Study on History and Development of Civil Justice System in

India
 INDEX

Chapter No. Particulars Page no.

1. Introduction 1-10
2. Research Objectives
Chapter 1 3. Research Methodology
4. Research Questions
5. Literature Review
6. Hypothesis
Chapter 2 11-26
Part I- Historical Background of Civil Justice System
in India
 Pre British Era
 During British Era
 Pre-Independence
 Post-Independence

Part II- Evolution of Code of Civil Procedure

Part III- Shortcomings of the code

Part IV- Court System

Part V-Curial Procedures and the CPC

Chapter 3 Conclusion 27

CHAPTER 1

2
 1. Introduction
‘The lawyer without history is a mechanic, a mere working mason.’1
India, being one of the largest nations in the world has a very systematic and strong judicial
system. The system is in such a way that it is made easy for every citizen to approach the
court to solve their issues and its effective functioning is one of the reasons why people of
India trust the system though it is time taking. In order maintain the trust and belief of people
in the system; the judicial organisations have come up with many speedy trails procedures in
recent times.
The judicial system of India is mainly classified into three hierarchical courts. They are:
Supreme Court, High Court, Sub-ordinate courts. The rules to be followed along with the
procedure to go forward while awarding the justice is clearing mentioned through various
acts and laws of which Constitution forms a basic and fundamental part alongside Civil
Procedure Code and Criminal Procedure Code dealing with offences classified into various
forms for better understanding.
But prior to these hierarchical courts i.e. Post-Independence, the history of the evolution of
civil justice attempted at codification and consolidation of the laws. The phase of British
period from 1600 A.D to 1947 A.D and the Post-Independence Period from 1947 onwards
help build a structure of court for India.
Indian courts called as ‘Lok Adalats’ or the ‘People Court’ have been created. And these
courts seek to promote the informal resolution of disputes by way of conciliation and
compromise.
Apart from the above mentioned division of courts, Panchayat system also forms a very
important infrastructure in the judicial system as they try and solve the matters in the rural
areas; thus resulting in the speedy disposal of the cases along with efficiency in the delivery
of justice to the actual victim.
Hence, Reflection on the evolution of the meaning of the phrase ‘access to justice’, yields a
number of results and this research is to understand and conclude that the needs of the society
have changed, have grown in complexity to such an extent that a new approach to ensuring
access to justice is needed, and will continue to change in future, but perhaps more important
is the fact that much debate on the parameters of such new approach has been stimulated.

1
JAIN M.P., “OUTLINE OF ANCIENT HISTORY”, 5th Edition, Page 1.

3
 2. Research Objectives
The researcher’s main objective is to study and analyze the History of Civil Justice System in
India with respect to the other rulings and the bringing up of the civil courts.
The research would concentrate to achieve an understanding of how civil laws have come up
and changed according to the changing social patterns. The research will also contain an
analysis of the evolution/ history of the civil justice system and the administration of justice
started from the 16th century till date. It concentrates on the types and working of the courts
developed during the period its advantages and disadvantages. The recent laws made due to
the flaws of the earlier are also lighted up in this research.
It is therefore to Understand that just like other countries have created a means for civil
justice to their people, similarly, In India, courts are known as ‘Lok Adalat’s’ or ‘Peoples
Courts’ are created2. What interest the researcher here is analyze that these courts have been
modelled on the ancient cultural system of Panchayats known in the rural areas of India and
governing legislation has incorporated concepts familiar to those using the courts.3

3. Research Methodology
The methodology of this thesis can be described as ‘doctrinal’. Terry Hutchinson and Nigel
Duncan have described doctrinal research as ‘research into the law and legal concepts’. In
that context, this thesis presents research into the history and development of civil justice
System in India, combining a description of primary resources and interpretative comments
to identify principles by which to understand its exercise. As such, this thesis researches the
law by analysing legal decisions and legal instruments, such as statutes, international
conventions, and judicial decision-making in order both to identify legal practice and legal
principles, and to draw normative conclusions on the regulation of extraterritorial
jurisdiction.
In order to understand the evolution of civil justice administration in India and to examine the
administrative set up established for  civil justice, a detailed historical analysis of the legal
and economic scenario of pre-independence and post-independence India has been made.
The research of this project is entirely on secondary data and thus this data is analysed by the
researchers.

2
These courts are organized in terms of the Legal Services Authorities Act, 1987.
3
Bhatt, ‘A round table justice through Lok-Adalat-a vibrant-ADR-in India’ (2002).

