CODE OF CIVIL PROCEDURE

DAS, JATINDRA KUMAR

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BOOK REVIEW

Code of Civil Procedure by Jatindra Kumar Das, Associate Professor, Department of Law,
University of Calcutta, Publisher: PHI Learning Private Limited, Rimjhim House, 111,
Patparganj Industrial Estate, Delhi-110 092.

pp. 1066 + 90, 2014, P/b Price ` 750.00

The Code of Civil Procedure, 1908 (the Code) is a combined enactment of substantive law and
procedural law. The Code is not only applicable in case of a civil suit but in the civil nature of a
proceeding. It regulates civil proceedings where it can be easily applied with clarity. The Code is
openly and invariably applied in Civil Litigation. For litigation purposes, the Code is a part of
essential law as well as a part of Rule of law in the field of civil administration of justice. In this
sense it is also a part of the basic structure of the Constitution. The Code regulates writ
proceedings as well as regulatory procedure. Some portions of the Code are also applicable in
other enactments. It is a major source of procedural law and regulatory proceedings which in
respect can be initiated and brought under other enactments. For example, Order 21 of the Code
on Execution of Decrees and Orders and Payment under Decree is applied on the principle of
recovery of tax dues under the Income Tax Act and the Customs Act. Again, the Arbitration and
Conciliation Act draws the procedure of executing orders from the Code itself. Lok Adalat
awards under the Legal Services Authorities Act are drawn from the Code. The Code is again
applied to implement and execute Conciliation Agreements. Hence the importance of the seminal
book on the Code of Civil Procedure by Dr. Jatindra Kumar Das is immeasurable and invaluable.

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A book in this category was much-awaited and we applaud the author for fulfilling this vacuum
with such a sublime level of diligence. In today’s globalised era, there is an augmented focus on
the developments of the Law of Civil Procedure in India from lawyers and scholars from all
across the world because of the fecundity of the Indian economy and the interest of foreign
investments in India.
The “Code of Civil Procedure” by the renowned jurist, academic and prolific author Dr. Jatindra
Kumar Das is good for a student of any stage—a Judge, a practitioner of law, a jurist or a legal
academic as well as the quintessential student of LL.B; LL.B (Hons.); LL.M; M.Phil and the
Ph.D. Today, everybody needs to be a student of law as a conscious citizen of India. The book is
to be treasured for its lucid language and focus on burning issues before the Court. Also, kudos
to the erudite author, who has nearly two decades of law teaching behind him at the national and
international levels, for his sharp selection of latest Supreme Court Judgments on the finer points
of interpretations of the Code. The High Court Judgments chosen are absolutely recent
pronouncements and reflective of latest developments in law. This book is an indelible asset for
all libraries and institutions and a credit to its bookshelves and readers.
The Preface to the book parts the curtains to reveal the marvel of this exceptional book. It begins
with the magnetic sentence, “The nation solemnised the centenary celebration of the Code of
Civil Procedure, 1908 about five years ago…. The transformation of the Law of Civil Procedure
in India took place through judicial interpretation. After independence and the adoption of the
Constitution of India, judicial administration and the constitution of the law courts remained
fundamentally unchanged, except in matters such as the abolition of appeals to the Privy
Council, the Constitution of the Supreme Court of India as the Apex Court, the enforcement of
writ jurisdiction on all the High Courts etc.” This utterance by the author is qualified with a well-
researched perspective on the revisions of the Code and its Sections, Orders, Rules and
Amendments. It analyses the role of the Justice Malimath Committee for expeditious disposal of
civil cases, the question of “judicial impact assessment” as well as the landmark public interest
writ petition Salem Bar Association (III) v. Union of India 1 case. The Preface reflects on the
Courts facing a dilemma between empty formalism (i.e. following the text of the statute
irrespective of the consequences) or subscribing to certain, self-evident values as signposts for
the preferential path. With true humanity, the author culls a relevant pronouncement from the
Charan Lai Sahu v. Union of India 2 case and observes that, “While interpreting legal provisions,
a Court of law cannot be unmindful of the hard realities of life. The approach of the Court while
dealing with cases should be pragmatic rather than pedantic, realistic rather than doctrinaire,
functional rather than formal and practical rather than precedential.” The book focuses on the
vital clue of the need for “customised procedural laws” over multiple “amendments” and
“conflicting judicial decisions”. Professor Das aptly observes, only such customised procedural
laws can deliver the maximum onus of satisfaction to the parties in a dispute and greater
efficiency within a system. Dr. Das argues for such law to protect the court system as they are
the main pillars of the rule of law in the civil administration of justice.
The asset of the book is its vast repertoire of the cases on the Law of Civil Procedure in India
decided by the Apex Court under a critical lens. It mulls on the relation between statutory
procedural law as well as case laws on each and every subject. The book follows the pentagram
model of the Harvard Law School divides itself into five parts. Part I is Preliminary and delves
analytically into the theoretical foundations of the Law of Civil Procedure in India decided by

