We wish to make it clear that we should not be understood to have laid down that the provisions of Ss. 10 and 11 of the Code of Civil Procedure apply directly and of their own force to proceedings under Art. 226 of the Constitution.
They are no doubt proceedings of a civil nature and the Code of Civil Procedure does apply to proceedings of civil nature in the High Court, but the Explanation to S. 141 inserted by the 1976 Amendment of the Code of Civil Procedure makes it clear that the provisions of the Code in regard to suits do not directly of their own force apply to proceedings under Art. 226 of the Constitution. There is ample authority that, the general principles of res judicata and the like which are embodied in the Code of Civil Procedure do apply to proceedings under Art. 226 of the Constitution
The effect of the Explanation inserted in S. 141 by the Civil Procedure Code (Amendment) Act, 1976, is that the procedure prescribed by the Code does not apply of its own force to proceedings, under Art. 226 of the Constitution.
It does not, however, lay down that some of the salutary principles enshrined in the Civil Procedure Code governing the trial of civil suits may not be applied even where it enshrines a general principle of law, to the trial of civil proceedings other than suits, like a writ petition under Art. 226 of the Constitution of India.
Writ proceedings and applicability of the provisions of the Code:
When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person whose legal or Constitutional right has been infringed. If all the elaborate and technical rules laid down in Civil Procedure Code are to be applied to writ proceedings, the very object and purpose is likely to be defeated.
In view of the conflicting opinions expressed by the different Courts, the Parliament by the aforesaid amending Act (1976) introduced the explanation saying that in section 141 of the Code, the expression “proceedings” does not include “any proceedings under Article 226 of the Constitution” and statutorily recognised the view expressed by some of the Courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of section 141 of the Code.
After the introduction of the explanation to section 141 of the Code, it can be said that when section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable “in all proceedings in any Court of Civil Jurisdiction”, it shall not include a proceeding under Article 226 of the Constitution. In this background, it cannot be held that the provisions contained in Order XXII of the Code are applicable per se to writ proceedings.