INTRODUCTION TO CPC

(No. 1)
th
4 August 2020

Ignorantia juris non excusat (= ignorance of the law excuses not)

CPC: 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/Supreme Courts in Presidency towns and Provincial Courts in Mofussils.

 The courts, in Mofussil areas and Presidency towns were governed by

different systems of Civil Procedure, through different rules, regulations
and special acts and these were changed from time to time, on the basis
of circumstances and needs.

 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, Presidency Small Cause Courts.

 In 1861, the Indian High Courts Act was passed. Supreme Courts and
Sadar Diwani Adalats were abolished. High Courts were established by
replacing the Supreme Courts at Madras, Bombay and Calcutta. Civil
Procedure Code, 1859 was made applicable to these newly established
High Courts.

 CPC was amended to remove defects and replaced from time to time.
CPC 1859; CPC 1877; CPC 1882; and the extant CPC 1908.

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Law can be broadly classified as -

1. Substantive Law
2. Procedural Law

Substantive Law is based on statute law or common law. It defines what facts
constitute a right or liability & defines various principles regarding rights and
liabilities. Procedural
law or adjective law prescribes the procedure and machinery for the enforcement
of rights and liabilities as defined by the Substantive Law. Aim of Procedural law is
to implement the principles of Substantive law. CPC ensures fair justice by
enforcing the rights and liabilities.

As it is evident from its name, CPC is a procedural law. It relates to the

administration of civil proceedings in India and lays down the procedure to be
adopted in civil courts. It consolidates and amends the laws relating to procedure
to be followed in Courts of Civil Judicature. The principles laid down in CPC are
applicable in other courts, like writ courts and Tribunals to the extent the enactments
establishing the Tribunals provide for it.

The provisions of CPC are generally procedural in nature. Despite being a

Procedural Code, some of the provisions of CPC are substantive in nature and not
procedural at all. For example Sections 96, 100, 114 and 115 providing for a right
of Appeal, Review and Revision are substantive in nature.

CPC: Meaning

Law relating to practices and procedure to be followed in Courts of Civil Judicature

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’. A Code takes laws from
different statutes and assimilates them together. Eg. CPC, CrPC.

NOTE: An Act is an enactment of the legislature of a country.

A Section is a provision of an Act/Code/Statute and can be both substantive &

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procedural.
An Article is a provision in a Constitution which is fundamentally important to a
country & which has an impact on other statutes.

CPC: Object

It is enshrined in preamble of CPC that CPC was enacted to consolidate and amend
the laws relating to procedures and practices to be followed in Courts of Civil
Judicature. CPC regulates every action of courts and parties before it, till the
execution of Degree and Order.

CPC: Purpose

To is to provide a litigant a fair trial in accordance with the accepted principles of

Natural Justice. CPC provides for a fair procedure for redressal of disputes. CPC
prescribes the procedure which both parties shall follow to prove their respective
cases. The other party may know what the dispute is about and what defense it can
take.

CPC: Scope

CPC is exhaustive on the matters directly dealt by it but it is comprehensive in other

issues. The framers of CPC could not foresee the possible circumstances which may
arise in the future litigations and could not provide the procedure for such unforeseen
situations. Hence, the framers of CPC provided INHERENT POWERS (Section
151) to the court, according to the principles of Natural Justice, Equity & Good
Conscience, to meet such unforeseen circumstances,

As CPC is a general procedural law, it does not contradict with the local law or
special law in force. In the event of any conflict between CPC and the special law,
the special law will prevail over CPC. In case the local or general law is silent on
any matter, then the provisions of CPC will prevail.

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CPC: Scheme

CPC is divided into two parts-

 Body of the Code

 Schedule.

Body of the Code has 11 Parts, containing 158 Sections. The main principles
relating to jurisdiction, powers of court, etc., are contained in the Sections. Body
of CPC can be altered only by legislature. High Courts can not alter or amend the
Body of CPC.

Schedule contains 51 Orders and Rules - The detailed procedures with regard to
the matters dealt with by the Sections have been specified in the Orders. Orders
provide the mode (procedures, methods and manners) in which the jurisdiction and
power of court is to be exercised in civil proceedings. Rules lay down the procedure
in the Orders. Rules can be made, altered, amended by the High Court. Section 122
empowers the High Court to make Rules. Part 10 of CPC deals with the power of
High Courts to alter or add Rules. The new Rules should not be inconsistent with
the provisions contained in the Body of CPC. Every High Court had amended the
procedure from time to time by making the amendments in the Rules under the
Orders.

NOTE: Earlier, there were 5 Schedules. Schedules II to V were repealed by

amendment. The First Schedule which is the only schedule now, has 51 Orders,
each Order containing some Rules.

The purpose of division of CPC into Body and Schedule was done to enable High
Courts to introduce variations in procedure as per local requirements and to enable
quick amendment of defects. Thus, CPC has both uniformity and diversity, Sections
are uniform while Rules are diverse. Legislation’s tardy process of amendment has
been done away with, for local situations.

