Civil Procedure Code, 1908- More Effective and Justice Oriented

By Akash Mishra, WBNUJS

Editor’s Note: The Code of Civil Procedure (CPC) is deemed to be one of the primary procedural laws in India which is neither involved in taking away the rights nor in engendering, it is solely into regulating the court procedure. The CPC has been majorly amended in 1951 and 1956. It was further modified according to the changing needs of the society in 1976, 1999 and in 2002 (Based on the Law Commission reports).

INTRODUCTION

Classification of law can be broadly distinguished on its substantive and adjective aspects. The substantive law qualifies as the legal framework which deals with the defining of the legal status, establishment of the rights and duties of citizens and its extent. However, the adjective law deals with the procedure involved in establishing these rights. The Civil Procedural Code, 1908 falls into this category of adjective law.

CPC is a collated code incorporating the various laws in its sphere but it is not exhaustive within it. Courts are to be guided by principles of equity and justice while dealing with scenarios for which the existing code may not be enough. Thus, the court’s ability to take such decisions is deemed necessary in its objective of preventing any miscarriage of justice. Various judgments in this regard can be to ascertain the aforementioned purpose of the code such as Sangram Singh v. Election Tribunal[1] wherein the apex court discussed about the need for a more liberal understanding of CPC for justice to be delivered in its most apt manner.

Only through these adjective laws, the concept of fair trial and natural justice can be executed in reality and without these ideas in context; the court trial is deemed to be invalid and null. This project shall deal with all the important principles and doctrines enshrined in the Code that make it an efficient procedural law alongside all the  amendments through which the changing needs of our society have been dealt with and the law made even more robust and justice oriented.

FREE LEGAL AID

In our country, legal aid is a cardinal component of providing for the safeguarding of the existing rule of law in the society. It was rightly stated by Justice Blackmun in Jackson v. Bish that to achieve justice, money should not be a hindrance. The idea of justice should not be related to monetary terms as every person deserves an equal opportunity to be represented adequately in the justice provision mechanism. In Maneka Gandhi v. Union of India, the Supreme Court expanded its understanding of Article 19 to expressly include the ideals of reasonable, fair and just while deciding a case.

This widened understanding of Article 19 was allied with free legal aid in the case of Hussainara Khatoon v. State of Bihar as it was held that “free legal aid is an inalienable element of reasonable, fair and just procedure and thus the right to free legal services was implicit in the guarantee of Article 21”.

This compulsory duty has been discussed in several other cases as well, holding that legal aid must be provided without any monetary charges to every person. If a trial continues without the legal aid made available by the state, such a trail needs to be deemed void even though the person must not have applied for such legal help.

It can be seen through a proper understanding of the Code that free trial as a concept has been already existing in CPC, 1908. Also, these provisions provide the High Court with powers to engender rules and regulations as it deems fit for the purpose including the total length of such free service and its nature.[i]

Constitutionally, Article 39A explains that it is the duty of the state to endorse justice through equal opportunity being given to every citizen and make sure that economic incapability does not form impediments in gaining access to justice. In pursuance of this objective, the state has been involved in numerous schemes “through Legal aid schemes, Societies and Law Departments”.

SPEEDY TRIAL

In the system of justice provision, it is very important that a person gets justice and on time. Indian legal mechanism is particularly infamous for this particular aspect of delay in justice provision which ultimately defeats if not fully, atleast partially the purpose of the whole trial. If the trial is not made in a speedy manner, it cannot be deemed as fair.[ii] The same as has been re-iterated in various Indian pronouncements as well.

It is considered to be a fact that any holdup in the court proceedings clearly leads to injustice[iii]. An unreasonable delay in providing the judgment is in itself unfair to the party that is accused and he should be discharged of his offence if there does not exist any genuine rationale for the happenings.[iv] However, this may not happen in every scenario as such delay may be due to certain extra-ordinary allegations and the only option is the instruction by the court to make the process faster.[v] To further this objective of expediting the legal process, the rights of parties to enter into a compromise or take back their suit is recognized. This is through Order XXII, Rule 3 which “parties either to abandon a claim, or to request the court, to record the compromise between the parties.”[vi]

Through the insertion of Rule 3A, the objective was further bettered as a person cannot appeal from a compromise decree ensuring a trial that is faster and more justice-oriented.

