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CODE OF CIVIL PROCEDURE[1] 1908
QUESTION BANK
- Discuss the salient features of the Civil Procedure Code, 1908.
- What do you understand by Civil Procedure Code? Discuss briefly its aims and scope. Whether the Code is exhaustive?
SHORT NOTES
- Introduction to C. P. C.
I. ADJECTIVE (PROCEDURAL) LAW[2]–
All Laws may be classified into (1) substantive Laws; and (ii) Adjective (Procedural) Laws. Substantive Laws are those which define the rights, duties and liabilities of the parties. Indian Penal Code, Indian Contract Act, the Transfer of Property Act, and the Specific Relief Act are instances of substantive laws.
Whereas, Adjective Laws are those that define the rules relating to pleading and procedure by which substantive Laws are applied in practice. Civil Procedure Code, Criminal Procedure Code, and the Indian Evidence Act are the Adjective or Procedural Laws.
A is prosecuted for murder. Here, the punishment provided by the Indian Penal Code in S.302 is either death or imprisonment for life (Substantive Law determining the liability of A and the right of State to prosecute A). However, A cannot directly be hanged or sentenced to the life imprisonment unless the commission of the murder by A is proved. The fact of the commission of murder needs to be proved before Court with the help of Adjective Laws. Therefore, the fact that C saw A beating B, D saw A and B moving towards the place where B’s murder took place etc. needs to be established before the Court. Then only the Court either will convict A for B’s murder or acquit him (thereby either establishing the State’s right of prosecution and liability of ‘A’ for murder or the right of A of acquittal).
Similarly, X enters into a contract with Y, promising to sell his house and Y promises to pay Rs. 2,00,000/-. On breach of contract by either party, the aggrieved party comes to a Court to get his right established. The right of the aggrieved party and liability of defaulting party and remedies thereto for breach of contract are provided in the Indian Contract Act (substantive law). However the Court cannot decide the rights and liabilities of the parties unless the ‘existence of contract’ between X and Y is proved.
If A prosecutes B for defamation, A has the right to prosecute B and get him punished, and B is liable for defamation. The right and liability and punishment thereto are provided under the Indian Penal Code. But the Court cannot determine A’s right and B’s liability unless it is proved that B has defamed A. The matters such as whether A was defamed by B, if so, who should offer evidence, and in what manner evidence is to be offered are provided according to the rules under the Indian Evidence Act (Adjective Law). Civil Procedure Code provides a procedure in litigations of a civil nature.
II. OBJECT OF CIVIL PROCEDURE CODE-
The Law of Civil Procedure Code is intended to provide a procedure for the enforcement of Civil Laws. Without proper procedural Law, the substantive law (e.g. Contract Act, Specific Relief Act, Hindu Succession Act, etc., which defines rights and liabilities of civil nature) would be of no use. Mere protection of rights, as mentioned in Substantive Laws, would be meaningless without the Civil Procedure Code.
The present Code is enacted with the object of consolidating and amending the laws relating to the procedure of Courts of Civil Judicature. It is a consolidated Code collecting all the laws relating to the procedure to be adopted by civil courts[3].
III. SCOPE/ CODE NOT EXHAUSTIVE-
The Code is not exhaustive[4]. It is exhaustive regarding matters specifically dealt with by the Code. However, it is not exhaustive regarding the matters not specifically dealt with under the Code. In that case, where the Code is not exhaustive, the courts have inherent power to act according to the principles of justice, equity, and good conscience[5]. S. 151 of the Code incorporates this principle of equity. It provides 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”.
Some special laws also exist, like the Indian Divorce Act of 1869, the Indian Succession Act of 1925[6], the Consumer Protection Act of 1986, the Insolvency Act of 1909[7], Tenancy and Rent laws etc. These Acts provide their own procedure. But in a case if there is any conflict between Civil Procedure Code and the procedure in these laws, the procedure prescribed by these special laws would prevail. But if the procedure prescribed by the Special Act is silent as to procedure in any manner, the procedure under the Civil Procedure Code would prevail.
