Introduction

Section 128 of the Code of Civil Procedure, 1908 deals with the matters in respect of which rules may be made by High Courts under the rule-making powers contained in the preceding provisions.

The provision is important because it explains the scope and subject matter of procedural rules. It permits rules to regulate the practice and procedure of Civil Courts, but it also places an important limitation: such rules must not be inconsistent with the provisions contained in the body of the CPC.

Section 128 therefore has to be understood as a provision that both permits procedural regulation and limits the manner in which that power may be exercised.

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Section at a Glance

Particular	Details
Section	Section 128 CPC
Subject	Matters for which rules may provide
Nature	Procedural
Main purpose	To specify matters that may be regulated through rules
Rule-making authority	High Courts exercising powers under the preceding provisions
Main limitation	Rules must not be inconsistent with the body of the CPC
Related provisions	Sections 122–127 and 129 CPC

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Statutory Provision

Section 128 provides that the rules made under the preceding provisions may provide for matters relating to the practice and procedure of Civil Courts.

However, the provision makes the rule-making power subject to an important condition:

The rules must not be inconsistent with the provisions contained in the body of the Code.

The section then identifies particular matters for which rules may provide.

These include matters concerning:

1. the service of processes;
2. the manner in which evidence may be taken;
3. the manner in which summonses may be served;
4. the procedure relating to discovery and inspection;
5. the procedure concerning the examination of witnesses;
6. the procedure relating to commissions;
7. the procedure concerning appeals and other procedural matters; and
8. other matters relating to the practice and procedure of Civil Courts.

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Meaning of Section 128 CPC

In simple terms, Section 128 answers the question:

“What kinds of procedural matters can High Courts regulate through rules?”

The answer is that High Courts may make rules dealing with the practice and procedure of Civil Courts, including several specific procedural matters identified in the section.

However, the High Court’s rule-making power is not unlimited.

A rule made under these provisions cannot override or contradict the substantive provisions contained in the body of the CPC.

Therefore, Section 128 creates a balance:

High Court Rule-Making Power + Procedural Flexibility − Inconsistency with the CPC = Permissible Rule

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Purpose and Object of Section 128

The main purpose of Section 128 is to provide procedural flexibility to High Courts.

The CPC establishes a general procedural framework applicable to civil litigation. However, different courts and jurisdictions may require detailed procedural rules to regulate the day-to-day conduct of proceedings.

Section 128 enables High Courts to fill in these procedural details through rules.

At the same time, the section ensures that such rules do not contradict the main provisions of the CPC.

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Essential Features of Section 128

1. Rules may regulate Civil Court procedure

The section permits rules concerning the practice and procedure of Civil Courts.

This allows procedural matters to be regulated in greater detail than would be possible through the main provisions of the CPC alone.

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2. The power is subject to the CPC

The most important limitation is that the rules must not be inconsistent with the provisions contained in the body of the Code.

This means that a High Court cannot use its rule-making power to defeat or contradict an express provision of the CPC.

Easy principle

Rules can supplement the CPC, but they cannot override it.

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3. The section identifies specific procedural matters

Section 128 does not merely use a broad expression such as “any matter whatsoever.”

It identifies particular areas of civil procedure that may be regulated through rules.

These provisions concern the practical functioning of Civil Courts.

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Matters for Which Rules May Provide

1. Service of Processes

Rules may regulate matters concerning the service of processes issued by Civil Courts.

This can include procedural details regarding how court processes are prepared, transmitted and served.

The purpose is to ensure that court processes are served in an orderly and effective manner.

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2. Taking of Evidence

Rules may provide for the manner in which evidence is taken.

This allows procedural details concerning the recording and handling of evidence to be regulated through rules.

The rule-making power remains subject to the Evidence Act and the relevant provisions of the CPC.

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3. Summons

Rules may regulate matters relating to the issue and service of summonses.

The purpose is to establish practical procedures through which parties are formally notified of proceedings.

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4. Discovery and Inspection

Rules may provide for matters relating to discovery and inspection.

These procedures are important because they allow parties to obtain or inspect relevant material in accordance with the procedural framework of civil litigation.

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5. Examination of Witnesses

Rules may regulate the procedure relating to the examination of witnesses.

This allows procedural details concerning the examination of witnesses to be organised in accordance with the requirements of the Civil Courts.

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6. Commissions

Rules may provide for matters relating to commissions.

Commissions may be used for various procedural purposes, such as obtaining evidence or carrying out specific judicial tasks outside the immediate courtroom setting.

Section 128 permits procedural rules to regulate the manner in which such matters are dealt with.

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7. Other Matters of Civil Procedure

Section 128 also permits rules concerning other matters connected with the practice and procedure of Civil Courts.

This gives High Courts sufficient flexibility to regulate procedural details that arise in the functioning of subordinate Civil Courts.

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The Most Important Limitation

Rules Cannot Be Inconsistent with the Body of the CPC

This is the central principle of Section 128.

A High Court may make procedural rules, but those rules must remain consistent with the provisions contained in the body of the CPC.

Example

Suppose the CPC expressly provides a particular statutory period or procedure.

A High Court cannot simply make a rule that completely contradicts that statutory provision by relying on Section 128.

The rule-making power is intended to regulate procedure, not to rewrite the substantive provisions of the CPC.

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Section 128 and Section 127

These provisions should be distinguished carefully.

Basis	Section 127	Section 128
Subject	Publication of rules	Matters for which rules may provide
Main concern	When and how rules are published and given legal effect	What matters can be regulated through rules
Key feature	Official Gazette publication	Procedural rule-making
Limitation	Deals with publication and legal effect	Rules cannot be inconsistent with the body of the CPC

Easy Way to Remember

Section 127 = Publication

Section 128 = Scope of Rules

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Section 128 and Section 129

These sections also deal with High Court rule-making, but in different contexts.