4
The research so adapted is completely Qualitative, where the comparison of the different
Indian Judiciary decisions and analytical methods are drawn. The analytical method will be
thus come with an outcome of result done after the research. The methodology of this thesis
can be describes as both, Doctrinal as well as Non-Doctrinal. The Data so collected and
secondary data and are analysed. The review and the study is occurred from various books
and e-books and e-data. A critical evaluation of all the facts and information are analysed. It
is a pure and a basic research for knowledge.
The research is thus, hereon, has been divided into parts for better understanding.

4. Research Questions
The battle for an accessible civil justice system cannot be fought on a single front. Reforms
should, however, be a continuous process aided by systematic evaluation and reassessment.
To learn this in detail, the researcher is keen to understand the analyze the working and
evolution of civil justice system in India with its back lacks and recommendations
According to Currie4, the Solution to access to justice problems lies in a multidisciplinary
approach in which justice system partner with communities, interest groups and institutional
sectors. Similarly, here the questions are to analyze the civil justice system in India.
1. How were civil laws established in India?
2. How have these civil laws changed with time in India?
3. Does the behaviour of the society help in forming the civil laws?
4. What are the most recent changes in these laws and why were they made?
5. What other changes need to be brought in the Civil Laws of the country for the
development of the legal and judicial system of the country.

5. REVIEW OF LITERATURE
The Literature Review is quite on the Basis of what the secondary data has and what the
authors throughout the paper have quoted.
“It has been mentioned that there is a network of judicial courts in India. The Supreme Court
is the highest independent court and the judges of this Court are appointed by the President of
India on the recommendation of the Collegium of the five most senior judges of the Supreme
Court. The President in second judge’s cases was seen to be bound by the elevation of the
judges that had been opted and chosen by the Chief justice of India. The supreme Court has
4
Hurter Estelle, “Access to Justice-to dream the impossible dream” JSTOR.

5
three types of Jurisdiction one being the original, second is the appellate and the third is the
advisory jurisdiction. Under original jurisdiction, the Supreme Court decides disputes
“between the government of India and one or more [s]tates or between the government of
India and any [s]tate or [s]tates on one side and one or more [s]tates on the other or between
two or more [s]tates.”5 . Appellate court means that the cases that are originally suited and
then challenged in the higher court are called as the appeal court or the appellate court; this
might usually be for review, revision or reference of the cases.

“The Indian civil justice system resembles and acts its common law in counterparts. It’s
features is to coordinate, though, the pyramid structure of judicial authority, emphasizes more
on the formal procedural justice dominated by litigants of equal status who are engaged in the
adversarial processes, and also provides binding or win-lose remedies. Emphasis is placed on
the law laid down by the Supreme Court of India. India, follows the doctrine of precedent as
against the importance of law enacted by Parliament, which prevails in civil law countries.
Precedent refers to the old cases of history or past to which the Judgement are meant to be as
just, fair and reasonable.”

“The practical application of this civil justice system in a country like India has achieved a
varied mixed results. Some observers have recently emphasized the positive role played by a
strong Indian judiciary in increasing and stabilising the accountability of democratically
elected people. Yet, the others believe that the adversarial procedural justice system in india
has failed from its inception. As India celebrates its seventieth year of independence, and as it
thus pursues economic liberalization efforts, it is time to assess its civil justice process and to
facilitate the design of long-needed reforms. Based on the views of a broad array of legal
experts in India, the judiciary in India is the sole arbiter of the Constitution, the authoritative
interpreter of the will of the people, and the protector of the freedom and liberty of the
people.6”

Ruma Pal, (Rtd. SC, J.) in his “Judicial Oversight or Overreach” said “Parmanand Singh in
his book Protection of human Rights mentioned that, to access to legal information may also
lead to the cancellation, diffusion or defiance of liberate judicial directions, weak

5
Supreme Court of India, Jurisdiction of the Supreme Court (Dec. 20, 2016), available at http://www.
supremecourtofindia.nic.in.
6
H.R. Khanna J. in ADM Jabalpur v. shivakant shukla, air 1976 sC 1207.

6
communication channels accompanied by well-nurtured and well-structured barriers stated by
Lower Echelon legal actors.

