Extent and Applicability of the Code

Extent of the Code

The term “extent of the Code” refers to the territorial jurisdiction of the Code of Civil Procedure, 1908. It talks about the geographical area of India where the Code is applicable. In other words, it is the region within which the Code is enforceable or applicable by law.

The extent (territorial jurisdiction) of the Code is defined in Section 1(1) of the Code of Civil Procedure, 1908 as:

“It extends to the whole of India except –

¹Omitted by the Jammu and Kashmir Reorganization Act, 2019 (34 of 2019), dt. 09-08-2019, w.e.f. 31-10-2019 vide SO 2889 (E), dt. 09-08-2019.[(a) ***;]

(b) the State of Nagaland and the tribal areas:

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.”

After the abrogation of Article 370 of Constitution, the enactment of Jammu and Kashmir Reorganization Act, 2019 came into force. With the enactment of Jammu and Kashmir Reorganization Act, 2019, the Code and other Indian laws now applies to the Union Territories of Jammu and Kashmir and Ladakh.

The Code excludes certain tribal areas and regions mentioned under Sixth Schedule of the Constitution. These areas have their own independent district and region councils, and the Code of Civil Procedure may be modified or not apply at all within these councils.

State of Nagaland v. Ratan Singh²AIR 1967 SC 212

Background/Facts of the case:

The State of Nagaland was formed in 1962 and was given special constitutional status under Article 371A³Article 371A of the Constitution of India recognises the autonomy of Nagaland in matters of civil and criminal justice involving customary laws and practices. of the Constitution. Article 371A protected Naga customary laws, religious and social practices, including their system of administration and justice. It also provided that the Acts made by the Parliament shall not apply to the State of Nagaland unless the State Legislative Assembly decided to do so.

In case of Code of Civil Procedure, 1908, it is generally applicable throughout India. However, Section 1(3) of the Code specifically excludes Nagaland and tribal areas unless the State Government issues a notification to extend it.

The legal issue in this case arose when a police officer named Ratan Singh initiated civil proceedings in the State of Nagaland under the Code of Civil Procedure, 1908. The State challenged this action and argued that the CPC was not applicable in the State of Nagaland without a government notification extending its provisions to the State.

Legal issue: 

“whether the Code of Civil Procedure, 1908 or any central legislation automatically apply to the State of Nagaland, or a State Government notification required for its applicability of its applicability.”

Judgement: 

The Supreme Court while deciding in the favour of the State of Nagaland made the following statements:

The The Code of Civil Procedure or any other central legislature does not automatically applicable to the State of Nagaland. The Proviso to Section 1(3) of CPC makes it clear that the notification of State Government of Nagaland is mandatory to extend the Code to the State of Nagaland or tribal areas. This compulsion is in consonance of the unique constitutional and administrative setup for the “tribal areas” and special-status states under Article 371A and Sixth Schedule⁴Although Sixth Schedule does not directly applicable to the State of Nagaland, the rationale is similar to the Sixth Schedule areas in other North-Eastern state of India, emphasizing tribal self-governance. of the Constitution.

The Supreme Court further provided that the proviso (Section 1(3)) must be read strictly meaning that no part of CPC is applicable unless it is formally extended by a state notification.

Important observation: 

“The Code if Civil Procedure cannot be deemed to extend to the tribal areas or the State of Nagaland unless specifically notified by the State Government concerned. This condition is essential to safeguard the autonomous legal traditions and institutions prevalent in these regions.”

Applicability of the Code

In India, the Code of Civil Procedure is applicable to all civil proceedings. It governs the procedure for adjudication of civil rights and liabilities including disputes related to property, contracts, torts, family matters, and other legal issues of civil nature.

The Code is applicable to all civil courts, except where its application is expressly or impliedly barred by any statute (special law or local law). Although, the Code of Civil Procedure provides a uniform procedural framework, its applicability is subject to exceptions based on the nature of the forum and the provisions of special laws.

Dhulabhai v. State of Madhya Pradesh⁵AIR 1969 SC 78

Background/Facts of the case:

The appellant, Dhulabhai (tobacco dealer) challenged the imposition of sales tax (the Central Provinces and Berar Sales Tax Act, 1947) on the ground that the goods (tobacco) were exempted from tax.

Legal issues: 

“Whether civil court has jurisdiction to entertain a suit which challenge a tax levy imposed under a special statute which provides a complete and self-contained machinery for adjudication?”

Principle held in the judgement:

“Where a statute gives a finality to the orders of the special tribunals, the civil courts’ jurisdiction must be held to be excluded if there is adequate remedy provided under the statute itself. But where there is no such remedy or the tribunal acts without jurisdiction, civil courts can intervene.”

Judgement:

The Supreme Court laid down that the Sales Tax Act under which the tax was imposed on the goods did provide adequate remedies, but the appellants were challenging the very authority to impose the tax.

