Nature, History, Scheme and Scope of The Code of Civil Procedure, 1908.

                      Introduction to The Code of Civil Procedure, 1908.Lecture No.1

                                   

         
                                                        Classifications of Laws

                        Laws can be divided into the two groups i.e.

     1. Substantives Laws:- Substantantive Laws are those laws which determine the rights and liabilities of the parties.

   

     2. Adjective or Procedural Laws:- Procedural Laws are those laws which prescribe the practice, procedure and machinery of those rights and liabilities.

       The efficiency of substantive laws, to a great 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 their objects and reaching the goal.  

           It is the procedural laws which put life into the substantive laws by providing a remedy and implements the well known maxim ubi jus ibi remedium  which means where there is right there is a remedy. The substantive laws provide the right whereas the adjective or procedural laws provide the remedy to enforce the rights.

          In India The Indian Contract Act, 1872, The Transfer of Property Act, 1882, The Indian Penal Code etc., are some examples of the Substantive Laws, whereas The Indian Evidence Act, The Limitation Act, The Code of Civil Procedure, The Code of Criminal Procedure are some examples of the procedural laws.

         The Code of Civil Procedure 1908 is an adjective or procedure law. It neither creates nor takes away any right. It is intended to regulate the procedure to be followed by the Civil Courts.

                              History or Background of The Code of Civil Procedure 1908.

       There was no uniform Code of Civil Procedure prior to 1859. Different systems of Civil Procedure existed in different parts of the country. Even in the same region, different systems of procedure prevailed. In Bangal alone, there were as many as 9 different systems which were in force simultaneously. 

       The First uniform Code of Civil Procedure was enacted in the year 1859.Subsequently in 1877, a new Code was brought in force to overcome the defects of the Code of Civil Procedure of 1859. Again in 1882, another code was enacted. This Code underwent amendments from time to time. 

       It was in 1908 that the present Code of Civil Procedure, 1908 came into force with effect from 01/01/1909; While the Amendment Act, 1976 came into force with effect from 01/02/1977. The Code has recently been amended in 1999 and in 2002 both theses Amendment Acts came into force with effect from 01/07/2002.

   The Code of Civil Procedure 1908 has also been amended by the commercial courts Act, 2015 which has received the assent on 31/12/2015 but shall be deemed to have come into force on 23/10/2015.

                                    Scheme of The Code of Civil Procedure 1908. 

                   The Code of Civil Procedure 1908 can be divided into two parts. i.e.

    a. Body of the Code                         and                      b. Schedule of the Code.

A. Body of the Code:- The body of the code contains 158 sections which are grouped into 11 parts.

B. Schedule of the Code:- After the body of the Code the first Schedule follows them. The Schedule is classified into 51 Orders, Which are numbered in Roman as Order I to Order LI. Each Order deals with a specific procedural matter and contains rules thereof.

      The Sections lays down general principles of jurisdiction while the Schedule relates to the procedure, method, manner and mode in which the jurisdiction may be exercised. If the Rules are inconsistent with Sections, then the Sections will prevail over the Rules.

     

      Body of the Code is fundamental in nature. If any amendment is required to be carried out in any of the provisions contained in the body of the code, then it can be done only by the Legislature. But the Schedule can be amended by the High Courts by virtue of powers conferred upon them by Sections 121, 122, 125, 126, 127 , 128, 129, 130 and 131 of the Code.

                                                         Scope:- Code not Exhaustive

       The Code of Civil Procedure 1908 is exhaustive on 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 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. Section 151 of the code specifically provides that " Nothing in this code shall be deemed to limit or otherwise affect the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court."

                                           How to make the Interpretation to CPC 1908

       The  rules of procedure must be interpreted liberally and in such manner as to render the enforcement of substantive rights effective. 

                                           Nature of the Operation of CPC 1908 

      The Code of Civil Procedure 1908 is not retrospective in operation. 


                    Video of Lecture No.2 on the Code of Civil Procedure 1908. 

               

  

                                        THE CODE OF CIVIL PROCEDURE 1908

                                                                 ( 5 OF 1908)

                                                                                                            [ 21st March 1908]

                   An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

                 WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; it is hereby enacted as follows:-

                                                             PRELIMINARY

Section - 1.  Short title, Commencement and Extent.- (1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on 01/01/1909.

(3) It extends to the whole of India except-

     (a) the State of Jammu and Kashmir;

     (b) the State of Nagaland and the tribal areas:

Provided that the State Government concerned may, by notification in the Official Gazette, extends the provisions 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 modifications as may be specified in the notification.

Explanation.- In this clause, “ tribal areas” means the territories which, immediately before the 21^st day of January, 1972 , were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.

(4) In relation to the Amindivi Islands, and the East Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep , the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be , relating to the application of this Code. " 

                                                                    COMMENTS

 Consolidate and Amend :- The Object of the Act, as stated in the preamble is both to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. To consolidate a law means to collect the statutory laws relating to a particular subject and bring it up to date in order that it may form a useful code at the time when the consolidation Act is enacted.

Courts of Civil Judicature:- The Code of Civil Procedure 1908 applies to all proceedings in a Court of Civil Judicature. However it does not affect any special or local law or any special form of procedure by or under any other law for the time being in force. Therefore the code of civil procedure does not apply to proceedings before the Controller of Patents; income-tax proceedings, arbitration proceedings etc. which are being governed by their special law.

      That means to say if in a particular case, if there is inconsistency between the provisions of the code of civil procedure and that special law, then the provisions of that special law will prevail over the provisions of the code of civil procedure 1908.

      In Alka Gupta Vs. Narendra Kumar Gupta AIR 2011 Sc 9, the Supreme Court of India has held that Civil suits are to be decided in accordance with the law and provisions of CPC and not on the whims of the Court. A Civil Suit cannot be dismissed without trial merely because the court feels dissatisfied by the conduct of the plaintiff.