India Needs New Civil Procedure Code Or Not
Laws can be divided into two groups-(i) Substantive Law, and (ii) Procedural Law
or Adjective Law. Whereas substantive law determines the rights and liabilities
of parties, adjective or procedural law prescribed the practice, procedure and
machinery for the enforcement of those rights and liabilities.
The rules of
every procedural system reflect choices between worthy goals. Different systems
for example, may primarily seek truth, or fairness between the parties, or a
speedy resolution, or a consistent application of legal principles. Procedural
laws prescribes procedure for the enforcement of the rights and liabilities.
The efficacy of substantive laws, to a large extent, depends upon the quality of
procedural laws. Unless the procedure is simple, expeditious and inexpensive,
substantive laws, however good are bound to fail in achieving object and
reaching the goal.
Procedural law is thus an adjunct or an accessory to substantive law the two
branches are complementary to each other and interdependent, and the interplay
between them often conceals what is substantive law and what is procedural law.
The Indian Penal Code, Transfer of Property Act, Industrial Dispute Act are
Substantive law, while the code of criminal procedural code , civil procedural
code are Procedural Law. It neither creates nor takes away any right. It intends
to regulate the procedural to be followed by civil courts.
Before 1859, there was no uniform code of civil procedure. There were different
system of civil procedure in different parts of the country. The first uniform
Code of civil procedure was enacted in 1859. But that code was also not mode
applicable to the Supreme courts in the Presidency towns and to the Presidency
small cause courts.
In 1908,the present code of cpc was enacted. It was amended by two major
amendment acts of 1951 and 1956. On the whole, this code worked satisfactorily,
though there were some defects in it.
The law commission in its many reports made
various recommendations and after carefully considering them, the Government
decided to bring forward the Bill for amendment of cpc,1908,keeping in the view,
inter alia, the following considerations-
1. A litigant should get a fair trial in accordance with the accepted
principles of natural justice.
2. Every effort should be made to expedite the disposal of civil suits and
proceedings, so that justice may not be delayed.
3. 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 means to engage a pleader to defend their cases.
Some of the important changes made by the amendment Act 1976, are as under:
1. The doctrine of res judicata is being made more effective.
2. Power to transfer proceedings from one high court to another is given to
the Supreme Court.
3. Freedom from attachment of a portion of salary to all salaried employees
4. Provision of giving notice under Section80 before the institution of a
suit against the government or a public officer is made less stringent.
5. Restrictions are imposed on the right of appeal and revision.
6. Provisions are being made to ensure that written statements and documents
were filed without delay.
7. New Order32-A has been inserted to provide a special procedure in
litigation concerning the affairs of a family.
8. The practice to pass preliminary and final decree in certain suits is
9. Scope of summary Trials is substantially widened.
10. Important changes have been made to provide relief to poorer sections of
The amendment made in1976 were not found sufficient. With a view to dispose of
civil cases expeditiously, Justice Malimath Committee was appointed by the
Government. In pursuance of recommendations of the Committee, the code was
amended by the Amendment Acts of 1999 (Act 46 of 1999)and 2002( Act 22 of
Important amendments made by Acts of 1999 and 2002 may be summarised thus:
1. In several matters, such as issuing of summons, filing of written
statement, amendment of pleading , productions of documents, examination of
witnesses, pronouncement of judgements, preparation of decree, etc., a time
limit is prepared.
2. A new provision for settlement of disputes outside the court has been
3. Number of adjournment have been restricted.
4. A provision for recording for evidence by the court Commissioner has been
5. New provision is made for filing of appeal in the court which passed the
6. Instituting of appeal against the judgement is allowed where the decree
is not drawn up.
7. Scope of first Appeal , second appeal, letters patent appeal and revision
has been curtailed.
The code states that object of the code is to consolidate and amend the laws
relating to the procedure of courts of civil Judicature. To consolidate means to
collect all the laws relating to a particular subject and to bring it down to
date in order that it may form a useful code applicable to the circumstance
existing at the time when the consolidating act is enacts.
The very object of codifying a particular branch of law is that, on any point
specifically dealt with, the law should thenceforth be ascertained from the
language used in that enactment and not from the preceding act.
