CHANAKYA NATIONAL LAW UNIVERSITY

CODE OF CIVIL PROCEDURE, 1908

TOPIC: RULES

Submitted to Submitted by

Dr. B. Ravi Narayan Sarma Sonal

(Faculty- in charge) Roll No:131173

Code of Civil Procedure 5th Semester

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 ACKNOWLEDGEMENT

Before we get into thick of things, it gives me great pleasure to acknowledge with deep
sense of gratitude and appreciation to all those people who gave me their unending
support and cooperation while completing this project work. They all rendered their
valuable time and services in making this project a success.

Firstly, I would like to thank the all mighty God for giving blessing and support in
helping me to complete this project.

I gratefully acknowledge Dr. B. Ravi Narayan Sarma, Faculty in-charge (Code of Civil
Procedure, 1908), CNLU, Patna, for giving me the opportunity to work on the project.
His encouragement and support throughout has helped me in successfully completing the
project.

I am even thankful to our institution, Chanakya National Law University, Patna to give
me such an interesting project to work on.

At last, but not the least, I express my sincere thanks to my parents for their generous
support and cooperation throughout the project.

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 CONTENTS

1. AIMS AND OBJECTIVE

2. HYPOTHESIS

3. RESEARCH METHODOLOGY

4. INTRODUCTION

5. RELEVANT PROVISIONS AS TO RULES

1. Effect Of Rules In First Schedule

2. Power of certain High Courts to make rules

3. Constitution of Rule Committees in certain States

4. Committee to report to High Court

5. Power of other high courts to make rules

6. Rules to be subject to approval

7. Publication of Rules

8. Matters for which rules may provide

9. Power of High Courts to make rules as to their original civil procedure

10. Power of other High Courts to make rules as to matters other than

procedure

11. Publication of rules

6. CONCLUSION

7. BIBLIOGRAPHY

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 AIMS AND OBJECTIVES

The researcher aims to study extensively about

1. Rules
2. Power of appropriate Courts to make Rules
3. Publication of Rules

HYPOTHESIS

The researcher believes that the High Court established at the town at which the Rule
Committee is instituted only has the power to make Rules.

RESEARCH METHODOLOGY

The researcher adopts doctrinal research methodology and thus relies on books, articles,
newspapers, magazines, journals, websites etc.

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 1. INTRODUCTION

Rules prescribe the procedure to be followed in all courts of this state in the exercise of civil
jurisdiction at law or in equity. These rules shall be construed and applied to effect just
results by eliminating delay, unnecessary expense and all other impediments to the
expeditious administration of justice.

Broadly speaking, civil procedure consists of the rules by which courts conduct civil trials.
"Civil trials" concern the judicial resolution of claims by one individual or group against
another and are to be distinguished from "criminal trials," in which the state prosecutes an
individual for violation of criminal law.

Civil procedure is the body of law that sets out the rules and standards that courts follow
when adjudicating civil law suits (as opposed to procedures in criminal law matters). These
rules govern how a lawsuit or case may be commenced, what kind of service of process (if
any) is required, the types of pleadings or statements of case, motions or applications,
and orders allowed in civil cases, the timing and manner of depositions and discovery or
disclosure, the conduct of trials, the process for judgment, various available remedies, and
how the courts and clerks must function.

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 2. RULES

General Civil court rules: An overview Courts of general jurisdiction are commonly laid
down by statute. Court rules, some of them explicitly set out in codes issued by the court. The
rules set out in both state (usually Code of Civil Procedure) and federal (Federal Code of
Procedure) laws that establish the format under which civil lawsuits are filed, pursued, and
tried. Civil procedure refers only to form and procedure, and not to the substantive law that
gives people the right to sue or defend a lawsuit. It discussed in Part X of the Code of Civil
Procedure, 1908 which consist of section 121 to131.

Effect Of Rules In First Schedule

The rules in the First Schedule shall have effect as if enacted in the body of this Code until
annulled or altered in accordance with the provisions of this Part.

First Schedule consists of all order and rules under CPC.

Power of certain High Courts to make rules

Section- 122 deals about the power of certain High Courts to make rules. 1 High Courts not
being the Court of a Judicial Commissioner may, from time to time after previous
publication, make rules regulating their own procedure and the procedure of the Civil Courts
subjects to their superintendence, and may be such rules annul, alter or add to all or any of the
rules in the First Schedule.

