| CPC I

This is a mandatory course as per Bar Council of India Regulations and this course has been designed as follows.

We start the course by exploring several of the conceptual themes arising within civil procedure such as the following:

• The difference between substantive law and procedural law.
• The difference between questions of law and questions of fact.
• The goals of procedural systems.
• The factors that influence procedural systems.
• How procedural systems can be categorised.
• The adversarial – inquisitorial dichotomy.
• Comparative civil procedure and its benefits.
• What does procedure have to do with Justice?
• The importance of Procedure.
• The history of Indian Civil Procedure.
• Peculiar problems with Indian Civil Procedure and the Indian Civil Justice System.

Students are welcome to explore these themes further in their projects which will offer only theoretical topics. Throughout the course, we will be re-visiting these conceptual themes. The initial theoretical classes are more in the nature of “brainstorming” sessions – the idea is to throw up and play around with all the interesting abstract premises that lie hidden (most of the time) in black-letter civil procedure rules. Initial classes will be devised to draw the student out so that she interacts with the class and the professor- to break the ice as it were. Thought-provoking articles and exercises (contained in the handouts) will form the basis for discussion and debate.

After the initial theoretical classes, we will encounter the Code itself and start studying it. In CPC 1, we cover Sections 1 to 35 B and Orders 1 to 20A –the entire trial court procedure from the stage of filing of the plaint, as the suit proceeds from stage to stage, until the judgment is pronounced by the trial court and the decree is written. Different kinds of suits and interlocutory applications are also considered. The materials we rely upon are primarily the statutes concerned namely the Code of Civil Procedure, 1908, and related statutes such as the Limitation Act, 1963. We also rely extensively on cases decided by the Supreme Court and some cases of the High Courts.

Students will be furnished copies of handouts specially designed for this course at the start of the course which will outline in detail the topics covered, the relevant statutory provisions, the cases to be discussed and the readings for each topic. Given the enormous complexity of procedural rules, these handouts make the rules more manageable and allow us to easily oscillate from in-depth “micro” study of procedural provisions to broader “macro” understandings of how the system operates. For each class, students will be expected to read the cases mentioned in the handouts and familiarise themselves with the statutory provisions. Additional reading will also sometimes be indicated, usually the relevant chapters from Takwani’s Textbook on Civil Procedure or articles in journals.

In a typical class, the Course Teacher will first outline the broad principles under the topic being studied and then the class will read the statutory provisions. We then move on to case-law that illuminates the principles underlying the statutory rules. For each case to be discussed in class, five students will be identified before-hand and will be required to lead the discussion on that case. The other students will also be expected to have read the case and actively participate in classroom discussion. Students who have worked or are working on a project that involves the topic under consideration might be required to make a presentation in class- this will help the class explore several tangential and intersecting themes. For example, whilst studying Discovery, a student who has made a project on “Discovery in the US” might make a presentation upon the said topic. Socratic discussion is welcomed. There will be mock-tests wherein students will be expected to solve practical-type questions.

Given that procedural law scholarship is generally undernourished in India, we welcome comparative approaches that draw on theory developed in other countries, especially the United States and the United Kingdom.

From the rules of civil procedure to the principles of civil procedure

The Law of Civil Procedure in India is the legacy of some of the finest English jurists of their time who, working with the pre-existing English common law on the subject, strove to create comprehensive and precise codes laying down the procedure to be followed for the conduct of civil cases. Their work was painstaking, pioneering and infused with the highest degree of scholarship and sophistication.

We Indians have always been in awe of the Indian Evidence Act, 1872, and the Code of Civil Procedure, 1908, which have to be read together to understand civil procedure. The Law Commission Reports are full of praise for these enactments. In spite of several reports over the years that seek to review and effect changes to the existing system of civil procedure, it is recognised that the Evidence Act is “a commendable piece of legislation”, the Act being seen as “an embodiment of all that is truly excellent.”The CPC is also similarly admired. The Law Commissions have always felt that “the ship is well-designed, fundamentally sound…” The only serious challenges to the system that the Law Commissions have considered over the years have been with regard to the viability of resorting to an indigenous system of procedure or jumping over to an inquisitorial system as existing in Continental Europe- both of which have been rejected as impracticable.

Yet, in the face of the constant crisis of the Civil Justice System caused by arrears and delays, there is the recurrent urge to review our procedures and somehow find ways of making the system more effective. Whilst several changes have been recommended and effected over the years, the “ship” remains fundamentally the same and we are forced to conclude that the problem is one of infrastructure, not procedure.

