The Code of Civil Procedure, 1908: A Historical and Jurisprudential Analysis in the Context of Bangladesh. By- Judge Nazmul Hasan

 

The Code of Civil Procedure, 1908:

A Historical and Jurisprudential Analysis in the Context of Bangladesh.

By-Judge Nazmul Hasan

 

Introduction: The Handmaid of Justice and the Rule of Law

The administration of justice in any society is fundamentally governed by two pillars of law: substantive law and procedural law. Substantive laws delineate rights and obligations, defining the legal framework of society, while procedural laws provide the essential machinery for the enforcement and protection of those rights. The maxim "procedural law is the handmaid of justice" encapsulates this symbiotic relationship, positing that legal procedure must serve to facilitate justice, not obstruct it with undue technicality or complexity. Within this context, the Code of Civil Procedure, 1908 (Act No. V of 1908), stands as a monumental legislative achievement, serving as the foundational charter of civil jurisprudence across the Indian subcontinent. The Code consolidates and amends the laws relating to the procedure of civil courts, providing a structured, systematic, and detailed framework for resolving civil disputes, from the institution of a suit to the execution of a decree.                                            

This article provides an in-depth historical and jurisprudential analysis of the Code of Civil Procedure, 1908. The narrative will trace the Code’s origins from a fragmented colonial legal system, analyze its core principles that have stood the test of time, and, most critically, follow its transformative journey within the unique legal and political landscape of Bangladesh. By examining its continuity, key reforms, and judicial interpretations, this report will illustrate how a colonial-era statute has been actively adapted to meet the contemporary needs of a sovereign nation.

The Pre-Codification Era: A History of Legal Fragmentation (Pre-1908)

The history of civil procedure in the Indian subcontinent before 1908 was marked by a profound lack of uniformity and consistency. Prior to 1859, the law of civil procedure was in a state of chaos, with multiple disparate systems of procedure simultaneously in force, sometimes even within the same province. In Bengal alone, as many as nine different procedural systems were said to have been in operation at once. This fragmented legal landscape created significant confusion and posed a major impediment to the fair and efficient resolution of civil disputes.  

Recognizing this critical deficiency, Sir Charles Wood, the President of the Board for the Affairs of India, instructed the Second Law Commission of India to undertake the monumental task of preparing a "Code of simple and uniform procedure" applicable to all courts in the country. This mandate culminated in the enactment of the first Uniform Code of Civil Procedure in 1859. While a maiden effort in the right direction, the 1859 Code had significant limitations; for example, it was not applicable to the Supreme Courts in the presidency towns or to the Presidency Small Causes Courts.  

The inherent defects in the 1859 Code necessitated a series of subsequent legislative actions. The Code was subjected to numerous amendments and was eventually replaced by a new Code in 1877. However, this, too, proved deficient and was itself replaced by the Code of 1882. The persistent need to amend and replace these successive codes reveals a deeper, half-century-long intellectual and legislative struggle to establish a singular, universally applicable procedural framework. The legislative debates in other jurisdictions, such as the United States' struggle with the "Conformity Act" of 1872, underscore that this was not a unique regional problem but a universal challenge faced by legal systems grappling with the complexities of multi-jurisdictional governance. The Code of Civil Procedure, 1908, thus emerged not as a sudden or isolated legislative act, but as the culmination of these decades of reform efforts, finally succeeding in consolidating and amending the laws of civil judicature in a manner that proved enduring.  

The evolution of civil procedure from 1859 to 1908 can be summarized in the following table:

Year of Enactment	Name of the Code	Key Features	Notable Limitations
1859	Code of Civil Procedure, 1859	First uniform civil procedure code in the subcontinent.	Not applicable to Supreme Courts in presidency towns and Presidency Small Causes Courts.
1877	Code of Civil Procedure, 1877	Replaced the 1859 Code due to defects and amendments.	Replaced five years later due to persistent issues.
1882	Code of Civil Procedure, 1882	Replaced the 1877 Code for similar reasons.	Replaced by the present Code of 1908.
1908	Code of Civil Procedure, 1908	Consolidated and amended the laws; proved to be a lasting framework.	–

 

The Code of Civil Procedure, 1908: A Monument of Legal Principles

The Code of Civil Procedure, 1908, is more than just a set of rules; it is a meticulously crafted document based on fundamental jurisprudential principles that are essential for the fair and efficient administration of justice. Its preamble declares its purpose as being to "consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature," with the overarching objective of facilitating justice and ensuring fair proceedings.  

