This Term Paper / Assignment / Project Has Been Submitted by

1
This Term Paper / Assignment / Project has

been submitted by

Mr.

ID No:

On.............

CRITICALLY EXAMINE THE EFFORTS TAKEN
TO MAKE THE CIVIL PROCEDURE CODE, 1908
MORE EFFECTIVE AND JUSTICE ORIENTED.

During the Winter Semester 2013-14

Apoorv Gupta
212109
Civil Procedure Code

2

INTRODUCTION
The objective behind every procedural law is to make the judicial process efficient and
expeditious. Procedural laws play a major role in justice delivery system by providing a
mechanism to realise our substantive rights. The Code of Civil Procedure, 1908 was also
enacted with the same objective in vision. However, with the passage of time, requirement
was felt to make the procedure more effective and justice oriented by bringing it in tune with
the principles of natural justice and fair trial so that it could stand the test of time. In
consequence of this requirement certain amendments were required to be made. However, no
radical change was required as, in the words of Lord Kilbrandon in reference to the civil
procedure code,
The ship is well designed, fundamentally sound and is for most of the time on a correct
course; what is wanted is an overhaul and modernisation of the navigational instruments,
so that she is more easily kept on that course. And some of the officers are getting a bit
elderly- this will always be true.
1

Analysing the kind of change required to modernise the code, true to the essence of this
abovementioned quote, the statute was amended thrice in 1976, 1999 and 2002 which is the
subject matter of the current research paper. This research paper shall study the amendments
in reference with the principles of fair trial and natural justice which these amendments
ultimately sought to achieve.
FAIR TRIAL & NATURAL JUSTICE
Fair trial is one of the most basic tenets of a just and reasonable judicial system. Fair trial
means that judicial processes shall be neutral and unbiased towards the parties to a dispute
and that each stakeholder shall be given ample and un-jeopardized opportunity to present his
case. It envisages an ethical and a well-grounded juristic model for separating the guilty from
the innocent or the oppressed from the oppressor in which the systemic procedures shall not
discriminate between the interested parties in the quest for true justice. It aims to maintain
public faith in the legal system by checking institutional biases in favour of either of the
litigants.
The right to a fair trial is at the core of human rights jurisprudence with the objective of
protecting and safeguarding individuals from arbitrary and unlawful deprivation or

1
LORD KILBRANDON, OTHER PEOPLES LAW 3 (1966).
3

curtailment of basic rights and freedoms, of which, the right to life and liberty embodied
under Article 21 of the Constitution, is the most fundamental. Article 21 ideates a fair
procedure, investigation and trial.
2
The same principle has also been conceptualised under
section 10 of Universal Declaration for Human Rights which guarantees a fair trial by an
impartial and independent tribunal to everyone. This right to fair trial is applicable in
adjudication of both criminal charges against an individual as well as determination of his
rights and liabilities in a civil suit.
The principles of natural justice is a compendium of rules naturally associated with the
concept of justice which may or may not be incorporated in law and which have evolved to
check arbitrary exercise of state power.
3
These principles have gradually evolved over the
year as finer facets to the following norms:
4

audi alteram partem
nemo judex in causa sua
Decisions should state reasons
They form the fundamental basis of a fair trial and are indispensible to a just and fair decision
making process.
5
In Lapointe v. L'Association,
6
it was held that the principles of natural
justice would apply to every forum having the authority to adjudicate upon civil matters. Any
substantial departure from these principles renders the decision open to challenge in a court
of law.
The amendments made to Civil Procedure Code, 1908 can be identified as furthering these
concepts of fair trial and natural justice.
1. AUDI ALTERAM PARTEM
Audi Alteram Partem is a Latin maxim which means that Natural justice requires the decision
making authority to avail any person likely to be affected by such decision, a reasonable

2
M.P JAIN, INDIAN CONSTITUTIONAL LAW 1197 (2010).
3
Justice Sujata V. Manohar, Principles of Natural Justice, available at
http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/ (Last Visited on February 16,
2014).
4
Id.
5
1984 Indlaw DEL 11.
6
(1906) AC 535 (539).
4

opportunity of fair hearing.
7
Such hearing can be offered both orally or through a written
statement. The objective behind providing this hearing is to prevent any wrongful or illegal
decision from being taken which may adversely affect rights of an individual including his
fundamental rights.
8
In Olga Tellis v. Bombay Municipal Corpn.,
9
it was held that any
administrative action entered into without first giving a proper hearing to the concerned
parties would be violative of article 14 and article 21 of the constitution. The essence of this
principle is also reflected in section 11 of Universal Declaration of Human Rights which
vouches for a fair public trial.
This doctrine of fair hearing can be further subdivided into various components. However,
these components are not fixed. Their variability or flexibility is contingent on the facts and
circumstances of each case along with the authority and type of dispute in question.
10

