Code of Civil Procedure, 1908 (CPC)
Order XLVIII and Order XLIX: Process, Forms and Chartered High Courts
The First Schedule to the Code of Civil Procedure, 1908 ends with three short Orders, and two of them are worth knowing. Order XLVIII contains three general rules about process: who pays for service, how orders and notices are served, and the use of the forms in the Appendices. Order XLIX carves out the Chartered High Courts on their original side, and its Rule 2 repeats the inherent-power clause of Section 151 for the Schedule. These notes cover both.
The three general rules of Order XLVIII, and the carve-out in Order XLIX
1. Order XLVIII: Miscellaneous
§ The three rules (in substance) Rule 1: process to be served at the expense of the party issuing it. Every process issued under the Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs, and the costs of service may be included in the costs of the suit. Rule 2: orders and notices, how served. All orders, notices and other documents required by the Code to be given to or served on any person shall be served in the manner provided for the service of a summons. Rule 3: use of forms in the Appendices. The forms given in the Appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. |
§ Why these three rules matter more than their length suggests • Rule 1 fixes the cost of process on the litigant who wants it, which is why a plaintiff pays for the summons he requires and a decree-holder for the processes in execution, subject to the court's power to direct otherwise and to the ultimate order as to costs. • Rule 2 saves the Code from repeating itself. Instead of prescribing service for every kind of order and notice, it applies the whole machinery of Order V across the board: personal service, service on an agent, affixation, substituted service and the rest. • Rule 3 makes the Appendices operative. Appendix A contains the forms of pleadings, Appendix B the forms of process, Appendix C those relating to discovery and admissions, Appendix D decrees, Appendix E execution, Appendix F supplemental proceedings and Appendix G appeals. The words with such variation as the circumstances of each case may require mean that the forms guide rather than confine. |
2. Order XLIX: Chartered High Courts
§ What a Chartered High Court is, and what the Order does A Chartered High Court is one established by Letters Patent, historically Calcutta, Madras and Bombay, which exercises an ordinary original civil jurisdiction of its own alongside its appellate work. Rule 1 provides for who serves the process issued by such a Court in the exercise of that jurisdiction, in place of the general provisions of Order V about the officers who serve summonses. Rule 3 lists the Rules of the First Schedule that do not apply to such a Court in the exercise of its ordinary or extraordinary original civil jurisdiction, covering such matters as the frame of suit, the manner of taking evidence and the form of the judgment, because those Courts have their own rules for the original side under Section 129. Rule 2 stands apart from both, and is dealt with next. |
3. Order XLIX Rule 2 and Section 151
§ The inherent power, preserved twice Order XLIX Rule 2 (in substance). Nothing in this Schedule shall be deemed to limit or otherwise affect any inherent power of the High Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Section 151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The two are deliberately parallel. Section 151 protects the inherent power against anything in the body of the Code; Order XLIX Rule 2 protects it against anything in the First Schedule. The point they make together is the one that runs through the whole subject: the inherent power is preserved, never conferred, and an argument that a particular Order does not provide for something does not by itself end the matter. |
4. How the Three Sources Fit Together
The source | What it governs | Who may change it |
|---|---|---|
The body of the Code, Sections 1 to 158 | The substantive scheme of civil procedure | Parliament, and a State Legislature within its competence |
The First Schedule, Orders I to LI | The detailed working rules, with the force of the Code by Section 121 | A High Court under Section 122, with the previous approval of the State Government under Section 126 |
The Appendices | The forms, made operative by Order XLVIII Rule 3, to be used with such variation as the case requires | The same rule-making power, the Appendices forming part of the First Schedule |
High Court rules for the original side | The procedure of a High Court on its own original civil jurisdiction | The High Court under Section 129, not inconsistent with its Letters Patent |
5. Landmark Points
- Order XLVIII Rule 1. Every process is served at the expense of the party on whose behalf it is issued, unless the court otherwise directs.
- Order XLVIII Rule 2. Orders, notices and other documents are served in the manner provided for a summons, which brings in the whole of Order V.
- Order XLVIII Rule 3. The forms in the Appendices shall be used, with such variation as the circumstances of each case may require.
- Order XLIX Rule 1. Process of a Chartered High Court on its ordinary original civil jurisdiction is served as that Court provides.
- Order XLIX Rule 3. A list of Rules of the First Schedule that do not apply to such a Court on its original side, those matters being governed by its own rules under Section 129.
- Order XLIX Rule 2. Nothing in the Schedule limits or otherwise affects the inherent power of the High Court, mirroring Section 151 for the body of the Code.
6. Frequently Asked Questions
Who pays for the service of process?
Under Order XLVIII Rule 1, the party on whose behalf the process is issued, unless the court otherwise directs. The cost is part of the costs of the proceeding and is dealt with in the ultimate order as to costs.
How are orders and notices served?
Under Order XLVIII Rule 2, in the manner provided for the service of a summons. That brings in the whole of Order V, including personal service, service on an agent, affixation and substituted service.
Must the forms in the Appendices be followed exactly?
No. Order XLVIII Rule 3 requires the forms to be used with such variation as the circumstances of each case may require, so they guide the drafting without confining it.
What is a Chartered High Court?
One established by Letters Patent, historically Calcutta, Madras and Bombay, which exercises an ordinary original civil jurisdiction of its own in addition to its appellate jurisdiction.
Why does Order XLIX exclude certain Rules?
Because a Chartered High Court on its original side follows rules it has itself made under Section 129, which operate notwithstanding anything in the Code and need only be consistent with its Letters Patent. The excluded Rules would otherwise conflict with them.
What does Order XLIX Rule 2 add to Section 151?
It covers the First Schedule. Section 151 preserves the inherent power against anything in the body of the Code; Order XLIX Rule 2 preserves it against anything in the Schedule. Together they show that the power is preserved rather than conferred.
7. Related Topics in This CPC Series
- Issue and Service of Summons: Order V
- Rule-Making Power: Sections 121 to 131
- Special Provisions Relating to High Courts: Sections 116 to 120
- Section 151: Inherent Powers of the Court