Historical Evolution of Civil Procedure Code in India

In every civilized society there are two sets of laws which are as follows:

  • Substantive law
  • Procedural laws

The rights and obligations of citizens are determined by substantive laws. The procedure for enforcing these rights and obligations of citizens is determined by procedural laws. Of the two, material laws are undoubtedly the more important. But the effectiveness of substantive law largely depends on the quality of procedural law. If the procedure is not simple, speedy and inexpensive, substantive law, however good, must fail in its purpose and object. The substantive law, according to Sir Henry Maine, seemed at first to be gradually excluded in the gaps of procedure. From this point of view, the revision of the Code of Civil Procedure is of considerable importance.

The history of civil procedure in our country really begins in 1859, when the first uniform code of civil procedure was enacted in 1859. Before 1859, the civil law of the judiciary was in a chaotic state. Not only was there no uniform law of civil procedure applicable to the whole country, but different systems of procedure prevailed in the same area.

The Code of 1859, however, did not apply to High Courts in Presidency towns and Presidency Small Cause Courts. Soon after it was approved, it was subjected to a number of changes. It has since been extended, with certain modifications, to the whole of British India and to the High Courts in the exercise of their civil, intestate, testamentary and matrimonial jurisdiction.

However, the new Letters Patent of 1865 modified this position and empowered the High Courts to make their own rules and orders to regulate civil proceedings. At the same time, it obliged them to comply with the provisions of the Code of 1859, as amended from time to time.

The Civil Procedure Code of 1859 was soon found to be “badly drawn, ill-arranged and incomplete”. In 1863-64 Sir Heway Harrington prepared a rather comprehensive bill to replace it. But for some reason the bill was delayed into law. In the meantime, laws were passed concerning individual branches of law, which required corresponding changes in the Code. The revision work was taken seriously when Dr. Whitley Stokes, then Secretary to the Government of India in the Legislative Department, was given permission by a member of the Legislature to revise the Bill prepared by Mr. Harrington. He systematically reorganized the provisions of the 1859 code. He introduced a number of new provisions in the New York Civil Code. Sir Arthur Hobhouse, who was then Law Member, made a significant contribution to the Bill. With some modifications, the bill was passed as the Civil Procedure Code of 1877.

Soon after the enactment of the Code of Civil Procedure in 1877, it was found that the new code required several modifications. In 1879, up to 130 sections of the Code were amended. Further amendments were proposed in 1882. It was then decided that the code should be completely revised. It was under these circumstances that the Civil Procedure Code of 1882 was enacted.

The experience of a quarter of a century of operation of the Code of Civil Procedure of 1882 has shown that the general lines followed were correct. However, it was found that in some matters the provisions of the Code were too rigid to adequately meet the changing needs of different regions of the country. In addition, there was a certain contradiction between judicial opinions on the interpretation of some provisions of the Code. To correct these and other deficiencies, a comprehensive revision of the Code was carried out in the first decade of this century. The revision was undertaken by a select committee, which collected valuable materials on the subject and prepared a draft of valuable material on the subject and prepared a bill. A special committee chaired by Sir Earle Richards, whose members included Dr. Rashbcharv Ghose, carefully examined the bill. This Committee, with due regard to the provisions of the Bill, relied on the Code of 1882 as the basis of the revision.

He rearranged all the provisions of the Code into two parts –

  • Code body &
  • Plan

The Code of Civil Procedure has made the procedure in civil courts very basic and convincing. This code governs the authorization of the rights, duties and obligations of citizens. To state, the Code of Civil Procedure as such gives the component of realization of rights and obligations.
The Civil Procedure Code is general law and will not affect any laws that are currently in force. If there is a conflict with other laws, another law takes precedence in the Code of Civil Procedure. Alternatively, in the event that another law is silent on a specific issue, the Code of Civil Procedure shall apply.

To empower the courts to dispense fair and impartial justice, the Code of Civil Procedure, 1908 provides straightforward and clear procedures to be followed by the civil courts. As a result, the Civil Procedure Code of 1908 unified the domestic jurisdiction provisions. In the absence of any statutory provision, a court may, in the light of a legitimate interest in justice, exercise a discretionary power by acting beyond the powers conferred upon it by the Code of Civil Procedure. This is known as the Inherent Powers of the Court. The Code of Civil Procedure is one of the essential parts of procedural law and it is the one that governs the manner in which civil courts in India are to be governed. Despite the fact that it may have several limitations, it is still effective, basic, clear and entitles the courts to fair justice and impartial justice.

Author: Ashvath Neelakandan,
Fourth Year Law Student at Chettinad School of Law

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