A. Right to Notice
The term Notice traces its etymological origin to the Latin word Notitia meaning
known.
11
It connotes a sense of knowledge or information. The concept of notice embodies
these principles of fairness and consequently, it must predate any adverse order. It should
clearly state the gravity and nature of charges against the party and provide adequate
information about the position he is supposed to defend.
12
The adequacy of such notice is
judged on the basis of sufficiency of information and material to build a defence.
13
Moreover,
if the notice fails to list all the issues, such skipped issues cannot become a part of the trial
procedure. The notice also should ideally be so placed in advance and in such a reasonable
manner so as to give the party sufficient time to put up its defence.
14
If issue of notice is a
statutory obligation, then it must be effectuated in a manner compliant with the relevant
law.
15
Thus, furnishing of notice forms the initial basis of a fair hearing and unless and until a

7
Supra note 3.
8
Id.
9
1985 SCR Supl. (2) 51
10
Supra note 3
11
Justice Brijesh Kumar, Principles of Natural Justice, available at http://ijtr.nic.in/articles/art36.pdf (Last
visited on February 16, 2013).
12
Id.
13
Id.
14
Id.
15
Id.
5

party isnt informed about the rights and issues involved in the matter along with surrounding
circumstances, such party wouldnt be in a position to defend its ground and a subsequent
hearing would serve little purpose.
The amendments to the Code of Civil Procedure, 1908 made in the year 1976 had a few
provisions relating to this right to notice.
Section 52, Code of Civil Procedure (Amendment) Act, 1976.
The abovementioned section amended Order I of the code and along with other changes
substituted Rule 8 of the code with a new provision dealing with representative suits. In
clause 2 of the said rule, it was stated that the court shall inform all the interested parties
about the institution of a suit at the plaintiffs expense when it directs one or more persons to
sue or be sued or defend a suit on behalf of the others. Further, clause 4 of Rule 8 also stated
that no such abandonment of claims shall take place in the event of a withdrawal of a suit or
an agreement or a compromise reached till the interested parties are given notice of the same
at the plaintiffs expense.
In this section, certain amendments to Order V were introduced. Among them was the
insertion of Rule 19A which provided for, apart from personal service of summons under
Rules 9 to 19, simultaneous delivery of summons by registered post. Also in case of service
via advertisement in newspaper, sub-rule 1A was inserted in Rule 20 which specified that the
newspaper shall be the one circulating in the locality where the defendant was last known to
have voluntarily resided or worked for gain.
As per the provisions of this section which amended Order XI of the code, sub-rule 1 of rule
21 has been rephrased to emphasize the right to notice before any order may be made under
application according to the relevant provision.
B. Right to Know Evidence Against
Right to fair hearing also includes the basic principle that everyone has the right to know the
indicting evidence being used against him in order for him to effectively defend his stand. In
6

Dhakeshwari Cotton Mills Ltd. v. CIT
16
it was held that the assessee cannot be said to have
been given a fair hearing as he wasnt given access to the documents being used against him.
In the scheme of 1976 amendment act, there are certain provisions which cater to this
principle.
This provision of the amendment act brought certain changes to Order XVI of the code. Rule
1 of the order was substituted to facilitate a provision for submission of list of witnesses that
each party to a suit is proposing to call to give oral evidence or submit relevant documents.
C. Right to Present Evidence For
The right to fair hearing is incomplete without giving the party an appropriate opportunity to
present evidence in support of his position.
17
Without this right, the concept of fair trial shall
be rendered hollow as the party shall be denied a reasonable opportunity to present its case.
Note that the right to present evidence for your claim can at times also be interpreted as to the
right to know evidence against for the other party.
To incorporate this principle further in the Code of Civil Procedure, 1908, certain
amendments were made in 1976 to this effect.
This section amends Order VIII of the code to insert Rule 8A which provides for submission
of documents by the defendant on which purports to support his defence. The said amending
provision also provides for filing of counter-claims for the defendant under rule 6A and any
document on which he relies for the purposes of this counter claim have also be submitted
under Rule 1 Sub-rule 2
This provision of the amendment act changes Order XVIII of the code and inserts Rule 17A
which gives the right to parties to adduce evidence at a later stage if the court is convinced