The Supreme Court or, as the case may be, any High Court, may make rules, not inconsistent
with the provisions of this Act, providing for any matter relating to its procedure.

[ The point, undoubtedly, is a very narrow one, but as it raises an important question of
practice which is not covered by authority, I had reserved order on this Chamber Summons. It
is not disputed that the present Chamber Summons has not been taken out by the defendants
before the returnable date of the Summons which was served upon them in this case. If O. 6,
Rule 5 (2), as framed under Section 122 of the Code of Civil Procedure, is held applicable to

1
Substituted by A.O. 1950, for Courts which are High Courts for the purposes of the Government of India Act,
1935.

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the Original Side of the High Court, this Chamber Summons must, therefore, be held to be
barred as being out of time. That brings me to the first contention of Mr. Bhat. Part X of the
Code of Civil Procedure deals with the rule-making power of the High Courts, and it is
necessary for me to refer to Sections 122 and 129 which occur in that part. Section 122
confers on High Courts power to make rules regulating their own procedure, as well as the
procedure of Courts subordinate to them. The question which arises is whether the power
conferred on the High Court by the said section to frame procedural rules for itself should be
construed as limited by the context in which it occurs. In other words, the question is whether
the reference to subordinate Courts in the said section should be held to indicate that power is
conferred on the High Court to make rules for itself, only in relation to subordinate Courts,
and not in regard to its Original Side. I am not prepared to read any such limitation into the
plain meaning of the expression "High Courts" which, in my opinion, must be construed to
mean High Courts in regard to their entire jurisdiction. In the case of High Courts which have
Original Jurisdiction, that expression must, therefore, be held to include that jurisdiction also.
It would of course, be open to the High Court to frame a rule under Section 122 for regulating
the procedure of any particular Court or Courts subordinate to it, or of its own Original Side
or Appellate Side only, but in that event, the High Court must in specific terms restrict the
applicability of such a rule in the manner desired. The next contention is that in view of the
fact that Section 129 confers an express rule-making power on High Courts in regard to their
Original Civil Jurisdiction, Section 122 must be read as applying to all jurisdictions other
than Original Civil Jurisdiction, as Section 129 would otherwise be rendered superfluous. I
am afraid, there is no substance in that contention, for the simple reason that the ambit and
extent of the rule-making power contained in those sections is different. It is expressly stated
in Section 122 that the Rules framed by the High Court under that section can annul, alter or
add only to the Rules contained in the First Schedule to the Civil Procedure Code. The
necessary implication of that provision is that they cannot be inconsistent with the body of
that Code. Section 129 of the Code of Civil Procedure, on the other hand, confers on the High
Court power to frame rules to regulate the procedure on its Original Civil Side, with only this
limitation that they must not be inconsistent with the Letters Patent, or other law, establishing
the High Court in question. It must therefore, follow that they could be inconsistent with
everything else, including even the body of the Civil Procedure Code. The third type of rule-
making power is to be found in Clause 37 of the Letters Patent by which this Court was
established. Clause 37 confers power on this High Court to make rules for the purpose of
regulating all civil proceedings before it, which must, as a matter of plain language, include
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proceedings both on the Original Side as well as the Appellate Side of the High Court. The
only restriction which clause 37 imposes, if restriction it can be called, is that, in making such
rules, the High Court should be, "guided", "as far as possible", by the provisions of the Code
of Civil Procedure, which having regard to Section 121 of that Code, would mean the body of
the Code as well as the Rules contained in the First Schedule thereto.]2

Constitution of Rule Committees in certain States (Section 123 ) :-

(1) A Committee, to be called the Rule Committee, shall be constituted at {Subs. by Act 13
of l909, s.2 and Sch., for "each of the towns of Calcutta, Madras, Bombay, Allahabad, Lahore
and Rangoon ".} [the town which is the usual place of sitting of each of the High Courts {The
words "and of the Chief Court" rep. by Act 11 of 1923, s.3 and Sch.2. These words were
again ins. by Act 32 of 1925 and subsequently rep. by the A.O.1948.} referred to in section
122].

(2) Each such Committee shall consist of the following persons, namely:-

(a) three Judges of the High Court established at the town at which such Committee is
constituted, one of whom at least has served as a District Judge or {The words "(in
Burma)" rep.by Act 11 of 1923, s.3 and Sch.II.} a Divisional Judge for three years,

{Subs. by Act 2 of 1951, s.16.for the original clauses (b) and (c).}

[(b) two legal practitioners enrolled in that Court.]

