Introduction to Code of Civil Procedure, 1908
Laws can be divided into two groups:
(1) Substantive law and
(2) Adjective or procedural law.
Whereas substantive law determines rights and liabilities of parties, adjective or procedural law prescribes the practice, procedure and machinery for the enforcement of those rights and liabilities.
Procedural laws prescribe procedure for the enforcement of rights and liabilities. The efficacy of substantive laws, to a large extent, depends upon the quality of procedural laws. 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. It is procedural law which puts life into substantive law by providing a remedy and implements the well known maxim ubi jus ibi remedium.
The ‘Code of Civil Procedure’ is a procedure law, i.e., an adjective law. The Code neither creates nor takes away any right. It only helps in proving or implementing the ‘Substantive Law’. It mainly lays down the procedure to be adopted in civil courts, and its principles may be applicable in other courts, like writ courts, and Tribunals to the extent the enactments establishing the Tribunals provide for it. It provides for a fair procedure for redressal of disputes. Some of its provisions are substantive in nature and not procedural at all, like Sections 96, 100, 114 and 115 providing for a right of appeal, review and revision. The other provisions are generally procedural in nature.
The Code is mainly divided into two parts, namely, Sections and Orders. While the main principles are contained in the Sections, the detailed procedures with regard to the matters dealt with by the Sections have been specified in the Orders. Section 122 of the Code empowers the High Court to amend the Rules, i.e., the procedure laid down in the Orders.
Brief History
Before 1 July 1859, there were no less than nine different systems of civil procedure simultaneously in force in Bengal. Other parts of British India were equally numerous. The evils arising from this state of things had been felt, and they were to a certain extent, remedied by the Code of 1859 by the Committee headed by Mr. John Romily. The Code of 1859, as passed, did not apply to Supreme Court, or to the presidency small cause courts, nor did it extend to non-regulation provinces. As the code was ill-drawn, ill- arranged and incomplete, a fresh Code had to be passed in 1877.
After five years, another code was passed namely the Code of 1882. The code of 1882 remained in operation for more than quarter of a century and to remedy the defects experienced during that period, a comprehensive revision of the Code was undertaken in the first decade of 20th century, and the Code of 1882 was supplanted by the present Code in the year 1908 and came into force in 1st January 1909. It was drafted by the Committee headed by Sir Earle Richards.
Major Amendments
The Code of Civil Procedure (Amendment) Act, 1976 came into force on 1st Feb, 1977. The Code was amended by the Code of Civil Procedure (Amendment) Act 1999, which proposed several changes to the Code. However, the same was not notified and some of the proposed changes under the Amendment Act of 1999 were deleted or substituted through the Code of Civil Procedure (Amendment) Act 2002 consistent with the demands of fair play and justice which came into force on 1 July 2002.
Object of the Code
The object of the Code is to consolidate and amend the laws relating to the procedure of Courts of Civil Judicature. The provisions of the Code should be construed liberally and technical objections should not be allowed to defeat substantial justice.
In Saiyad Mohammad Bakar v. Abdul Habib Hasan Arab [(1998) 4 SCC 43] was stated that the procedural law is always subservient to and is in aid to justice. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away be the procedural law what is given by the substantive law.
Scheme of the Code
The Code is mainly divided into two parts, namely, Sections and Orders. The body of the Code contains sections 1 to 158; and The First Schedule contains, O I to O LI (51) and rules. While the main principles are contained in the Sections, the detailed procedures with regard to the matters dealt with by the Sections have been specified in the Orders. Section 122 of the Code empowers the High Court to amend the Rules, i.e., the procedure laid down in the Orders.
If the rules are inconsistent with the sections, the latter shall prevail, the former being secondary in nature. However, the sections and the rules have to be read together and construed harmoniously.
The Supreme Court in Ravola Sobba Rao v. CIF, 1956, SC held that the provisions in the CPC should be interpreted as forming a complete code by itself, exhaustive of the matters dealt with by it. The procedure prescribed by the CPC shall be followed in all the civil proceedings, however, as per Section 4 in case of conflict between the code and any other special or local law, the local law or special law shall prevail, but where on a matter special or local is silent CPC shall prevail.
* The Code of Civil Procedure is not retrospective in operation.
* The Code is not exhaustive.