While in Bombay, I began, on one hand, my study of Indian law and, on the other, my experiments in dietetics in which Virchand Gandhi, a friend, joined me. My brother, for his part was trying his best to get me briefs. The study of India law was a tedious business. The Civil Procedure Code I could in no way get on with. Not so however, with the Evidence Act. Virchand Gandhi was reading for the Solicitor’s Examination and would tell me all sorts of stories about Barristers and Vakils.”
The law can be broadly classified as –
- Substantive Law, and
- Procedural Law
The Substantive Law, whether it is based on a statute law or common law, defines what facts are constituting a fact or liability. To tell, in other words, the Substantive law defines various principles regarding the rights and liabilities. (For Instance: The IPC, 1860 which describes various offenses punishable under Criminal acts).
On the other hand, the Procedural law prescribes the procedure and machinery for the enforcement of those rights and liabilities. To describe differently, the procedural law is concerned with enforcement of those rights and liabilities determined in accordance with the rules of the substantive law. (For instance: The Code of Civil Procedure 1908, The Code of Criminal Procedure, 1973 etc.)
The Law controlling 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 are aware that, “Ignorance of the law is not a defence” and every Indian should know the laws of this nation.
10 important things every Indian should know about Civil Procedure Code,1908 are:
1. Civil Procedure Code: Historical Background
Until, 1859, in India, there was no uniform codified law for the procedures to be followed in Civil Courts. In that period, under the British rule, there were Crown Courts in Presidency towns and Provincial Courts in Mofussils.
- courts in Mofussil areas and Presidency towns were regulated 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.
- In 1859, a uniform code was introduced by passing the Civil Procedure Code (Act VII of 1859). Yet 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.
- In 1861, the Indian High Courts Act was passed and the SC’s and Sadar Diwani Adalats were abolished. It was then the HC’s were established by replacing the SC’s at Madras, Bombay, and Calcutta. After this, the Civil Procedure Code 1859 made applicable to these newly established High Courts.
- The Code of 1859 was corrected 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 3rd CPC was enacted in 1882, which took over 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
Laws 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 can be described as ‘a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping‘.
The primary 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. It was mentioned 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 governs every action in civil courts and the parties before it till the execution of the degree and order.
The goal of the Procedural law is to implement the principles of Substantive law. The Code ensures fair justice by enforcing the rights and liabilities.
b) Extent and Application
CPC was passed in 1908 and came into force from 1st January 1909. The Code extends to the whole country except –
- The State of Jammu and Kashmir
- Estate of Nagaland and the tribal areas
There is 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.
2. Civil Procedure Code: Scope
This Code is exhaustive on the matters directly dealt by it but it is comprehensive in other issues. Framers of the code could not predict the possible circumstances which may arise in the future litigations and could not provide the procedure for such situations. Therefore the framers of the code provided essential powers to the court to meet such circumstances according to the principles of natural justice, equity and good conscience.
Since this Code is a general procedural law, it does not oppose 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.
3) Civil Procedure Code: Scheme
Code has 2 parts and they are –
- The Body of the Code
- The Schedule
This Body of the Code has 12 parts containing 158 sections. The Schedule is the 2nd 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 disciplined.
In fact, there were 5 schedules when this code was passed. Later the Schedules II, III, IV and V were repealed by the following 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-
- Pleadings (Plaint and Written Statement formats)
- Process formats
- Discovery, Inspection, and Admission
- Supplemental Proceedings
- An appeal, Reference, and Reviews
- The multiple High Courts are permitted to alter or add any rules in the schedule 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.
- The Provisions of the Body of the code can be amended only by the legislature and the Courts cannot alter or amend the body of the code.
4) Civil Procedure Code: Salient Features
It is a territorial law. It stretches to the whole of India excluding –
- The State of Jammu and Kashmir
- The State of Nagaland and the tribal areas
It also transfers a provision that the concerned state government may extend the provisions of the Civil Procedure Code by notifying in the Official Gazette. This code can be stretched 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 efficient. Implementation of rights, liabilities, and obligations of the citizens are dealt with by this code. To say, in other words, the Civil Procedure Code gives the mechanism for the enforcement of rights and liabilities.
