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Report No. 27

5. The 1908 Code.-Experience of a quarter of a century of the working of the Code of 1882 showed that the general lines on which it proceeded were sound1. It was, however, discovered, that in respect of some matters the provisions of the Code were too rigid to meet sufficiently the varying needs of the different areas of the country. Moreover, there was some conflict of judicial opinion on the interpretation of certain provisions of the Code. To remedy these and other defects, a comprehensive revision of the Code was undertaken in the first decade of this century.

The revision was undertaken by a Select Committee, which collected valuable material on the subject and prepared a draft Bill. A Special Committee presided over by Sir Earle Richards, which included Dr. Rashbehary Chose, examined the Bill carefully. This Committee, while giving due regard to the provisions of the Bill, relied upon the Code of 1882 as the basis of revision. It re-arranged all the provisions of the Code into two parts-

I. "the body of the Code", and

II. "the Schedule".

The Committee explained the principle underlying the re-arrangement thus:

"The general principle on which we have proceeded has been to keep in the body of the Bill those provisions which appear to us to be fundamental and those provisions which confer powers operating outside the province in which the court is situated. In some cases we have adopted the plan of inserting leading provisions in the Bill, stating in general terms the powers of the court and of leaving the details to the rules2."

In the proposed revised Code the provisions pertaining to details of procedure and other matters of minor character were relegated to rules contained in a Schedule. The object of the re-arrangement was to separate the fundamental and basic provisions, which could not be amended except by the legislative process, from the comparatively minor and detailed provisions in respect of which it was desirable to provide a more elastic and speedy machinery for modification than the tardy process of legislation. Sir Earle Richards, Law Member, while moving for leave to introduce the Bill which ultimately became the Code of Civil Procedure 1908, observed as follows3:-

"They (the Special Committee) do not desire to do away with uniformity in main principles.... But they think that, with due regard to those considerations, it is possible to confer a power to change the less important provisions of the Code in orders that defects in them can be remedied at once as they are discovered and in order that in special circumstances the courts may have power to simplify our legal machinery and to make it more adapted to the wants of less advanced communities4"

. It was accordingly proposed, that the new Code should empower the High Courts to make rules for regulating their own procedure and the procedure of subordinate courts and to modify the rules contained in the first Schedule to the Code. Provision was also made for a Rules Committee to report to the High Court on all proposals for making new rules or modifying the existing rules.

Apart from the re-arrangement of the provisions of the Code into sections and rules, the Committee did not make many changes of a radical character. Its approach was justifiably conservative. The Bill, as settled by the Special Committee, was enacted as the Code of Civil Procedure, 1908, without any substantial modifications.

1. Report of the Special Committee appointed to consider the amendment of the Civil Procedure Code, Gazette of India, 1907, Pt. V, p. 179.

2. Report of the Special Committee, Gazette of India, 1907, Pt. V, p. 179 (185), para. 12.

3. Report of the Special Committee, Gazette of India, 1907, Pt. V, p. 179 (185), para. 12.

4. Gazette of India, 1907, Pt. VI, pp. 136-137.

Code of Civil Procedure, 1908 Back

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