Lost Law School Notes Series

The idea of writing these series popped in my mind today while I was talking to one of my law school teacher on occasion of teachers day though it has taken me a lot of time on account of research and discussion since that day to finally publish and present the present article.

Amidst chit-chats and honest confessions about how bad we (the students) are bad at copying notes, reading authoritative cases and even worse in managing attendance for each semester, we were tacitly realizing that honey-sweet delicacy, the rich aroma and that lingering flavour of the teacher-pupil relation. The conversation after that simply drifted as to how the three-year law colleges are much better suited to instructs students wanting to pursue a career in law rather than the five-year law colleges. Well, the statistics say something else!

Anyway, that brought us to the singular point of discussion - my former teacher and I - that mostly all law schools and faculty have inherent love for teaching substantive laws and often they curl up their upper lip in disdain when it comes to teaching and instructing upon the fine lines of procedural laws...maybe because the procedural laws are dry, lackluster and immensely boring.

This conversation - between my law school teacher and I happens to be the perfect preface to what I am going to write about in this series of short articles on procedural laws, with the hope that the readers (mostly students) will somehow be able to find them as interesting as substantive laws. Towards this step, the first and the foremost comes the Code of Civil Procedure, 1908.

The Present Article has its aim to briefly introduce the Code of Civil Procedure, 1908; why the Code is to be followed; the legislative history of the Code and would touch upon the nature and scope of the Code.

The Code of Civil Procedure, 1908

The Code of Civil Procedure, 1908 - An Introduction

The Code of Civil Procedure, 1908 ("CPC") is the most widely used procedural law governing almost all trials and adjudications in India. By definition itself, CPC provides for the procedural aspect which determines how a party or a person aggrieved by the action or inaction of any other person is to petition a court of law. What are the basic necessities which he must keep in mind at the time of petitioning the court of law; what essentially must be pleaded, what must be the depth of such pleadings and what documents are to be filed along with such a petition.

Similarly, it is the CPC which provides for and prescribes what all procedural steps are mandated in law. In this regard, it may be stated that the CPC is the codified embodiment of the natural laws or the principles of natural justice. When we speak of the principles of natural justice, we do not mean the laws of nature, or 'godly-justice' or the power of nature to do justice. What we mean and imply, as Dr Justice B.S. Chauhan puts - the inherent tendency or habit of a person to do justice.

That being said, may it be also mentioned that the concept of natural justice or fair justice is, considering the very nature of it, a concept influenced by the socio-political environment surrounding any person. Consider this for an example - the morality, of a group or sheep rearing 'Kung! bushmen tribe' belonging to the fringe boundaries of Kalahari Desert considers it legitimate to publicly whip and blow a wrongdoer and take away his cattle and chattels at the same time. All this, on a mere complaint. No questions asked and no defence afforded. And this practice is the way of life and the rule of law. Now, such practice may undoubtedly be perceived as grossly inhumane and unjust to the people living in the Europe and America and Asia.

The above discussion amply reflects why India, with its diverse socio-political and cultural influences, its customs, practices and preferences needs to have a unified civil code at the heart of every civil trial. This is why the CPC was enacted and is continuing since.

The Legislative History of the Code of Civil Procedure, 1908

The first Civil Procedure Code for the British Colony - India was enacted as early as 1859 by the Legislative Committee headed by Sir John Romily QC, who at that time was a famous politician and later became a judicial member of the Privy Council of the United Kingdom. The Code as enacted at that time was however not applicable to the Supreme Court in the Presidency Towns and the Small Cause Divani Courts. The 1985 Code was marginally amended and adjusted in 1877 and after that in 1882.

Realizing the inadequacies of the 1877 and 1882 Codes, the law of procedure was re-enacted in 1908, by the Legislative Committee headed by Sir Earle Richards. The Committee headed by Sir Richards undertook comprehensive surveys and made efforts to understand the predilections and biases which mar the Indian sub-continent. The draft thereafter was submitted to the Westminster Parliament and it replaced the earlier enacted Codes. Since then, the 1908 Code has stood the test of time and has been adopted in almost all states with minor variations. It is interesting to note that the Code of Civil Procedure, 1908 of Pakistan is more or less the same as the Code of Civil Procedure, 1908 of India except a few variations.

Since enactment, the Code has been amended several times to breathe flexibility, efficiency and speedy disposal of disputes. The Code was substantially amended in 2002 and lastly been amended in 2016 to introduce and include commercial disputes and establishment of commercial courts for summary trial of such disputes.

Understanding the Scheme of the Code of Civil Procedure Code, 1908

The Code of Civil Procedure, 1908, as the name itself suggests, is codified procedural law to be followed by all courts and principles which are mostly followed by writ courts, tribunals and quasi-judicial bodies and tribunals to the extent as may be provided.

The Code serves, follows and ventilates the basic principle of natural justice - that no person should be condemned unheard and all possible opportunities must be afforded to a contesting party to plead and bring forth his best defense. The Code is divided into two parts, namely, Sections and Orders. The Sections provide for the principles which are to be followed and the Orders contain procedural steps elaborating upon the principles contained in the Sections of the Code.

That being said, the framework of the Code is not entirely procedural in nature. It also provides for substantive and enabling provisions, such as Section 9,11,26, 96, 114, 115 indicating the institution of a suit, a right of appeal, review, revision and others.

On a parting note, it may also be stated that the framers of the Constitution, keeping in mind the distinct requirements of States, has enabled the State Legislatures to amend and modify the Code. Article 246 read with Entry 13 of the List III of the Schedule 7 to the Constitution of India suitable empowers the State to bring forth the amendments to the Code. In addition to this, Section 122 of the Code itself empowers the High Court of the State to amend the Rules containing procedure of the Code, which provision has been used by almost all High Courts of the Country to amend the procedure from time to time.

Other provisions of the Code and its principles are beyond the scope of the present article. The provisions in details shall be discussed in a series of articles which follows.

Views and Comments are invited and appreciated.