“Law Master’s Publications

‘Introduction to C. P C.’

Prof. .S. D. Bhosale

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CODE OF CIVIL PROCEDURE 1908

QUESTION BANK

1. Discuss the salient features of the Civil Procedure Code, 1908.

2. What do you understand by Civil Procedure Code? Discuss briefly its aims and

scope. Whether the Code is exhaustive?

SHORT NOTES

1. Introduction to C. P. C.

I. ADJECTIVE (PROCEDURAL) LAW-

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

“Law Master’s Publications

‘Introduction to C. P C.’

Prof. .S. D. Bhosale

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.

III. SCOPE/ CODE NOT EXHAUSTIVE-

The Code is not exhaustive. 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.

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

“Law Master’s Publications

of the court”.

‘Introduction to C. P C.’

Prof. .S. D. Bhosale

Some special laws also exist, like the Indian Divorce Act of 1869, the Indian

Succession Act of 1925, the Consumer Protection Act of 1986, the Insolvency Act of

1909, 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.

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.

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.

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’ to Schedule I, which contains different forms

and drafts, which are used as guidelines for drafting plaints and written statement.

“Law Master’s Publications

‘Introduction to C. P C.’

Prof. .S. D. Bhosale

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