In this article, we shall study the historical background and the object of civil procedure code.

Historical Background:

The first Code of Civil Procedure was enacted in 1859 (Act VII of 1859) by the Committee headed by Mr. John Romily. It was amended in 1877 and, subsequently, in 1882, however, those amendments did not serve the purpose, therefore, the present Code of Civil Procedure was enacted in 1908. It was drafted by the Committee headed by Sir Earle Richards. Committee before submitting the draft to the West Minister Parliament travelled India, read its history and ancient texts, and then knew the traditions and culture of this country, and draft legislation was prepared, keeping all such things in view.

Civil Procedure Code, 1908:

The Code of Civil Procedure, 1908 (5 of 1908) came into force with effect from January 1, 1909. There are three major amendments. The object of amendments was to keep procedural law in tune with the changing needs of society and even technological advances.

• The Amendment Act (104 of 1976) came into force with effect from February 1, 1977 (except Sections 12, 13, and 50). Section 12 and 50 come into force on May 1, 1977 and Section 13 came into force on July 1, 1977.
• The Code of Civil Procedure (Amendment) Act, 1999 came into force from July 1, 2002.
• The Code of Civil Procedure (Amendment) Act, 2002 came into force from July 1, 2002.

The Object of Civil Procedure Code:

 The word CODE signifies ‘a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping‘. The Preamble of the Code states that the object of the Act is to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature. The main aim of the CPC is to facilitate justice and seek an end to the litigation rather than provide any form of punishment and penalties. The Civil Procedure Code directs each activity in civil courts and the gatherings previously it till the execution of the degree and order.

In Administrator General of Bengal v. Prem Lal Mullick ILR (1895) 22 Cal 788 (PC) and Mahant Shantha Nand Gir Chela v. Mahant Basu Devanand, AIR 1930 All 225 (230) FB case, the Court observed that to consolidate law means to collect, statutory law relating to a particular subject and to bring it down to date in order that it may form a useful Code applicable to circumstances existing at the time when the consolidation Act is enacted.

In Kapildeo Prasad v. Ramanand Prasad, AIR 2007 Pat 1 case, the Patna High Court the Court observed that CPC is a complete code in itself. Once proceedings are initiated under the Code, rights, and remedies have to be looked thereunder.

In Prem Lal Nahata v. Chandi Prasad Sikaria, AIR 2007 SC 1247 case, the Court observed that the code consolidates and amends laws relating to Courts of Civil Judicature. It also deals with substantive rights but mainly aims to consolidate the law relating to civil courts and procedures.

In Saiyad Mohammad Bakar v. Abdul Habib Hasan Arab AIR 1998 SC 1624 case, the Court opined that procedural law is always subservient to substantive and is in aid to justice. Nothing can be given by a procedural law what is not sought to be given by substantive law and nothing can be taken away by the procedural law what is given by the substantive law. 

Extent and Applicability

The Code is applicable to the whole country except –

1. The State of Jammu and Kashmir
2. The state of Nagaland and the tribal areas

Through the amendment of 1976, the provision has also been extended to scheduled areas.

In Westarly Dkhar v. Sehekaya Lyngdoh, (2015) 4 SCC 292 case the Court held that courts in such areas (exempted areas) shall be guided by the spirit of the Code and would not be bound by the letter of CPC.

Retrospective Operation

The principle of interpretation of statutes that procedural laws are well-settled is always retrospective in operation unless there are good reasons to the contrary. Their provisions will already apply to the proceedings commenced at the time of enactment. This is so because no can have a vested right in forms of procedure.

In Garikapati Veeraya v. N. Subbiah Chaudhry, AIR 1957 SC 540 case, the Court held that the CPC is not retrospective in operation.

Interpretation of the Act:

In Sangram Singh v. Election Trbunal, AIR 1955 SC 425 (429) case, the Court held that the function of adjective law is to facilitate justice and further its ends.In

In RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628 (631) case, the Supreme Court observed that a statute is to be construed according “ to the intention of them that make it”. The duty of the Judicature is “to act upon the true intention of the Legislature – the mens or sentential legis”.

In District Mining Officer v. Tata Iron & Steel Co., AIR 2001 SC 3134 (3152) case, the Court held that if a statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the Legislature.

In Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484 (488) case, the Court held that a “hypertechnical view” should not be adopted by the court in interpreting procedural law.

In Ghanshyam Dass v. Dominion of India, AIR 1984 SC 1004 (1010) case, the Court observed that our laws of procedure are based on the principle that, as far as possible, no proceedings in the court of law should be allowed to be defeated on mere technicalities. The provisions of the Code of Civil Procedure, therefore must be interpreted in a manner so as to subserve and advance the cause of justice rather than defeat it.

