CODE OF CIVIL PROCEDURE By: Dr. Justice B.S. Chauhan Judge Supreme Court of India As it is evident from its name, it mainly lays down the procedure to be adopted in civil courts, and its principles may be applicable in other courts, like writ courts, and Tribunals to the extent the enactments establishing the Tribunals provide for it. It provides for a fair procedure for redressal of disputes. The other party may know what is the dispute about, what defence it can take, and how both the parties may proceed to prove their respective cases. Some of its provisions are substantive in nature and not procedural at all, like Sections 96, 100, 114 and 115 providing for a right of appeal, review and revision. The other provisions are generally procedural in nature. The purpose of the Civil Procedure Code, 1908 (hereinafter referred to as ‘Code’) is to provide a litigant a fair trial in accordance with the accepted principles of natural justice. The Code is mainly divided into two parts, namely, Sections and Orders. While the main principles are contained in the Sections, the detailed procedures with regard to the matters dealt with by the Sections have been specified in the Orders. Section 122 of the Code empowers the High Court to amend the Rules, i.e., the procedure laid down in the Orders and every High Court had amended the procedure from time to time making the amendments in the said Orders. The Code is a codification of the principles of natural justice. Natural justice means ‘justice to be done naturally’ which is adopted naturally by the habits of every individual. It does not mean godly-justice or justice of nature. It simply means an inbuilt- habit of a person to do justice. For example, if a child of 1,1/2 years breaks the saucer, the mother of the child may slap him being furious, but at the time of slapping, she would repeatedly ask him why he has broken the saucer, though she knows that the child has not started speaking. As these principles are inbuilt-habit of everyone to ask others for furnishing the explanation of anything done by them, the same are known as ‘principles of natural justice’. In Garden of Eden God did not punish Adam and Eve without giving them opportunity to show cause as to why they had eaten the prohibited fruit. The first reported case of principles of natural justice in Dr. Bentely’s case, i.e., R V. University of Cambridge, (1723) 1 STR 757, wherein reference of the incident of Garden of Eden was made. The two words are repeated everyday in the courts- ‘justice’ and ‘law’. Justice is an illusion as the meaning and definition of ‘justice’ varies from person to person and party to party. Parties feel that they have got justice only and only if the case succeeds before the court, though it may not have a justifiable claim. (Vide: Delhi Administration V. Gurudeep Singh Uban , AIR 2000 SC 3737). For paucity of time it would not be possible for us to deal with every provision in the Code. Thus, we will discuss the scope and application of the provisions which we have to deal with every day in the Court. The first Code of Civil Procedure was enacted in 1859 by the Committee headed by Mr. John Romily. It was amended in 1877 and, subsequently, in 1882, however, those amendments did not serve the purpose, therefore, the present Code of Civil Procedure was enacted in 1908. It was drafted by the Committee headed by Sir Earle Richards. The Committee before submitting the draft to the West Minister Parliament travelled India, read its history and ancient texts and then knew the traditions and culture of this country, and draft legislation was prepared keeping all such things in view. For example, Section 112 of the Evidence Act, 1872, drafted by Sir James Fitzjames Stephens, is based on Mahabharat as he realised that the issue of paternity has been very sensitive in the Hindu society and it was not permissible to challenge someones’ paternity. There was no analogous provision to it in England till 1966 when they amended the provisions of Section 9 of the Marriage Law. Section 2(2) (See: Paras Nath Rai v. State of Bihar AIR 2013 SC 1010, Rajinder Kumar v. Kuldeep Singh & Ors. 2014(2) SCALE 135). Section 7 (See: Ramji Gupta v. Gopi Krishna Agrawal, AIR 2013 SC 3099) Section 8 (See: Ramji Gupta v. Gopi Krishna Agrawal, AIR 2013 SC 3099) Section 11 -Res Judicata Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “interest reipublicae ut sit finis litium” (it concerns the State that there be an end to law suits) and partly on the maxim “nemo debet bis vexari pro una et eadem causa” (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised. “Res judicata pro veritate accipitur” (a thing adjudged must be taken as truth) is the full maxim which has, over the years, shrunk to mere “ res judicata”. (Vide: Kunjan Nair Sivaraman Nair v. Narayanan Nair (2004) 3 SCC 277). The doctrine contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence “ interest reipublicae ut sit finis litium ” (it concerns the State that there be an end to law suits) and partly on the maxim “ nemo debet bis vexari pro uno et eadem causa ” (no man should be vexed twice over for the same cause). (See: Dr. Subramanian Swamy v. State of Tamil Nadu & Ors 2014 (1) SCALE 79). 2 Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. ED-, Appakadh Ayiassa Bi & Ors. , AIR 1949 PC 302; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors. , AIR 1953 SC 65). In Smt. Raj Lakshmi Dasi & Ors. v. Banamali Sen & Ors., AIR 1953 SC 33, the apex Court while dealing with the doctrine of res judicata referred to and relied upon the judgment in Sheoparsan Singh v. Ramnandan Singh , AIR 1916 PC 78 wherein it had been observed as under: “…….. the rule of res judicata, while founded on ancient precedents, is dictated by a wisdom which is for all time….. Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law, sue again, he should be answered, ‘‘you were defeated formerly". This is called the plea of former judgment.’... And so the application of the rule by the courts in India should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law’’ The apex Court in Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. , AIR 1960 SC 941 explained the scope of principle of res-judicata observing as under: “7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation, When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.” A similar view has been re-iterated by the apex court in Daryao & Ors. v. The State of U.P. & Ors., AIR 1961 SC 1457; Greater Cochin Development Authority v. Leelamma Valson & Ors. , AIR 2002 SC 952; and Bhanu Kumar Jain v. Archana Kumar & Anr. , AIR 2005 SC 626. 3 The Constitution Bench of the apex court in Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara & Ors. , AIR 1964 SC 1013, considered the issue of res judicata applicable in writ jurisdiction and held as under: “…Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art.