PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 1

TABLE OF CONTENTS

PROBLEM STETEMENT ………………………………………….…………………… 02

1. Pleading ……………………………………………………………………………… 03

2. Due process of Law …………………………………………………...……………… 03

2.1. Meaning ………………………………………………………….

……………… 03

2.2. Explanation

……………………………………………………………………… 03

3. Procedural Fairness ………………………………………………………………… 03

3.1. Meaning

………………………………………………………………………… 03

3.2. Factors to Consider

……………………………………………………………… 03

3.2.1. Whether Duty Exists? …………………………………………………… 04

3.2.2. Content of Procedural Fairness …………………………………………… 04

4. Provisions Related to Fair Trial ……………………………………………………… 05

4.1. Constitution of the Islamic Republic of Pakistan, 1973

………………………… 05

4.2. The Code of Civil Procedure (CPC), 1908

……………………………………… 06

4.3. The General Clauses Act, 1897

………………………………………………… 06

5. Due Process of Law in Code of Civil Procedure …………………………………… 06

 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 2

5.1. Stages in Civil Suit

……………………………………………………………… 07

5.2. Time Limitation

………………………………………………………………… 07

5.3. General Civil Procedure

………………………………………………………… 08

6. Conclusion ………………………………………………………………………….. 12

INDEX OF AUTHORITIES ………………………………………………………………13

 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 3

PROBLEM STATEMENT

Pleading plays a very important role in determination of a case before a civil court. Analyse

the statement with reference to relevant provisions of CPC and also articulate the instances of

procedural fairness and due process of law.

 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 4

1. Pleading

Pleading shall mean plaint or written statement.1

2. Due process of Law

2.1. Meaning

Due process is a course of legal proceedings which are followed according to rules

and principles that have been established in a system of jurisprudence for the

enforcement and protection of private rights. In each case, due process contemplates

an exercise of the powers of government as the law permits and sanctions, under

recognized safeguards for the protection of individual rights.2

2.2. Explanation

 Due process of Law is something required by law to be followed

 It is mandatory

 It is an aspect of procedural law

 It implies that parties to the pleadings should be heard in order to dispose of the

case justly.

3. Procedural Fairness

3.1. Meaning

‘Procedural fairness’ means acting fairly in administrative decision making. It

relates to the fairness of the procedure by which a decision is made, and not the

fairness in a substantive sense of that decision.[12] A person may seek judicial review

of an administrative decision on the basis that procedural fairness has not been

observed.3

1
The Code of Civil Procedure 1908, Order VI, Rule 1
2
Encyclopaedia Britannica Editors, ‘Due Process’ (Encyclopaedia Britannica, 4 April 2007)
<www.britannica.com/topic/due-process> accessed 12 December 2018
3
Bill Lane, ‘The “No Evidence” Rule’ in Matthew Groves and Hoong Phun Lee (eds), Australian
Administrative law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 233, 241–2.
 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 5

3.2. Factors to Consider

In considering whether there has been a denial of procedural fairness, courts will

examine two issues:

 whether a duty to afford procedural fairness exists; and

 if such a duty exists, the content of procedural fairness in the particular case.

3.2.1. Whether Duty Exists?

The manner in which a person’s interests are affected is relevant to

whether a duty to afford procedural fairness exists. There is less likely to

be a duty to afford procedural fairness where a decision affects a person as

a member of the public or a class, rather than in their individual capacity. 4

Procedural fairness may not apply where a decision ‘affects so many

people that it is really a legislative act; or where the range of public policy

considerations that the deciding body can legitimately take into account is

very wide’.5

A duty to afford procedural fairness may be excluded by legislation. This

is a matter of statutory construction, the key question being whether

legislation, ‘properly construed, limits or extinguishes the obligation to

accord natural justice’.6

3.2.2. Content of Procedural Fairness

There is no fixed content to the duty to afford procedural fairness. The

fairness of the procedure depends on the nature of the matters in issue, and

4
Westlaw AU, The Laws of Equity (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of
Administrative Action: Procedural Fairness’ [2.5.150].
5
 Smith and Brazier, above n 4, 570.
6
Aronson and Groves, above n 1, 454.
 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 6

what would be a reasonable opportunity for parties to present their cases

in the relevant circumstances.