1. (2010) 5 ALD 1 (SC).

2. AIR 1990 SC 1480: (1990) 1 SCC 613.

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the Apex Court with emphasis on the origin, development, classification, object, scope,
importance of the Code. It also highlights some important and relevant definitions. Part II
contains important issues on the (i) scope of jurisdiction of Civil Courts to entertain disputes
(ii) principles governing res sub judice, res judicata and foreign judgments (iii) nature of powers
exercised by the Civil Courts in matters relating to place of suing, institution of suits, transfer of
cases, withdrawal and compromise of suits (iv) necessary conditions for first hearing, interim
order, trial as well as special suits (v) scope and ambit of the law relating to pleadings,
appearance and non-appearance of parties, discovery, inspection, production of documents,
death, marriage, insolvency of parties, judgment and decree, Part III explores various issues on
appeals, reference, review and revision. Multiple facets of first appeals, second appeals, appeals
from orders, appeals by indigent persons, appeals to the Supreme Court have been discussed
here. Part IV is dedicated to Execution. Part V deals with the miscellaneous issues on the Law of
Civil Procedure. An added bonus of this encyclopaedic book is that the Appendix contains useful
and exhaustive information on the “Law of Limitation”. We know that the Code and the
Limitation Act are to be read together since both are statutes relating to procedure and that they
are in pari materia. Therefore, they are to be taken and construed together as one system
complementary to the other.
This authoritative tome by Professor Dr. J.K. Das is no recondite specialism and offers windows
of relief to all who look up at the law for answers to make their life better. It is an undisputed fact
that the Code of Civil Procedure provides for an adversarial process while comparing the
adversarial system with the inquisitorial procedure Dr. Das has rightly examined certain issues
relating to the efficacy of the Code. The modern judicial dispute resolution system (civil and
criminal) evolved gradually from the strenuous efforts of jurists. The adversary process
principles of judicial dispute resolution system have been universally accepted and are grounded
in a principle of natural justice which requires that people should not be condemned unheard.
The adversary process directs the court to give an equal opportunity to both the parties while
conducting the proceedings based on the precept of audi alteram partem. In this chapter he has
rightly pointed out the malady of the protraction of litigation. To explain the concept of efficacy
Dr. Das has highlighted a seminal and most recent Supreme Court judgment in Rameshwari Devi
v. Nirmala Devi, 3 highlighting the recommendations of the Apex Courts while dealing with the
civil trials including suggestions on pleadings, discovery and production of documents and
interrogatories, imposing of actual, realistic and proper costs, the principle of restitution etc. The
abuse of Judicial Process and Legal Control by some parties and advocates has been evaluated.
We have been coming across several instances which can be described as unfortunate both for
the legal profession and the administration of justice. Dr. Das singles out the problem of
mushrooming of vexatious, frivolous and speculative civil litigation in the country. Dr. Das also
touches upon the case of the abuse of the judicial process in the Indian Council for Enviro-legal
Action v. Union of India 4 case.
The Chapter on Place of Suing including Transfer and Withdrawal of Suits, particularly that on
Sections 22 to 25 is simply outstanding in its equitable treatment of the vital issue of transfer of
suits from one Court to another at the instance of the defendant. The author deserves brownie
points for analyzing the true nature of the proceedings and modalities for the application for
transfer to be granted with reference to cases like Shakuntala Modi v. Om Prakash Baruka 5. It
also addresses questions on jurisdiction. It answers conundrums like where several Courts having

3. (2011) 8 SCC 249: (2011) 8 SCR 992.

