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India Needs New Civil Procedure Code Or Not

Procedural Law:
Laws can be divided into two groups-(i) Substantive Law, and (ii) Procedural Law or Adjective Law. Whereas substantive law determines the rights and liabilities of parties, adjective or procedural law prescribed the practice, procedure and machinery for the enforcement of those rights and liabilities.

The rules of every procedural system reflect choices between worthy goals. Different systems for example, may primarily seek truth, or fairness between the parties, or a speedy resolution, or a consistent application of legal principles. Procedural laws prescribes procedure for the enforcement of the rights and liabilities. The efficacy of substantive laws, to a large extent, depends upon the quality of procedural laws. Unless the procedure is simple, expeditious and inexpensive, substantive laws, however good are bound to fail in achieving object and reaching the goal.

Procedural law is thus an adjunct or an accessory to substantive law the two branches are complementary to each other and interdependent, and the interplay between them often conceals what is substantive law and what is procedural law.

The Indian Penal Code, Transfer of Property Act, Industrial Dispute Act
 are Substantive law, while the code of criminal procedural code , civil procedural code are Procedural Law. It neither creates nor takes away any right. It intends to regulate the procedural to be followed by civil courts.

History of Code
Before 1859, there was no uniform code of civil procedure. There were different system of civil procedure in different parts of the country. The first uniform Code of civil procedure was enacted in 1859. But that code was also not mode applicable to the Supreme courts in the Presidency towns and to the Presidency small cause courts.

In 1908,the present code of cpc was enacted. It was amended by two major amendment acts of 1951 and 1956. On the whole, this code worked satisfactorily, though there were some defects in it.

The law commission in its many reports made various recommendations and after carefully considering them, the Government decided to bring forward the Bill for amendment of cpc,1908,keeping in the view, inter alia, the following considerations-
1. A litigant should get a fair trial in accordance with the accepted principles of natural justice.
2. Every effort should be made to expedite the disposal of civil suits and proceedings, so that justice may not be delayed.
3. 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 means to engage a pleader to defend their cases.

Some of the important changes made by the amendment Act 1976, are as under:
1. The doctrine of res judicata is being made more effective.
2. Power to transfer proceedings from one high court to another is given to the Supreme Court.
3. Freedom from attachment of a portion of salary to all salaried employees is granted.
4. Provision of giving notice under Section80 before the institution of a suit against the government or a public officer is made less stringent.
5. Restrictions are imposed on the right of appeal and revision.
6. Provisions are being made to ensure that written statements and documents were filed without delay.
7. New Order32-A has been inserted to provide a special procedure in litigation concerning the affairs of a family.
8. The practice to pass preliminary and final decree in certain suits is abolished.
9. Scope of summary Trials is substantially widened.
10. Important changes have been made to provide relief to poorer sections of the community.

The amendment made in1976 were not found sufficient. With a view to dispose of civil cases expeditiously, Justice Malimath Committee was appointed by the Government. In pursuance of recommendations of the Committee, the code was amended by the Amendment Acts of 1999 (Act 46 of 1999)and 2002( Act 22 of 2002).

Important amendments made by Acts of 1999 and 2002 may be summarised thus:
1. In several matters, such as issuing of summons, filing of written statement, amendment of pleading , productions of documents, examination of witnesses, pronouncement of judgements, preparation of decree, etc., a time limit is prepared.
2. A new provision for settlement of disputes outside the court has been introduced.
3. Number of adjournment have been restricted.
4. A provision for recording for evidence by the court Commissioner has been Made.
5. New provision is made for filing of appeal in the court which passed the decree.
6. Instituting of appeal against the judgement is allowed where the decree is not drawn up.
7. Scope of first Appeal , second appeal, letters patent appeal and revision has been curtailed.

The code states that object of the code is to consolidate and amend the laws relating to the procedure of courts of civil Judicature. To consolidate means to collect all the laws relating to a particular subject and to bring it down to date in order that it may form a useful code applicable to the circumstance existing at the time when the consolidating act is enacts.

