In our previous posts, we have been discussing various procedures and practical aspect of the legal practice. In this post, we will be discussing why are some of the practice procedures, forms, and fees are different in different subordinate courts across India (such as the amount of court fee, the manner of filing suits etc.). Further, we will be discussing the relevant provision of the Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC) in this regard.
A High Court of competent jurisdiction has the power to make and amend rules governing the procedure to be followed by the subordinate courts. Further, a High Court also has the power to lay down rules of procedure of its own conduct. The Chief Justice of the High Court makes such rules. It is within the competence of the High Court to make rules to alter the procedure laid down under the CPC and CrPC. The High Court Rules make changes to the provisions of the procedural laws as follows –
Power of the High Court under Civil Procedure Code –
- Section 122, CPC empowers certain High Courts to make rules. It provides that 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.
- Sectio 125 deals with Power of other High Courts to make rules. It provides that 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 as the State Government may determine. The proviso to Section 125 states 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.
- Section 126 provides that 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 situated or, if that Court is not situated in any State, to the previous approval of Central Government. Section 127 states that Rules so made and approved shall be published in the Official Gazette and shall from the date of publication or from such other date 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.
Section 128 provides Matters for which rules may provide.
(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 summons, 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 livestock and other movable property, the fees payable for such maintenance and custody, the sale of such livestock 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 order 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 trust; or
(ii) in suits for the recovery of immovable property, with or without 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 nonpayment 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 Court to make rules under Criminal Procedure Code –
Section 477 provides that every High Court may, with the previous approval of the State Government, make rules-
(a) as to the persons who may be permitted to act as petition-writers in the Criminal Courts subordinate to it;
(b) regulating the issue of licenses to such persons, the conduct of business by them, and the scale of fees to be charged by them ;
(c) providing a penalty for a contravention of any of the rules so made and determining the authority by which such contravention may be investigated and the penalties imposed ;
(d) any other matter which is required to be, or may be, prescribed.
All rules made under this section shall be published in the Official Gazette.
Image from here