4. (2011) 7 SCALE 768: (2011) 8 SCC 161.
5. AIR 1991 SC 1104; (1991) 2 SCC 706.

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jurisdiction are subordinate to the same Appellate Court, can an application for transfer be made
to that Appellate Court? What happens when subordinate courts are subordinate to the same
High Court ? And can the application be presented to the High Court? Also, where such Courts
are subordinate to different High Courts, can an application be made to the High Court within the
local limits of whose jurisdiction the court in which the suit is instituted is situated?

Part III on Appeals, Reference, Review and Revision is enriched in technical and intellectual
treasures. Any person who feels aggrieved by any decree or order passed by the court may prefer
an appeal in a superior court if an appeal is provided against that decree or order. Generally the
expression appeal is generally understood as the judicial examination of the decision by the
higher court of the decision of a lower court. It means the removal of a cause from an inferior
court to a superior court for the purpose of testing the soundness of the decision of the inferior
court. Chapter 18 on Appeals from Original Decrees goes on to analyze the meaning of First
Appeal and Appellate Jurisdiction with special reference to explanation of the concept of appeal
in the case of Bhil Kanji Bhagwan v. Bhil Karsan Bijal, 6 among others. The concept of First
Appeal has been dealt with dexterity as it deals with fact as well as law. It clears the air on
common riddles like the Letters Patent before the Division Bench that was not in the nature of an
appeal from an appellate decree i.e. second appeal. Critical issues like the Letter Patent Appeal
have been discussed in great detail with the help of cases like Smt. Asha Devi v. Dukhi Sao 7 and
Gaudiya Mission v. Shobha Bose 8. It goes in the Appellate Jurisdiction and examines the Right
of Appeal as a substantive as well as a vested right. Professor J.K. Das’s assiduous research is
evident from the part of the Right of Appeal under India, English and American law. The
students are also cautioned as to points of distinguishment of Appeals from a Suit and Revision
through a chart for ready reference of practitioners and students alike. The Right of First Appeal
under Section 96, Appeal against ex parte decree under Section 96(2), no appeal against Consent
decree under Section 96(3), no appeal in petty cases under Section 96(4), no appeal against Final
Decree where no Appeal against Preliminary Decree under Section 97(b), Appeal against Dead
Persons are absolute delights for the readership. The intellectual treatment of the Rules on
Appeal and Memorandum of Appeals, admission of appeals, stay of proceedings and of
Execution, procedures at hearing with special reference to certified copies of the Judgment and
Decree, dismissal for default and restoration, ex parte Hearing and Rehearing (Rules 17 and 21)
are stacked with footprints of erudite research. The powers of the Appellate Court, power to take
additional evidence, decree in appeals (Rules 35 to 37). Appeals from Appellate Decrees, Second
Appeals etc. and the formulation of substantive questions of law are dealt with in great details.

As we know the Code of Civil Procedure contains elaborate and exhauistive provisions to deal
with the question of executability of a decree or order. The numerous Rules of Order 21 of the
Code take care of different situations providing effective remedies not only to judgment-debtors
and decree-holders but also to claimant objectors. The remedy under the Code is of a superior
judicial quality. Again when we come to the Chapter on Execution the pronouncements of
Dr. J.K. Das on remedies under the Code are of a far superior judicial quality than what is
generally available under other statutes and the judge, being entrusted exclusively with the
administration of justice. The interpretation of the author on Rules 26 to 29 on the stay of
execution and Rules 58 to 63 on the adjudication of claims is extremely relevant to students of
law and legal eagles like.

6. 2003 GLH (23) 385: (2003) 3 GLR 2080.

