HISTORY AND PURPOSE OF CPC

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INTRODUCTION
The Code of Civil Procedure, 1908 regulates the laws relating to practices and
procedures to be followed by the Civil Court. Here the word is used "CODE", the
meaning of that term is a systematic collection of the statutes or body of laws that are
arranged to avoid the inconsistency and overlapping in the procedures of the Civil
Courts.
The Civil Procedure Code is a procedural law and the aim of this code is to implement
the principles of substantive laws.
The Code has divided into two parts and they are –
1.The Body of the Code
2.The Schedule
The Code has 11 parts containing 158 sections. The Body of the Code lays down
general principles relating to the Power of the courts.
Contd.
The schedule is the second part of the code containing orders and rules and there are 51
orders. Mainly, the schedule provides for the procedures and methods 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III, IV and V were repealed by the subsequent amendments of the code.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 first schedule which is the only one schedule to the code right now has 51 Orders.
Each order contains rules and procedures that vary in number from order to order.
There are eight Appendices in the code which have given formats of the various forms.
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. 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).
Contd.
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. (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.
HISTORY
Before 1859, there was no uniform codified law relating to procedure of civil courts in India. In
those days the crown courts at presidency towns and the provincial courts at mofussils were
governed by the different systems of civil procedures by certain rules, regulations and special
acts as, applicable to them from time to time.
For the first time in 1859, uniform code of civil procedure was introduced with passing of the
Civil Procedure Code (Act/VIII of 1859), but it did not serve the purpose since it was not
applicable to the supreme courts (Crown Courts under the Royal Charter) and Sadar Diwani
Adalats (Principal Courts under the Judicial Plan by the Governor General). After the passing of
Indian High Courts Act, 1861, the Supreme courts and Sadar Adalats were abolished as in their
place High Court were established in their place at Madras, Bombay and Calcutta and the code of
1859 was made applicable to high courts.
The code of 1859 was amended from time to time and was replaced with the passing of Code of
Civil Procedure 1877. The Code of 1877 also was amended in 1878 and 1879. In 1882, the third
Code of Civil Procedure was enacted. The Code of Civil procedure, 1882 also was amended
several times and ultimately the present Code of Civil Procedure, 1908 was passed
overshadowing the defects of the Code of 1882.
MEANING AND OBJECTS
1.The law relating to the procedure of civil courts is regulated/ governed by the Code of
Civil Procedure, 1908, the word 'Code' literally means, a systematic collection of
statutes, body of law so arranged as to avoid inconsistency and overlapping. The main
object of Code of Civil Procedure is to consolidate and amend the law relating to the
procedure of civil courts in India.
2.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 the followed in court
3.The civil courts having civil jurisdiction in India, it regulated the action in civil courts
and the parties before it to the day of realization of its formity i.e. the execution of the
decree and order
4.In simple words, the aim of procedure law is to implement the principles of substantive
law. It ensure fair justice by enforcing the rights and liability of the citizens.
Contd.
In Administrator General of Bengal v. Prem Lal Mullick ILR (1895) 22 Cal 788 (PC) and
Mahant Shantha Nand Gir Chela v. Mahant Basu Devanand, AIR 1930 All 225 (230) FB case,
the Court observed that to consolidate law means to collect, statutory law relating to a particular
subject and to bring it down to date in order that it may form a useful Code applicable to
circumstances existing at the time when the consolidation Act is enacted.
In Kapildeo Prasad v. Ramanand Prasad, AIR 2007 Pat 1 case, the Patna High Court the Court
observed that CPC is a complete code in itself. Once proceedings, are initiated under the Code,
rights, and remedies have to be looked thereunder. ;
In Prem Lal Nahata v. Chandi Prasad Sikaria, AIR 2007 SC 1247 «case, the Court observed
that the code consolidates and amends laws relating to Courts of Civil Judicature. It also deals with
substantive rights but mainly aims to consolidate the law relating to civil courts and procedures.
In Satyad Mohammad Bakar v. Abdul Habib Hasan Arab AIR 1998 SC 1624 case, the Court
opined that procedural law is always subservient to substantive and is in aid to justice. Nothing can
be giver by a procedural law what is not sought to be given by substantive law and nothing can be
taken away by the procedural law what is given by the substantive law.
EXTENT AND APPLICATION
The Code of civil Procedure is passed in 1908 and come into force from 1st January 1909. The
code extent to whole of India, except: the state of Nagaland and tribal areas; provided that the state
government concerned may, be notification in the official gazette, extend the provision of this
code or any of them to the whole or part of the state of Nagaland or such Tribal areas, as the case
may be with such supplemental, incidental or consequential notifications as may be specified in
the notification.
Through the amendment of 1976, the provision has also been extended to scheduled areas.
In Westarly Dkhar v. Sehekaya Lyngdoh, (2015) 4 SCC 292 case the Court held that courts in
such areas (exempted areas) shall be guided by the spint of the Code and would not be bound by
the letter of CPC.