6. HYPOTHESIS

The work of Warren Hasting has left a deep impact on the administration of justice in the
history of India. Though there are flaws, but the evolution of such administration is to be
appreciated. He adopted the “trial and error” method as it helped in uprooting the evils of the
existing judicial and executive systems and never hesitated.
The stages of administration of justice were of great significance. The evolution of Sadar
Nizamat Adalat and Diwani Adalat under the rule of Warren Hasting gave light to the
working of the courts in matters of civil cases 7. The Adalat’s were therefore had the functions
to hear appeals from the lower courts, refer to the matters of civil nature by the governor
general in council and to exercise control and supervision over the lower court.
The courts have usually enjoyed a great amount of legitimacy in the eyes of the governments
of India as well as the civil society, especially in the post–internal emergency period. The
governmental institutional balance has been undergone a huge shift in the sense that, since
the 1980s, and especially in the 1990s, the governmental system has come to be driven
largely by the judicial, whereas in the Nehru and Indira Gandhi eras, it had driven mostly by
the executive and the legislature. The courts have generally supported central values, but in
recent years, there has been a greater tendency to protect the states, at least in some important
fields such as cases related to the exercise of the union’s power to take over state
administration under emergency provisions of the Constitution.
“The people of the case, are the judge of Judges and that,every trial is a trial of our judicial
system. Therefore, its strengths and weaknesses, its success and failure, its utility and
credibility as a necessary organ of State has impact on our civilised society. The respect it
would evoke and the confidence would therefore inspire the world, would depend on the
hopes and aspirations of the people, if the common man in quest of justice, in keeping the
scales even in any legal combat between the rich and the poor, between state and citizen
'without fear or favour’. There is anyway, a need today for the change in our mental attitude,
if weaknesses have crept in the system, they cannot be willfully brushed under the carpet nor
can criticism be silenced by threats of contempt of court.

7
Vyasa V. & Bhanot S.D., “ Ancient India” (Delhi: royal Publications, 1995).

7
Its thus quoted “Reverence for the courts in order to be real and spontaneous has to be earned
through the test of truth. If weaknesses and drawbacks have crept into the system they have to
be set right”

8
CHAPTER 2

PART I

HISTORICAL BACKGROUND OF CIVIL JUSTICE SYSTEM IN

JUSTICE SYSTEM IN PRE- BRITISH ERA

 UNDER HINDU KINGS AND EMPERORS:

The laws which we follow today mainly the personal laws relate back to the ancient India
8
where Kautilya wrote ARTHASHASTRA and Manu described the administrative working
in his MANUSMRITI.
The kings had the absolute authority and were assisted by ministers who advised and assisted
them in the decision making process. In those, days a complaint was known as KRIYA,
while the proceedings were known as VYAWAHARA.9
There were no written laws or rules; whatever was declared by the king was considered to be
the law. The ministers of the king were mostly scholars from the priestly class and the
Kshatriya casts who were well- aware of the customs, rituals, practices and volksgeist of the
people.
The personal law of Hindu’s was the only law that was dominant in these times and has been
developed by many.
The entrance of Muslim rulers into India marked the development of society of kingdoms
also leading to the formation of roots of secularism in India.

 UNDER MUGHAL RULERS:

The Mughals entered Hindu territories initially for trade and then slowly started conquering
the regions of Hindu rulers. The law in those days were broadly classified as Civil law and
Criminal law.

8
Jois R. , “Seeds of Modern Public Law in Ancient Indian Jurisprudence” (Lucknow: eastern Book Company,
1990).
9
Takwani C.K. , “Civil Procedure”, ed. 8, (2017).

9
Criminal law was applicable to all irrespective of religion, unlike the civil law which was
divided into Followers and Non- followers. Followers were those who believed in the same
faith as that of the king, while non- followers are those whose faith and belief differed from
that of the king.
Though there are allegations that Muslim rulers tried to supress the faith of Hinduism, if one
studies into the existing circumstances of those days it is evident that the suppression was
only by a very minor number of rulers and hence the whole Mughal reign cannot be alleged
for the same. For example, the system of Daasi and Sati were prevalent during these times
among Hindus, but the same behaviours were considered to be a sin under Islamic law which
was followed by the Mughal rulers.

JUSTICE SYSTEM IN BRITISH ERA

When Britishers entered India and have established East India Company, their initial focus
was to integrate their rule in such a way that it is easy for them to conquer whole of India and
to make it a colony of British. That is one of the reasons why they have initially did not
interfere in the personal laws of people and have introduced their laws in the criminal matters
and mattes related to society as a whole.
Their aim in establishing their common British system in India was to achieve two- fold
objective as to make it easy for them to collect the revenue for the sustainment and
maintenance of East India Company and also to create a uniform and people- friendly justice
system which is parallel to that in England so as to make the administration easy.
The work to then create such a judicial system for India was vested in the hands of Warren
Hastings, the then Governor General of British India.

