By any estimate, the Code of Civil Procedure of 1908 (CPC) is a gargantuan legislation. Nevertheless, of all its distinguishing marks, the one feature that stands out is its structural framework which is quite unique and a feature not found in most laws today.
The unique structural framework is this: The CPC is broadly divided into two heads. The first head contains the ‘Sections’ which are the statutory provisions regulating the manner in which suits can be filed, and how they are to be decided. The second head contains the ‘First Schedule’ which enumerates numerous ‘Rules’ regulating every single aspect of a civil trial, right from how a suit is to be instituted up till how the final appeal against a decree is to be decided.
In the First Schedule, there is first an ‘Order’ which outlines the subject matter being dealt with, and then a series of procedural rules enumerated therein. As any one who has ever encountered the CPC knows, the focus in every suit is almost always on the meaning of the different rules enumerated in the First Schedule.
Why was the CPC so structured and what was hoped to be achieved by this unique framework? For this, we must go back in time to the mid 1800s.
In the aftermath of the Revolt of 1857, the British Crown formally took control of India and made her a British colony under Queen Victoria’s Proclamation of 1858. This gave a strong fillip to the codification of laws and it was civil procedure which was first off the mark. The Indian Penal Code, often considered by many to be a crowning achievement in law making, was in the works since 1837, but became law only in 1860.
In 1859, the first Code of Civil Procedure was enacted. That was a law which was divided into twelve chapters and contained 388 sections. But eighteen years later, in 1877, a new Code of Civil Procedure was enacted. Interestingly, the 1870s were a hectic decade when laws of enduring importance such as the Indian Contract Act and the Indian Evidence Act were enacted. In the decade that followed, other important laws such as the Negotiable Instruments Act in 1881, and the Transfer of Property Act in 1882, would be brought to life.
The 1877 CPC was twice the length of the 1859 CPC. It contained 652 sections. It appears that the 1877 CPC was inspired by several developments including the fact that a reordering of the judicial system had occurred in India (the Letters Patent creating the High Courts of Bombay and Madras were issued in 1865, which replaced the Supreme Courts as well as the Sadr Courts) and the fact that a greater number of courts were to be brought within the purview of this law. But an important reason for making a new CPC was that the operation of the 1859 CPC had thrown up numerous challenges. It was thought that it was better to respond to them by enacting a new law which dealt with civil procedure more comprehensively, rather than constantly amending the 1859 law. One example will illustrate the difficulties that arose.
In the 1859 CPC, Section 270 stipulated:
“Whenever property is sold in execution of a decree, the person on whose application such property was attached shall be entitled to be first paid out of the proceeds thereof, notwithstanding a subsequent attachment of the same property by another party in execution of a prior decree."
Now this section created enormous difficulties because courts were at a loss to apply the law when multiple claimants appeared in respect of the same attached property. In the Legislative Council, this provision was condemned by Sir Arthur Hobhouse as one in which ‘there is no principle of justice whatever in that rule.’ So to remedy this paradox, Section 295 in the 1877 Code provided that when there are multiple claimants to an attached property, then the proceeds will be ‘divided rateably among all such persons’.
Despite being well-intentioned and an exceptionally detailed law, the 1877 CPC had a short-lived existence. It lasted for about five years. The British took a third shot at drafting a comprehensive law to deal with the variegated challenges which a civil trial inevitably threw up. And thus, in 1882, a new CPC was enacted and the 1877 CPC was repealed. The 1882 CPC was once again a sprawling legislation containing over 650 sections.
The fourth and final shot
In a short span of 23 years, the British had experimented with drafting a clear CPC three times. Each time they had come up short, necessitating a new law. To appreciate the complexity of this dilemma, simply compare the fate of the various CPCs with the other laws such as the Indian Contract Act and the Transfer of Property Act, which were not replaced with a new law at regular intervals. To therefore once and for all get a workable CPC on the statute books, a Special Committee was appointed in the beginning of the 21st century, which comprised H Erle Richards, Francis Maclean, Lawrence Jenkins, S Ismay, and Rashbehary Ghose.
The Special Committee’s Report dated August 31, 1907 was accompanied with a draft of the new CPC (On file with the author. To the best of my knowledge, the Special Committee’s Report is not publicly available. A copy of it can be accessed in the National Archives in New Delhi). It was published in the Gazette of India on September 7, 1907. The CPC became law in March 1908 and on January 1, 1909, the new CPC came into force.
The Committee recognised that every CPC so far was beset with problems because they were not dynamic laws and could not quickly respond to the ever-changing nature of the controversies that arose in civil trials. Every time problems arose, the courts would flag them and everyone would then have to wait for the Legislature to respond and make the necessary changes. Further, the sheer size of each CPC showed that the procedure governing civil trials was extraordinarily intricate. But despite their size, these laws could not always cover every contingency and eventuality when making a law on civil procedure.
The way out, the Special Committee realised, was to create a framework where the Legislatures and the High Courts would, in conjunction, create the Rules that governed civil trials. This partnership between the two branches of government was forged because it was necessary to create a system in which civil procedural laws could quickly adapt to the new challenges that it faced. If this were not done, then each CPC would in a matter of years become unworkable, if not obsolete. So the framework devised by the Special Committee was that the CPC must contain two broad heads.