The Court held that the jurisdiction of civil court is not barred in present case because the tax levied on exempted goods, and such levy of tax was outside the scope of the Act.

Further, the Supreme Court provided a set of authoritative principles (7-point test) regarding when civil court jurisdiction is excluded:

i. The jurisdiction of civil court is implied unless it is explicitly or impliedly barred by a statute.

ii. If a statute creates a special right or liability/obligation and provides a comprehensive legal remedy, the jurisdiction of civil court is barred.

iii. If the tribunal acts beyond the power vested in them (i.e., ultra vires) or violates fundamental principles of judicial procedure, then civil courts can intervene.

iv. Civil courts have jurisdiction in those matters where the statute does not provide adequate remedy, especially in the matters where the constitutional and legal validity of law is there

v. Mere declaration of finality of orders does not by itself exclude the jurisdiction of civil courts

vi. If there is exclusion of civil court, it must be strictly construed; it cannot be inferred lightly

vii. The bar of jurisdiction must be express or necessarily implied, and even then, constitutional issues (e.g., violation of fundamental rights) may still be taken to civil courts

Legal maxim applied: 

Ubi jus ibi remedium (where there is a right, there is a remedy) = the jurisdiction of civil court presumed unless it is clearly excluded.

Premier Automibiles Ltd. v. Kamlekar Shantaram⁶AIR 1976 SC 2021; (1976) I SCC 496

Background/Facts of the case:

This case deals with the dispute involved a wrongful termination of a workman named Kamlekar Shantaram by Premier Automobiles Ltd. (a major automobile manufacturer).

Kamlekar Shantaram filed a civil suit seeking reinstatement and damages alleging wrongful termination. However, Premier Automobiles argued that the civil suit is not maintainable in this case, because the matter specifically fell within the exclusive jurisdiction of the Labour Courts under the Industrial Disputes Act, 1947 (IDA).

[Note: IDA is a special statute which governs employer-employee disputes.]

Legal issue: 

“Whether the jurisdiction of a civil court barred due to the presence of a special law?”

Principle held in the judgement: 

• Implied bar: It was provided that the Civil Court’s jurisdiction is not always expressly barred. The bar can be impliedly applied by the scheme and intent of a special law.
• Complete code test: If the special law is complete code for a kind of disputes, civil courts cannot interfere.
• Nature of right: It was also provided that if the right arises from a special statute, that right must be enforced through the mechanism provided in that statute.

Important observation:

“Where a right or liability is created by a special statute and a complete mechanism for adjudication is provided therein, the jurisdiction of the civil court is impliedly barred.”

~Hon’ble Justice P.N. Bhagwati

Judgement: 

The Supreme Court held that the jurisdiction of civil courts may be barred when a special statute such as Industrial Disputes Act provides a complete and self-contained mechanism for adjudication of specific types of disputes.

The court provided that, industrial disputes, including wrongful termination, reinstatement, etc. are exclusively governed by the Industrial Disputes Act, and these disputes should be decided by Labour Courts/Industrial Tribunals.

The Court laid down the following 4-point test to determine whether the jurisdiction of civil court is excluded:

i. The civil court has jurisdiction in those cases where the dispute related to the enforcement of a right or obligation under the general civil law.

ii. The jurisdiction of civil court is impliedly barred in those cases where the dispute is related to enforcement of a right or obligation under a special statute, and that particular statute creates a special tribunal with exclusive powers.

iii. The jurisdiction of civil court is barred in those cases where the statute is silent on exclusion but provides a complete mechanism for redressal of a dispute.

iv. The civil court may entertain those suits in which the remedy under the special law is not adequate or the tribunal lacks authority.

Judiciary prelims and mains question and answer

1. What does the term “extent of the Code” refers to in the Code of Civil Procedure, 1908?

a. The length of the Code

b. The types of cases covered by the Code

c. The territorial jurisdiction where the Code applies

d. The financial limit for suits

2. Which Section of the Code of Civil Procedure, 1908 defines “extent”?

a. Section 1(i)

b. Section 2(i)

c. Section 3(i)

d. Section 4(i)

3. Originally, the Code of Civil Procedure, 1908 did not extend to which of the following state/Union Territory of India?

a. Delhi 

b. Maharashtra

c. Kerala

d. Jammu and Kashmir

4. Which of the following State of India is exempted from the automatic application of CPC unless notified by the State Government?