 WARREN HASTINGS:

Warren Hastings was the first Governor General of British India. He was known for his
service and knowledge about the locality of Calcutta, but he was totally disappointed with the
working judicial institutions and was wexed up with the corruption in the administration in
Bengal.
He constantly tried to make sure that the judicial system is approachable and also that it
delivers justice in favour to the person who is the right without any bias from the part of
either the judge or any other external factor.

10
 His main contributions in this regard are the JUDICIAL PLANS of 1772 and 1774.10

 JUDICIAL PLAN 1772:

He divided the territories into small districts to ensure speedy justice where small disputes
were resolved in SMALL CAUSE ADALATS. A respected person of the village was chosen
as the head and it was under his discretion that the judgments were pronounced. It must be
observed that the heads were well aware of their position and their responsibility in the
society and so the concept of corruption has come down.
Above the Small causes adalat, there were courts known as MOFUSSIL DIWANI
ADALAT, in every districts and were headed by collectors. This court dealt with the civil
matters except for the matters related to succession of zamindari property, which was dealt by
Governor General and the council directly.
Also, with regard to that of personal laws, Muslims had MUSLIM LAW i.e., Quran while
Hindus had HINDU LAW i.e., Shastra’s. Since, the British Officials were not well versed
with the personal laws, Kazi’s in case of Muslims and Pundits in case Hindus were appointed
to assist the authorities.
While Diwani adalat dealt with the civil matters, MOFUSSIL FOZDARI ADALAT , also
known as NIZAMAT ADALAT was set up to look into the Criminal Justice. The
classification of cases into civil and criminal proved to be efficient in the process of delivery
of justice.
Above all these courts were SARDAR DIWANI ADALAT and SARDAR NIZAMAT
ADALAT.
Though the system proved to be efficient in the delivery of justice, it vested too much power
in the hands of collector. Also, there was a scarcity of adalat’s to resolve the matters speedily
and to correct all these errors Hasting remodelled the plan and introduced a reform in 1774.

 JUDICIAL PLAN 1774:

In order to ensure that there were reasonable numbers of adalat for people to approach,
Hasting divided the district’s into smaller jurisdictions; also the collectors were replaced by
Diwans. Diwan was responsible to collect the revenue and to head Mofussil Diwani Adalat.
But, even this system had backlashes as there was no scrutiny on the decisions or the works
of the Diwan, which led to an increase in the corruption in the system.
10
Shambhavi Ravishankar, “Understanding the Creation of the Indian Judicial System”,(2015).

11
  LORD CORNWALLIS:

He introduced reforms in all the possible judicial spheres. He has introduced three judicial
plans in the years 1787, 1790, 1793 respectively.

 JUDICIAL PLAN 1787:

The main aim during Cornwallis era was economy, as East India Company had to repay the
loan to crown. Two main objectives of the plan were dealing with revenue administration and
administration of justice.
In order to achieve fair justice, he reduced the number of districts and by bringing back the
collector- system. A new officer known as registrar was appointed to deal with petty issues,
whose decisions gained finality only on the approval of the collector.
This plan was a great failure as the collector was vested with huge powers and was
simultaneously over- burdened. Also, the civil and criminal judicature were over- lapping,
which made the system even more in-efficient.

 JUDICIAL PLAN 1790:

In this plan a new hierarchy of courts was established. The lowest courts were magisterial
courts, above which was the Court of Circuit and finally Sardar Nizamat Adalat was the
superior court. The collector was to head the magisterial courts. This plan dealt with pure
criminal judicature with minimal effect on the civil judicature.

 JUDICIAL PLAN 1793:

This plan re-modified the entire judicial system by bringing more accountability in the
system.
Major reforms of the plan were:
1. Mofussil Diwani Adalat was re- organised and collector was no longer
involved in the judicial administration.
2. It is decided that all the cases will be dealt in the open court to ensure
transparency.

12
JUSTICE SYSTEM POST – BRITISH ERA

Post British era there have been many significant changes in the Indian Judiciary as well as
the society due to the changing focus of the bench of the higher courts. Though the basic
framework of the court system has not been much modified, the working and administration
of the judiciary has been evolving since then.
Some of the major reforms are11:
 The National Legal Services Authority (NALSA)
In 1987, NALSA has been constituted to monitor and implement the legal
services available under Legal Services Authority Act, 1987. The main
function of the organisation was to ensure free legal services and to organise
Lok- Adalat’s for amicable Dispute resolution.

 Lok- Adalat
Lok- Adalat system, is an out-court dispute settlement system, where the
parties are suggested to compromise to avoid further delay and loss in the
delivery of justice.