Section 128

Section 128 concerns the matters for which rules may provide under the general rule-making framework.

Section 129

Section 129 specifically concerns the High Court’s power to regulate its own procedure in the exercise of its original civil jurisdiction.

Therefore:

Section 128 → Matters for which rules may provide

Section 129 → High Court’s own original civil procedure

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How Section 128 Fits into Sections 122–128

The provisions can be remembered as a sequence:

Section	Main Subject
Section 122	Power of certain High Courts to make rules
Section 123	Constitution of Rule Committees
Section 124	Committee to report to High Court
Section 125	Power of other High Courts to make rules
Section 126	Rules subject to approval
Section 127	Publication of rules
Section 128	Matters for which rules may provide

This sequence is extremely useful for examination preparation.

Memory Trick

Power → Committee → Report → Other High Courts → Approval → Publication → Matters

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Practical Example

Example: A High Court wants to establish detailed procedural rules governing the manner in which witnesses are examined in subordinate Civil Courts.

The High Court may frame appropriate rules concerning the procedure for examination of witnesses under its rule-making powers.

However, those rules cannot contradict an express provision contained in the body of the CPC.

Thus, Section 128 allows procedural regulation while maintaining the supremacy of the main statutory provisions of the Code.

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Practical Importance in Civil Litigation

Section 128 is important because many procedural details followed by Civil Courts are governed by High Court rules in addition to the provisions contained directly in the CPC.

The section helps explain why procedural rules may differ between jurisdictions while still operating within the framework of the CPC.

It is particularly relevant when dealing with:

• service of court processes;
• summons;
• evidence;
• examination of witnesses;
• discovery and inspection;
• commissions; and
• other procedural matters.

For advocates, knowing the source and limits of High Court procedural rules is important when determining which procedural requirements apply to a particular proceeding.

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Statutory Rule and Judicial Interpretation

What the CPC Provides

Section 128 permits rules to regulate matters relating to the practice and procedure of Civil Courts.

At the same time, the section expressly limits the rule-making power by requiring that such rules remain consistent with the provisions contained in the body of the CPC.

Core Legal Principle

The High Court’s rule-making power is therefore supplementary and procedural in character.

It can provide details for implementing civil procedure, but it cannot be used to defeat the express provisions of the Code.

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Common Confusion

Can High Court Rules Override the CPC?

No.

The rules made under the relevant rule-making provisions must not be inconsistent with the provisions contained in the body of the CPC.

The High Court may regulate procedure, but it cannot use a procedural rule to contradict the main statutory provisions of the Code.

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Does Section 128 Give Unlimited Rule-Making Power?

No.

The power is restricted by:

1. the scope of the relevant rule-making provisions;
2. the matters identified in Section 128;
3. the requirement that rules remain consistent with the body of the CPC; and
4. the other statutory requirements governing the making, approval and publication of rules.

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Importance for Law Students and Judiciary Exams

Section 128 is especially important because of its limitation clause.

What to Remember

1. Section 128 deals with the matters for which rules may provide.
2. It concerns the practice and procedure of Civil Courts.
3. It permits rules relating to several procedural matters.
4. The rules must not be inconsistent with the body of the CPC.
5. Section 128 should be studied with Sections 122–127.
6. Section 127 concerns publication, whereas Section 128 concerns the scope of rule-making.
7. Section 129 concerns the High Court’s own procedure in its original civil jurisdiction.

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Important Questions to Prepare

1. What is the object of Section 128 CPC?
2. What matters may be regulated through rules under Section 128?
3. What is the limitation imposed by Section 128 on High Court rule-making power?
4. Can rules made under Section 128 override the provisions of the CPC?
5. Explain the relationship between Sections 127 and 128 CPC.
6. Distinguish Section 128 from Section 129 CPC.
7. Explain the significance of Section 128 in the rule-making scheme of the CPC.

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Key Legal Principles

1. Section 128 concerns procedural matters

The provision allows rules to regulate the practice and procedure of Civil Courts.

2. The rule-making power is not unlimited

Rules must remain within the scope of the statutory rule-making power.

3. Rules cannot contradict the body of the CPC

This is the most important limitation under Section 128.

4. Procedural flexibility is permitted

High Courts can formulate detailed procedural rules suited to the functioning of Civil Courts.

5. Section 128 forms part of the wider rule-making scheme

It should be read together with Sections 122 to 127, which establish the authority, committee mechanism, approval and publication framework.

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Key Takeaways

Concept	Principle
Section	Section 128 CPC
Subject	Matters for which rules may provide
Main purpose	To identify the scope of procedural rule-making
Area covered	Practice and procedure of Civil Courts
Major limitation	Rules must not be inconsistent with the body of the CPC
Section 127	Publication of rules
Section 128	Scope and subject matter of rules
Section 129	High Court’s own original civil procedure

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ALSO READ: Section 127 – Publication of Rules

Conclusion

Section 128 defines the scope of High Court rule-making in relation to the practice and procedure of Civil Courts. It permits procedural rules concerning matters such as summons, service of processes, evidence, discovery and inspection, examination of witnesses, commissions and other procedural matters.

However, the most important limitation is that such rules must not be inconsistent with the provisions contained in the body of the CPC.

For examination purposes, remember:

Section 127 = Publication of Rules

Section 128 = Matters for Which Rules May Provide

Core principle: High Court rules may supplement civil procedure, but they cannot contradict the CPC.