In Schedule 1, there are 8 Appendices giving model formats (Forms), such as -

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 1. Pleadings (Plaint and Written Statement formats)
2. Process formats
3. Discovery, Inspection and Admission
4. Decrees
5. Execution
6. Supplemental Proceedings
7. Appeal, Reference and Reviews
8. Miscellaneous

CPC & Natural Justice

CPC is a codification of the Principles of Natural Justice. Natural justice (NJ) =
justice to be done naturally. NJ does not mean justice by God (godly-justice) or
justice of Nature. NJ is an inbuilt/inherent natural habit of every individual to do
justice. It is an inbuilt-habit of everyone to seek explanation from a wrong-doer.
Even when a small child does something wrong, one tends to seek explanation
from the child, under the ‘principles of natural justice’. According to the Book of
Genesis of the Hebrew Bible, before banishing Adam and Eve from the Garden of
Eden, God gave an opportunity to them to show cause as to why they had eaten the
fruit from the forbidden tree. This incident has been referred to in Dr. Bentely’s
case [R vs. University of Cambridge, (1723) 1 STR 757] which is the first reported
case of Parinciples of Natural Justice.

The words- JUSTICE and LAW are repeated every day in the courts. Justice is an
illusion because its meaning and definition varies from person to person and party
to party.
The apex court held in Delhi Administration V. Gurudeep Singh Uban, AIR
2000 SC 3737- “ The words 'justice' and 'injustice', in our view, are sometimes
loosely used and have different meanings to different persons particularly to those
arrayed on opposite sides. "One man's justice is another's injustice" (Ralph Waldo
Emerson, Essays, (1803-1882) first series, 1841 'Circles'). Justice Cardozo wrote in
Selected Writings of Cardozo, Page 223-224, Fallon publications, 1947, that "The
web is tangled and obscure, shot through with a multitude of shades and colours,
the skeins irregular and broken. Many hues that seem to be simple, are found when
analyzed, to be a complex and uncertain blend. Justice itself, which we are wont to
appeal to as a test as well as an ideal, may mean different things to different minds
and at different times. Attempts to objectify its standards or even to describe them,

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have never wholly succeeded." While the man who succeeds may think justice is on
his side, the man who loses is prone to think that injustice has been done to him.
Most litigants who have not won, presume that injustice has been unreasonably
inflicted upon them. Their approach is subjective and personalized. Therefore, this
appeal for 'justice' can take us nowhere. …….. the Court has to balance the rights
of parties and this has to be done within the four corners of the law. We are not lay
courts meting out justice according to our whims and fancies but are governed by
law as well as by binding precedents.”

CPC: Extent and Application

CPC was passed in 1908 and is applicable to the whole country except
the state of Nagaland and the tribal areas. There is a provision that the concerned
state government may extend the provisions of the CPC, by making notification in
the Official Gazette, make the provisions of CPC or any of them, after making
modifications, applicable to the whole state or any part of the State of Nagaland or
such tribal areas. [Section 1]

CPC: Salient Features

 CPC is a territorial law. It extends to whole of India except the State of

Nagaland and the tribal areas as contained in Section 1 CPC.

 CPC provides a simple and effective mechanism for enforcement of civil

rights, liabilities and obligations of citizens.

 CPC is a general law and does 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 CPC. If the local or special law is silent about
any particular issue, then CPC will apply.

 CPC has been amended several times to meet the needs of times. CPC is a
dynamic law. Amendments of 1999 and 2002 brought in many changes to the
procedure to be followed. Main object of amendments is to eliminate delay &
ensure speedy justice.

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 Changes brought in CPC by Amendments of 1999 and 2002

 Summons to be delivered to defendant within 30 days from the date of

filing of the suit.

 Written Statement to be filed within 30 days. Court may extend this period
up to 90 days. {Order 8 ]

 Penalty for non-appearance and default has been increased to Rs.5000/-

[Order 9]

 In case of decree for payment, if Judgment Debtor does not pay, he can
be detained in civil prison. If the default is for payment less than
Rs.2000/- he will not be detained in civil prison. [Order 21]

 In case of attachment, while executing a Decree, monthly salary up to

Rs.1000/- and two third of the remaining salary exceeding Rs.1000/- will
not be attached. [Order 21]

 New and efficient methods made for settlement of disputes like

Arbitration, Conciliation and Mediation. Lok Adalat is a very good
example for this.

 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. [Section 95]

 If the value of subject matter of 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/-

 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.

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 Any party will not be given more than 3 adjournments, during hearing of
suit.

 Court will pronounce the judgment once the trial is over, within 30 days
from the conclusion of hearing. In case of exceptional or extraordinary
circumstances, court may take more time up to 60 days from
the conclusion of hearing.