Retrospective Operation -The principle of interpretation of statutes that procedural laws are well
settled is always retrospective in operation unless there are good reasons to the contrary. Their
provisions will already apply to the proceedings commenced at the time of enactment. This is so
because no can have a vested right in forms of procedure. In Garikapati Veeraya v. N. Subbiah
Chaudhry, AIR 1957 SC 540 case, the Court held that the CPC is not retrospective in operation.
Contd.
In Sangram Singh v. Election Trbunal, AIR 1955 SC 425 (429) case, the Court held that the
function of adjective law is to facilitate yustice and further its ends.
In RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628 (631) case, the Supreme
Court observed that a statute is to be construed according “ to the intention of them that make it”.
The duty of the Judicature is “to act upon the true intention of the Legislature — the mens or
sentential legis”.
In District Mining Officer v. Tata Iron & Steel Co., AIR 2001 SC 3134 (3152) case, the Court
held that if a statutory provision is open to more than one interpretation, the Court has to choose
that interpretation which represents the true intention of the Legislature.
In Ganesh Trading Co. v. Moji Ram, ATR 1978 SC 484 (488) case, the Court held that a
“hyper technical view” should not be adopted by the court in interpreting procedural law.
In Ghanshyam Dass v. Dominion of India, ATR 1984 SC 1004 (1010) case, the Court
observed that our laws of procedure are based on the principle that, as far as possible, no
proceedings in the court of law should be allowed to be defeated on mere technicalities. The
provisions of the Code Sf Civil Procedure, therefore must be interpreted in a manner so as to
subserve and advance the cause of justice rather than defeat it.
SCOPE OF THE ACT
The code is exhaustive on the 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 for providing procedure for them. 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 to the court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the courts.
The code is the general law. It does not affect the local or special law in force. In the
event of any conflict between the Code and special law, the special law would be
prevail. However the provision of the Code would prevail if the local or special law is
silent.
Contd.
The State of Punjab v. Shamlal Murari, AIR 1976 SC 1177 case, the Supreme Court, while
dealing with the scope of the procedural law, observed “We must always remember that
processual law 1s 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 hand-maid and not the mistress, a
lubricant, not a resistant in the administration of justice. Where the noncompliance, the
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 on technicalities.
In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353 case, the Court
observed that substantial justice has to be preferred upon the procedural technicalities. The
Hon’ble Supreme Court of India returned the finding as under "When substantial justice and
technical considerations are pitted against each other, cause of substantial justice deserves to be
preferred for the other side cannot claim to have vested right in injustice being done because of a
nondeliberate delay.”
SCHEME OF THE CODE:
i.The code of Civil Procedure comprises of two parts:
The body of the Code and;
The Schedule.
The body of the code containing 158 sections divide into 11 parts forms the first
part. The second part containing the rules and orders form the schedule. The first
part i.e. the body lays down the principles relating to powers of the courts, while
the second part i.e. the schedule provides for the procedure, method, manner and
mode in which the jurisdiction of the courts may be exercised. Originally, there
were five schedules I, II, III, IV and V. but the Schedule II, III, IV and V were
replaced by the subsequent amendments of the Code. The first schedule contains
51 orders. Each order contains rules.
Contd.
a.The number of rules vary from order to order. At the end of the rules, there are 8 appendices
relating to Forms/Model Formats viz.
b.Pleading (plaint and written statement)
c.Process
d.Discovery, Inspection and Admission
e.Decree
f.Execution
g.Supplemental proceedings
h.Appeal, Reference and Review and
i.Miscellaneous.
SALIENT FEATURES OF THE CODE:
The Code of Civil Procedure, 1908 is one of the most important branches of the
procedural law and regulates the procedure to be adopted in all civil courts
having jurisdiction in India. It came into force from 1st January 1909.
It comprises of two parts viz. i) the body and; ii) the schedule. The body
contains 158 sections divided into 12 parts constitutes the first part, while the
schedule containing rules and orders form the second part. The schedule contains
51 orders. Each order contains rules.
The Code is a territorial law. It extends to the whole of India except; the state of
Nagaland and tribal areas; provided that the state government \concerned may, be
notification in the official gazette, extend the provision of this code or any of
them to the whole or part of the state of Nagaland.
Contd.
It is significant to note that the Code made the procedure in Civil Courts very
simple for enforcement of rights, liabilities and obligations of the citizens. In
other words, the code provides mechanism for enforcement of substantive rights.
The code is the general law applicable to the proceedings of all civil courts
without prejudice to the local or special law in force. In case of conflict, the
special will prevail over the code. However, the provisions of the court shall
apply if the local or special law is silent.
The Code has been amended several times. It was amended more than 30 times
during 1909- 1976. Recently it was amended in 1999 and 2002 vide the Court of
Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure
(Amendment) Act, 2002.
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.
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.
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.
Contd.
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.