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Unit 1 - Code of Civil Procedure - History

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22 views

Unit 1 - Code of Civil Procedure - History

class notes

Uploaded by

megha.9119marymichael
Copyright
© © All Rights Reserved
Available Formats
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History of the code

• Before 1859, there was no uniform Code of Civil Procedure, there


were different systems of civil procedure in different parts of the
country.
• Under the British rule, there were Crown Courts in Presidency towns
(Madras, Bombay and Calcutta) and Provincial Courts in Mofussils.
• The first uniform Code of Civil Procedure was enacted in 1859 , but
this Code was also not made applicable to the Supreme Courts in the
Presidency Towns and to the Presidency Small Cause Courts.
• Some amendments were made therein and the Code was applied to
the whole of British India, but there were many defects in it, and
therefore, a new Code was enacted in 1877. Again, another Code
was enacted in 1882, which was also amended from time to time.
In 1908, the present Code of Civil Procedure was enacted.

The Law Commission in its various reports made many recommendations,


and after carefully considering them, the Government decided to bring
forward the Bill for the amendment of the Code of Civil Procedure, 1908,
keeping in view, inter alia, the following considerations:

 a litigant should get a fair trial in accordance with the accepted


principles of natural justice;
 every effort should be made to expedite the disposal of civil suits
and proceedings, so that justice may not be delayed;
 the procedure should not be complicated, and should, to the
utmost extent possible, ensure a fair deal to the poorer sections of
the community who do not have the means to engage a pleader to
defend their cases.
It was amended by two important Amendment Acts of 1951 and
1956.

Meaning and Object of the Code:

• The Law relating to the practices and procedure to be


followed in the Civil Courts is regulated by the Code of Civil
Procedure, 1908.
• The Aim of the Procedural law is to implement the principles
of Substantive law. This Code ensures fair justice by
enforcing the rights and liabilities.
• Civil Procedure Code provides the mechanism for
enforcement of rights and liabilities.
• The Civil Procedure Code in India embodies a mixture of strictness
of procedure and of discretionary powers vested in the courts. The
aim is to do justice.
• The Code of Civil Procedure, 1908 is concerned almost wholly with
institution of a suit in a civil court, the progress of its trial ending
with orders or a decree and its further stages such as appeals,
reference, reviews and revision and the execution of decrees and
orders.

Supreme Court of India in Sangram Singh v. Election Tribunal, AIR


1955 SC 425, Bose J. said: …..It is a "procedure" something
designated to facilitate justice and further its ends, not a penal
enactment for punishment and penalties, not a thing design to trip
people up.
The Civil Procedure Code is a general law and will not affect local or
special laws (applicable to a particular subject) which are already in
force. In case of any conflict with local or special laws, the local or
special law will prevail over the Civil Procedure Code. In case, if the
local or special law is silent about any particular issue, then the Civil
Procedure Code will apply.

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.
It is a consolidated Code collecting all the laws relating to the
procedure to be adopted by civil courts.

The provisions of the Code have evolved as a matter of long years of


experience emanating out of the common law of England. (Subrata Roy
Sahara v. Union of India, (2014) 8 SCC 470)
As observed in Prem Lala Nahata v. Chandi Prasad Sikaria, 2007 2
SCC 551, the Code consolidates and amends the laws relating to the
procedure of the Courts of Civil Judicature. No doubt it also deals
with certain substantive rights, but its essential object is to
consolidate the law relating to civil procedure.

In Saiyad Mohd. Bakar v. Abdulhabib Hasan, 1998, 4 SCC 343,


Supreme Court stated, “A procedural law is always in aid of justice,
not in contradiction or to defeat the very object which is sought to be
achieved. A procedural law is always subservient (subordinate) to the
substantive law. 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 by the procedural law what is given by the substantive law.”

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