Foundational Principles

One of the central principles embodied in the CPC is the maxim Ubi Jus Ibi Remedium ("where there is a right, there is a remedy"). The Code provides the necessary procedural machinery for the enforcement and defense of civil rights and obligations, ensuring that a litigant with a civil grievance can institute a suit in a competent civil court unless a statute explicitly or implicitly bars it. The Code operates as a procedural mechanism for enforcing substantive rights, not as a source of those rights themselves.  

The Code also institutionalizes the adversary system of justice. This system requires the parties themselves, and their legal representatives, to drive and shape the legal dispute by presenting their best arguments and evidence. Crucial to this system is the principle of due process, which the Code ensures by mandating that every party is given proper notice of the proceedings and a fair opportunity to present their case and test the opposing evidence.  

Another cornerstone of the CPC is the principle of Res Judicata, enshrined in Section 11 of the Code. This Latin term, meaning "a thing adjudged," dictates that a court shall not try any suit or issue that has been directly and substantially in issue in a former suit between the same parties and has been finally decided by a competent court. This doctrine promotes the finality of judicial decisions, prevents endless litigation, and ensures judicial efficiency.  

The Tension Between Rules and Justice

Despite its structured nature, the Code was designed with an understanding that strict procedural formalism could, in certain instances, become an impediment to justice. The judiciary has repeatedly cautioned against adopting a "hyper technical view" of procedural laws, emphasizing that the provisions of the Code should be construed liberally to subserve and advance the cause of justice. The courts have described the Code as a tool designed to facilitate justice, not to "trip up people" with technicalities.  

This inherent tension between procedural rigidity and the ultimate goal of justice is reconciled by a crucial provision in the Code: Section 151, which deals with the inherent powers of the court. This section grants courts discretionary powers to make orders necessary to secure the ends of justice or to prevent the abuse of the process of the court. The inclusion of this provision is not a mere formality; it is a deliberate legislative safeguard, a judicial failsafe that allows judges to bypass strict procedural formalism when circumstances demand it, thereby ensuring that the Code remains a living, flexible instrument in the hands of the judiciary. This demonstrates that the Code was formulated with an awareness of its potential limitations, empowering the court to ensure that justice is not sacrificed on the altar of procedural ritual.  

The Journey of the Code in Post-Colonial South Asia: The Legacy of Continuity

The Code in East Pakistan (1947-1971)

Following the partition of the Indian subcontinent and the creation of Pakistan in 1947, the legal framework in the new state, including its eastern wing, East Pakistan, was largely retained. The Code of Civil Procedure, 1908, continued to operate as the primary law governing civil litigation. This period saw the continued functioning of the hierarchy of courts established under the Civil Courts Act, 1887, which supplemented the procedural rules of the CPC. The legal and judicial structure remained consistent with the pre-1947 system, providing a sense of stability during a period of significant political transition.  

The Code in Sovereign Bangladesh (Post-1971)

The independence of Bangladesh in 1971 marked a new epoch in its legal evolution, yet it was an evolution built on continuity rather than rupture. A foundational legal act, the Laws Continuance Enforcement Order, 1971, was promulgated to ensure the seamless transition of the legal system. This pivotal Order provided that "all laws which were in force on the 25th day of March, 1971 in the territories now comprised in the People's Republic of Bangladesh shall continue to be in force in Bangladesh subject to such consequential changes as may be necessary".  

This was a deliberate and strategic legal choice. Instead of a new nation having to create a legal vacuum or re-enact its entire legislative framework, the Order ensured that pre-existing laws, including the CPC, would simply continue to be in force, thus preserving judicial stability and public confidence from the outset. Subsequent orders, such as the Bangladesh (Adaptation of Existing Laws) Order, 1972, further solidified this continuity by adapting references in existing laws to the new sovereign state, for example, substituting "Pakistan" with "Bangladesh" and references to the High Court of Dacca with the new "High Court Division of the Supreme Court of Bangladesh". This strategic preservation of the legislative infrastructure demonstrates a core principle of Bangladesh's legal evolution: the building of a new judicial system upon a tried-and-tested foundation. The Constitution of Bangladesh, 1972, subsequently established the independent judiciary, comprising the Supreme Court and subordinate courts, within which the CPC and other laws would operate, completing the legal transition from a province to a sovereign state.  

