Background before codification

Have you ever wondered how civil cases are managed today in India? The answer lies in the historical evolution of code of civil procedure, 1908, which laid the foundation of India’s procedural law.

In India, there was no uniform civil procedure before British rule. The existing rules of civil procedure were largely unregulated and varied from region to region. Civil disputes were governed by the Anglo-Hindu and Anglo-Muslim systems. These systems were deeply rooted in local customs, religious laws, and prevalent traditional practices. Because of different sources and roots, these systems were neither uniform nor equipped with standardized rules of civil procedure.

Due to these unsystematic rules of civil procedure, there arose a need for a uniform procedural framework for civil litigation in British India. Consequently, they started to systematize the administration of justice in India.

Early attempts of codification

Charter Act 1726

The Charter Act of 1726 issued by King George I of Britain marked the first significant legal and administrative attempt to introduce a uniform judicial system in Colonial India. This Charter introduced a standardized court system across three presidency towns of Calcutta, Bombay and Madras. The primary objective of this charter was to bring a more structured and organized approach to legal administration across three presidency towns.

The charter established Mayor’s Courts in all three presidency towns of India and empower them with the jurisdiction over civil cases, probate matters, and testamentary issues. Nevertheless, these courts experienced multiple challenges and failed to administer justice to Indian populace, especially in matters which involves local customs and pluralistic religious laws.

Warren Hasting and the Adalat System (1772 Onwards)

The Regulating Act 1773 and other subsequent reforms introduced Adalat system to reform the existing judicial system. The system was a semi codified system of governance which combined traditional Indian laws with British judicial structure. The main objective of the system was to bring uniformity and structure to the administration of civil and criminal justice in the provinces of India. While this system established the foundation for more organized civil justice system in India, procedural consistency was still lacking, different regions followed different systems of governance and law.

Bengal regulations (1793-1834)

The Bengal regulations were issued to standardize administration in Bengal, Bihar, and Orissa. These regulations contained disorganized procedural rules for various civil matters including filing of suits, witness examination, appeals, limitation periods, etc.

These regulations made several landmark changes in the civil procedure of India but, there were multiple shortcomings. These regulations were territorially restricted (mainly to Bengal presidency) and they did not form a comprehensive civil procedure code and whatever provisions were there was also confusing, overlapping, and required interpretation by judges on a case-to-case basis.

Presidency towns v. Mofussil divide

Civil procedure in India was initially based on principles of English law and enforced through royal charters and Acts of the British Parliament. It was applied mostly in the Presidency towns of Bombay, Calcutta, and Madras. However, rural and provincial regions (referred to as the “Mofussil”) were governed by East India Company on the basis of regulations passed by the Company and native customs. These practice of law made the system dual system of civil procedure. One in the presidency towns and other in the rest of British India.

This duality further lead to confusion of law, inconsistencies between both the law, and judicial inefficiency.

Growing demand for uniform civil code

By the mid-19^th century, the British administration felt that a uniform, codified, and structured code of civil procedure was crucial to ensure fairness, judicial efficiency, and public confidence in the judicial system. This necessity led to the drafting and enactment of first code of civil procedure in the year 1859.

The First Uniform Code: Code of Civil Procedure, 1859

The First Uniform Code of Civil Procedure, 1859 was a landmark step in the history of civil justice in India. This Code laid the foundation for future codifications and demonstrated the need for a flexible yet detailed code of civil procedure.

Under the Charter Act, 1833, the British Parliament created the Law Commission to consolidate and codify Indian Laws. As a consequence, the First Law Commission under the guidance of Thomas Babington Macaulay had already worked on the Indian Penal Code (now “Bharatiya Nyaya Sanhita)”. Subsequently, the Law Commission started the task of codifying civil procedure.

The Code of Civil Procedure, 1859 was first comprehensive code of India which governed the procedure of civil courts. It came into force on July 1, 1859 and was enacted under the legislative authority of the Governor General in Council.

The Presidency towns (Calcutta, Bombay, and Madras) continued to follow English rules of civil procedure. However, for the very first time, civil courts outside the Presidency towns (i.e., the mofussil areas) were governed by a single uniform procedure. This dual system of procedure (one for Presidency towns and one for Mofussil areas) led to lack of uniformity across the country.

Further, this Code laid down the provisions for first and second appeals, higher courts’ power of revision (limited in nature), and framework for the execution of decrees. Nevertheless, the Code was found to be incomplete and rigid in practice. It didn’t include detailed guidance for certain stages of litigation for e.g., there were no provisions regarding interlocutory orders and joinders of parties.

Therefore, within a few years, it became necessary to amend the present code multiple times which led to the birth of subsequent version of Civil Procedure Code.

Subsequent versions of the Code of Civil Procedure (1877 & 1882)

Following the inadequacies of the Code of Civil Procedure, 1859, the British Government felt the need for a more uniform, structured, and detailed code of civil procedure to regulate civil disputes. This necessity gave birth to two compelling versions of civil procedure code. Although, these two codes are no longer in force but they played a pivotal role in shaping the future of current Code of Civil procedure.

