully analysing the numerous recommendations made by the
Law Commission in its numerous reports, the government decided to introduce the
bill to alter the Code of Civil Procedure, 1908, bearing in mind, among other
things, the following factors:[9]
·
A litigant should get a
fair trial in accordance with the accepted principles of natural justice.
·
Every effort should be made
to expedite the disposal of civil suits and proceedings, so that justice may
not be delayed.
·
The procedure 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 the means to engage a
pleader to defend their cases.
There are some crucial changes
made in the CPC, 1908 by the amendment act of 1976 are as follows[10]:
·
The doctrine of res judicata
is being made more effective.
·
Power to transfer
proceedings from one High Court to another is given to the Supreme Court.
·
Freedom from attachment of
a portion of salary to all salaried employees is granted.
·
Provision of giving notice
under Section 80 before the institution of a suit against the Government or a
public officer is made less stringent.
·
Restrictions are imposed on
the right of appeal and revision.
·
Provisions are being made
to ensure that written statements and documents were filed without delay.
·
New Order 32-A has been
inserted to provide a special procedure in litigation concerning the affairs of
a family.
·
The practice to pass
preliminary and final decree in certain suits is abolished.
·
Scope of Summary Trials is
substantially widened.
Amendments Of 1999 And 2002
As we have seen that there was a lot of amendments in year 1976 in CPC
but these changes were not felt sufficient. So with a view to fasten the
disposal of civil cases and make it more effective, government appointed
Justice Malimath committee. For implementation of the recommendations of the
committee, the code was amended again in the year of 1999 and 2002 by the
amendments acts of 1999[11]
and 2002[12]
respectively.[13]
(i)
In several matters, such as
issuing of summons, filing of written statement, amendment of pleadings,
production of documents, examination of witnesses, pronouncement of judgments,
preparation of decree, etc., a time-limit is prescribed
(ii)
A new provision for
settlement of disputes outside the court has been introduced
(iii)
Number of adjournments have
been restricted
(iv)
A provision for recording
of evidence by the Court Commissioner has been made
(v)
Endless arguments are
sought to be shortened by (a) empowering the court to fix a time-limit for oral
arguments; and (b) by permitting written arguments to be placed on record by
the parties
(vi)
A provision is made for
filing of appeal in the court which passed the decree
(vii)
Instituting of appeal
against the judgment is allowed where the decree is not drawn up
(viii)
Scope of First Appeal,
Second Appeal, Letters Patent Appeal and Revision has been curtailed.
In the case of Salem Advocate Bar Assn. v. UOI,[14]
the Hon’ble Supreme Court held that all the amendments made in the civil
procedure code, 1908 in 1999 and 2002 are constitutional and intra vires. This case will be dealt in detail further in
this paper.
Scope And Scheme Of The Code
The Code covers every topic in detail that it is intended to cover.
Furthermore, it does not cover all of the topics that are not addressed there.
The legislature is unable to anticipate every case that might occur in a future
case and, as a result, cannot provide a procedure for them.[15]
The court has an inherent power to resolve those issues in a way that
upholds justice, equity, and good conscience.[16] The
code cleary states 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”.[17]
The Code is composed of two segments: One is the body of the Code,
which contains 158 sections, and the second part contain the (First)
Schedule, which contains Orders, Rules, and Forms. The (First) Schedule relates
to the procedure and the method, manner, and mode in which the jurisdiction may
be exercised, while the sections deal with provisions of a substantive nature,
laying down the general principles of jurisdiction Sections that constitute the
Code's main body are fundamental and can only be amended by the
legislature. On the other hand, High Courts have the authority to change the
(First) Schedule of the Code, which contains Orders and Rules.[18]
The amendments made by High Courts to the rules contained in the (First)
Schedule also become part of the Code for all purposes “as if it
were enacted in the Code,” it is abundantly clear when considering the
overall structure of the Code. The sections and the rules must therefore be
read together and cohesively construed, but the sections will hold
precedence if
the rules are in conflict with them.[19]
Conclusion
After going through the historical development of this code, now we got
to know that what was the need for repealing the code for so much times and
coming with this unique framework. The code of 1908 provides sections, orders
and rules which are meant to be followed by the civil courts in India for fair
and speedy trial of the courts without taking away anyone’s right. It is very
much possible that at that time makers of the code could not provide procedure
for unforeseeable future circumstances which may arise; it has given high
courts a special power which is called inherent powers of the court to act
according to the principles of justice, equity and good conscience. Substantive
law are very important for keeping harmony but we cannot underestimate the importance
and value of the procedural laws. The objective of this law is to facilitate
justice and further it ends. Procedures for enforcing rights and obligations
are set forth by procedural laws. The effectiveness of procedural legislation
greatly influences the effectiveness of substantive laws. Unless the process is
easy, quick, and affordable, substantive laws—no matter how good—are doomed to
fall short of their intended purpose and end aim. So this is how the Civil
Procedural law has been structured in a quite unique way with a scheme which is
still not found in most laws. By the time whenever the need for amendments have
been felt, the lawmakers amended the code keeping in mind the speedy trial and
rights of the both parties. Although it could have certain drawbacks, it is
nonetheless effective, straightforward, and understandable and enables the
courts to administer fair justice.
References
·
Takwani,
C. K. Civil Procedure Code. 1987, https://doi.org/10.1604/9780897717724.
·
Sarkar,
S. Civil Procedure Code. 1989, https://doi.org/10.1604/9780785561330.
·
Bare
Act, Code of Civil Procedure, 1908
·
“Historical Background And Scheme Of Civil
Procedure Code 1908.” Historical Background and Scheme of Civil Procedure
Code 1908, legalserviceindia.com/legal/article-7118-historical-background-and-scheme-of-civil-procedure-code-1908.html.
Accessed 16 Sept. 2022.
·
“10 Things to Know About Indian Civil Procedure
Code.” iPleaders, 22 Jan. 2017,
blog.ipleaders.in/indian-civil-procedure-code.
·
“Civil Procedure Code Amendment Act 2002 - Key
HIghlights.” iPleaders, 11 Aug. 2018,
blog.ipleaders.in/civil-procedure-code-amendment-act-2002.
·
pujari, mimansa. “CPC - Code of Civil Procedure
1908.” Legodesk, 7 Feb. 2019,
legodesk.com/legopedia/code-of-civil-procedure-1908.
·
Nagvanshi, Animesh. “Historical Evolution of Civil
Procedure in India | Law Column.” Law Column, 9 Sept. 2022,
www.lawcolumn.in/historical-evolution-of-civil-procedure-in-india.
·
Alva, Rohan. “The Novel Scheme of the 1908 CPC.” The
Novel Scheme of the 1908 CPC, 27 Sept. 2021,
www.barandbench.com/columns/the-novel-scheme-of-the-1908-cpc.
·
India, legal Service. “Salem Advocates Bar
Association v. Union of India.” Salem Advocates Bar Association v. Union of
India, www.legalserviceindia.com/article/l423-Salem-Advocates-Bar-Association-v.-Union-of-India.html.
Accessed 16 Sept. 2022.
Article Information
“Aim and historical development of Civil Procedural Law” (By-Sakshi Tripathi)
Authors: Sakshi Tripathi
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/22
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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