16
(1955) 027 ITR 0126 (SC).
17
Supra note 10.
7

that such evidence could not have been presented by the party even after the exercise of due
diligence at an earlier stage.
D. Right to Cross Examination
The right to cross-examination is an important mechanism to bring out the truth. It provides
for an opportunity to rebut adverse evidence and to strengthen your claim. Such rebuttal can
be done orally or in a written format as per the requirements of the prevalent procedure.
However right to cross-examination is not indispensible to the right of fair hearing. Public
policy acts as an effective curtailment to this right to cross-examination.
18

This right to cross examination was reflected in amendment of Order X of the code by the
1976 amendment.
Under this amendment, Rule 2 was substituted by a new provision which contained the
procedure for cross examination of parties or a companion of the parties having material
information about the issues to the dispute. It also provided for a mechanism of alteration of
examination process at the suggestion of either of the parties if the court deems such
suggestion to be fit and in the interest of justice.
E. Right to Counsel and Legal Aid
The right to fair hearing would be of no effect if the right to counsel is not concretised. Non-
implementation of this principle would render the judicial process inconsequential as
everyone is not adept at presenting his case which in turn would subvert the search for truth.
Closely integrated with concept of right to counsel is the idea of free legal aid. Free legal aid
is an inseparable principle of fair trial and has been linked article 21 of the constitution. In
Hussainara Khatoon v. State of Bihar
19
the court held that as per article 39A, free legal aid is
an essential ingredient of fair, just and reasonable procedure and that it is an inalienable
element of article 21. This dictum was reiterated in Khatri v. State of Bihar
20
and in Suk Das

18
Hiranath Misra v. Principal, Rajendra Medical College, AIR 1973 SC 1260.
19
AIR 1979 SC 1360.
20
AIR 1981 SC 928 .
8

v. Arunachal Pradesh
21
where it was held that provision of free legal aid is a constitutional
obligation on the state and every person, citizen or non-citizen, is entitled to it under article
21 subject to certain qualifications.
In furtherance of this constitutional obligation the Code of Civil Procedure, 1908 was
amended in 1976 to incorporate and build upon the existing provisions of the code.
Pursuant the objective, the section amended Order XXXIII of the code to insert two new
Rules 9A and 18. Under rule 9A the court is empowered to appoint a pleader for an
indigent person. Rule 18 empowers the central and the state governments to make rules for
provisions for free legal aid to such indigent person who are allowed under law to sue. The
high courts with prior approval of the respective state governments are also competent to
frame rules in this regard.
Section 70 amends Order XX of the code to insert Rule 5A in the code which creates an
obligation on the court to inform parties of their right to appeal and the period of limitation of
limitation for the same if the party is not represented by a pleader.
2. NEMO JUDEX IN CAUSA SUA
Nemo Judex In Causa Sua is a Latin maxim which elucidates the principle that nobody shall
be judge in a matter in which he has some interest. It is a very important principle of natural
justice which is aimed at fair and impartial hearing.
22
A violation of this principle renders the
decision vulnerable to challenge on the ground of biasness and judicial indiscretion.
A reflection of this principle has somewhat been embodied in Section 70 of the 1976
amendment act.

21
AIR 1986 SC 991 (It may therefore now be taken as settled law that free legal assistance at State cost is a
fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty
and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by
Article 21).
22
Supra note 10.
9

The principle states that nobody should adjudicate on a matter in which he has some personal
interest. This principle is based on the philosophy that an adverse interest of the adjudicating
authority to that of any of the parties to the suit shall interfere with fairness and impartiality
of the decision making process.
This philosophy can be logically extended to jeopardizing of representation of parties due to
adverse interest of the representatives, pleader or legal guardians of parties in the cause of
action to that of the parties themselves. This is the principle which has found place under the
current amendment.
The amendment inserts Rule 3A in Order XXXII of the code which provides that if the
adverse interest of the guardian to that of the minor whom he represents in a cause of action
jeopardises his interest, then such order can be set aside.
3. DECISION MUST STATE REASONS
This is a newly evolved doctrine which has now set foot as a guiding principle of natural
justice. It simply states that every decision should be accompanied by reasons justifying such
decision. The reasons may be brief or elaborate.
23
Stating reasons eliminates the doubt of
arbitrary action. A judgment without reasoning can be held to be per incuriam.
24

This principle finds refection in many provision of the 1976 amendment act Section 68, 69,
70, 72, etc where the statute places an obligation on the courts to record reasons for its
decisions. It is not expedient to get into the details of each of these amendments as they have
been made with some other objective in vision but as evidence of entrenchment of this
principle it is worth noting that most of these amendments require courts to record reasons for
their actions.
4. SPEEDY TRIAL