IV. HISTORICAL BACKGROUND-
Before 1859, there was no uniform Code of Civil Procedure for the whole of India. Different procedures were applied in civil proceedings in different parts of the country. The first uniform Civil Procedure Code was enacted in the year 1859. The Code was amended from time to time according to the needs in 1877 and 1882.
The present Civil Procedure Code was enacted in 1908 with major amendments. However, it was further amended in 1951 and 1956 and 1976.
The Code (henceforth, for the sake of brevity Civil Procedure Code is called ‘the Code’) was further amended in 1999 and 2002 for speedy disposal of civil cases on recommendations of Justice Malimath Committee.
Recently, in 2015 the Parliament in seeking amendment in S. 80 to make Government servants and officers more responsible.
V SCHEME OF THE CODE-
The code has been divided into two parts viz-
1) The first part contains 158 sections which are known as the body of the Code[8].
It contains provisions of a substantive nature that lay down substantial rights of the parties and confers jurisdiction on the courts. This part of the Code can only be amended by the Parliament.
2) The second part contains Schedule I; in it, there are 51 orders and rules[9].
It provides for the procedure and mode in which the courts of civil jurisdiction may exercise their powers. The High Courts have the power to amend this part of the Code.
Even though both the parts are amendable by Parliament and High Court, they should be read harmoniously. If there is any controversy, the sections will prevail over Schedule I (i.e. orders and rules).
In addition, there is an ‘Appendix’[10] to Schedule[11] I, which contains different forms and drafts, which are used as guidelines for drafting plaints[12] and written statement[13].
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[1] दिवाणी प्रक्रीया संहीता [नागरिक प्रक्रिया संहिता]
[2] इथुन पुढे काही अवघड इंग्रजी षब्दांचा मराठीत अर्थ दिलेला आहे परंतु त्याचा उद्देष हा विध्यार्थांना विशय चांगल्या प्रकारे कळावा येवढाच मर्यादीत आहे. सदर अर्थ विशया प्रमाणे केलेले असल्यामुळे ते षब्दकोषाप्रमाणे बरोबर असतीलच असे नाही. विध्यांर्थांनी विषिश्ठ अर्थासाठी षब्दकाष वापरावेत.- [यहाँ से कुछ कठिन अंग्रेजी शब्दों को मराठी में अर्थ दिया गया है लेकिन इसका उद्देश्य छात्रों को विषय को अच्छी तरह से समझाने तक सीमित है। सिर्फ इसलिए कि ये परिभाषाएँ विषय के अनुसार बनाई गई हैं, जरूरी नहीं कि वे शब्दकोश के अनुसार सही हों। विद्यार्थियों को विशिष्ट अर्थों के लिए मुहावरों का प्रयोग करना चाहिए।]
[3] ^ दिवाणी प्रक्रीया संहीता’ ही दिवाणी प्रकरणंासाठीची प्रक्रीया घालुन देते. [‘सिविल प्रक्रिया संहिता’ दीवानी मामलों की प्रक्रिया निर्धारित करती है।]
[4] हि संहीता परीपुर्ण नाही. [यह कोड पूर्ण नहीं है।]
[5] न्याय, समानता व सद्सद्विवेक बुध्दींने न्यायदाण करण्याची प्रत्येक न्यायालायात अंतर्भुत असलेली षक्ती./ अंगभुत अधिकार/ मुळ अधिकार [न्याय, समानता और सामान्य ज्ञान के साथ]
[6] भारतीय वारसा हक्क कायदा,
[7] दिवाळखोरी / नादारी कायदा
[8] मुळ भाग.
[9] अज्ञा व नियम
[10] पुरवणी
[11] परिशिश्ट
[12] वादपत्र
[13] प्रतीवादपत्र / कैफियत