Table of Contents
The whole story of CPC begins with the word ‘Rights’. In the beginning during the stone age when man was a Paleolithic man or a Neolithic man, there were no rights per se and survival of the mightiest was the only law. Man was not meant to live in such an environment and that is why slowly the concept of social order came in. The Basis of social order was mutuality.
Mutuality means respect for other rights. Thus, it creates an obligation on a man to respect and protect the rights of other men in a society. This aspect of mutuality gave rise to a ‘Civilization’. The emanation of the word ‘Civil’ in civilization tells about the society.
The word Civil comes from a Latin word ‘Civilis’ which basically means ‘Relating To Citizens’ also in modern day we call it ‘Cultured People’. These are those people who understand and recognise the rights of other people in the country.
Civil law is basically a body of rules that defines and protects the private rights of the citizens, offering legal remedy that may be sought in a dispute and covers areas of law such as Torts, Contracts, Property & Family Law etc.
Civil law is also called a private law as it deals with disputes between two individuals. Thus, civil right is an enforceable right or privilege which if interfered by another gives rise to an action for injury.
The essential features of the law of civil procedure can be categorized into following classes:
Generally, any law which fixes duties, establishes rights and responsibilities among and for persons, natural or otherwise, are substantive laws in character, while those that merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are procedural laws.
Examining such distinction in the case of Commissioner of Wealth Tax v. Sharvan Kumar Swarup, the Supreme court referred to Salmond’s Jurisprudence and stated:
“The law of procedure may be defined as that branch of the law which governs the process of litigation. It is the law of actions “Jus Quod Ad Actions Parti nen” using the term action in a wide sense to include all legal proceedings, civil or criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purposes and subject-matters.
However, Substantive law is concerned with the ends which the administration of justice seeks, procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.”
Similarly, in the case of Balavant Rao v. Geeta, the Karnataka High Court opined that:
“If a piece of substantive law is amended, then such a law would have prospective operation unless made retrospective, either expressly or by necessary intendment. But when it comes to procedural law, the position is contrary. In the case of an amendment of a procedural law, the amendment is always retrospective in operation, unless by a contra indication is made that it is only prospective.”
The law of civil procedure prescribes the procedure for enforcement of substantive civil rights. Although the substantive civil right laws are more important than civil procedural laws, the efficacy of substantive civil laws mainly depends on the quality of the law of civil procedure. Thus, the law of civil procedure is an adjective law to facilitate justice and further its ends.
In the case of State Of Punjab vs Shyam Lal Murari, Justice Krishna Iyyer says that, ” We must always remember that the procedural law is not to be a tyrant, but a servant and not an obstruction but an aid to Justice. Its handmaid and not a mistress; a lubricant and not a resistant in the administration of justice.
Substantive law usually determines the rights and liabilities of parties. It creates substantive legal rights, defines them and confers them upon parties. It also defines the extent of legal duties. Examples: The Indian Contract Act, the Transfer of Property, The Negotiable Instruments Act and Indian Penal Code etc.
While, Adjective Or Procedural Law prescribes the practice, procedure and machinery for enforcement of those rights and liabilities which are conferred by Substantial Law. Examples: Code of Civil Procedure, Indian Evidence Act, Limitation Act and Code of Criminal Procedure etc.
The function of procedural law or adjective law is to “facilitate justice and further its ends, the rules of procedure must be construed liberally and in such a manner that renders the enforcement of substantive rights effective.” Thus, a hyper-technical view must not be adopted by courts in interpreting procedural laws. For example, a party cannot be refused relief merely because of some mistake, negligence, inadvertence or infraction of the rules of procedure.
In case of Syyed Mohammad vs Abdul Habib Hasan, 1998, S.C. It was held that, ‘A procedural law is always subservient to substantive law. Nothing can be given by procedural law what is not sought to be given by substantive law and nothing can be taken away by a procedural what is given by substantive law.’ Thus, any procedural irregularities will not vitiate a trial.
Law of civil procedure plays an important role of adjective law by forming an indispensable part of the machinery of justice and operates as an essential tool towards:
Thus, Civil laws are the body of rules dealing with the civil rights of citizens. They play a crucial and determining role in expediting the adjudication of civil disputes. Thus, the law of civil procedure is an adjunct or an accessory to substantive law.
Reference
October 21, 2023
October 22, 2023