a. Delhi

b. Assam and tribal areas

c. Nagaland and tribal areas

d. Maharashtra

5. The special constitutional provision which grants Nagaland legislative autonomy is found under which Article?

a. Article 370

b. Article 371A

c. Article 368

d. Article 245

6. In which of the following state tribal areas under Sixth Schedule are primarily located?

a. Uttar Pradesh

b. Assam, Meghalaya, Tripura, Mizoram

c. Kerala, Bangalore, Tamil Nadu

d. Delhi

7. What does the Proviso to Section 1(3) of CPC, 1908 state?

a. CPC is applicable to whole of India including Nagaland and Tribal Areas

b. CPC applies automatically to tribal areas

c. CPC applies only if notified by the State Government for Nagaland and Tribal Areas

d. CPC can be applied by the order of President

8. According to the Sixth-Schedule of the Constitution, which body has has judicial and legislative authority in tribal areas?

a. Governor of a State

b. Union Public Service Commission

c. High Court

d. District and Regional Councils

9. Ram files a civil suit in a tribal area of Assam. Will the Code of Civil Procedure, 1908 apply automatically?

a. Yes 

b. No, unless extended by the notification of State Government

c. Only after Supreme Court approval

d. Only if approved by the Parliament

10. Which of the following case confirmed that the Code of Civil Procedure, 1908 does not apply to Nagaland?

a. Golaknath v. State of Punjab

b. Kehar Singh v. Union of India

c. Kesavananda Bharati v. State of Kerala

d. State of Nagaland v. Ratan Singh

11. Which of the following statement is true?

a. Code of Civil Procedure, 1908 is not applicable to North-East India

b. Code of Civil Procedure, 1908 does not apply to any Union Territory

c. Code of Civil Procedure, 1908 applies uniformly to all parts of Indian without exception

d. Code of Civil Procedure, 1908 may be excluded from tribal areas unless extended by notification

12. The phrase “with such supplemental, incidental or consequential modifications” in the proviso of Section 1(3) of Code of Civil Procedure, 1908 refers to:

a. Modifying the Constitution

b. Minor changes that can be made while applying CPC to tribal areas

c. Excluding CPC altogether

d. Delegating law-making powers to Supreme Court

13. Choose:

a. If both Assertion and Reason are true, and the Reason is the correct explanation of the Assertion.

b. If both Assertion and Reason are true, but the Reason is not the correct explanation.

c. If Assertion is true but Reason is false.

d. If Assertion is false but Reason is true.

Assertion: The Code of Civil Procedure, 1908 automatically applies to Nagaland and all tribal areas.

Reason: The Code is a central legislation which applies uniformly across India.

14. Choose:

a. If both Assertion and Reason are true, and the Reason is the correct explanation of the Assertion.

b. If both Assertion and Reason are true, but the Reason is not the correct explanation.

c. If Assertion is true but Reason is false.

d. If Assertion is false but Reason is true.

Assertion: Article 371A of the Constitution provides special provisions for Mizoram and Tripura.

Reason: It preserves customary practices and local laws of the Naga people.

15. Choose:

a. If both Assertion and Reason are true, and the Reason is the correct explanation of the Assertion.

b. If both Assertion and Reason are true, but the Reason is not the correct explanation.

c. If Assertion is true but Reason is false.

d. If Assertion is false but Reason is true.

Assertion: The Code of Civil Procedure, 1908 can be extended to tribal areas with modifications.

Reason: The proviso of Section 1(3) allows for supplemental, incidental, or consequential modifications.

16. Match the following: 

Judiciary mains questions

Question: What is the constitutional rationale behind the limited extent of Code of Civil Procedure, 1908 in certain tribal areas? Discuss with reference to the Sixth Schedule of the Constitution.

Question: Discuss the impact of the Jammu and Kashmir Reorganisation Act, 2019 on the territorial extent of the Code of Civil Procedure, 1908.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

For answers of the above questions:

Contact us directly: https://wa.me/918882113418

[Note: Your number will not be shared. I will only use it to send you the answers you request.]

Do follow for more judiciary content:

Website: https://lawgiverr.com/

WhatsApp Channel: https://whatsapp.com/channel/0029VbB9Lmk90x2rSYEES00a

Also read: 

Substantive law vs Procedural law: https://lawgiverr.com/substantive-law-vs-procedural-law/

Historical evolution of CPC: https://lawgiverr.com/historical-evolution-of-code-of-civil-procedure-1908/

• 1
  Omitted by the Jammu and Kashmir Reorganization Act, 2019 (34 of 2019), dt. 09-08-2019, w.e.f. 31-10-2019 vide SO 2889 (E), dt. 09-08-2019.
• 2
  AIR 1967 SC 212
• 3
  Article 371A of the Constitution of India recognises the autonomy of Nagaland in matters of civil and criminal justice involving customary laws and practices.
• 4
  Although Sixth Schedule does not directly applicable to the State of Nagaland, the rationale is similar to the Sixth Schedule areas in other North-Eastern state of India, emphasizing tribal self-governance.
• 5
  AIR 1969 SC 78
• 6
  AIR 1976 SC 2021; (1976) I SCC 496