Code of Civil Procedure, 1877

The Code of 1877 was drafted under the guidance of Whitley Stokes, who was the Law Member of the Viceroy’s Executive Council. This Code was designed to be applicable throughout the territories under British administration. The objective of this code was to ensure that procedure of this code apply uniformly across both presidency and non-presidency towns of British India. Compared to previous Codes of Civil Procedure, this Code brought more structured and uniform framework of civil procedure in a detailed and orderly manner for initiation of civil proceeding, hearing, and resolution of civil disputes.

The Code of 1877 also gave statutory recognition to several important procedural features and doctrines, such as Res Judicata, Joinder of parties and cause of action, and Jurisdictional limitations. The code provided more clear provisions for Appeals, Reviews, and Revisions establishing a multi-tier appellate structure and precisely defined when and how reviews and revisions could be sought.

Despite its progressive structure and detailed format, the code was not free from flaws. There are instances where the provisions felt that much technical and rigid that the courts and litigants faced difficulties in applying them. Further, the code did not have flexibility and it also not provide for inherent powers of the court to deal with exceptional circumstances.

The Code of Civil Procedure, 1882

The defects of 1877 code forced the British Government to revise and replace it. Consequently, the Code of 1882 came into force with the aim to provide more flexible, efficient and coherent procedural system of civil law. It was applied to entire British India and continued to be in force until it was replaced by the present Code in 1908.

The drafters of this code had a clear goal of removing ambiguities and simplifying language and procedures. This code laid down comprehensive rules of filing of plaints and written statements, framing of issues, discovery and inspection, hearing, evidence, judgement, and execution of judgement and decree.

This code is considered a precursor to the present Code, as many of its key ideas were retained and refined in the present code. Although, this code is more advanced and systematic than its predecessors, it still gets criticized for being overly detailed and rigid. The rigid nature of this code left almost no room for judicial discretion or equitable relief in unforeseen situations.

The road to CPC, 1908

The collective experience of 1877 and 1882 Codes highlighted both the need for procedural precision and importance of judicial flexibility. As a result, the legislature recognized the necessity of balancing detailed procedural rules with inherent powers of the court, simplifying legal language, and enabling adaptability to changing needs.

This realization ends up in the enactment of the Code of Civil Procedure, 1908 which continues to govern civil litigation in India, with several amendments over the decades.

The Present Code of Civil Procedure, 1908

The Code of Civil Procedure, 1908 have evolved as a matter of long years of experience coming out of the common law of England. The main objective of this code was to consolidate and amend the laws relating to the procedure of the civil courts in India. It was drafted by a special committee under Sir Earle Richards the then Law Member of the Governor General’s Council. The code was enacted on March 21, 1908 and came into force with effect from January 1, 1909.

The present code of 1908 establish a uniform procedure across Indian civil courts, provide efficiency to reduce delays in civil litigation, bring clarity to simplify and codify existing procedural law, give finality to prevent endless litigation through rules like res judicata and executability of decrees, and furnish flexibility to empower courts to ensure justice through provisions like inherent powers.

Structure of the Code 

The Code of Civil Procedure, 1908 is divided into two distinct parts:

(i) The body of the Code (Sections 1 to 158)

The body of the Code deals with provisions of a substantive nature and lays down general principles governing civil procedure. It includes provisions on:

• Jurisdiction of courts
• Res Judicata
• Place of suing
• Transfer and Withdrawal of suits
• Execution of decrees
• Appeals, reference, review, and revision etc.

[Note: This part of the Code is fundamental and only legislature can amend it. Further, the sections prevail over the Orders in case of a conflict.]

(ii) The (First) Schedule of the Code (Orders, forms and Rules-51 Orders)

The First Schedule relates to the procedure and the method, manner and mode in which the jurisdiction may be exercised by the court. This part provides detailed procedural rules. For example:

• Order I: Parties to the suit
• Order VI: Pleadings
• Order IX: Appearance of parties and consequences of non-appearance
• Order XX: Judgement and Decrees
• Order XXI: Execution of Decrees

[Note: This part of the Code can be amended by High Courts.]

Post-enactment amendments and developments of the CPC, 1908

Though the Code of Civil Procedure, 1908 was a comprehensive, advanced and progressive statute at the time of its enactment however, the realities of evolving society, legal complexity, increasing litigation, judicial backlog, and the need for speedy justice demanded frequent amendments and judicial refinements.

Recent evolutions in the historical evolution of Code of Civil Procedure, 1908

Due to the increasing technological advancement in court processes, the Code of Civil Procedure began to evolve informally through court practices and e-governance measures:

E-Court mission mode project 2005

The Phase I and II of this project led to e-filing portals, digitized cause lists, online summons and notices, and virtual hearings (especially post-2020 pandemic phase).

The High Courts amended CPC procedures (per Section 122) to allow e-filing, electronic service, and remote arguments.

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

For answers of 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/

Extent and applicability of CPC: https://lawgiverr.com/the-ultimate-guide-to-the-extent-and-applicability-of-code-of-civil-procedure-1908/