Conference at Lucknow

1
Civil and criminal procedure for furtherance of substantial justice
Namesty.
A very good day to all of you.
It is an experience to me to stand before such an august gathering of

judicial officers of the State and galaxy of justices including our Chief
Justice.
I stand here not to deliver a lecture or to give any public speech. I

stand here to talk very precisely about the procedural law vis-a-vis the Civil
Procedure Code and its role in furtherance of substantial justice with special
reference to jurisdiction and inherent powers of the civil courts.
This is only by way of revision of what you may have learnt as law
students and what you may have been experiencing as Judicial Officers.
I begin with some basics of law.
Laws can be classified as either substantive law or procedural law.
Substantive law determines rights and liabilities of parties or defines

the nature and extent of their legal duties Transfer of Property Act, 1882 and
Contract Act, 1872 etc. are examples of the same.
Procedural law prescribes the practice, procedure and machinery for

the enforcement or recognition of legal rights and liabilities by the court of
law such as Law of Limitation, Evidence Act, C.P.C. & Cr.P.C.
The procedural law can not provide for things which are not given by
substantive law and can not take away that which has been provided by
substantive law.1 Thus, procedural law is always subservient to substantive
law.
The function of procedural law is to facilitate justice and further its

ends. Therefore, the rules of procedure must be construed liberally and in
such a manner so as to render effective the enforcement of substantive
rights. A hyper technical view must not be adopted by courts in interpreting
and applying procedural laws.
1. AIR 1998 SC 1624 : (1998) 4 SCC 349.
2
In this context, I consider it appropriate to quote Justice Lahoti (as his

Lordship then was) from one of his Lordships Judgment. 2
I quote:-
“Procedural law can not betray the substantive law by submitting to

subordination of complexity...... When the statute does not provide the path
and precedents abstains to lead, then they are the sound logic, rational,
reasoning, common sense and urge for public good which play as guides of
those who decide. Wrong must not be left unredeemed and right not left
unenforced. Forum ought to revealed when it does not clearly exist or when
it is doubted where it exists.”
Unquote.
C.P.C. as an example of procedural law forms an indispensable part of

the machinery of justice. It operates as an essential tool for enforcing legal
rights and claims, for redressing or preventing legal wrongs and for
ascertaining legal defences and for other ancillary purposes. It should not be
treated as an enactment providing for punishment and penalties.
The Code of Civil Procedure is divided into two parts.
(i) the body of the code containing 158 Sections; and
(ii) the first schedule containing 51 Orders along with the Rules.
The first part lays down the general principles whereas the second part
prescribes the method, manner and mode of exercising the general
principles. Thus, the first part and the second part must be read together and
construed harmoniously. If anything in the Orders or the Rules is
inconsistent with the Sections, the later would prevail.
Section 9 C.P.C. makes it ample clear that courts have jurisdiction to

try all suits of civil nature except those which are expressly or impliedly
barred. The presumption is always that the court has jurisdiction to try all
suits of a civil nature subject to the above exception.
In Smt. Ganga Bai's case3 the Supreme Court observed as follows:-
2 (2002) 6 SCC 16.

3 AIR 1974 SC 1126 : (1974) 2 SCC 393.
3
“There is an inherent right in every person to bring suit of a civil

nature and unless the suit is barred by statute one may, at ones peril, bring a
suit of one's choice. It is no answer to a suit, howsoever frivolous the claim,
that the law confers no such right to sue. A suit for its maintainability
requires no authority of law and it is enough that no statute bars the suit.”
This principle evolved is certainly for the advancement of substantive

law so that a legally enforceable right may not be shut down on account of
technicality.
Exclusion of the jurisdiction of the Civil Court cannot be readily

inferred. The exclusion must either be explicit or implied.
The power or authority of a court to inquire into the facts, to apply the
law, to pronounce a judgment and to carry it into execution depends upon its
jurisdiction.
The jurisdiction of the court to try a suit is an essential precondition

for the filing of the suit before it. Where a court lacks inherent jurisdiction to
try a matter, express consent of the parties, waiver or acquiescence can not
create it.
The concept of 'jurisdiction of a court' comprises of territorial