One of the cardinal inclusions into this system has been the Section 89 through the amendment of 1999 which provided greater efficiency to the system of Lok Adalats. Its inclusion was due to the Justice Malimath Committee Report and through the 127th and 129th Law Commission Reports. These changes brought in newer elements that if it known to the court that if a settlement can be brought forward, it shall make the conditions of such a settlement and pass on to both the camps for their analysis. After the court receives such comments, it shall either continue with the settlement or refer to other modes of settlement such as arbitration etc. The focus lies on the point that the courts must be faster in its justice delivery and unnecessary delays must be avoided at all costs.

Another prime component of CPC is Summary Procedure.[vii] To make sure that the trial process is being done in a quick manner with cases being done with quickly Section 47 of the Code explains that the questions which arise between the two sides of the suit that was passed, or through their legal representatives and in relation to the summation of the decree, shall be pronounced by the court not though any other different suit.

The Code of Civil Procedure has been amended different times and such amendments have brought forward certain changes to ensure that the trial procedure is shortened. The amendment regarding Section 148 was that courts had the authority to expand the required period for an act. However, the amendment limited it to a month through Section 13 of the Amendment Act in 1999. Also, there was a limit that was fixed towards numerous actions like the time-period for the statement to be made by the defendant and the application for summoning the witness being made.

An amendment to Rule 9 and Rule 9A of Order V put into reality the responsibility of putting forward the summons to the defendant. Also, this amendment expressely authorizes the use of newer means of communications like couriers etc. Another important amendment in this respect has been “Section 27 of the CPC (Amendment) Act, 1999 and Section 12 of the CPC (Amendment) Act, 2002”:

The amendment provided the commissioners with the power to record evidence and such power not to be restrained just to themselves. Prior to this amendment, the judge used to be over-burdened and it was a cause of delay but through such delegation, the process has become much faster.

RIGHT TO FAIR TRIAL

The right to fair trial can be rightly deemed as the most important requirement in any legal hearing as without a proper hearing no hearing can be deemed to be rightful in any sense. Any country that respects the rule of law, follows these principles in strict coherence. These rights have been explicitly expressed even in Article 10 of UDHR as well as in Article 6 of the European Convention of Human Rights.

 In minimum, these rights in court proceedings generally includes the following:

  • Availability of a transparent and impartial body to adjudicate
  • Compulsory availability of a public hearing
  • A reasonable time frame is also to be fixed.
  • Counseling privileges.
  • Privilege to interpretation.

So, looking at this understanding of natural justice, the aforementioned concept of getting a fair hearing is well respected. It is mentioned in our constitution clearly that the people of the country must compulsorily gain fair trial owing to the aforementioned principles.  So, in understanding this principles, there are a number of basic rights of CPC that are mentioned in the following section alongside the various amendments that have taken place over the years which strengthen the legal framework even more.

AUDI ALTERAM PARTEM

This is a Latin maxim which means “To hear the other party or the opposing side”. The maxim means to convey the message that both the parties must be provided with a reasonable opportunity of responding to the arguments against them in a fair and impartial hearing. This principle finds its relevance in almost all legal systems of the world and its importance can be known through this. A just legal system not only provides justice at the summation but throughout the tenure of its process and thus, this principle is very important.

AMENDMENTS

There have been certain landmark amendments that helped achieve this objective of creating a just legal system through the Civil Procedural Code. “Section 17 of the (Amendment) Act, 1999 and Section 8 of the CPC (Amendment) Act, 2002” through Order VII of the CPC makes it compulsory for the person to show all the documents and papers on which his arguments lie. The modification to rule 14 makes the person provide the whole data and submit the same alongside the plaint. But it must be noted that this amendment still does not resolve a particular problem that is the scenario when there is apprehension of data tampering while the papers are in safe-keeping of the court. On this regard, the suggestion has come from the Law Commission to provide for the Xerox copies of the data and the original.

“Section 24 and 26 of the CPC (Amendment) Act, 1999 and CPC (Amendment) Act, 2002”

The Rule 4 of Order XIV provided the court with the space to

The erstwhile original Rule 4 of Order XIV gave the court the liberty to defer “the framing of issues, examination of the witnesses or documents on any future day”. However, it happened few times that intentionally or unintentionally, certain arbitrary decisions were taken to decide a prospective date. However, the amendment filled this gap by limiting the adjournment to seven days.  Also, Section 25 of the CPC (Amendment) Act, 1999 provided a certain “time limit for making an application to summon a witness” and leading to a fair hearing alongside faster judicial process.

