Whether CPC is Substantive law or procedural law?

Posted on Author Abhay Shankar Yadav

 

Title: – Code Of Civil Procedure, 1908 Is Substantive Or Procedural Law?

 

 

 

 

Author- Abhay Shankar yadav

 

Batch: – 2020-2025

 

Institution- national university of study and research in law, ranchi.

 

 

INTRODUCTION

 

Law is used to mean the rules made by the government to protect the fundamental rights of the citizens. Law can broadly be categorized into two categories:

 

  • Substantive law
  • Procedural

 

Rights and obligations of the members of a civilized society would be rendered meaningless unless they are determined and enforced. Substantive law refers to the body of laws that define and govern the rights and obligations of individuals or entities in their relationships with each other, as well as the consequences of their actions. Indian Penal Code, Indian Contract Act, 1872, Transfer of Property Act, 1882, Specific Relief Act, 1963 etc., are some of examples of substantive laws in India.

 

Procedural law refers to the set of rules and principles that regulate the process of enforcing the rights and obligations established by substantive law. It governs the procedures that must be followed in court or administrative proceedings, such as the process for filing a lawsuit, presenting evidence, and making arguments. The Code of Civil Procedure, 1908; Code of Criminal Procedure, 1973; Indian Evidence Act, 1872; Limitation Act, 1963; The Court Fees Act 1870; The Suits Valuation Act, 1887 are examples of Procedural Law in India.

 

 

SCHEME OF CPC

 

The code can be divided into two parts:

 

  • The body of the code contains 158 sections, and
  • The (first) schedule contains 51 orders and Rules.

 

The section part deals with provisions of a substantive nature of any suit, laying down the general principles of jurisdiction, while (first) schedule which contains orders relates to the procedure and the method, manner and mode in which the jurisdiction may be exercised. In practice, the substantive and procedural aspects of the CPC are closely intertwined, and they

 

 

work together to ensure that civil litigation is resolved in a way that is fair and just. Substantive law principles provide the legal framework for the dispute, while procedural rules establish the procedures for resolving the dispute fairly and efficiently.

 

 

 

DIFFERENT ASPECTS OF CPC

 

CPC includes provisions that deal with both substantive and procedural aspects of civil litigation. Here’s a breakdown of the main parts of the CPC that deal with these aspects:

 

SUBSTANTIVE ASPECTS

 

The substantive aspects of the CPC are concerned with defining the legal rights and obligations of the parties to a case. For example, the early sections of the CPC establish the jurisdiction of the court, the definition of key legal terms, and the substantive law principles that govern civil litigation. These provisions are largely concerned with the legal substance of a case – i.e., what claims the parties are making, what legal rights and obligations they have, and how those rights and obligations are established.

 

  • Jurisdiction: The CPC sets out the rules regarding the jurisdiction of courts in civil Section 9 gave power to courts to try all suits of civil nature.[1] Section 13 and 14 is about the application of foreign judgement.[2]
  • Place of suing: Section 15 is about the suit to be instituted in the lowest court.[3] Section 16 of the CPC provides for the hierarchy of courts and their jurisdiction based on the pecuniary value of the suit or the subject matter of the suit.[4]
  • Execution of Degree: Section 38 is about the court in which the decree may be [5]The same decree can be transferred from one court to another court or court of another state rule given in Sections 39 and 40.[6]
  • Limitation: The CPC sets out the time limits within which a lawsuit must be filed. Section 3 provides for the period of limitation for different types of civil cases,[7] while Section 4 provides for the effect of the expiry of the limitation [8] Section 5 provides for the extension of the limitation period in certain circumstances, such as in case of disability or mistake.[9]
  • Relief: The CPC provides for the types of relief that can be sought in a civil Section 34 provides for the power of the court to grant any relief that the plaintiff is entitled to[10], while Section 35 provides for the award of compensatory costs and interest.[11]
  • Judgement and decree: Section 33 of CPC is about the case being heard by the court and based on the hearing to give Judgement.[12] This judgment shall follow a decree to execute the finding of the

 

These are some of the substantive aspects of the CPC along with the relevant sections. The substantive provisions of the CPC lay down the substantive rights and obligations of parties in a civil suit, which must be adhered to by the court during the proceedings.