7. AIR 1974 SC 2048: (1974) 2 SCC 492.
8. AIR 2008 SC 1012: (2008) 1 SCALE 390.

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Again the law relating to the jurisdiction of the Court, res judicata, res sub judice and foreign
judgments are settled by landmark judicial decisions. The law relating to the place of suing is
controversial in our times and too varies from different branches of law. Also the lacunae of
pleading through Plaints and Written Statement are pillars of civil practice. A Plaint contains and
determines most of the victims the fortune of civil disputes. Cause of Action is a determining
factor of any civil suit or proceedings. Thus it has been the controversial issue that whether a suit
can be filed, stated and decided without the cause of action. Dr. Das has rightly discussed all the
issues citing a large number of issues. The grounds for rejection of Plaints under Rule 11, Order
7 of the Code have been critically examined under the Statutory scheme of the book. The
grounds of rejection of Plaint have been analysed with great detail through latest cases. Issues
arising when the Plaint does not disclose the Cause of Action have examined the ambit and scope
of the law in detail with special reference to the differing responses of the Supreme Court in
detail. There are critical and crucial questions answered in the book as regards granting of relief
in the absence of specific pleadings, cases where the relief claimed is undervalued and instances
where the Plaint is insufficiently stamped, when the suit is barred by law, when the plaint is not
in duplicate etc. The treatment accorded to the book is watertight and exercises a high level of
due diligence. The fine print of the role of Section 8(ii) of the Code of Civil Procedure
(Amendment) Act 2002 (22 of 2002) in overriding Section 17(ii) of the Code of Civil Procedure
(Amendment) Act 1999 (46 of 1999) on the grounds of rejection of plaint has been discussed in
detail and reflect the deep philosophisation as well as practical notes dwelt upon by Dr. Das. The
author observes in context and quite rightly so that what is required is that for the purpose of
passing order under Rue 11, Order 7 of the Code the reading of the plaint has to be meaningful
not formal and on such a reading if the plaint is manifestly vexatious and merciless and not
effecting a disclosure of a clear right to sue, the Court is required to reject the plaint under
Rule 11, Order 7 of the Code. The issue on granting of relief in the absence of specific pleadings,
Rules 14 to 17 on the production of documents is clearly dissected upon. The role of the
Supreme Court has also been questioned by the author in an appropriate manner as the vase
melee of judgments often makes the litigant lose his perspective and become addled. Issues
arising when the Plaint does not disclose the Cause of Action have examined the ambit and scope
of the law in detail with special reference to the differing responses of the Supreme Court in
detail.
The part on the Institution of Suits on appearance of parties is intrinsically linked to basic
procedural aspects. Dr. Das’s case on the issues of Judgment, Decree, Interest and Costs are
worth emulating. Interlocutory and Interim orders, injunctions, appeal, reference and reviews are
given their due by the erudite author. It would be injustice not to mention the author’s exemplary
mastery of the subject in Chapter 33 on the Inherent Powers of the Court. Professor Das lucidly
delves into that territory where Inherent powers through the Code equip the Court to achieve the
ends of justice, where the laws are not well-inked. Where express powers of the Court are not
spelt out inherent powers are not applied. The author offers clear perspectives on practitioners’
and litigants’ issues as to where there is no express provisions and prohibitions. For example,
under Order 40 on the grounds of appointment of Receivers, the Court may not exercise inherent
powers in this case as specific provisions exist on the area. If any litigant obtains a true order of
the Court through perjury or fraudulent means, after the Order is passed the Court may recall it
only thorough inherent powers under the Code. Inherent powers of the Court are the last resort to
achieve the ends of justice. Only they can set the course straight after any miscarriage of justice.
Inherent powers show their true worth and give the litigant his due deserts on merit. The inherent
powers of the Court are in addition to and complimentary to the powers expressly conferred
under the Code.