RIGHT TO APPEAL

This right is another part of the fair trial principle which has been explained in detail from Section 96 to Section 112 of the Code. This right is nothing but elementary sections that provide a background for making sure that total justice is done in the process. Also, S. 114 & S. 115 provide for the assessment and review. An appeal basically means the authority being shifted from the lower judiciary to the higher one for checking the soundness of the previous decision. It must be noted that the result of such modifications is that there shall not be any further appeal in front of the H.C if the original case has been pronounced by a singular judge form the H.C itself.

Also, another important amendment that is to be noted herein is that of S. 28 of the 1999 Amendment due to which there is no more requirement of This particular modification was brought into the scheme because it was realized that the requirement of a copy of the original copy is not feasible each time.

ORDER XXXIIA – This particular order was introduced through the Amendment of 1976 which provided “the procedure for suits or proceedings relating matters concerning a family.[viii] The code provides both the parties as well as the court the power to transfer suits. This is in consideration of the factor that if the parties are facing problems due to distance to the court or some bias from the bench, they could apply this provision and use it to avoid such an impediment to justice.

s. 22: This section in the court gives the court the ability to transfer a suit that might be started in a plurality of courts. In a general sense, the individual has the right to decide about the location of the multifarious courts in which he would file the suit. However, there can be a shift made form one court to another but only after the defendant provides a very strong rationale as justification.

s. 25 discusses about the ability to transfer cases to the apex court and it being the highest authority, the deliberation is for justice to be done infront of the highest legal authority of the country.

EX PARTE DECREE

Rule 13 of Order IX as well as the explanation provided by 1976 amendment explained that such a provision makes the legal mechanism more efficient as the defendant is given an audience through adequate opportunities in cases where his omission in the court isn’t arising out of grounds that are extra-ordinary.

What this right aims to provide is that an individual cannot be denied his right to legal hearing through allegations of cheating and fraud if the individual has fulfilled the conditions specified in the Code and “prevents a protracted litigation”.

DOCTRINE OF RES JUDICATA

Res Judicata is also known as “Claim Preclusion” and in latin it is referred to as a particular legal matter that is already adjudicated and it deals with the idea of preventing the continuation of the legal matter betwixt the same parties. So, res Judicata is to be used as an argument to prevent a matter from being raised again in court. It is considered to be a necessary part of the doctrine of fair trial.

The actual rationale behind is to make sure that there is no unnecessary litigation that continually sustains when there is a concurrent litigation that is going on at the same time through a competent authority.

CONCLUSION

Civil Procedural Code has been very important in the legal framework owing to its various procedural aspects as well as its objective of pursuing of an efficient justice system through fair trial, free provision of legal aid and speedy justice among other ideals. An analysis of all the above has been done in the paper and it can be concluded that these ideals are being properly followed through the innumerable efforts in the Code towards the objective of natural justice. The Code engendered various innovative measures to achieve its goal of speedy trials like that of arbitration and measures of settlement which helps reduce the backlog of cases and provides fair trial to people in a more efficient manner. Not only these, there are other forms of efforts being taken for fair trial to be followed in Indian Judicial process such as Open and Public trial. All the principles of appeal and review of decisions have been properly enshrined in the framework to create a robust system that is largely unfailing. The principles of natural justice have constantly been referred to and every amendment that have taken place clearly has been through such understanding. The conclusion that can be reached through the present paper is that the Code is well-defined and careful deliberations have been made towards its modifications so that it could suit the present societal terms.

Edited by Hariharan Kumar

[i] Id., Order XXXIII, Rule 18 (2).

[ii]Klopfer v. N.Carolina, (1967) 386 US 213.

[iv]State of Andhra Pradesh v. Pavithran, AIR 1990 SC 1266.

[v]Mangi Lal v. State of Rajasthan, (1988) Cr. L.J 1188 (appeal dismissed by Supreme Court).

[vi]Supra 10, Order XXIII, Rule 3; K. Venkata Subbaiah vs. Kanduru Ramasubbamma, 1991(3) SCC 338

[vii] Supra 10, Order XXXVII

[viii] Supra note 24, Page no.423

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