CIVIL PROCUDURE CODE (CPC) PSDA

RESEARCH PAPER

TOPIC: THE OPERATION OF PRINCIPLES OF NATURAL JUSTICE

IN EXECUTION PROCEEDINGS

Student Name: Anushka Sharma

Class: 3
Section: A
Subject Faculty: Ms. Komal Kapoor
Subject Code: BA LLB307
INTRODUCTION

The development of uniform laws that governed the civil procedure started back in the year
1859. During this period, the first Code of Civil Procedure was introduced. Prior to the
enactment of this code, there lacked a uniform law that could govern the civil process. The
Code of Civil Procedure, 1859 was considered to the be a revolutionary enactment but
received abundant criticism which consequentially led to the amendment of the code several
times before the 1908 code of civil procedure was enacted.

The main objective of this code is development of uniform laws throughout the country,
amending the existing laws, and seeking justice. All of these law in the pursuit of justice must
observe to the principles of natural justice.

It was the year of 1859 when the Code of Civil Procedure was essentially established. Prior to
this year, there was not any established uniform code to regulate the procedure of civil nature.
In fact, there were prevalence of many codes in the same area. Hence, this was the first time
when the civil procedures were codified and applied to the whole of the country. Natural
Justice is considered to be the vital part of the Indian jurisprudence. The explicit mention of
the term is not available in any of the statues but the influence of the code and it’s effect was
seen almost everywhere including the Civil Procedure Code which is no exception to this.

The context of civil procedure to the principle of natural justice refers to a procedure that is
fair and unbiased. The definition of the word justice cannot be concise and restricted however
it’s essence can be understood as the delivery of what is due to a person based on their action.
Justice is considered to be the core of every existing legal system and our main focus here is
on the essence on natural justice with regards to the code of civil procedure.

AMENDMENTS AT A GLANCE

The law makers have made several attempts to work on improving the procedural code of
civil proceedings by making required amendments at certain intermissions. These
amendments seek to certify fair trial and speedy justice. A bill was formulated in the year
1999 to amend the Civil Procedure Code but later it was discarded as it was met with great
confrontation and strikes from the lawyer’s community. Later, formulation of a new
amendment code took place in the year 2002. This amendment code of 2002 faced less
confrontations as compared to the 1999 amendment code and was therefore, proved to be
more effective in comparison to the 1999 code.

The article ‘Trial and Execution’ written by Venkatesan states that “The 2002 Act has been
welcomed for reducing delays during the trial of civil suits. The means of serving summons
on defendants have been expanded with the addition of more options such as e-mail, fax and
private courier. The 1999 Act had imposed a 30-day limit on the defendant to file reply to the
summons, which was objected to by the lawyers. The 2002 Act provides three months for
reasons to be recorded in writing by the court”i.

“The 1999 Act substituted Section 102 of the CPC to provide that no second appeal shall lie
from any decree, when the amount or value of the subject-matter of the original suit did not
exceed Rs.25,000. Critics had then pointed out that it would foreclose second appeals even in
cases where a substantive question of law was involved. It was argued that the revenue being
nominal, the jurisdictional value of all suits, arising out of the rural areas and agricultural
land, prescribed as a certain multiple thereof (generally 30) would never reach Rs.25,000.
This would have created an unfair distinction between two classes of litigants with the right
to second appeal available only for the moneyed classes. The 2002 Act has corrected this
distortion by specifying that no second appeal shall lie from any decree, when the subject-
matter of the original suit is for the recovery of an amount not exceeding Rs.25,000.”
This guarantees that both the parties are given adequate time to respond as well as equal
opportunities. The amendments ensure that a particular person is not given an advantage over
the other.

It was stated by the Supreme Court in the case of State of Punjab v. Baldev Singh 1 that “an
unfair trial leading to conviction is against the very principle of justice”. It is observed that
the law makers and the constitution makers have kept on improving the sections of the Code
of Civil Procedure and the articles of the Constitution of India to ensure the existence of
natural justice by providing fair trial to the citizens of the country.

Article 12, 21 and 20(2) of the Constitution play a vital role in ensuring natural justice and
the same role is played by the Civil Procedure Code. The sections that play a crucial role in

1
(1994 (3) SCC 299)
ensuring the same are 100, 89, 26 and 27. There have been amendments made,
recommendations of law reforms have been given and various law reports have suggested
changes with respect to civil proceedings to implement the concept of fair trial and natural
justice.

Order 41 Rule (2) and (3) of the Code of Civil Procedure provides safeguards and defends the
interests of a decree holder. According to it, before a custody is ordered, it should be ensured
that there was no bad faith in ordering of such a detention. It should be kept in mind that such
custody was not just allowed merely on the basis of omission. The principles of natural
justice are maintained in this manner.