{Clauses (d) and (e) were relettered as (c) and (d) respectively, ibid}

[(c)] a Judge of a Civil Court subordinate to the High and Court,

{Clauses (d) and (e) were relettered as (c) and (d) respectively, ibid} [(d)] in the
towns of Calcutta, Madras and Bombay, an attorney

(3) The members of each such Committee shall be appointed by the Chief Justice or Chief
Judge, who shall also nominate one of their member to be President:

2
Shevaram Thadharam Jaisinghani vs Indian Oil Corporation Ltd., on 14 November, 1967.

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Provided that, if the Chief Justice or Chief Judge elects to be himself a member of a
Committee, the number of other Judges appointed to be members shall be two, and the Chief
Justice or Chief Judge shall be the President of the Committee

(4) Each member of any such Committee shall hold office for such period as may be
prescribed by the Chief Justice or Chief Judge in this behalf; and whenever any member
retires, resigns, dies or ceases to reside in the State in which the Committee was constituted,
or becomes incapable of acting as a member of the Committee, the said Chief Justice or Chief
Judge may appoint another person to be a member in his stead.

(5) There shall be a Secretary to each such Committee, who shall be appointed by the Chief
Justice or Chief Judge and shall receive such remuneration as may be provided in this behalf
{Subs. by the A.O.1937 for "by the G.G.in C.or by the L.G., as the case may be ".} [by the
State Government].

STATE AMENDMENTS

Assam and Nagaland-Substitute the following for clause (a) sub-section (2) of section 123.
(a) three judges of the High Court established at the town at which such committee is
constituted, provided that the Chief Justice may appoint only two judges of the High Court on
the Committee if the number of Judges of the High Court does not exceed three

[C.P.C. (Assam Amendment) Act No. 8 of 1953, sec. 2, (w.e.f. 18-4-1953) and Nagaland Act
27 of 1962 (w.e.f. 1-12-1963).]

Tamil Nadu-In section 123 sub-section (2).

(a) In clause (b) for the words two legal practitioners substitute the words three legal
practitioners.

(b) Omit the words Madras in clause (d).

[Vide Tamil Nadu Act No. 15 of 1970, sec. 2 (w.e.f. 10-6-1970).]

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Committee to report to High Court (Section 124) :_-

Every Rule Committee shall make a report to the High Court established at the town at which
it is constituted on any proposal to annul, alter or add to the rules in the First Schedule or to
make new rules, and before making any rules under section 122 the High Court shall take
such report into consideration.

Power of other high courts to make rules (Section 125) :-

High Courts, other than the Courts specified in section 122, may exercise the powers
conferred by that section in such manner and subject to such conditions {Subs. by Act 38 of
1920, s.2 and Sch.1, for "as the G.G.in C.may determine ".} [as {Subs. by the A.O.1937 for
in the case of the Court of the Judicial Commissioner of Coorg, the G.C.in C., and in other
cases the L.G."} [the State Governmental may it determine]:

Provided that any such High Court may, after previous publication, make a rule extending
within the local limits of its jurisdiction any rules which have been made by any other High
Court.

Rules to be subject to approval (Section 126) :- [Subs. by A.O. 1937, for Section 126]

Rules made under the foregoing provisions shall be subject to the previous approval of the
Government of the State in which the Court whose procedure the rules regulate is situate or,
if that Court is not situate in any State, to the previous approval of {Subs. by A.O. 1950, for
Governor General} [the Central Government].

Publication of Rules (Section 127) :-

Rules so made and {Subs. by Act 24 of 1917, s.2 and Sch.1, for "sanctioned".} [approved]
shall be published in the {Subs. by the A.O.1937 for "Gazette of India or in the local official]
Gazette, as the case may be ".Strictly the substitution would read " Official Gazette or in the
Official Gazette, as the case may he ", but the ]atter words have been omitted as being
redundant.} [Official Gazette], and shall from the date of publication or from such other date

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as may be specified have the same force and effect, within the local limits of the jurisdiction
of the High Court which made them, as if they had been contained in the First Schedule.

Matters for which rules may provide (Section 128) :-

(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but,
subject thereto, may provide for any matters relating to the procedure of Civil Courts.