 Alternative Dispute Resolution

ANALYSIS OF INDIAN JUSTICE SYSTEM: PRE AND POST

11
Chandra M Verma, “Judicial Reforms in India.”

12 th
Singh A., “ Law of Arbitration & Conciliation and Alternative Dispute Resolution System” (10 ed.,
Lucknow: eastern Book Company, 2013)

13
The Indian judiciary that we see today was not the same from the start, it has taken decades
together for the judiciary to become independent in true sense and work for the society.13

PRE INDEPENDENCE ERA

When Britishers came to India and started inculcating their habits into Indians and applying
their laws, there was a great revolution from the Indians. The system was not liked by Indians
as not only it bifurcated the law for Indians and Britishers for doing the same wrong, but it
was also not uniform, though there was a said court system.
One of the main problems was that, the judges presiding over the bench were mostly
Britishers and so was unfamiliar to the language of the locals, which needed intermediators to
be involved for communication, which has led to obstruction of justice many-a-times. Also,
the common law introduced by British was not applicable in personal issues, and the personal
laws of Hindus and Muslims were thereby applied to resolve such matters. The judges were
equally un familiar with these personal laws and so were required to be assisted by the
religious scholars.
Lord Cornwallis, through what is known as The Cornwallis Code or Bengal Regulations,
initiated to apply British laws in India in whole sense to make sure that there is equality
before law and has thus led to the introduction of a secular judicial system in India. He has
clarified the customary practices in order to make them specific and to ensure rigidity in
personal laws as well.
He has also made a clear distinction between the civil and criminal laws to ensure better
efficiency of the judiciary.
Later, under T. B. Macaulay, a law commission was established to codify the Indian laws
leading to the establishment of legislatures by the Charter Act, 1833.
The Government of India Act, 1935 has led to further systematization of the Indian courts by
establishment of federal court
POST INDEPENDENCE ERA

13
Jois R , “Seeds of Modern Public Law in Ancient Indian Jurisprudence” (Lucknow: eastern Book Company,
1990).

14
Post- independence, Privy councils were abolished by the Abolition of Privy Council
jurisdiction act, 1949. The judiciary was broadly divided in Supreme Court, High Court and
the Sub- ordinate Courts.14
The Supreme Court of India:-
The Supreme Court is the highest court in India, till date and has both original and appellant
jurisdiction on whole of Indian territories (except for the state of Jammu and Kashmir).
High Courts:-
High Courts were initially established under British Act, 1961. They have appellate, original,
civil and criminal jurisdiction over all the lower courts with in the state.
Sub- ordinate Courts:-
The various civil and criminal courts working under the laws, which are created though
legislations, are collectively known as Sub- ordinate Courts.

PART II

Evolution of Civil Procedure Code

The first ever uniform Civil Procedure Code for the whole country was enacted in the year
1859. Before the Code that was introduced in 1859 India never had a uniform civil code for
the whole country. There were different civil procedure systems in different parts of the
country. The introduction of this uniform civil procedure code was however not applicable to
the Supreme Courts in the Presidency Towns and nor to the Presidency Small Cause Courts.
Few amendments were made to the Civil Procedure Code enacted in 1859 in order to make it
applicable to the whole of British India uniformly but still there were many defects in the
Code and therefore, a new Civil Procedure Code was enacted in the year 1877. There were
shortcomings in the new Code which lead to enactment of a new code in 1882 which was
amended time to time. Later in the year 1908, the present Civil Procedure Code was enacted.
The Code of 1908 was amended by two important Amendment Acts one in 1951 and another
in 1956. There were a few defects in the amendments made by the two acts though the Code
as a whole worked satisfactorily. In various reports of “the Law Commission many
recommendations were made, after considering which following points were highlighted due

14
Vidhi, “Difference of Indian Judiciary: pre and post- independence”, (2017).

15
to which the Government had decided to bring forward a bill for the amendment of the Civil
Procedure Code, 1908:
“After carefully analysing the reports of the Law commission and understanding the needs of
the people the Code was amended in the year 1976. The major changes made in the Code by
the Amendment Act, 1976 were:
These were a part15
i. The doctrine of res judicata, meaning, “a matter already decided by a
competent court”, was to be made more effective. Section 11 of the Civil
Procedure Code, 1908 deals with the Res Judicata. According to Section 11, a
court shall not try any issue in which the parties and subject matter are same and
already been decided by a competent court. Res Judicata is based on the following
principles:

a) A person should not be vexed twice for the same cause.

b) There should be an end to litigation, in the interest of the state.

c) Every decision of the court must be accepted as correct and conclusive.

ii. The power to transfer proceedings from one High Court to another High Court
was given to the Supreme Court in order to maintain the superiority of the
Supreme Court and to maintain a check by the Supreme Court.

iii. Freedom from attachment of a portion of salary to all salaried employees was
granted by the amendment.

iv. Prior to the amendment there were no restrictions imposed on appeal and revision
but through this amendment, restrictions were imposed on the right of appeal and
revision.

v. The strictness to be followed under Section 80 which provides for giving notice
before the institution of a suit against the government or a public officer was
reduced.