The very object of codifying a particular branch of law is that, on any point specifically dealt with, the law should thenceforth be ascertained from the language used in that enactment and not from the preceding act.

The code of civil procedure is a consolidated code as to procedure to be followed by civil courts. As observed in Prema Lala Nahata v. Chandi Prasad Sikaria (2007)2 SCC 551:AIR 2007SC1247, the code consolidate and amends the laws relating to the procedure of the courts of civil judicature. No doubt it also deals with certain substantive rights. But it’s essential object is to consolidate the law relating to civil procedure.

Extent And Applicability
The code extends to the whole of India, except
(A) The state of [***],and
(B) The state of Nagaland and the Tribal areas.

By the amendment of 1976, the application of the provision of the code have been extended to the Schedule Areas also (Section1, Ss157,158)
Main object of the code is to consolidate and amend the laws relating to the procedure of courts of civil Judicature.

Scheme of Code
The code can be divided into two parts
(a) The body of the code containing 158 sections, and
(b) The (first) schedule containing 51 orders and Rules. The sections deal with provisions of a substantive nature, laying down the general principles of jurisdiction, while(first) schedule relates to the procedure and the method, manner and mode in which the jurisdiction may be exercised.

New Civil Procedure Or Not
The substantive part of the code of civil procedure contains 158 sections, the (1st) schedule comprise 51 orders and rules providing procedure. Appendices contains Model forms of pleading, processes, decrees appeals, execution proceedings, etc.

Section 1-8 is preliminary in nature, section 9 to 35-B and order 1 to 20 of the 1st schedule deal with suits. Section 9 enacts that a civil court has jurisdiction to try all suits of a civil nature unless they are barred expressly or impliedly. Whereas section 10 provides for stay. And section 11 deals with well known doctrine of Res Judicata.

To make this code effective government made so many amendments in this code time to time. Because India is a vast country and diversified also. And this code enacted at the time when we were under control of British government. They drafted code in the way that helps citizen of this Country. They focused on basic problems of that time was prevalent in those days.

In 18th century problems related with immovable properties, partition was one of the biggest issue in society. Draftsman of this code specially mentioned all this provisions in a sub section of a section, so that judiciary easily deals with these problems (section 16).

They also focus on jurisdiction of courts and set limit of courts. In India there is a series of courts and they are set by nature of suit. For betterment of this code and on demand of time legislature made many amendments so that they fulfill the demand of time and society.

Problems In Code
There are some problems in given code.
a. Dismissal for default in section2(2)is silent as to whether it is default of appearance or default of any kind like failure to furnish particulars etc.
b. Whether, in case of a HUF, the surviving coparcener will become a legal representative section2(11) is silent about this aspect.
c. Section 10 CPC stands for stay of suit. The words, in India having jurisdiction to grant the relief claimed is not free from divergent views. Its whether connotes the relief claimed in the second suit or in the first suit. There shall be a clarification in this aspect.

Amendments At A Glance
Various efforts have been made by the law makers to improve the procedural code of civil proceedings by amending the act at certain intervals. These amendments seek to ensure fair trial and speedy justice. In 1999, a bill was formulated to amend the C.P.C but it was discarded as it was met with great resistance and strikes from lawyers. Hence a new Amendment was formulated in 2002 which is called the Code of Civil Procedure (Amendment ) 2002.

The act of 2002 was met with little resistance and provide to be more effective than the one in 1999. Venkatsan in his article Trials and Execution states that the 2002 act has been welcomed for reducing delays during the trial of civil suits. The means of serving summons on defendants have been expanded with the addition of more options such as e-mails, fax, and private courier. The 1999 act had imposed a 30 day limit on the defendant to file reply to the summons. Which was objected to by the lawyers. The 2002 act provides three months for reasons to be recorded in writing by the court.(i)

The 1999 act substituted section 102 of cpc to provide that no second appeal lie from any decree, when the amount or value of subject matter of the original suit did not exceed Rs.25000. critics had then pointed out that it would foreclose seconf appeal even in cases where a substantive question of law was involved. It was argued that the revenue being nominal, the rural areas and agricultural and, prescribed as a certain multiple thereof would never reach Rs. 25000.this would have created an unfair distinction between two classes of litigants with the right to second appeal available only for the moneyed classes. The 2002 act has corrected this distinction by specifying that no second appeal shall lie from any decree, when the subject matter of the original suit is for the recovery of an amount not exceeding Rs. 25000.