(2) In particular, and without prejudice to the generality of the powers conferred by sub-
section (1), such rules may provide for all or any of the following matters, namely: -

(a) the service of summonses, notices and other processes by post or in any other
manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment, of live-stock and other
movable property, the fees payable for such maintenance and custody, the sale of such
live-stock and property, and the proceeds of such sale;

(c) procedure in suits by way of counterclaim, and the valuation of such suits for the
purposes of jurisdiction;

(d) procedure in garnishee and charging orders either in addition to, or in substitution
for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity

over against any person whether a party to the suit or not; (f) summary procedure-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated
demand in money payable by the defendant, with or without interest, arising-

on a contract express or implied; or on an enactment where the sum sought to

be recovered is a fixed sum of money or in the nature of a debt other than a
penalty; or

on a guarantee, where the claim against the principal is in respect of a debt or

a liquidated demand only; or on a trust; or

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 (ii) in suits for the recovery of immovable property, with or without a claim
for rent or mesne profits, by a landlord against a tenant whose term has
expired or has been duly determined by notice to quit, or has become liable to
forfeiture for non-payment of rent, or against persons claiming under such
tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or Master or other official of the Court of any
judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or
desirable for the transaction of the business of Civil] Courts.

Power of High Courts to make rules as to their original civil procedure (Section 129): -

Notwithstanding anything in this Code, any High Court {Subs. by the A.O.1950 for
"constituted by His Majesty by Letters Patent".} [for a Part A State] {Ins.by Act 2 of 1951,
s.17.} [or a Part B State] may make such rules not inconsistent with the Letters Patent {Ins.by
the A.O.1950.} [or order] [or other law] establishing it to regulate its own procedure in the
exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall
affect the validity of any such rules in force at the commencement of this Code.

Power of other High Courts to make rules as to matters other than procedure (Section
130) :-

A High Court {Subs. by the A.O.1950 for "not constituted by His Majesty by Letters Patent
".} [not being a High Court to which section 129 applies] may, with the previous approval of
the State Government, make with respect to any matter other than procedure any rule which a
High Court {Subs., ibid., for "so constituted".} [ for a Part A State] might under {. Subs,
ibid., for " section 224 of the Government of India Act, 1935 ".} [Article 227 of the

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Constitution] make with respect to any such matter for any part of the territories under its
jurisdiction which is not included within the limits of a presidency-town.

Article 227 of Indian Constitution states that Power of superintendence over all courts by the
High Court:

(1) Every High Court shall have superintendence over all courts and tribunals throughout the
territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and
proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any
such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3)
shall not be inconsistent with the provision of any law for the time being in force, and shall
require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court, powers of
superintendence over any court or tribunal constituted by or under any law relating to the
Armed Forces.

Publication of rules (Scetion 131) :-

Rules made in accordance with section 129 or section 130 shall be published in the {Subs. by
the A.O.1937 for "Gazette of India or in the local official Gazette. as the case may be .
Strictly the substitution would read" Official Gazette or in the Official Gazette, as the case
may be ", but the latter words have been omitted as being redundant.} [Official Gazette] and
shall from the date of publication or from such other date as may be specified have the force
of law.

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 3. CONCLUSION

The rules in the First Schedule shall have effect as if enacted in the body of this Code until
annulled or altered in accordance with the provisions of this Part. The First Schedule consists
of all order and rules under CPC.

High Courts not being the Court of a Judicial Commissioner may, from time to time after
previous publication, make rules regulating their own procedure and the procedure of the
Civil Courts subjects to their superintendence, and may be such rules annul, alter or add to all
or any of the rules in the First Schedule.

A Committee, to be called the Rule Committee, shall be constituted at the town which is the
usual place of sitting of each of the High Courts which should consist of certain members as
mentioned under Section 123. Also, such committee should report to the High Court on any
purpose to annul, alter or add to the Rules in the First Schedule.

Such Rules should also be approved by the Government of the State and then shall be
published in the Official Gazette and from the date of publication shall have the same effect
and force within the local limits of the jurisdiction of the High Court which made them.

It also been extensively specified under Section 128 that for what all matters the rules may be
provided.

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 4. BIBLIOGRAPHY

BOOKS:

1. Takwani C.K., Civil Procedure, Sixth Edition, Eastern Book Company

2. Bakshi.P.M., The Constitution Of India,10th Edition, Universal Law Publishing Co.

WEB SOURCES:

1. http://indiankanoon.org/doc/1331149/
2. http://lawcommissionofindia.nic.in/1-50/Report27.pdf
3. http://bombayhighcourt.nic.in/libweb/acts/cpc1908/pt10.pdf

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