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 It has been criticized over the last decade that the Code of Civil Procedure vide its
amendments of 1999 and 2002 have curtailed the inherent powers of the Court which without
understanding the scheme of the Court have not been justified for achieving the end of justice
and which have been restored by the judiciary through interpretation techniques have been
explained by the erudite author with perseverance. Also, Dr. Das’s discussions on the position
before the 1999 amendment of the Code and its contemporary relevance are stellar in its
scholastic clarity. Dr. Das in his book wonderfully explains the circumstances when it is very
difficult to determine a case by laying down certain general principles by applying which the
mandatory nature or directory nature of a particular law can be determined. Dr. Das creates a
special world of Supreme Court judgments through the varied path of inherent powers. The
author with his exponential skill has clearly explained the ratio decidendi of the two judgments
on inherent powers through the Salem Advocate Bar Association (II) v. Union of India 9 in
context. He explains how here the Supreme Court had an occasion to examine whether the
restriction conferred by the Section 148 amendment on the power of the Court to grant extension
of time beyond 30 days was reasonable. The Supreme Court had held that a power that is
inherent in the Court to pass orders that it considers necessary for meeting the ends of justice and
preventing the abuse of the processes of the Court cannot be stripped by putting an upper limit
on the period for which an extension can be granted. This is definitely an eureka moment for the
fortunate readers of this exceptional book.
The mullings on the grounds for deficiency of Court fees under Section 149 and Transfer of
Business under Section 150 are eminently readable. The discussions on the scope and ambit of
Section 151 on the ends of justice and of process of Court are riveting and unputdownable
Dr. Das on Second Appeals is detailed. Second Appeal unlike First Appeal is not a matter of
rigial question unless it involves substantial question of law. Second Appeal cannot be
entertained and admitted on question of fact-finding and mixed question of fact and law finding.
Second Appeal can be admitted on the ground of perversity meaning thereby judgments and
decrees of the Courts below without any evidence and contrary to what have been pleaded and
prayed in the Written Statement as the case may be.
In the Chapter on Appeals to the Supreme Court, while Special Leave Petition (SLP) is a
unique power of the Supreme Court under Article 136 of the Constitution of India. The Supreme
Court can grant special leave to Appeal against any order or judgment of any Court or tribunal of
any level provided the same involves substantial questions on law on public importance.
However, Dr. Das has highlighted that this power exercised more frequently by the Supreme
Court. As a result the inflow of SLPs to the Supreme Court has substantially increased. The
Sections, Orders and Rules Index of this book is a reflection of the astounding amount of hard
labour engaged into by Professor Das. The Table of Cases is like the proverbial touchstone. The
case analysis method brings forth a pellucid clarity of vision. The knowledge it transmits is
sufficient to etch the learning process in stone. Among all the parts of the book the authoritative
discussion on the complexity of the Second Appeal after its determination and re-determination
since the British period stand out with their sheer brilliance.

For Dr. Jatindra Kumar Das, this book is yet another milestone in his exceptionally brilliant
academic journey. A practitioner of law would feel assured in tucking this book in his briefcase
before going to the Court. A member of civil society will be transformed into a legally sensitised
citizen, thanks to this exceptional book. A student of law can transform himself/herself from an
average student to the topper of his batch by going through this book. But after going through the

9. AIR 2005 SC 3353: (2005) 6 SCC 344. Also D.V. Paul v. Manisha Lalwani, AIR 2010 SC 3356.

6
pages of this well-researched book one also develops a sense of awe for the sheer volume of
research that went into this hermeneutic and heuristic work. I would like to congratulate the
esteemed author for the amount of discipline, hard work and the constant meditative spirit and
state of mind such a book demands. The book will mark the beginning of an era of transition—a
transition from the modern jurists to the post-modern jurists. Clearly Professor Dr. J.K. Das is a
worthy torchbearer of the new generation of jurists at the national and international jurists. He is
definitely the new “Manu” of the present times.
We congratulate Dr. J.K. Das for his historical initiative and applaud the sweat of his brow
which has led to the genesis of this exceptional book of this era.

Sohini Banerjee
LL.M (Cambridge) Ph.D. Scholar and Guest Lecturer, Department of Law, University of Calcutta.