 

 

 

PROCEDURAL ASPECTS

 

The procedural aspects of the CPC are concerned with the process by which a case is litigated. For example, Orders I-XLVII provide rules and guidelines for the filing of suits, the exchange of pleadings, the discovery of evidence, the presentation of arguments, the examination of witnesses, and the rendering of judgments. These provisions are largely concerned with the process in which litigation went on.

 

  • Parties to suit: Order I is about the parties to suit i.e., who can be joined as a plaintiff, and who can be joined as Defendant, and about the Misjoinder and non-joinder of [13] Apart from Order I some other Orders are there too which related to the parties of the suit like Order XXIII is about the Withdrawal procedure of the suit.[14] While Order XXVII is about the suit by or against the government or public officers.[15] Order XXVIII is about the procedure for a suit by or against Military or Naval Men or Airmen.[16] Order XXIX is about suits by or against Corporations.[17] Order XXXII is regarding the procedure to be followed when a suit is filed by or against Minors and persons of unsound mind.[18] While Order XXXIII is the procedure for the suit filed by an Indigent person.[19]
  • Order II to Order IV is about the framing of the suit, the appointment of the pleader and the institution of the [20]
  • When a suit is instituted by the court then a summons is to be given by parties. Summons is a legal notice that is issued by the court to the defendant, notifying them of the suit and requiring them to appear in court. Order V of the CPC provides for the issue of summons (Rule 1-9) and Service of Summons (9-30).[21]
  • Plaint is to be filled by the plaintiff in accordance with Order VII.[22] While the written statement is the defendant’s response to the plaintiff’s Order VIII of the CPC provides for the written statement.[23]
  • Order IX is about the Appearance of Parties and the consequences of the non-appearance of the [24]

 

  • Interim Orders: Between the Institution of Suits (Order IV) to the execution of the decree (Order XXI) interim order can also be given by the court which will remain valid till the judgment is
    • Order XXIV is a payment into court by the defendant in favour of [25]
    • While the opposite of it is given in Order XXV security of cost which is to be given by the plaintiff in favour of [26]
    • Commission is to be appointed by the court in accordance with Order XXVI to examine witnesses, make local investigations, adjust accounts, make a partition, perform a ministerial act and conduct sales.[27]
    • Order XXXVIII is about the arrest and attachment of property if it seems that either the Defendant is going to escape the proceeding or the defendant may cause harm to property or destroy it.[28]
    • Temporary injunctions can also be given by Court in accordance with Order XXXIX to make a person to do or not to do an act.[29]
    • Receiver can be appointed by the court to look after the company in the absence of proper authority to run it. This is given in Order [30]
  • Judgment and Decree: After the evidence has been recorded and the arguments of the parties have been heard, the court delivers its judgment. Order XX of the CPC provides for the judgment and decree.[31] While Execution of the Decree and Orders is to be done in accordance with Order XXI.[32]

 

These are some of the important procedural aspects of the CPC. However, many other procedural aspects are also relevant and important for the proper conduct of civil proceedings in India.

 

 

 

BOTH SUBSTANTIVE AND PROCEDURAL ASPECTS

 

Many provisions of the CPC contain both substantive and procedural elements, and it can be difficult to draw a clear distinction between the two. For example, the provisions in Sections 23-52 deal with issues such as the service of summons, the framing of issues, the examination of witnesses, and the arguments of the parties. These provisions have both substantive and procedural elements – they establish the rights and obligations of the parties to the case (substantive), but they also establish the procedures for resolving the dispute (procedural).