jurisdiction, pecuniary jurisdiction and jurisdiction as to subject matter.
A defect as to the inherent jurisdiction of a court with regard to a

matter, whether pecuniary or territorial, strikes at the very authority of the
court to pass a decree and cannot be cured even by the consent of the parties
to the suit.
A decree passed by a court lacking jurisdiction is a nullity and its

invalidity can be set up as a defence, when the decree is being enforced or
relied upon, even at the stage of execution or in collateral proceedings.4
Many statutes expressly provide that courts of civil jurisdiction will

have no authority to take cognigance in respect of the matters covered by the
said Act for example Section 80 of the Representation of the People Act,
1951 which specifically provides that no election shall be called in question
4. AIR 1954 SC 340 Kiran Singh Vs. Chaman Paswan.

4
except by an election petition presented in accordance with the provisions of

this Act.
The aforesaid provision expressly exclude the jurisdiction of the civil

court from taking cognigance in election matters.
A suit is impliedly barred when it is not expressly barred by any

statute but is barred by necessary implication for example where a statute
provides for a particular remedy in a particular forum and in a particular
way, the remedy must be sought in that forum and in that manner and not in
any other forum including civil courts and all other forums and modes of
seeking redressal are necessarily excluded.5
A glaring example of exclusion of jurisdiction of the civil court by

implication is that of challenge to land acquisition proceedings by means of
a civil suit.
A civil court is entitle to determine if the matter before it falls within

its jurisdiction or not and in deciding the question of jurisdiction the
substance of the pleadings as a whole is to be considered. The burden to
prove the ouster of the jurisdiction of the civil court is upon the party who
raises the plea. In case of doubt the court will always lean towards
assumption of jurisdiction rather than its exclusion.
Order 7 Rule 11 C.P.C. provides for rejection of plaints at the very

initial stage and one of the grounds for rejection is where the suit from the
statement in the plaint appears to be barred by any law. Therefore, a plaint of
a suit if from its averments appears to the court to be barred by any Act or
statute is liable to be rejected at the threshold. However, precaution must be
taken while rejecting a plaint under Order 7 Rule 11 C.P.C. as the decision in
that regard has to be taken on the plain and simple reading of the plaint
allegations and not on the basis of any defence put-forth by the other side.
There may be cases where the suit may appear to be barred by some statute
such as limitation Act or U.P. Z.A. & L.R. Act, 1950 but they may involve
consideration of factual aspects and the evidence in support thereof. In such
cases it is always prudent to formulate an issue regarding the maintainability
5 AIR 1975 SC 2238; AIR 2006 SC 2850:(2006) 5 SCC 720.

5
of the suit or it being barred by a particular provision of the Act and to

decide it either as a preliminary issue or along with the other issues arising
in the suit. Thus, in a suit for trespass where the defendant claims that he is a
tenant, the defence will not oust the jurisdiction of the court. However, if the
defendant establishes tenancy, the court will dismiss the suit.6
Section 151 of the Code is a typical example which empowers civil

courts for doing real and substantial justice between the parties where the
Code is silent regarding a particular procedural aspect.
The procedure prescribed cannot limit or otherwise affect the power of

the court to make such orders as may be necessary in the ends of justice or to
prevent the abuse of the process of the Code. This power is not an additional
power vested in any court but is inherent. It however cannot be exercised in-
conflict with the express procedural law.
The court has authority to take recourse to procedural review to recall

an order in the interest of justice even if no power of review is conferred
upon it. It has power to enlarge time fixed by the court or granted by the
Code for doing a particular thing even beyond the period of 30 days as fixed
vide Section 148 of the Code or even otherwise for just cause, amend
judgments, decrees or orders or to remove any defect in the proceedings of
the suit as postulated by Sections 152 and 153 of the Code, to set aside ex
parte decrees or orders, grant temporary injunctions even if not covered by
Order 39, add, delete or transpose parties to the suit, add, delete or
reformulate issues, revive execution proceedings, take notice of subsequent
events, allow pleadings to be amended, expunge unwanted remarks and to
hold trial in camera if necessary etc.
The use of the word 'may' at most of the relevant places in the Code
denotes the vast discretion vested in civil courts in procedural matters for the
advancement of substantial justice. Even where a procedural provision is
coughed in a mandatory language and the word 'shall' is used therein it has
been interpreted to be directory in nature.
In order to avoid delays, Rule 1 of Order 8 C.P.C. provides that the
6 . AIR 1990 SC 1563.