23
Supra note 3.
24
Punjab Land Development v. Presiding Officer, Labour, 1990 SCR (3) 111; M/S. Fuerst Day Lawson Ltd v.
Jindal Exports Ltd, 1975 AIR 907.
10

Speedy trial is one of the most important components of the right to fair trial. The Supreme
Court of India, at a number of occasions has held that speedy trial is a fundamental right
envisaged under article 21 of the constitution.
25

The amendments made to the code in 1976, 1999 and 2002 have substantially tried to
inculcate this constitutional principle in the Code of Civil Procedure, 1908.
The provision amends Section 21 of the code to bar objection to pecuniary jurisdiction of the
court except in circumstances when it was made at the earliest of opportunity. This step has
been taken to expedite the process and clear the pendency of cases in various courts which
accumulated substantially due to the previous un-amended provision.
The amendment introduces a new section 35B in the code which imposes cost for causing
delay in the process of justice at various stages. It has been enacted with the intention of
inculcating strict adherence to dates set by the adjudicating authority. Prior to the
amendment, parties intentionally used to delay the process of justice in order to harass the
rightful claimant and force him to opt for a less optimum solution for the dispute and
comprise on the matter. Now with the implementation of costs, intentional delays of the
process have been made unfeasible.
The amendment bars any appeal from the nature of a suit triable by a court of small clauses
where the subject matter of the suit doesnt exceed more the three thousand rupees except
when there is a substantial question of law involved. The objective behind this law is to
discourage litigants from filing appeals for such petty matters and unnecessarily clogging the

25
HussainaraKhatoon v. State of Bihar, 1980 (1) SCC 98; Maneka Gandhi v. Union of India 1978 (1) SCC 248;
SheelaBarse v. Union of India, 1986 (3) SCC 632; A.R. Antulay v. R. S. Nayak, 1992 (1) SCC 225; Supreme
Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, 1994 (6) SCC 731; Common
Cause v. Union of India & Others, 1996 (4) SCC 33; Common Cause v. Union of India & Others, 1996 (6) SCC
775; Raj Deo Sharma v. State of Bihar, 1998 Indlaw SC 1131; Raj Deo Sharma v. State of Bihar, 1997 (7) SCC
604.

11

courts with appeals which leads to a huge and pendency of cases and consequent denial of
effective justice the society as awhole.
Under this amendment, a new section 99A bars reversal of orders made under section 47 on
account of irregularity of procedure unless such irregularity has altered the decision of the
case. This provision has been enacted with the objective of expediting the procedure.
The provision restricts appeals to High Courts only when disputes involve substantial
question of law. Questions of fact shall not be entertained. High Courts are not courts for
the determination of facts and such exercise only slows the judicial process.
This amendment inducts a new section 10A in the code which enables the court to fix and
enforce the date of appearance after paint is to be filed after its return. This amendment
plays a significant role in speeding up the process.
The amendment reduces the time period to one month from three months in Rule 5 Sub-
rule 1 of order IX with the aim of reducing the time period of litigation.
Rule 6 of Order XII post amendment provides for judgments on admissions. This
quickens the process significantly by fast disposal of issues on which the defendant
concedes while other issues to the dispute remain subjudice.
The amendment substitutes section 2 which mandates the court to decide on all issues of
the dispute even if the suit may be disposed off on a preliminary issue as it was noticed
pre-amendment that disposal of cases just on preliminary issue would in effect delay the
process in cases where the disposal on preliminary issue is reversed and the matter is sent
back to trial. To cure this defect, the present amendment was introduced.
12

Under this provision amendment to Order XVII was introduced in Rule 1 Sub-rule 2
which barred adjournments except in certain circumstances and mandated day-to-day
hearing of the case. This measure significantly improved the pace of litigations.
This amendment mandated the pronouncement of judgment within 15 days of conclusion
of hearing and also mandated formulation of decree within the same period from the date
of judgment. If the judgment cannot be pronounced within these 15 days the court shall
fix a date for such pronouncement. Such date should not exceed a period of 30 days from
the date of conclusion of hearing of parties except in certain circumstances which must be
recorded down by the court. Clearly the legislative intent was to speed up the decision
making process.
This provision delimited summary proceedings just from Negotiable instruments and
extended it adjudication of many substantive laws including contracts, debts, etc.
Summary proceedings are a very quick method of dispute resolution where the plaintiff
proceeds on the assumption that the defendant has no counter and if that is actually the
case, the dispute is quickly resolved.
The amendment mandates the judicial setup to proceed with every petition expeditiously
and dispose the matter off within 60 days.
Amendment to Civil Procedure Code, 1908 in 1999 and 2002.
a) Section 27 of the code along with Order VII Rule 9 & 11 were amended to fix a
30 day time period for servicing summons from the date of institution of suit.
b) Order VIII Rule 1 was amended in 1999 and 2002 to stipulate a mandatory time
period of 90 days from the date on which summons were serviced on the
defendant.
c) Order XVII Rule 1 was amended in 1999 to impose serious restrictions on
adjournments as they are the major cause of delay in judicial process. The rule
bars grants of adjournments to a party more than thrice during the hearing of the
13