The Concept of Fair Trial

The Preamble to the constitution says that the country will make an effort to ensure “Justice-
social, political and economic to all its citizens”. This justice of social, political and
economic factors is usually referred to as the concept of Natural Justice. Natural justice
simply means the unbiased, fair and just methods of legal proceedings. Ken Binmore in his
article ‘Natural Justice’ discusses that “the Apex Court of the country has laid down
guidelines for all the courts to ensure fair trial during a legal proceeding and that courts while
giving a judgment should ensure impartiality, should act fair in all manners, should not be
biased in any way and the judgments must be passed in good faith. Also, the courts must give
reasonable time to both the parties to respond to the legal notice and a fair and equal
opportunity must be given to them to present their case.” The author also believes that for
natural justice, the procedural code of the country needs to exemplify the spirit of fair trial or
else the whole concept will not be able to take existence. A violation of these principles is
actually considered as the violation of the Article 14 of the Constitution of India which
entails the Right to Equality.
In the Code of Civil Procedure, Order 41Rule (2), (3) Defends and safeguards the interest of a
decree holder. It states that, before custody is ordered by the Court, it should ensure that there
was no bad faith in ordering such a detention. It should keep in mind that this custody was
not awarded merely on the basis of omission. This way, principles of natural justice are
maintained.
The Supreme Court in the case, State of Punjab v. Baldev Singh2 stated that “an unfair trial
leading to conviction is against the very principle of justice.”

 In Zahira Habibullah Sheikh &Anrvs State Of Gujarat 3, the Court stated that “The principle
of fair trial now informs and energizes many areas of the law. It is reflected in numerous rules
and practices. Fair trial obviously would mean a trial before an impartial Judge, a fair
prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice
for or against the accused, the witnesses, or the cause which is being tried is eliminated.”

In fact, in a 2010 case (Babubhai v. State of Gujarat &Ors 4), the Court read “the right to a
free and fair trial as well as investigation into Article 21 of the Constitution, which, in turn,
guarantees ‘personal liberty’ and has been interpreted to include the fairness of procedure
which is to be used by a court so as to ensure its compliance with the principles of natural
justice.”

The two ingredients of natural justice are:

1. Audi Alteram Partem i.e. no one shall be condemned without reasonable

hearing

2. Nemo debet esse propria causa i.e. no one shall be a judge in his own case

THE RIGHT TO BE HEARD

The Latin term “audi alteram partem” means “hear the other side too”, or “hear the
alternative party too”.

This is a very important ingredient in the concept of natural justice and free trial as this
ensures a person’s right to be heard. All the courts favour the concept of letting both the
parties heard as it guarantees the unbiased nature of the Courts. Since it is such an important
feature, it must be included in the civil procedural laws and codes.

2
(1994 (3) SCC 299)
3
(2004) 4 SCC 158
4
 1985 SCR (3) 614
The Supreme Court, in Maneka Gandhi v. Union of India5, gave an important and deep
meaning to the right to life as guaranteed under Article 21. The verdict essentially overruled
the position previously taken by the same court. The provision for a fair trial in front of an
impartial court as read into Article 21, originates from the decision in the
aforementioned Maneka Gandhi case. “It is widely accepted as the Indian version of the
American concept of ‘due process of law’.”

In the Code of Civil Procedure too, there are certain provisions which relate to the right of
being heard in a free way and in an unbiased manner. Rule 13 of Order IX says that “that in
case the summons is not served duly, or if sufficient cause exists, the ex parte decree should
be set aside”. The advantage of such a rule is that both the parties of a case get an opportunity
to present their side and arguments in front of the Court and get a fair trial as per the
procedure of the Court, this despite there being the existence of an ex-parte ruling.

The landmark case of Jolly George Varghese v. Bank of Cochin6 embodied such a rule, when
the Supreme Court laid down the law in this regard.

NO ONE SHALL BE A JUDGE IN HIS OWN CASE

Although it might seem so obvious now with certain Articles like 21 of the Indian
Constitution which deals with fair trial that such an ingredient needs to be formulated, it is of
an important nature that such a feature is not forgotten. The Latin term “Nemo debet esse
propria causa” means “no-one should be a judge in their own cause”. In other words, justice
should not only be done but should be seen that it is done.
“This right to an unbiased hearing is included under Section 100 A of the CPC, by virtue of
which if any appeal from an original or appellate decree is heard and decided by a Single
Judge of a High Court, he would have the freedom to have a fixed and unchanging opinion on
the issues. His opinion is saved from further prejudice because no further appeal lies from
such order of such Single Judge.”

LEGAL AID

5
AIR 1978 SC 597
6
1980 AIR 470
One of the salient features of the Indian Judiciary is the provision of legal aid. This concept is
not recent and has been present since the time of British India. Under the Constitution of
India, Article 21 deals with fair trial. A person, who can’t defend his case just because he
doesn’t have the money to fight, seems very unfair to the economically backward people.
Hence a committee under Justice Bhagwati was formed to check that the people, who require
legal aid, are given the necessary services. Furthermore, “according to Article 39A of the
Constitution, the State Government has to mandatorily implement a program which helps the
people in need of legal aid so that the nature of justice remains unbiased and effective at the
same time”.