In The State of Punjab v. Shamlal Murari, AIR 1976 SC 1177 case, the Supreme Court, while dealing with the scope of the procedural law, observed “We must always remember that processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed  that   procedural   prescriptions   are    the    hand-maid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non- compliance, tho’ procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities.

In Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353 case, the Court observed that substantial justice has to be preferred upon the procedural technicalities. The Hon’ble Supreme Court of India returned the finding as under ”When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.”

In Zolba v. Keshao, AIR 2008 SC 2099 case, the Court observed that the use of the word ‘shall’ is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory.

In next article, we shall study the scheme of the Code of Civil Procedure.

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Substantive Law:

The law which defines rights and liabilities of individuals and collective bodies is known as substantive law. It is so called because it puts in a clear-cut and precise form the substance of the subject matter for enforcing which the courts of law and the officers of law exist. Substantive law defines, in regard to specific subject, the legal rights and relationship of people among themselves or their relation with other people or between them and state. Any wrong done by an individual, group of persons or the state against the other(s) will make the wrong-doer accordingly liable to the others. Wrongs may be either civil or criminal. Substantive law refers to all categories of public and private law, including the law of contracts, property, torts and crimes of all kinds.

Substantive law deals with the “substance” of charges. It consists of written statutory rules passed by the legislature that govern how people behave. These rules, or laws, define crimes and set forth punishment.  They also define our rights and responsibilities as citizens. There are elements of substantive law in both criminal and civil law. It requires that the prosecutor prove every element of a crime in order for someone to be convicted of that crime. The elements to be proved, depend on the crime committed and the state’s substantive laws.  Once these things are proven, the person can be taken into custody. Next, procedural law will determine the steps the case must take.

The administration of justice is civil as well as criminal. The social equilibrium of society is maintained through the machinery of criminal justice (criminal prosecution) in form of capital punishment, imprisonment, and fine. While the administration of justice in civil litigation is done in the form of civil remedies (damages, injunctions, specific performances, restitution of conjugal rights, divorce, etc.).

Civil and criminal cases share the same courts, but they have very different goals, purposes, and results. Civil wrongs are private wrong while criminal wrong is a public wrong. Hence the criminal wrong is more harmful. Hence to prevent criminal wrongs and to create fear among the public against the commitment of such wrong, the State becomes the prosecutor in criminal wrongs.

Difference Between Civil Law and Criminal Law:

Examples of Substantive Laws:

• Criminal Laws: The Indian Penal Code, 1860, Domestic Violence Act, 2005, etc.
• Civil Laws: The Indian Contracts Act, 1872, The Companies Act, 2013, The Factories Act, 1948, The Transfer of Property Act, 1882, The Hindu Marriage Act, 1955, etc.

Procedural law:

The law which tells about how the courts and the officers dealing with the law act in giving effects to the substantive law of the land is known as Adjectival or Procedural law. Procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. The court needs to conform to the standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the “due process”. Due process refers to the legal rights owed to a person in criminal and civil actions. While substantive law maps out the charges, procedural law is the process a case will move through from arrest to conviction.

According to Salmond (Fitzgerald, 2006) the law of procedure is the law of actions. The word ‘actions’ is used in the sense to include all legal proceedings.

Objects of Procedural Law:

• To inform about the process that a case will go through (whether it goes to trial or not);
• To determine how a proceeding concerning the enforcement of substantive law will occur;
• To prescribe the practice, procedure and machinery for enforcement of the rights and liabilities.

Examples of Procedural laws:

• Civil Procedure Code, 1908
• Code of Criminal Procedure, 1973

Relation Between Substantive and Procedural Laws:

• Substantive law and procedural law are the two main categories within the law. One without the other is useless. Both are essential for delivery of justice.
• Procedural law is an adjunct or an accessory to substantive law and renders the enforcement of substantive rights very effective.
• Both, substantive law and procedural law, are codified in the form of rules. While the substantive law refers to the body of rules that stipulate the rights and obligations of individuals and collective bodies, the procedural law is also the body of rules, but governing the process of determining the stipulated rights and liabilities of the parties in the given facts and circumstances.
• Substantive law defines the rights and duties, while procedural law provides the machinery or mechanism for enforcing the rights and duties.
• Substantive laws and procedural laws exist in both civil and criminal laws. But, in criminal law, if the procedural law is used to prevent commission of offences then it assumes the character of substantive law as well.
• Substantive law precedes the procedural law. Procedural laws sub-serve the substantive laws in the sense that the former will act as a means to promote and achieve the interests, objectives, aims or goals of the latter.

Difference Between Procedural Law and Substantive Law:

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