6
defendant shall file written statement within 30 days of the service of the
summons upon him and the court has been authorised to extend the said time
for reasons to be recorded in writing in a given case but not beyond 90 days
from the service of the summons. However, despite the mandatory form of
language used in the aforesaid provision, the Apex Court in Salem Bar
Association case7 has held the above provision to be directory in nature and
that the courts have sufficient authority of law to grant more time to the
defendant to file written statement if necessary in furtherance of substantial
justice.
Similarly Order 17 Rule 1 C.P.C. which mandates that no party shall

be granted any adjournment more than three times during the hearing of the
suit does not necessarily places an absolute bar upon the hands of the court
to grant any further adjournment if the situation of the case so inheres lest it
may defeat the cause of substantial justice. In granting such adjournments
however, the courts have to be little careful and must resort to imposition of
costs which may go on increasing with each adjournment to check delays
and the dilatory tactics if any adopted by any party.
All these and many other provisions of the like nature are matters of
procedure which aid dispensation of justice and the court has ample
authority in law to deviate a little in a given case in its discretion so as to
secure the ends of justice and to avoid the abuse of the process of the law.
This is all for the time being. I conclude.
lR;e so t;r sA
7 (2005) 6 SCC 344.

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1

Civil and criminal procedure for furtherance of substantial justice

A very good day to all of you.

It is an experience to me to stand before such an august gathering of

I stand here not to deliver a lecture or to give any public speech. I

I begin with some basics of law.

Laws can be classified as either substantive law or procedural law.

Substantive law determines rights and liabilities of parties or defines

Procedural law prescribes the practice, procedure and machinery for

The function of procedural law is to facilitate justice and further its

In this context, I consider it appropriate to quote Justice Lahoti (as his

“Procedural law can not betray the substantive law by submitting to

C.P.C. as an example of procedural law forms an indispensable part of

The Code of Civil Procedure is divided into two parts.

(i) the body of the code containing 158 Sections; and

Section 9 C.P.C. makes it ample clear that courts have jurisdiction to

In Smt. Ganga Bai's case3 the Supreme Court observed as follows:-

2 (2002) 6 SCC 16.

“There is an inherent right in every person to bring suit of a civil

This principle evolved is certainly for the advancement of substantive

Exclusion of the jurisdiction of the Civil Court cannot be readily

The jurisdiction of the court to try a suit is an essential precondition

The concept of 'jurisdiction of a court' comprises of territorial

A defect as to the inherent jurisdiction of a court with regard to a

A decree passed by a court lacking jurisdiction is a nullity and its

Many statutes expressly provide that courts of civil jurisdiction will

4. AIR 1954 SC 340 Kiran Singh Vs. Chaman Paswan.

except by an election petition presented in accordance with the provisions of

The aforesaid provision expressly exclude the jurisdiction of the civil

A suit is impliedly barred when it is not expressly barred by any

A glaring example of exclusion of jurisdiction of the civil court by

A civil court is entitle to determine if the matter before it falls within

Order 7 Rule 11 C.P.C. provides for rejection of plaints at the very

5 AIR 1975 SC 2238; AIR 2006 SC 2850:(2006) 5 SCC 720.

of the suit or it being barred by a particular provision of the Act and to

Section 151 of the Code is a typical example which empowers civil

The procedure prescribed cannot limit or otherwise affect the power of

The court has authority to take recourse to procedural review to recall

In order to avoid delays, Rule 1 of Order 8 C.P.C. provides that the

6 . AIR 1990 SC 1563.

Similarly Order 17 Rule 1 C.P.C. which mandates that no party shall

This is all for the time being. I conclude.

7 (2005) 6 SCC 344.

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