Under the CPC act, the Order XXXIII, Rule 9A deals with the concept of free legal aid. This
order asks all the bodies of Government to follow the rule and that a poor person should not
be disadvantaged over a richer person on the basis of finances. The court is asked to provide a
lawyer or pleader if the poor person is not in a condition to afford one. In the case of State of
Haryana v. Darshana Devi7, the Court said that “the poor shall not be priced out of the
justice market by insistence on court-fee and refusal to apply the exemptive provisions of
order XXXIII, CPC”

RIGHT TO SPEEDY TRIAL AND LOK ADALATS

With a mammoth number of pending cases and the delay in providing a fair and just
judgement, it only makes sense to have right to speedy trials and other methods of providing
justice be embodied in the Civil Procedure Code. Civil cases can be settled outside the Court
by means of arbitration, lok adalats, etc. Again, Article 21 emphasizes on the need to have a
speedy trial. No person should be harassed by the legal proceedings by delaying the time for
justice. Section 89 of the Civil Procedure Code deals with the settlement of disputes outside
the Court by means of arbitration, mediation and conciliation. The Legal Services Authorities
Act of 1987 which established Lok Adalats and gave their judgments and awards the requisite
statutory backing. With the establishment of such Adalats, the Judiciary gained teeth to deal
with delaying of cases. The proceedings sped up.

RIGHT AGAINST DOUBLE JEOPARDY

7
1979 AIR 855
Article 20(2) of the Constitution of India provides safeguard from Double Jeopardy. Double
Jeopardy simply means that a person cannot be tried for the same offence twice. So a person
doesn’t need to go to the court time and again for the same offence. This again helps in
speeding up the trial.

The Latin term “res judicata” deals with the same concept.

The doctrine of Res Judicata is originated from 3 Roman maxims:

1. Nemo debet lis vaxari pro eadem causa – It  means that no person  should be
vexed annoyed, harassed  or vexed two times for the same cause;

2. Interest republicae ut sit finis litium – It means that it is in  the interest of the state
that there should be an end of litigation; and

3. Re judicata pro veritate occipitur – Decision of the court should be adjudged as

true.

CONCLUSION

As we can see from this project, law makers and constitution makers have kept on improving
the sections of the Civil Procedure Code and articles of the Constitution to help in natural
justice by providing fair trial. While Article 12, 21 and 20(2) of the Constitution play an
important role in natural justice, Sections 100, 89, 26 and 27 of the Civil Procedure Code do
the same. Amendments have been made, law reforms have been recommended and various
law reports have suggested changes with respect to civil proceedings to implement the
concept of fair trial and natural justice. In this project we dealt with the ingredients of natural
justice and fair trail like the equal opportunity to be heard, one cannot be his own judge,
speedy trials and formation of other methods to deal with petty cases outside the court to give
boost to justice. Hence our law makers have put immense effort to make Civil Procedure
Code, 1908 more effective and justice oriented.

The main objective behind the reconciliation between the inclusion and exclusion of
protection of Principles of Natural Justice is to harmoniously construe individual’s natural
rights of being heard and fair procedure as well as the public interest. Larger public interest is
to be allowed to override the individual’s interest where the justice demands After the
discussion of the principles of natural justice it may be concluded that the Courts both in
India and England in relation to administrative proceedings created various exception to the
requirement of Natural Justice Principles and procedure there off. However, these exceptions
are all circumstantial and not conclusive, every exception to be adjudged admissible or
otherwise onlyafter looking into the facts and circumstances of each case..The exceptions to
the principles of natural justice in UK and India mainly relate to administrative proceedings.
The Courts in both these countries especially in India created various exceptions to the 23
LPA No. 2/2O11. 15 requirement of natural justice principles and procedures taking into
account various circumstances like time, place, and the apprehended danger and so on
prevailing at the time of decision-making. It must be noted that all these exceptions are
circumstantial and not conclusive. They do not apply in the same manner to situations which
are not alike. They are not rigid but flexible. These rules can be adopted and modified by
statutes and statutory rules also by the Constitution of the Tribunal which has to decide a
particular matter and the rules by which such tribunal is governed. Every action of the
authorities to be regarded as an exception must be scrutinised by the Courts depending upon
the prevailing circumstances. The cases where natural justice principles have been excluded
by implication suggest that the Courts have accepted the doctrine even though the legislature
has not adopted express words to that effect but those cases appear to depend so heavily on
their particular circumstances that they do not yield a clear general principle. There are
arguable and also explicable instances where the courts have concluded that natural justice
was not necessary. In order to invoke the exceptions the decision of the authorities must be
based on bonafide Intention and the Courts while adjudicating the post decision dispute must
find the action of the concerned authorities to be fair and just and every such exceptions to be
adjudged admissible or otherwise only after looking into the facts and circumstances of each
case. The main objective behind the reconciliation between the inclusion and exclusion of
protection of Principles of Natural Justice is to harmoniously construe individual’s natural
rights of being heard and fair procedure as well as the public interest. Larger public interest is
to be allowed to override the individual’s interest where the justice demands. Thus, exclusion
of naturaljustice should not be readily made unless it is irresistible, since the Courts act on the
presumption that the legislature intends to observe the principles of natural justice and those
Principles do not supplant but supplement the law of the land. Therefore, all statutory
provisions must be read, interpreted and applied so as to be consistent with the principles of
Natural justice.
REFERENCE
i
https://frontline.thehindu.com/the-nation/article30245416.ece