Civil Procedure Code

Civil Procedure Code

“Law which does not serve the society is a mere waste of paper liable to be thrown in the dustbin.”[1] The essence of civil jurisprudentia begins with the contributions rendered by the great “English utilitarian philosopher and social reformer.” It is germane to note that origin of law more particularly civil law is through the customs prevailing from time immemorial. Therefore to trace the jurisprudential approach customs are necessarily to be traced. The Civil Procedure Code contains all the provisions which corroborate with the customary practices which stands in conformity with the prevailing society.

The Code of Civil Procedure in its preamble, quoted, “An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.”  Civil Procedure Code is a procedural law and the purpose is to deliver justice and therefore it cannot be applied in the extremely rigid manner. Rather a general rule should be strictly interpreted but whenever an interest of justice so requires the provisions can be made flexible in order to do complete justice in the case. If there is ambiguity about the provisions then that interpretation shall be applied which serves the purpose of the Civil Procedure Code that is to meet ends of justice.

The Civil Procedure Code is the law of procedure. The law of procedure is also called the “law of action”[2]. It is considered as that branch which governs the process of litigation.[3] If we interpret the term action, it can be both civil and criminal but the Code of Civil Procedure, 1908 specifically talks about the civil action. If the contents are traced back to the Common Law Procedure Act, the word ‘procedure’, denotes in its larger sense, “the mode of proceedings by which a legal right is enforced, as distinguished from the law which gives or defines a right, and which by means of the proceeding of the Court is to administer the machinery as distinguished from the product.”[4] 

Enumerating on what comes under the umbrella of the procedural law, it includes jurisdiction of the courts, proceeding in the court, issue of processes which includes summons, warrants, etc, pleadings, trial procedure, recording of evidence, appearance of parties, advocates, prosecutors, etc, judgement of the courts, costs, review, revision, appeals etc., and finally the execution of decree or order or punishment in criminal cases. Therefore differentiating it with the substantive law, it deals with the ends which the administration of justice seeks to achieve. Whereby procedural law deals with the means and procedure by which those ends can be achieved. While substantive law determines the conduct and relations inter se in respect of the matter litigated, the procedural regulates the conduct of the court and parties therein. The ends of administration of justice is dealt with the procedural law deals with means and instruments by which the ends of justice may be attained.

But it is to be considered that there exist many rights which pertain to the sphere of procedure. The right to appeal, a right to interrogate the opposite party, a right to give evidence on one’s own behalf are examples of those right which are one way or other are procedural. The most part of the Code of Criminal Procedure and the law of Evidence pertains to procedural law whereas the Indian Penal Code, the law of Contract, transfer of property, negotiable instruments etc. Are the examples of substantive of substantive law.

There consist various stages in the judicial procedure in the CPC. The initial stage involves the Summons which effects the strict adherence to the procedure which provides all interested parties an opportunity for appearance in a court in order to put forth their respective arguments for the settlement of issues. While another important procedural stage called pleadings is the backbone of litigation. The Code of Civil Procedure, 1908, defines ‘pleadings’ as meaning a plaint and written statement.  While proof bears the third procedural importance as it is a process which enables the parties to furnish the material by adducing evidence to that the court may arrive at the right conclusion on the basis of issues for determination before it.

Judgement, the conclusion of a suit, contains the statements given by Judge about the grounds of decree or order. The decision of the court is embodied in the judgement. While the court in its judgement may also order the losing side to pay ‘costs’ to which the other party has been put in consequence of the suit having essence of a penalty imposed to the losing party, to provide for his or her wrongful claim for causing wilful delay in meeting ends of justice.

The last stage that is execution it involves the physical force needed to uphold the judgement when voluntary submissions are not seen. It is considered as the process where a decree is enforced by the court. Recognizing it as an act of carrying out the judgement into effect, execution of a decree or order compels the defendant to do or pay what has been ordered by the court. The question of execution does not arise in case of a successful defendant except for the recovery of costs arising thereby.

As a conclusion, there will be no denying to say that the jurisprudential aspect of the Code of Civil Procedure carries with itself the essence of the civil procedural rights of the citizens which enables them to claim their right and cause of action with its violation thereof expediently and with best effort till end of the suit to meet the ends of justice. The civil procedure therefore walks hand in hand and shoulder to shoulder with the spirits of social process and society at large and cannot be ignored keeping in view, it rather protects the procedural interests of the citizens for a better social arena.

 

[1] https://www.utilitarianism.com/bentham.htm

[2]Quod and actions pertinet

[3] Fitzgerald, P. J.(ed.) : Salmond on Jurisprudence (12th ed.) p. 461.

[4] Poyser v. Minors, LR 7 QBD 329.

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