Reforms and the Quest for Judicial Efficiency in Modern Bangladesh

The enduring framework of the CPC, despite its historical success, has not been immune to the challenges of a rapidly changing society. The civil justice system in Bangladesh has long been plagued by systemic issues such as case backlogs, inordinate delays, and procedural complexities that have, at times, led to an erosion of public confidence in the judiciary. In response to these persistent challenges, successive governments have enacted a series of significant amendments to the Code, aimed at streamlining procedures and accelerating the dispensation of justice.  

A significant effort came in the form of the Code of Civil Procedure (Amendment) Acts of 1999 and 2002. These reforms aimed to address judicial delays by limiting unnecessary adjournments, restricting the scope of appeals against single-judge high court decisions, and setting time-bound periods for the filing of pleadings. Another notable reform was the 2016 amendment to the Civil Courts Act, 1887, which increased the pecuniary jurisdiction of lower civil courts, thereby diverting a large volume of suits from the higher courts and bringing justice closer to the people.  

However, the most transformative recent legislative effort is the Code of Civil Procedure (Amendment) Ordinance, 2025. This landmark reform package, shaped by the inputs of a dedicated Judicial Reform Committee, represents a paradigm shift from a traditional, paper-based system to a more modern, technology-driven model of civil litigation.  

The 2025 Ordinance introduces a series of fundamental changes:

• Technology Integration: The amendments to Order V, Rule 9, and Order VII, Rule 1, now permit the service of summons via digital means, including Short Message Service (SMS) and instant messaging, and require the inclusion of mobile numbers, NID details, and email addresses in plaints. This is intended to eliminate delays caused by traditional modes of service.  
• Trial Efficiency: The Ordinance institutionalizes affidavit evidence by mandating that all facts in a plaint must be proven by an affidavit (Section 26) and that examination-in-chief must be conducted via affidavit (Order XVIII, Rule 4A). It also enforces stricter case management by reducing the maximum number of permitted adjournments from six to four (Order XVII, Rule 1) and limiting a defendant's ability to set aside an ex-parte decree to only once (Order IX, Rule 13).  
• Strengthening Enforcement: Provisions for the execution of decrees have been significantly strengthened. The maximum compensatory costs for frivolous claims have been increased from Tk. 20,000 to Tk. 50,000 (Section 35A). A new Section 94A now empowers courts to direct executive authorities, including law enforcement, to assist in executing decrees. Furthermore, a significant operational change is the shift in financial responsibility for a detained judgment-debtor's subsistence from the decree-holder to the government, easing the burden on the winning party and facilitating stronger enforcement. The removal of the requirement for separate execution suits under Rule 104 of Order XXI allows for direct execution applications within the same suit record, thereby significantly reducing delays and administrative hurdles.  

The identified problems of backlogs and delays are the direct cause of these legislative responses. The 2025 amendment, in particular, represents a fundamental re-imagining of civil procedure. The fact that these changes are the result of a top-down, systematic reform effort by a Judicial Reform Committee rather than a series of ad-hoc fixes points to a clear legislative intent to modernize the civil justice system. The success of this transition, however, hinges on more than just legal text. It necessitates addressing the persistent issues of inadequate infrastructure, insufficient judicial capacity, and procedural corruption that continue to plague the system. The transition to a digital, evidence-front-loaded, and enforcement-focused model of civil justice requires a holistic approach that goes beyond legislative tinkering to encompass systemic change.  

Year of Amendment	Key Provisions	Intended Impact
1999 & 2002	Reduced appeals; limited adjournments; fixed timeframes for pleadings; mandatory affidavit for examination-in-chief.	To expedite trials and reduce case backlogs by introducing stricter time limits and reducing procedural delays.
2016	Increased pecuniary jurisdiction of lower courts.	To reduce the burden on higher courts and improve access to justice for litigants with smaller claims.
2025	Digital service of summons; mandatory affidavit for plaints and examination-in-chief; reduced adjournments; increased compensatory costs for frivolous claims; power to direct executive authorities to enforce decrees.	To modernize the system, deter baseless litigation, streamline trials, and strengthen decree execution through technology and stricter procedural discipline.

Judicial Interpretation: Landmark Judgments Shaping the Code

The CPC is not a static text; its meaning and application are continuously shaped by the judiciary through its pronouncements. The Supreme Court of Bangladesh has played a pivotal role in interpreting the Code, ensuring that its application remains flexible and aligned with the demands of justice. The true history of the Code in Bangladesh is not merely a chronicle of legislative acts but an account of how an independent judiciary has actively interpreted and adapted a colonial-era code to the contemporary needs of a sovereign nation.  