The code of civil procedure is a consolidated code as to procedure to be
followed by civil courts. As observed in Prema Lala Nahata v. Chandi Prasad
Sikaria (2007)2 SCC 551:AIR 2007SC1247, the code consolidate and amends the
laws relating to the procedure of the courts of civil judicature. No doubt it
also deals with certain substantive rights. But it’s essential object is to
consolidate the law relating to civil procedure.
Extent And Applicability
The code extends to the whole of India, except
(A) The state of [***],and
(B) The state of Nagaland and the Tribal areas.
By the amendment of 1976, the application of the provision of the code have been
extended to the Schedule Areas also (Section1, Ss157,158)
Main object of the code is to consolidate and amend the laws relating to the
procedure of courts of civil Judicature.
Scheme of Code
The code can be divided into two parts
(a) The body of the code containing 158 sections, and
(b) The (first) schedule containing 51 orders and Rules. The sections deal with
provisions of a substantive nature, laying down the general principles of
jurisdiction, while(first) schedule relates to the procedure and the method,
manner and mode in which the jurisdiction may be exercised.
New Civil Procedure Or Not
The substantive part of the code of civil procedure contains 158 sections, the
(1st) schedule comprise 51 orders and rules providing procedure. Appendices
contains Model forms of pleading, processes, decrees appeals, execution
Section 1-8 is preliminary in nature, section 9 to 35-B and order 1 to 20 of the
1st schedule deal with suits. Section 9 enacts that a civil court has
jurisdiction to try all suits of a civil nature unless they are barred expressly
or impliedly. Whereas section 10 provides for stay. And section 11 deals with
well known doctrine of Res Judicata.
To make this code effective government
made so many amendments in this code time to time. Because India is a vast
country and diversified also. And this code enacted at the time when we were
under control of British government. They drafted code in the way that helps
citizen of this Country. They focused on basic problems of that time was
prevalent in those days.
In 18th century problems related with immovable properties, partition was one of
the biggest issue in society. Draftsman of this code specially mentioned all
this provisions in a sub section of a section, so that judiciary easily deals
with these problems (section 16).
They also focus on jurisdiction of courts and set limit of courts. In India
there is a series of courts and they are set by nature of suit. For betterment
of this code and on demand of time legislature made many amendments so that they
fulfill the demand of time and society.
Problems In Code
There are some problems in given code.
a. Dismissal for default in section2(2)is silent as to whether it is
default of appearance or default of any kind like failure to furnish
b. Whether, in case of a HUF, the surviving coparcener will become a legal
representative section2(11) is silent about this aspect.
c. Section 10 CPC stands for stay of suit. The words, in India having
jurisdiction to grant the relief claimed is not free from divergent views. Its
whether connotes the relief claimed in the second suit or in the first suit.
There shall be a clarification in this aspect.
Amendments At A Glance
Various efforts have been made by the law makers to improve the procedural code
of civil proceedings by amending the act at certain intervals. These amendments
seek to ensure fair trial and speedy justice. In 1999, a bill was formulated to
amend the C.P.C but it was discarded as it was met with great resistance and
strikes from lawyers. Hence a new Amendment was formulated in 2002 which is
called the Code of Civil Procedure (Amendment ) 2002.
The act of 2002 was met
with little resistance and provide to be more effective than the one in 1999. Venkatsan in his article Trials and Execution states that the 2002 act has
been welcomed for reducing delays during the trial of civil suits. The means of
serving summons on defendants have been expanded with the addition of more
options such as e-mails, fax, and private courier. The 1999 act had imposed a 30
day limit on the defendant to file reply to the summons. Which was objected to
by the lawyers. The 2002 act provides three months for reasons to be recorded in
writing by the court.(i)
The 1999 act substituted section 102 of cpc to provide that no second appeal lie
from any decree, when the amount or value of subject matter of the original suit
did not exceed Rs.25000. critics had then pointed out that it would foreclose
seconf appeal even in cases where a substantive question of law was involved.
