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STATEMENT OF OBJECTS AND
23rd April 1864. This Bill proposes to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature in British India. The numbers and titles of the Regulations and Acts which will be repealed from the date upon which the Bill comes into operation; are set forth in the Schedule annexed to the Bill.
The present Code of Civil Procedure is in force throughout the British dominions in India; with exception to the Territories under the Government of the LieutenantGovernor of the Panjáb, and two or three small Provinces in other parts of the country, to which, owing to their rude and backward state, it has not as yet been thought advisable to extend the Code.
The Courts of Small Causes at the three Presidency towns of Calcutta, Madras, and Bombay are also exempted from the operation of the Code; but an Act, which has recently been passed by the Council of the Governor-General of India, to enlarge the pecuniary jurisdiction of these Courts, and to provide for the appointment of an increased number of Judges, empowers the local Governments, with the sanction of the Governor-General of India in Council, to extend to them any parts of the Code with certain reservations.
As the present Code of Civil Procedure dates only from the year 1859, it may be considered that the time bas not yet arrived when it should be subjected to the first of those periodical revisions which are found necessary in the case of all Codes of Procedure, to rectify errors and to adapt them to altered circumstances. If the object of the Bill were simply to supply omissions or to cure defects brought to light in the working of the Code during the period that has intervened since its introduction, or to remove doubts which have arisen as to the intent and meaning of some of the sections, it might be better to allow the Code to remain
some further time in operation before any general revision were attempted.
But in the last four years great changes have taken place in the Judicial agency of the country, as well as in the substantive Criminal law in its relation to the administration of Civil justice.
Acts committed in the Civil Courts, or in connection with the processes of those Courts, which before the passing of the Indian Penal Code, were not offences, have by that Code been made offences, and are now punishable by the Criminal Courts.
The Supreme and Sudder Courts at the three Presidencies have been abolished, and their places have been taken by High Courts, the proceedings of which on the Civil side, except in the exercise of their testamentary, intestate, and matrimonial jurisdiction, are required to be regulated by the Code of Civil Procedure.
The office of Master, in which a large and very troublesome portion of the business which came before the late Supreme Courts was performed, has been done away with.
Courts of Small Causes have been established in many parts of the country beyond the limits of the Presidency towns, the proceedings of which are also required to be regulated, generally, by the Code of Civil Procedure, and it is proposed not only to add to the number of these Courts, but to empower the local Governments to increase the pecuniary jurisdiction of selected Judges to the same amount to which the jurisdiction of the Courts of Small Causes at the Presidency towus has lately been enlarged.
The Code has been extended to many places not subject to the general Regulations, such as the Central Provinces and British Burmah, the circumstances of which are peculiar, but the framers of the Code having no kuowledge of those circumstances, made no provision to meet them.
Under the operation of an Act recently passed, the offices of Hindoo and Mabomedan law officers will immediately be abolished and the Courts will no longer have those officers to apply to for an exposition of the law when questions of inheritance and succession, and other questions
requiring to be determined according to Hindoo or Mahomedan law arise in suits coming before them.
These and other changes have already led to the passing of several Acts to amend the Code of Civil Procedure, and further legislation is called for on many points connected with the procedure of the Courts. One of the Acts passed to amend the Code (Act XXIII of 1861) consists of no less than forty-four sections. This was to some extent a consolidating Act; but still the laws constituting the Code of Civil Procedure are much scattered, and further legislation, as already noticed, being necessary, it seems desirable, instead of adding to the number of Acts by which the Civil Courts are to regulate their proceedings, that the opportunity should be taken to pass a single, or consolidating, Act, which shall be complete in itself, and which shall amend whatever experience may have shown to be defective in the existing Code.
Immediately after the establishment of the High Court of Judicature at Calcutta, it was found necessary to introduce a temporary Bill to provide for the levy of fees and Stamp duties in proceedings before the Court, and to suspend the operation of some of the sections of the Code of Civil Procedure in their application to the Court.
It was pointed out at the time of the introduction of the Bill, that when the Indian Legislature passed the Code of Civil Procedure, it contemplated that a separate Code of Civil Procedure would be prepared for the High Courts, whenever they should be established ; and further legislation was promised as soon as the High Courts had been established a sufficient time to admit of an opinion being formed as to whether any and what other alterations of the existing Code were necessary.
The temporary Act passed at the time abovementioned has been twice renewed, but the renewing Acts have done little more than continue in force the original Act.
It is highly satisfactory to find that, notwithstanding that the Code, as passed in this country, was intended to apply only to the Indian Civil Courts, as distinguished from the Courts established by Royal Charter, its provisions have, on the whole, proved well suited to the High Courts in the
exercise of their ordinary original civil jurisdiction, and are generally admitted to have greatly promoted the speedy administration of justice in those Courts.
It is, no doubt, owing in a great measure to the skill and ability with which the learned Judges of the High Court, aided by an intelligent Bar, have worked the Code, and have adapted its provisions to the suits that have come before them, that these favorable results have been obtained; and I am glad to think that the revised Code, should it become law, will enjoy the same advantages in this respect as the Code whose place it is intended to take.
The present Bill embodies the whole of the sections of the temporary Act now in force, and several of the provisions of the Act passed in the early part of last year, to provide for the speedy disposal of cases pending in the Master's office, no longer considered necessary under the new system of procedure.
The Bill also proposes to substitute Stamp duties for fees in cases coming before the High Courts in the exercise of their ordinary original civil jurisdiction.
The question of the introduction of Stamp duties in cases tried by the High Courts as Courts of original jurisdiction, was discussed at the time the temporary Act (XX of 1862) was under consideration ; but it was thought that it would be better to defer any change in the existing practice until inquiry could be made as to what would be the effect of extending to the original side of the High Courts the provisions of Schedule B of the Stamp Act, containing the specification of duties chargeable on law papers; in other words, of repealing so much
of Section 30 of Act X of 1862, as excepts Courts established by Royal Charter from the provision contained in that section.
The result of the enquiries since made on the point would seem to show, that there is a very general feeling in favor of the change of the existing law proposed in the present Bill, and that it is not expected that any public inconvenience will result from the introduction of Stamp duties in lieu of fees, or that it will give rise to any practical difficulty. The substitution of Stamp duties for fees in the cases which will be atfected by the change, will probably have little effect on the costs of litigation, except that it may bring the