A prime example of this judicial pragmatism can be found in the case of Fazlur Rahman Vs Kazi Humayun Kabir and others, a landmark judgment on the application of Section 10 of the CPC. Section 10 provides for the stay of a subsequent suit if the matter in issue is substantially the same as in a previously instituted suit between the same parties. The court, in this case, ruled that even if the parties to two suits are not identical, it is "desirable" that the suits be tried simultaneously if they involve "common questions of disputed title". The rationale behind this deviation from a strict reading of the Code was to avoid "conflicting decisions and multiplicity of litigations," demonstrating the judiciary's prioritization of efficiency and fairness over rigid technicality.  

Similarly, the judiciary has proactively expanded the scope of a court's powers in the execution of decrees. For instance, the Supreme Court has ruled that an executing court has the jurisdiction to grant possession to a decree-holder even if the decree is silent on the matter, as such a grant is "incidental to the document of sale". This approach ensures that a judgment is not rendered nugatory due to a technical omission and that the winning party can obtain the full relief to which they are entitled under the law.  

The judiciary has also clarified the application of procedural rules to ensure a full and fair trial. For example, regarding the rejection of a plaint under Order VII, Rule 11, the court has held that the question of res judicata cannot be decided merely from a reading of the plaint; it must be decided at the time of trial after a full examination of the facts. This reinforces the judiciary's commitment to avoiding technical dismissals and ensuring that parties have a full opportunity to present their case.  

The following table provides a summary of select landmark judgments:

Case Name	Relevant CPC Section/Principle	Key Judicial Pronouncement
Fazlur Rahman Vs Kazi Humayun Kabir and others	Section 10 (Stay of suit)	Ruled that even if parties are not identical, suits with common questions of disputed title should be tried simultaneously to prevent conflicting decisions and multiplicity of litigation.
Md. Abdul Mannan Vs Sirajul Islam Chowdhury Trawlers Ltd.	Execution of Decrees	Affirmed that an executing court can grant possession to a decree-holder even if the decree is silent on the matter, as it is incidental to the sale document.
Md. Mahbubul Haque Vs Md. A. Jabbar Mia	Order VII, Rule 11 (Rejection of Plaint) & Section 11 (Res Judicata)	Held that the question of res judicata cannot be decided from a mere reading of the plaint and must be decided at the time of trial after a full hearing.

Conclusion: The CPC in Modern Bangladesh—Problems and Prospects

The Code of Civil Procedure, 1908, has demonstrated remarkable resilience and adaptability. From a response to the legal fragmentation of the colonial era, it has evolved into the bedrock of Bangladesh’s civil justice system, successfully navigating the tumultuous transitions of 1947 and 1971. Its enduring success lies in its foundational principles of due process, efficiency, and the protection of substantive rights.

However, a critical assessment reveals that despite its legislative durability, the Code faces a formidable challenge in modern Bangladesh: its application is hindered by a colossal case backlog, procedural delays, and a judiciary burdened by a lack of infrastructure and capacity. The judiciary's separation from the executive in 2007 has yet to have a significant impact on reducing these backlogs. This situation has led to the unfortunate reality that, in many cases, justice delayed is indeed justice denied.  

The recent legislative reforms, particularly the comprehensive 2025 Ordinance, are a clear acknowledgment of these problems. The shift towards digital communication, mandatory affidavit evidence, and a more robust execution mechanism represents a sincere attempt to transition from a manual, time-consuming process to a modern, efficient, and transparent one.  

For the Code of Civil Procedure to truly fulfill its promise as the "handmaid of justice" for all citizens, legislative reforms alone will not suffice. The future of civil justice in Bangladesh depends on a multi-pronged approach:

• Continued Legislative Innovation: The Code must be a living document, subject to continuous review and reform to keep pace with societal and technological advancements.
• Infrastructural and Capacity Building: The move towards digital systems must be supported by significant investment in judicial infrastructure and the training of judges and legal professionals to utilize these new tools effectively.  
• Institutional and Procedural Integrity: Addressing issues of procedural corruption and ensuring efficient case flow management are paramount to restoring public confidence and ensuring that the legal process serves its true purpose.

The history of the CPC in Bangladesh is a testament to the power of a well-structured legal framework. The challenge now is to ensure that this venerable Code, a monument of colonial legal consolidation, is not only maintained but also revitalized to meet the demands of a fast-changing world, thereby guaranteeing access to justice for every citizen of the People's Republic of Bangladesh.