The first head was to contain the statutory provisions. These were to be provisions over which only the Legislature would have legislative competence. The idea was to ensure that those provisions which must always apply in the case of a trial must be included in the legislative part of the Code to see to it that there is a high degree of consistency whenever a civil court has to adjudicate a suit. As the Report noted, this was essential to ensure “some degree of permanence and uniformity.”
But what of the intricate rules which would govern the path of a trial? The Special Committee recommended that all those matters which were purely procedural in nature should be contained in a separate head of the Code. These procedural rules would come to be enumerated in the First Schedule.
Consider the institution of suits for instance. In the CPC, only one statutory provision – Section 26 – deals with how a suit must be instituted. But the particulars of what a plaint must contain, who can be arrayed as a defendant, the kinds of claims that can be raised in a suit are dealt with in Order I, Order II, Order IV and the Rules thereunder. Likewise, in Part II of the CPC, execution of decrees is dealt with in just over thirty sections. But the details of the procedure for executing a decree is contained in Order XXI which contains over a hundred rules. It is virtually a legislation in itself. It is therefore unsurprising that the the statutory provisions in the 1908 CPC are heavily outnumbered by the Rules that have been framed to implement these provisions.
Unique position of the High Courts
When it came to the making of all the ‘Rules’ for the purposes of the Code, both the Legislature as well as the High Courts were to have concurrent powers. The upshot was that the Legislature can change any part of the CPC, with the High Courts conferred with the power to change and amend only the Rules enumerated in the First Schedule. As the Special Committee saw it, there was an urgent need to ensure that as and when shortcomings in the CPC came to light they were “remedied as they are discovered without resort to the tardy process of legislation.”
This was a sedulous solution to an agonising problem which had plagued the law on civil procedure for nearly half a century. Now the broad architecture of the law which governed important aspects of a civil suit such as institution of a suit, appeals, rights of executing a decree, and injunctions would be broadly dealt with in the legislative portion of the Code. But the rules governing each of these aspects and how a civil court was to deal with them would be contained in the ‘Orders’ and ‘Rules’ in the First Schedule. After all, who better than the High Court to quickly respond to the problems arising in civil procedure? For it was the High Courts who would be experiencing the problems first hand. This framework is a rare example of how the High Courts were conferred with the power to make laws which would have legislative force.
In the CPC of 1908, this framework is contained in Part X which is pithily entitled ‘Rules’. Section 121 declares that the Rules contained in the First Schedule of the CPC “shall have effect as if enacted in the body of the Code.” Immediately thereafter, Section 122 declares that High Courts possess two distinct powers when it comes to the making of Rules. First, the High Courts can make their own Rules governing their own procedure as well of the courts subordinate to such High Courts. Second, the High Courts are specifically empowered to make whatever changes they deem fit to the Rules enumerated in the First Schedule, including framing brand new Rules altogether.
However, there is also a degree of superintendence over how changes are made to the Rules, which is what the Special Committees had recommended in its Report. This is why a High Court must constitute a Committee with broad-based representation, which will frame the proposed Rules (Sections 123, 124). And before the Rules can take effect, the government (Central or State) must grant its approval to the proposed Rules (Section 126). Finally, when the new Rules are approved, after their publication in the Gazette, they take effect “as if they had been contained in the First Schedule.” (Section 127)
An example from the High Court of Delhi will illustrate the farsightedness of the CPC. In December of 2011, the High Court, acting under Section 122, notified that a new Order XX-B must be inserted after Order XX-A. This new Order XX-B pertained to the “Recognition of Electronically Signed Orders, Judgments and Decrees.” The two Rules contained in Order XX-B stipulated that an e-signature of a judge of a High Court on any order, judgment or decree will be treated as if it has been physically signed by the judge themselves (Rule 1) and that such a decision which carried the e-signature of the judge shall be treated as a certified copy for the purposes of filing any proceedings against such a decision (Rule 2).
This new Order XX-B was a step towards ensuring that litigants did not lose out on their rights merely because the decision of the High Court of Delhi carried an e-signature of the judge. Now imagine there was no Section 122 and the High Court wanted to treat decisions carrying the e-signature of the judge on par with a decision which was physically signed. The High Court would not have been able to do so, for this measure would have had to await a legislative amendment. But the unique scheme of the CPC of 1908 made this possible. This is just one of several examples of how High Courts have responded to the new demands and challenges which arise in a civil trial.
It is this design of the CPC – of granting High Courts co-equal powers in changing the ‘Rules’ of civil procedure whenever it was necessary to do so – that has ensured that the 1908 CPC endured. And this is borne out by one fact alone: since 1908, there has never been the need of enacting yet another Code of Civil Procedure.
Rohan Alva is a counsel practicing in the Supreme Court of India and the High Court of Delhi. He is the author of a forthcoming book Liberty After Freedom (Harper Collins, 2022), on the history of due process and the Indian Constitution. He can be reached at email@example.com.