- The CPC is a general law and will not affect local or special laws which are previously in force. In case of any dispute with local or special laws, the local or special law will prevail over the Civil Procedure Code. In the event, 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 revised numerous times to meet the needs and requirements which are dynamic and changing from time to time. From 1909 to 1976, the Code has been amended for more than 30 times.
The Amendments of 1999 and 2002 served in many changes to the procedure to be followed.
5) Changes brought by Amendments of 1999 and 2002
The main target of the amendments is to assure 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 addressed 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 elongate this period up to 90 days.
- The fine for non-appearance and default has been increased to Rs.5000/-
- In case of an order 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 kept in civil prison.
- In case of attachment while performing 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 graveled the way to 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 destruction of reputation caused to him because of his arrest or attachment of his property.
- After the amendments, if the value of the subject matter of the suit is below Rs.1000, such conflicts cannot be contested.
- 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 2ndsecond appeal if the subject matter of the suit is for the recovery of funds not exceeding Rs.25,000/-
- The Court may dismiss 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 attempt to pronounce judgment within 30 days from the conclusion of the 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) Decree, Judgment, and Order
When a Court arbitrates a dispute, after the hearing, it has to either declare its decision by way of a decree or dismiss the case. Such a decision is called Decree. While arriving at 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’.
- An order will not determine the rights or liabilities of the parties.
- Any number of orders can be passed in one suit.
- The Order can be passed on a suit as well as on application.
- There are
- Appealable orders.
- Non-appealable orders.
There is no second appeal for the Appealable orders.
To enact 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 stated by the Court.
7) Jurisdiction & Important Doctrines
Jurisdiction means the power through which a court entertain suits, appeals and applications, and the court serve justice according to the provisions of the law.
Jurisdiction of the Civil Court may be categorized as follows –
- Territorial or Local Jurisdiction
- Pecuniary Jurisdiction
- Jurisdiction over the subject matter
- Original and Appellate Jurisdiction
TERRITORIAL JURISDICTION: Each Court has a territorial limit beyond which it cannot exercise the power vested upon it. Aforementioned frontier based on the territory is called territorial jurisdiction.
Pecuniary Jurisdiction: Pecuniary means “involving money“. Civil Courts, according to their grades, have some restriction to try suits and entertain appeals for the value of money not surpassing some stipulated amount. The High Courts and the Court of Sessions have immense 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 subject matter: There are civil courts installed to try suits or cases of a particular nature.
- Likewise, 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 bestowed judicial powers to try the matters and enforce the orders.
Original and Appellate Jurisdiction: The Court in which the lawsuit is filed initially and if the court has jurisdiction to try the original suits, before-mentioned jurisdiction is called original jurisdiction.
Once the case is decided, the aggrieved party may prefer an appeal in a relevant 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 Judicata:
‘Res‘ means “a matter“. ‘Judicata‘ means “already decided“. The word ‘Res Judicata’ means “a matter already decided by a competent court“.
Section 11 of the Civil Procedure Code, 1908 deals with the Res Judicata. As per 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:
- A person should not be vexed twice for the same cause.
- There should be an end to litigation, in the interest of the state.
- 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.
8) Interlocutory Applications
The Civil Procedure Code grants for many interlocutory applications under various sections and rules. Interlocutory applications are used in almost every civil proceedings. It is normally 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.
9) Special Suits
Suits by an indigent person
When a lawsuit is filed before a competent civil court, the party has to pay the prescribed court fee. If the suit is filed without the directed 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. A Poverty-stricken person is the one who is deprived and cannot afford to pay the court fee. This kind of suits is also called “Pauper 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 affecting 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 among the defendants and them inter-plead against each other.
In “Inter-pleader” suits, the plaintiff must be in the lawful hold 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
During a lawsuit is heard by the trial court, the trial court the issue, arrives at a conclusion and pronounces a decree either in favor of the plaintiff or the defendant.
In such lawsuits, the aggrieved party may prefer to appeal against the judgment of the trial court. The term ‘appeal‘ is not defined in Civil Procedure Coenquires de, 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. 
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.