15 th
Moitra A.C. & Monir M. “Law of Estoppel & Res-Judicata” (4 ed., Delhi: universal law house, 2015).

16
 vi. Provisions were made to ensure timely and proper filing of the written statements
and other documents.

vii. New Order 32–A was inserted in order to provide a special litigation concerning
the affairs of a family.

viii. The scope of Summary Trials was substantially widened.

ix. There was abolishment of the practice to pass preliminary and final decree in
certain suits.

x. Other important changes were made to provide relief to the poorer sections of the
society.

The amendments made by the Amendment Act, 1976 were not found sufficient. With a view
to depose of civil cases expeditiously, Justice Malimath Committee was appointed by the
Government. In accordance with the recommendations of the Committee, the code was
amended by the Amendment Act, 1999. The failure of the objective of The Amendment Act
of 1999, i.e., speedy and expeditious trial resulted in The Amendment Act of 2002 which was
enacted to reduce the delays faced at the different levels of the litigation. The main motive
behind the amendment of 2002 was to ensure fair and natural justice and providing of
a speedy remedy by eliminating troublesome delays in disposal of the cases.”

“According to the amendment,

i. “The delivery of the summons must be made to the defendant without fail within 30
days from the date of filling of the suit. This is a step towards ensuring a speedy
trial.”
ii. “The Written Statement must be filed by the defendant within 30 days. However, if
the Court thinks fit, this period of 30 days may be extended up to 90 days by the
Court.”
iii. “The penalty imposed for the non-appearance and default has been increased to
Rs.5000. This has been done so that a trial can proceed without any hindrances.”
iv. “In a case of decree for payment, if the judgment debtor fails to pay the required
amount due to any reason then, he can be detained in the civil prison. However, if

17
 such default is for payment of less than Rs.2000 then, he cannot be detained in civil
prison.”
v. “While executing a decree there is a case of attachment of salary then, the monthly
salary up to Rs.1000/- and two third of the remaining salary exceeding Rs.1000/- is
not to be attached.”
vi. “The amendment paved its ways to the new and more efficient methods for the
purpose of settlement of disputes, like Arbitration, Conciliation and Mediation. A
very effectively working example of which is Lok Adalat.”
vii. “A provision has been made for the defendant to avail compensation for all the
expenses incurred by him for the case and also for any loss or injury including the
loss of reputation caused to the defendant because of his arrest or attachment of his
property.”
viii. “The amendment made a provision that, if the value of the subject matter of a suit is
below Rs.1000 the, such disputes could not be appealed.”
ix. “If a single judge of a High Court adjudicates a case whether in the original or
appellate jurisdiction, no appeal would be entertained against the order of the single
judge of the High Court.”
x. “If the subject matter of a suit is for the recovery of money not more than
Rs.25,000/- no second appeal would be entertained.” 
xi. “The Court may adjourn the framing of issues for a period not exceeding seven
days while examining the witnesses or examining the documents presented before
the court.”
xii. “Any party to the suit would not be given more than 3 adjournments during the
hearing of any suit.”
xiii. “The Court will pronounce the judgment once the trial is over. The Court shall
endeavour to the pronounced judgment within 30 days from the conclusion of
hearing. But, in the case of any exceptional or extraordinary circumstances, the
court may fix any day beyond the period of 30 days but within a period 60 days
from the conclusion of the hearing.”
xiv. “Private alienation of any property after its attachment was made void.” 

This has been the evolution of the Code of Civil Procedure. From the time that the Code was
enforced many changes have been made to it by way of amendments to serve the society in a
better possible way. The Law Commission Reports played a very important role in making of

18
the amendments. Also, Committees were set up by the Government to understand what is to
be changed in the Code for a better judicial procedure. Many changes have been made from
the initial Code of Civil Procedure enacted in 1908 to the amendment made to the Code in
2002 there have been a lot of changes keeping in view the aim to provide free and fair trial to
all.

