Order XLIX Rule 2 CPC - Saving in Respect of Chartered High Courts

Order XLIX Rule 2 of the Code of Civil Procedure, 1908 protects certain pre-existing procedural rules of Chartered High Courts concerning the taking of evidence and the recording of judgments and orders.

Text of Order XLIX Rule 2 CPC

Source: Code of Civil Procedure, 1908 - official India Code text (PDF).

Meaning and scope of the rule

The expression saving means that the specified existing rules are preserved rather than displaced by the First Schedule to the CPC. The protection is expressly confined to rules that were in force when the Code commenced and that concern the subjects identified in Rule 2.

What is a Chartered High Court?

In this context, a Chartered High Court is a High Court established under a historical charter or Letters Patent. The provision recognises the distinctive procedural framework historically applicable to such courts; it does not itself confer new jurisdiction or create an unrestricted exemption from the CPC.

Taking of evidence

The phrase refers to the procedure by which a court receives evidence, including examination of witnesses and other legally admissible material. Order XLIX Rule 2 preserves qualifying rules of Chartered High Courts on this subject that were already in force at the commencement of the CPC.

Recording of judgments and orders

The second protected subject is the procedure for recording judicial judgments and orders. A judgment is defined by Section 2(9) CPC as the statement given by the Judge on the grounds of a decree or order. An order is defined by Section 2(14) CPC as the formal expression of any decision of a Civil Court which is not a decree.

Relationship with other CPC provisions

Section 129 CPC empowers a High Court, notwithstanding anything in the Code, to make rules regulating its own procedure in the exercise of original civil jurisdiction, subject to the conditions stated in that section. This is a distinct rule-making power and should not be confused with the historical saving under Order XLIX Rule 2.

Section 122 CPC addresses rule-making powers of specified High Courts in relation to their own procedure and the procedure of subordinate civil courts, subject to the statutory framework. Order XLIX Rule 3 separately identifies particular CPC rules that do not apply to Chartered High Courts in specified jurisdictions. These provisions operate on different terms and must be read individually.

Practical application

When a question arises about the procedure for taking evidence or recording a judgment in a Chartered High Court, the court and parties should identify the applicable High Court rules, the date and source of those rules, subsequent amendments and any binding judicial decisions. Rule 2 is not a blanket exemption for all procedural matters or for every High Court.

Important: High Court-specific amendments and current original-side rules may affect the position in a particular jurisdiction. Consult the rules and notifications of the relevant High Court before relying on a procedure.

Official legal references

Read the Code of Civil Procedure, 1908 on India Code, including Sections 2, 122 and 129 and the First Schedule, Order XLIX. For jurisdiction-specific rules, consult the relevant High Court's official rules and notifications.

Frequently asked questions

Does Order XLIX Rule 2 apply to every High Court?

No. Its wording specifically concerns Chartered High Courts and the particular historical procedural rules described in the provision.

Does the rule preserve every rule made by a Chartered High Court?

No. It expressly protects rules in force at the commencement of the Code concerning taking evidence and recording judgments and orders. Other rules must be justified by their own applicable legal authority.

Is Order XLIX Rule 2 the same as Section 129 CPC?

No. Rule 2 is a saving provision, while Section 129 deals with the power to make procedural rules for original civil jurisdiction.