But even though the ship may be fundamentally sound, we may be at fault for not running it properly. The provisions of the Codes are “insufficiently theorised” and we are yet far away from arriving at the Principles of Indian Civil Procedure as opposed to a mass of rules and cases that have not been adequately reconciled. The great disadvantage of codification is that very often, the principles and purposes behind the black-letter rules are not expressly stated, and are further difficult to arrive at with large and complex statutes like the CPC and the Evidence Act. Thus, when courts are called upon to apply the rules in a given case, or when litigants/lawyers wish to predict the outcomes of particular actions based on the rules, the interpretive issues that arise are not adequately resolved, leading to improper/insufficient application/understanding of the rules and consequently, lack of predictability and uncertainty. Only when a clear set of principles underlying the Codes and the decisions rendered thereunder are articulated, proper application of the procedural law can take place. This lack of clarity, and the insufficient and incorrect application of the Codes, add to delays in dispute resolution, and also affects the quality of dispute resolution that the Civil Justice System delivers.

In addition to “micro theorisation” as discussed above, i.e., arriving at a set of principles that best explain the rules and decided cases under them, India would benefit greatly from taking into account the vibrant discourse being conducted by procedural law scholars around the world, wherein Procedure is being theorised at a “macro” level. A sizable body of literature is developing on the “macro” analysis of procedural systems- wherein broader questions as to procedural systems as a whole are being considered. Countries have the similar agenda of designing procedural systems that best achieve the goals of the system – such as accurate resolution of disputes – with the minimum amount of time, money and vexation. Thus, the discussion that is conducted in one country can easily be borrowed by others, and this is particularly true of countries that follow the Anglo-American model of civil procedure. On this count also, theorisation and scholarship in India is lacking.

Procedural law can be difficult. There is a huge mass of technical rules that need to be mastered. The object and purpose of the rules are very often not obvious from a bare reading of the rules and the rules are often drafted in archaic language. The rules seem counter-intuitive at times. The rules are inter-connected in complex ways and cannot be easily sub-divided. The CPC has to be read with the Evidence Act, as well as other procedural codes relating to limitation, court-fees, specific relief, etc. Crucially, comprehensive text-books that explain in a simple and easily understandable manner all the rules of the CPC and Evidence Act are easily found. Sarkar’s Code of Civil Procedure continues to be revised and reprinted and is a standard reference book for practitioners and students. The CPC is reproduced with voluminous case-law under each section, primarily from the High Courts. The cases are not reconciled, and no principles are arrived at that clearly explain the section or any interpretive issues that arise therefrom. Driven by despair, some students may rush to get Mulla’s Key to Indian Practice or CK Thakker’s Civil Procedure – both elegant well-written books- but too thin and perhaps not comprehensive enough – only basic issues under each topic are explained without going in too deep.

In order to resolve interpretive issues that arise within the Codes, one inevitably has to study the provision, the surrounding context and the statute as a whole, and try to glean therefrom the purpose or rationale of the rule. Once you get to the purposes of the rule, then applying it becomes much easier. With the common-law, every principle is based on a judgment or series of judgments and therefore it is not difficult to get to underlying rationales and purposes-since this would be articulated in the judgment. With statutes, very often the purpose and rationale for rules will not be obvious from a plain reading of the rule. This is especially true of the Evidence Act and CPC which often contains rules the reasons for which are not obvious. What compounds the problem even more is the sheer volume and complexity of the procedural codes.

Ronald Dworkin the famous “jurisprude”, argues that the law is not just a set of rules- the law is the set of principles that underlie the entire body of rules and the precedents decided under them. In order to really know your law, you need to know not just your rules and cases, but the principles which underlie them. Considered from this perspective, it is clear that we are still far away from arriving at the Principles of Indian Civil Procedure. Any textbook on the CPC will evidence the fact that we are still straddled with a mass of rules and cases. Many areas of the CPC and Evidence Act are yet to attain conceptual clarity.

After this rather elaborate warning, we come to the objects of this course. Primarily, it is to ensure that students have attained a good deal of familiarity and understanding of the black-letter rules of Indian civil procedure (“the trees”). Students are to be adept at applying the basic rules of civil procedure to draft, analyse and argue cases at trial and appellate levels. Secondly, it is also to gain a sense of the underlying concepts and principles (“the forest”) to sharpen our understanding of the rules and also so that we may appreciate the complexity and design of procedural systems from a broader perspective. Such an approach, it is hoped, would bring greater clarity and make the subject more interesting.