 

  • Section 11 of the CPC provides for the doctrine of res judicata, which is a substantive legal principle that prohibits the same matter from being relitigated between the same parties. However, it also has procedural implications, as it can be used as a ground for the dismissal of a subsequent lawsuit.[33]
  • Section 80 of the CPC requires that certain types of lawsuits against the government or public officials must be preceded by a notice This provision is procedural in nature, as it sets out a requirement for filing a lawsuit. However, it also has substantive implications, as it allows the government to remedy the situation before being sued.[34]
  • Section 114 of the CPC allows for the review of a court’s own judgment or order. This provision is procedural in nature, as it provides a mechanism for correcting errors in a judgment or order. However, it also has substantive implications, as it can affect the rights and obligations of the parties involved in the case.[35]

 

Similarly, Orders XLVIII and XLIX deal with the execution of decrees and orders, which involves both substantive and procedural aspects. The orders establish the substantive law principles governing the enforcement of judgments and decrees, but they also provide the procedural rules and guidelines for carrying out those enforcement actions.

 

 

CONCLUSION

 

The CPC is primarily procedural in nature, as it outlines the steps that parties to a civil case must take to initiate and proceed with a lawsuit, as well as the processes that the court will use to adjudicate the dispute. However, the CPC also contains substantive provisions, such as those related to jurisdiction, limitation periods, and the rights and obligations of the parties involved in the case. Therefore, while the CPC is primarily a procedural code, it also has some substantive elements.

 

Both these aspects are to be read together so that particular rules and procedures will be followed in every case in the same way. The procedure is given for Parties of Suits till Judgement is given and the decree is executed. While law related to interim order is given in the substantive part and its procedure is given in the Procedural part. So, both of these parts are to be read together.

[1] Code of Civil Procedure (CPC) § 9 (1908)

[2] Code of Civil Procedure (CPC) § 13 (1908); Code of Civil Procedure (CPC) § 14 (1908)

[3] Code of Civil Procedure (CPC) § 15 (1908)

[4] Code of Civil Procedure (CPC) § 16 (1908)

[5] Code of Civil Procedure (CPC) § 38 (1908)

[6] Code of Civil Procedure (CPC) § 39 (1908); Code of Civil Procedure (CPC) § 40 (1908)

[7] Limitation Act § 3 (1963).

[8] Limitation Act § 4 (1963).

[9] Limitation Act § 5 (1963).

[10] Code of Civil Procedure (CPC) § 34 (1908)

[11] Code of Civil Procedure (CPC) § 35 (1908)

[12] Code of Civil Procedure (CPC) § 33 (1908)

[13] Code of Civil Procedure, 1908, Order 1.

[14] Code of Civil Procedure, 1908, Order 23.

[15] Code of Civil Procedure, 1908, Order 27.

[16] Code of Civil Procedure, 1908, Order 28.

[17] Code of Civil Procedure, 1908, Order 29.

[18] Code of Civil Procedure, 1908, Order 32.

[19] Code of Civil Procedure, 1908, Order 33.

[20] Code of Civil Procedure, 1908, Order 2; Code of Civil Procedure, 1908, Order 3; Code of Civil Procedure, 1908, Order 4.

[21] Code of Civil Procedure, 1908, Order 5.

[22] Code of Civil Procedure, 1908, Order 7.

[23] Code of Civil Procedure, 1908, Order 8.

[24] Code of Civil Procedure, 1908, Order 9.

[25] Code of Civil Procedure, 1908, Order 24.

[26] Code of Civil Procedure, 1908, Order 25.

[27] Code of Civil Procedure, 1908, Order 26.

[28] Code of Civil Procedure, 1908, Order 38.

[29] Code of Civil Procedure, 1908, Order 39.

[30] Code of Civil Procedure, 1908, Order 40.

[31] Code of Civil Procedure, 1908, Order 20.

[32] Code of Civil Procedure, 1908, Order 21.

[33] Code of Civil Procedure, § 11 (1908).

[34] Code of Civil Procedure, § 80 (1908).

[35] Code of Civil Procedure, § 114 (1908).