It was argued that the revenue being nominal, the rural areas and agricultural
and, prescribed as a certain multiple thereof would never reach Rs. 25000.this
would have created an unfair distinction between two classes of litigants with
the right to second appeal available only for the moneyed classes. The 2002 act
has corrected this distinction by specifying that no second appeal shall lie
from any decree, when the subject matter of the original suit is for the
recovery of an amount not exceeding Rs. 25000.
Concept of Fair Trial
The preamble to the constitution says that the country will make an effort to
ensure justice- social, political and economic to all its citizens.
This justice of social, political and economic factors is usually referred to as
the concept of natural justice. Natural justice simply means the unbiased, fair
and just methods of legal proceeding. KEN BINMORE in his article Natural
Justice discussed that the apex court of the country has laid down guideline
for all the courts to ensure fair trial during a legal proceeding and that
courts while giving a judgement should insure impartially , should act in fair
in all manners should not be biased in any way and the judgements must give
reasonable time to both the parties to respond to the legal notice and a fair
and equal opportunity must be given to them to present their case.[iv]
In the code of civil procedure, Order 41Rule2,3 defends and safeguards the
interest of a decree holder if states that, before custody is ordered by the
court, it should ensure that there was no bad faith in ordering such detention.
It should keep on mind that custody was not awarded merely on the basis of
omission. Supreme Court in the case of State of Punjab v Baldev Singh, stated
that unfair trial leading to conviction is against the very principle of
Section 16to 21 of Civil procedure provides place of suing. They mention each
and every aspect of possibility. Some procedure mention under cpc will looks
like biased in some sense, but when we try to understood jurisprudence behind
that we feel there is no error in section. Example- if RAM beats MOHAN at Delhi
and Mohan belongs to Chennai, but he (Mohan ) have to file suit against RAM
either delhi where cause of action happened or where RAM have business, but he
cannot file suit in Chennai. This is little confusing for people because this is
against interest of Ram.
Draftsman mainly considered a good and healthy code should be given to this
country and our constitution gives power to legislature to amend code as per
time and society demand. In CPC High court of any state make changes in Orders
but not in section. Because Section can be only amend by legislature. And
legislature can also amend Orders. So it is very flexible. As per above
discussion we can say that Our code gives enough power to courts and its
officers and there is no need of new code for India, officers of courts should
be honest with it. And they should exercise powers given by code to them
honestly. This is enough for healthy state. In our cpc facility of appeal is
also given which is a remedy for party who is not satisfied by judgement. By way
of Appeal he can visit higher court for redressal of his/her suit. This is a
feature of a good code and its shows intelligence of our draftsman.
Code of civil procedure represents the orderly, regular and public functioning
of the legal mechanism, and also public functioning of the legal mechanism, and
also the operation of due process of law. It sustains and secures every person,
his life, liberty, livelihood and property, and it keen to ensure that he does
not suffer any deprivation of his rights, except in the due process of law.
The time tested code is not free from complexities and procedural hardships.
Many provision do require consideration afresh in the light of the changing
circumstances. Many of them canvass divergent and conflicting views.
India is a vast country and many different culture lives here. And where
diversity in culture is exist it is natural that conflict of ideology exist.
Problems related with property and family etc is major problems of any state.
Our code conclude all these problems and with suitable solution. Now CPC is
applicable to Jammu and Kashmir after Reorganization act. And people of that
state and U.T will also govern by this code.
On the basis of above discussion and sections as per given in our Civil
Procedure Code, we can say that India does not need any new code for its civil
nature problems. Existing code is enough for tackle with all these issues, but
what India needs is basically a good system that can implement all these
provisions as given in code.
If there is any loop in any code of any country, legislature of that country
have power to amendment it and make it loop less. Our constitution is quasi
Federal in nature any amendment is easy in compare of USA or some other country.
So when any demand emerge legislature amend that code at solve that problems,
problems does not mean that a code which exist in particular country for more
than 100 years should repealed. Our CPC needs some basic and important Amendment
in a new bill as we discussed above. Government should make it easy for judges
by exact wording of code.
So finally we can conclude that our given code (Civil Procedure Code) needs some
amendment for its flexibility, and there is no need of new code.
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