PART III

Shortcomings of the Code

Law is dynamic. This means that law is subjected to the changes to meet the demanding
needs of the society to which it concerns. Though the law is subjected to changes, the
paramount principle of law on which it lies upon is based on the Latin maxim salus populi
suprema lex esto16. The Code of Civil Procedure dates back to 1908 which governs the entire
spectrum of civil fraternity suits in the country. From the time that it has been enforcement, it
has been amended many times for the speedy and expeditious trial of the suits. Despite the
radical changes in due course of time, the society still faces the delaying issues due to
humongous pending lawsuits in the court. All the amendments made to the Code were done
time to time depending on the need of the society and effective and efficient working of the
judiciary. Though numerous efforts are made still there are a few shortcomings in the Code
which need to be rectified and addressed to for the purpose to serve justice to the society.

Various efforts have been made by the law makers to improve the procedural code of civil
proceedings by amending the act at certain intervals. These amendments seek to ensure fair
trial and speedy justice. In 1999, a bill was formulated to amend the Civil Procedure Code but
it was discarded as it was met with great resistance and strikes from lawyers. Hence, a new
amendment code was formulated in 2002 which is called the Code of Civil Procedure
(Amendment), 2002. The act of 2002 was met with little resistance and proved to be more
effective than the one in 1999. But still this does not give a complete fair means of justice.
The Code still has some drawbacks which need to be addressed.

In our country, legal aid is the most fundamental component for the safeguarding of the
existence of the rule of law in the society. It was rightly stated by Justice Blackmun in

16
Meaning “the good of the people shall be the supreme law”.

19
Jackson v. Bishop17 that to achieve justice, money should not be a hindrance. The idea of
justice should not be related to monetary terms as every person deserves an equal opportunity
to be represented adequately in the justice provision mechanism. Under the Code of Civil
Procedure Order XXXIII, Rule 9A deals with the concept of free legal aid. This order
requires for all the bodies of the Government to follow the rule and that a poor person should
not be disadvantaged or denied justice over a richer person on the basis of finances. Under
this Order the court is asked to provide a lawyer or pleader if the poor person is not in a
condition to afford one.18 Though existing provision are present in the Code of Civil
Procedure, effective measures need to be taken as to ensure actual happening of what is stated
in the statute. Similarly, there are provisions in the Code of Civil Procedure for speedy trials
but in reality we don’t see that happening. Justice delayed is justice denied. If there is a
dispute now and the remedy is given after 20 years then such justice is not really justice as
the purpose was to be served long back which was not. The Civil Procedure Code under
Section 89 provides for settlement of disputes outside the Court by means of arbitration,
mediation and conciliation which was done with an aim to settle matters outside the Court
with legal authority as to lessen the burden on the court and to ensure speedy justice. But, due
to many factors like, Vacancies in Judiciary, Inadequate number of courts, judicial officers
not able to tackle those cases involving specialized knowledge, Abuse of Public Interest
Litigation, Lack of adequate arrangement to monitor, track and bunch cases for hearing,
Frequent Transfer of judges, Role of administrative staff of the court, Large number of
appeals, Delay in serving of summons by the court, Non-appearance of parties at the day
fixed for hearing the aim of providing speedy trial is not being accomplished.

The drawbacks of the Code of Civil Procedure do now include that certain provisions are not
present in the Code which need to be added to the Code by way of amendment but that, these
provisions mentioned in the code are not applied effectively. The shortcoming is just that the
Code is not effectively applied. The Code should be made stricter and penalties and fines
must be imposed on anyone not following and provisions of the Code. It is very difficult to
properly implement and law in a country as big and diverse like India and to implement a
code which uniformly governs all the civil matters of the nation it is a big task. Main focus
should be on the proper, effective and efficient implementation of the Code.

PART IV
17
 404 F.2d 571 (8th Cir. 1968).
18
 [1979] 184 SCR (3).

20
COURT SYSTEM

The Indian federation was formed mainly by the division of a centralized unitary state after
the independence from the British rule in the year 1947 and operates under a parliamentary-
federal constitution which establishes both the union and the constituent states, makes
extensive provision for their respective institutions, powers, and functions within the
federation of India. India’s constitutional courts – the Supreme Court and state high courts –
play a very important role in developing Indian federalism.

