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The Code of Civil Procedure, 1908: page 343

The Code of Civil Procedure, 1908, India Code delivered snapshot 393b8848fdfc476a, physical page 343, typed edition 77428589d4e341672ed6a3e5f663be7dec530c42d0600064ac1314302939267d. Unreviewed extraction.

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existing sections we have made amendments to meet case law only on points on which there is conflict of
authority. And in this connection we desire to point out that at the present time there is even less
justification for the enactment of elaborate provisions in regard to procedure than at the time when the
code of 1882 was passed. Since then the standard of legal efficiency in the mofussil has been materially
raised, and the Principles of procedure are now so well understood that the Courts may be trusted to apply
them intelligently in cases for which no provision may be made in terms.
   But although we have made the present Code the basis of our draft we have carefully examined the
Bill settled by the Select Committee in 1903, and we desire to express our acknowledgements to that
Committee for the store of information it contains, and for the materials collected in there Report.
   Apart from the rearrangement to which reference has been made we have not introduced many
changes of a radical character into the Code.
   4. The general nature of some of the amendments we recommend may be conveniently illustrated by a
brief examination of the extent to which the various stages of a suit will be affected by them.
   A. To begin with it is hoped that the multiplicity of suits will be further curtailed by the new provisions
we have inserted to remove limitations which we regard as needless on the comprehensiveness of a suit,
and by the wider powers of amendment vested in the courts under the Bill. An adequate check is provided
by the power of a Court to interfere where embarrassment is likely to result.
   B. Increased facilities have been given for the service of process to which further reference is made in
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the Notes of Clauses. It is hoped that in the gradual introduction of service by post may be found a
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solution of one of the principal defects in our legal system.
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   C. In our opinion it is most necessary that litigants in this country should come to trial with all issues
clearly defined, and that cases should not be expanded or grounds shifted without reference to the true
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facts. For this purpose we think that the present system of pleadings in the mofussil, which is notoriously
lax, should be improved, and we have incorporated in the rules an Order on pleadings, which it is hoped
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will lead to sounder and fairer methods of arriving at the real points in dispute. The forms have been
revised and we hope that they will be brought into more general use in the mofussil.
   We have not been able within the time at our disposal to make these forms, or the other forms in the
Appendix to Schedule I complete: but this is a matter of detail which can be further considered before the
Bill is passed into law.
    D. It is not possible to secure expedition in the disposal of suits, unless the questions of fact on which
there is a real contest are narrowed down as far as possible. As a step towards this, we have incorporated
in the rules an Order in which provision is made for the admission not only of documents, but also of
facts. It must be left to litigants and their advisers to make adequate use of this Order: but it is hoped that
the Courts will encourage the use of it, since it certainly affords a means whereby the two principal evils
of litigation, delay and expense, can be materially diminished.
   E. We attach much importance to a proper use being made by Courts in the mofussil of the procedure
prescribed for the first hearing. The Code as it stands makes provision for the examination of parties by
the Court, and we have altered the language so as to compel the production of documents at the first
hearing. In our opinion this will act as a substantial check on the fabrication of documentary evidence.
   F. The provisions relating to the hearing of suits do not call for material alteration, but we have
thought it well to provide expressly for the cases where a party dies between conclusion of the hearing
and delivery of judgement. It would obviously be wrong that such an accident should in any way interfere
with the disposal of the case, and we have therefore inserted a provision to enable judgment to be
pronounced notwithstanding the death.
   G. A change of importance has been made in regard to decrees. In the first place, we have inserted an
express provision recognizing the distinction between preliminary and final decrees. We hope in this way
to afford facilities for checking the delay that now results from the objectionable practice of leaving for
determination in execution questions which should be decided by decree. This change should ensure the
more expeditious disposal of a class of suits which at present are conspicuous for the delay to which they


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