Concept of Fair Trial
The preamble to the constitution says that the country will make an effort to ensure justice- social, political and economic to all its citizens.

This justice of social, political and economic factors is usually referred to as the concept of natural justice. Natural justice simply means the unbiased, fair and just methods of legal proceeding. KEN BINMORE in his article Natural Justice discussed that the apex court of the country has laid down guideline for all the courts to ensure fair trial during a legal proceeding and that courts while giving a judgement should insure impartially , should act in fair in all manners should not be biased in any way and the judgements must give reasonable time to both the parties to respond to the legal notice and a fair and equal opportunity must be given to them to present their case.[iv]

In the code of civil procedure, Order 41Rule2,3 defends and safeguards the interest of a decree holder if states that, before custody is ordered by the court, it should ensure that there was no bad faith in ordering such detention. It should keep on mind that custody was not awarded merely on the basis of omission. Supreme Court in the case of State of Punjab v Baldev Singh, stated that unfair trial leading to conviction is against the very principle of justice.

Section 16to 21 of Civil procedure provides place of suing. They mention each and every aspect of possibility. Some procedure mention under cpc will looks like biased in some sense, but when we try to understood jurisprudence behind that we feel there is no error in section. Example- if RAM beats MOHAN at Delhi and Mohan belongs to Chennai, but he (Mohan ) have to file suit against RAM either delhi where cause of action happened or where RAM have business, but he cannot file suit in Chennai. This is little confusing for people because this is against interest of Ram.

Draftsman mainly considered a good and healthy code should be given to this country and our constitution gives power to legislature to amend code as per time and society demand. In CPC High court of any state make changes in Orders but not in section. Because Section can be only amend by legislature. And legislature can also amend Orders. So it is very flexible. As per above discussion we can say that Our code gives enough power to courts and its officers and there is no need of new code for India, officers of courts should be honest with it. And they should exercise powers given by code to them honestly. This is enough for healthy state. In our cpc facility of appeal is also given which is a remedy for party who is not satisfied by judgement. By way of Appeal he can visit higher court for redressal of his/her suit. This is a feature of a good code and its shows intelligence of our draftsman.

Code of civil procedure represents the orderly, regular and public functioning of the legal mechanism, and also public functioning of the legal mechanism, and also the operation of due process of law. It sustains and secures every person, his life, liberty, livelihood and property, and it keen to ensure that he does not suffer any deprivation of his rights, except in the due process of law.
The time tested code is not free from complexities and procedural hardships. Many provision do require consideration afresh in the light of the changing circumstances. Many of them canvass divergent and conflicting views.

India is a vast country and many different culture lives here. And where diversity in culture is exist it is natural that conflict of ideology exist. Problems related with property and family etc is major problems of any state. Our code conclude all these problems and with suitable solution. Now CPC is applicable to Jammu and Kashmir after Reorganization act. And people of that state and U.T will also govern by this code.

On the basis of above discussion and sections as per given in our Civil Procedure Code, we can say that India does not need any new code for its civil nature problems. Existing code is enough for tackle with all these issues, but what India needs is basically a good system that can implement all these provisions as given in code.

If there is any loop in any code of any country, legislature of that country have power to amendment it and make it loop less. Our constitution is quasi Federal in nature any amendment is easy in compare of USA or some other country. So when any demand emerge legislature amend that code at solve that problems, problems does not mean that a code which exist in particular country for more than 100 years should repealed. Our CPC needs some basic and important Amendment in a new bill as we discussed above. Government should make it easy for judges by exact wording of code.

So finally we can conclude that our given code (Civil Procedure Code) needs some amendment for its flexibility, and there is no need of new code.

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