The Indian judiciary is an integrated system which is bound at all the levels by the law laid
down by the apex courts but with administrative autonomy of the high courts and lower
courts in the states. The courts play a vital role in the interpretation of the Constitution, which
is particularly evident in at least two aspects. First, the Supreme Court brought the doctrine of
unamendability of the “basic structure” of the Constitution 19 in the case of Keshavanada
Bharati (1973). Second, the formed constitutional courts, the Supreme Court and the state
high courts, made the proclamation of president’s rule in a state under Article 356 subject to
judicial review so as to check the political abuse of this power (e.g., S.R. Bommai, 1994, and
Rameshwar Prasad, 2006).
The Constitution allows and gives the Supreme Court and the High courts with the original
and appellate jurisdiction under Articles 131 and 131(A), 132, 133, and 134(A). The Supreme
Court’s original jurisdiction includes the union-state and also the interstate disputes regarding
the, federal division of powers and fundamental rights of citizens. The Supreme Court’s
appellate jurisdiction includes, appeals from the high courts in civil matters, criminal matters,
and other proceedings, when any high court certifies that the dispute raises valid and
substantial questions of law regarding the interpretation of the Constitution, the Supreme
Court may also grant “special leave to appeal” in “any cause or matter passed or made by any
court or tribunal in the territory of India” (Article 136, Clause 1).

PART V

Crucial procedures and the CPC

19 th
Shukla V.N. , “The Constitution of India” (M.P Singh, ed., 9 ed., Lucknow: eastern Book Company, 1994).

21
Procedures before the courts are brought into by filing of petitions by the concerned parties,
including the government. The locus standi procedure is still in the norm, but the higher
courts have saved and kept it for public interest litigation, which can be initiated by any third
party, which may be a civic or a non-governmental organizations or individuals intervening
on behalf of the victims who are suffering injustice. These types of proceedings can be started
by a postal letter to the court by the victim or by a “suo motu” cognizance of a matter taken
up by a judge or judges on a bench called Coram.
The attorney general or the solicitor general who were prior to the modern era called as
Vakeels have a special statutory powers to file a contempt or other proceedings on behalf of
the executive. The law officers and the concerned parties may request to transfer a case from
one court to another for specific reasons that has to be mentioned with due regard. In certain
cases, the Supreme Court bench can itself amalgamate similar types of cases to be heard
together in the interests of such efficiency and uniformity of justice by the courts. Indian
courts follow the system of adversarial adjudication prevalent in the common law countries
as distinguished from the inquisitorial system practised in civil law countries.
On complaints filed by appellants to the court of original jurisdiction, the respondents file
their reply. After hearing the parties concerned represented by their advocates and examining
the witnesses, the court decides a case on its merits. Certain special remedies are used by the
courts to resolve litigation or to get it enforced. Amicus curiae are occasionally appointed by
the courts on behalf of an exceptionally aggrieved party to help reach a correct decision.

The Code of Civil Procedure in India

Adjudication by the courts in India has generally led to a positive and continued harmonious
functioning of the system of cooperative federalism established under the Constitution of
India. " Although, the preparation for the Indian Codification began at the earliest and started
at the 'thirties of the last century, all the Indian Codes belonged to that period, since the
Mutiny, when we have had already been a sovereign power in the country for a hundred
years. The very first Code to appear was that relating to the Civil Procedure, passed in 1859,
and quickly followed by the Indian Penal Code in the 1860’s and the Code of Criminal
Procedure in 1861. The Civil Procedure Code of 185920, which was intermediately amended,
was superseded by a new Act in 1882; and that Act is still in force, though, up to the end of

20 rd
Ray S., “ Textbook on the Code of Civil Procedure”, (3 ed., Delhi: universal law house, 2015).

22
1901 it had already been amended by no fewer than that of the seventeen Acts of general and
seven of local application. It is also thickly encrusted with the Case-law of a vast number of
decisions.21

21
Mulla D.F. “the key to Indian practice-A summary of the Cope of Civil Procedure (11th ed, Lucknow;EBC
Pub, 2015)

23
CHAPTER 3
CONCLUSION
The image of the courts in India is the ultimate analysis depending, not only upon the
architectural beauty and spaciousness of the Court building, It also does not depend upon the
finely cut robes of the members of the bench and bar or other trapping of court. Likewise the
image of courts does not depend upon the long arguments, the number of authorities cited and
erudition displayed in judgements, important though they are, it depends essentially the way
the cases are handled and upon the extent of confidence the courts inspire in the parties to the
cases before them upon the promptness or absence of delay in the disposal of cases, upon the
approximation of the judicial finding of fact with the realities of the matter. We must
remember that in the final analysis, the people are the judge of Judges and that every trial is a
trial of our judicial system. Its strengths and weaknesses, its success and failure, its utility and
credibility as a necessary organ of State has impact on civilised society.

24