suit except in circumstances beyond control of the parties as stated in Rule 2 of
the order.
d) Amendment made to section 148 puts a limitation on the power of court to enlarge
the time given to the parties to not more than 30 days after 1999 amendment.
e) Section 115 was misused to slow the judicial process. Now after the 1999
amendment the interference of the appellate court has been reduced to the
minimum until an infraction has interfered with the course of justice.
f) Section 100A of the code was subsequently amended by both 1999
th
and 2000
amendment with the end result that where an appeal has been heard and decided
by a single bench of the high court, no appeal shall lie in such matters to the
division bench of the high court.
g) Section 89 is one of the most important amendments in the quest for speedy
justice. This section provides for alternate dispute resolutions and mandates the
court to encourage the parties to a suit to enter into such alternative method of
dispute resolution. The decision of the arbitrator shall be binding on them. This is
a landmark move at lowering the burdens on court and expediting the process.

5. RES JUDICATA
The principle of res judicata is central to the idea of fair trial. It is the civil equivalent of
the right against jeopardy. The principle of res judicata states that the issues or matters
which have been previously decided by a competent court are considered final.
26
It is a
principle of finality of judgments on issues which are substantially similar to those which
have been previously decided. The philosophy behind this doctrine is that a litigant
cannot be made to go through the rigors of a judicial process for matters which have been
previously decided.
27

The amendment to section 11 via Section 6 of the Code of Civil Procedure (Amendment)
Act, 1976 was made to clarify a perplexing situation and to further establish the doctrine
of res judicata in the civil procedure code. Earlier, the court trying the previous suit had
to be competent to adjudicate upon the subsequent suit as well in order to establish the
previous suit as res judicata. This created a problem and the doctrine was almost left

26
Supra note 3.
27
Id.
14

redundant resulting in increasing backlog of cases. The defect was cured by deleting this
requirement of previous court being competent to try the subsequent suit in order to
establish res judicata on the matter.
CONCLUSION
The principles of natural justice and fair trial are the cornerstone of any just and fair
justice system. These principles also form the fundamental basis of our right to life and
liberty vis-a-vis its application against state power. The amendments made to the Civil
Procedure Code, 1908 were urgently required for it to be made more effective and justice
oriented. These amendments have been substantially successful in achieving their
ultimate goal of incorporating the two principles in the procedure in order to make it more
efficient and expeditious and have evolved ingenious solutions like alternate dispute
resolution in the process.

15

BIBLIOGRAPHY
TABLE OF CASES
Maneka Gandhi v Union of India,1978 AIR 597
Kartar Singh v State of Punjab,1994 SCC (3) 569
Sheela Barse v Union of India,1986 AIR 1773
Salem Advocate Bar Assn. v Union of India,AIR 2005 SC 3353
M.H. Hoskot v State of Maharashtra,AIR 1978 SC 1548
Hussainara Khantoon v Home Secretary Bihar,AIR 1979 SC 1306
KC Datta v Ballygunge Estate Pvt Ltd,AIR 1972 Cal 211
HK Shah v T.R. Bhasin,AIR 1972 J&K 19 (22)
ARTICLES
Justice Sujata V. Manohar, Principles of Natural Justice, available at
http://www.itatonline.org/articles_new/index.php/principles-of-natural-justice/ (Last
Visited on February 16, 2014).
Justice Brijesh Kumar, Principles of Natural Justice, available at
http://ijtr.nic.in/articles/art36.pdf (Last visited on February 16, 2013).
BOOKS
LORD KILBRANDON, OTHER PEOPLES LAW 3 (1966).
M.P JAIN, INDIAN CONSTITUTIONAL LAW 1197 (2010).
S.M., THAKKER ON CIVIL PROCEDURE CODE (LUCKNOW, EASTERN
BOOK COMPANY, 2005)

This Term Paper / Assignment / Project Has Been Submitted by

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

This Term Paper / Assignment / Project Has Been Submitted by

Uploaded by

Copyright:

Available Formats

1

This Term Paper / Assignment / Project has

You might also like