The specific content of the hearing rule will vary according to statutory

context. However, a fair hearing will generally require the following:

 Prior notice that a decision that may affect a person’s interests will be

made.7 This has been referred to as a ‘fundamental’ or ‘cardinal’ aspect of

procedural fairness.8

 Disclosure of the ‘critical issues’ to be addressed, and of information that

is credible, relevant and significant to the issues.9

 A substantive hearing—oral or written—with a reasonable opportunity to

present a case.10 Whether an oral hearing should be provided will depend

on the circumstances. The ‘crucial question is whether the issues can be

presented and decided fairly by written submissions alone’. In some

circumstances, there may be a duty to allow a person to be legally

represented at a hearing.11

4. Provisions Related to Fair Trial

4.1. Constitution of the Islamic Republic of Pakistan, 1973

In Pakistan, Part II, Chapter I, Article 10A of the Constitution of Pakistan, 1973

provide Right to Fair Trial. It reads as “For the determination of his civil rights and

obligations or in any criminal charge against him a person shall be entitled to a fair

trial and due process.”

7
Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of
Administrative Action: Procedural Fairness’ [2.5.460].
8
Aronson and Groves, above n 1, 517.
9
Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative Law, ‘2.5 Judicial Review of
Administrative Action: Procedural Fairness’ [2.5.530]; Aronson and Groves, above n 1, 517.
10
Aronson and Groves, above n 1, 549; Westlaw AU, The Laws of Australia (at 1 March 2014) 2 Administrative
Law, ‘2.5 Judicial Review of Administrative Action: Procedural Fairness’ [2.5.630].
11
Aronson and Groves, above n 1, 564.
 PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 7

4.2. The Code of Civil Procedure (CPC), 1908

Section 151 provides, “Saving of inherent powers of Court”. It reads as “Nothing in

this Code shall be deemed to limit or otherwise affect the inherent power of the

Court to make such orders as may be necessary for the ends of justice or to prevent

abuse of the process of the Court.”

It must be noted that

 The Law of Limitation will not bar the exercise of inherent powers.12

 It is not the intention of Law that in exercise of inherent powers, the normal

course of trial in subordinate Courts established by Law should be diverted.13

4.3. The General Clauses Act, 1897

Section 24A(1) of General Clauses Act, 1897 provides Exercise of power under

enactments. It reads as “Where, by or under any enactment, a power to make any

order or give any direction is conferred on any authority, office or person such

power shall be exercised reasonably, fairly, justly and for the advancement of the

purposes of the enactment”

5. Due Process of Law in Code of Civil Procedure

The Code of Civil Procedure, 1908 (CPC) provides general provisions of procedure to be

followed in civil matters when there exist no special laws on same, or they are silent.

Whole CPC is based on procedural fairness and due process of law.

12
2014 MLD 625; P 2008 K 109; 1995 CLC 1529; P 1992 L 250
13
PLD 2010 Lah. 498
PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 8

5.1. Stages in Civil Suit

Normally a civil suit has to travel through 17 main stages from institution of the suit

till its judgment, they are as under:-

1) Institution of Suit; (Order 4, 6 and 7)

2) Issue of Summons; (Order 5)

3) Filing of Written Statement; (Order 8, Section 30)

4) Examination of Parties; (Order 10, 10)

5) Settlement of Disputes; (Section 89)

6) Discovery & Inspection; (Order 11)

7) Admission; (Order 12)

8) Production of Documents; (Order 13)

9) Framing of Issues; (Order 14)

10) List of Witness; (Order 16)

11) Summons to Witnesses; (Order 16, R 1 (4))

12) Settling Date; (Order 16)

13) Evidence of Parties; (Order 18, R 4, r/w Order 17)

14) Exhibiting of Documents; (Order 18, R 4 (1), Proviso 07))

15) Cross-exam by parties, (Order 18, R 4 (2))

16) Arguments; (Order 18, R 2 (3A))

17) Judgment; (Order 20)

5.2. Time Limitation

Out of these 17 main stages the amended code does not speak about any time limit

for:-

1) Examination of Parties – Order 10,

2) Settlement of Disputes – Section 89,

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 9

3) Production of Documents – Order 13,

4) Exhibiting of Documents – Order 18, R 4 (1) proviso and

5) Arguments – Order 18, R 2 (3A),

But in the rest of the provisions the code has given time limits in the provisions

therein and we cannot ignore them so easily and without any rare and exceptional

circumstances.

In the code, most of the provisions contain time limitation for a particular stage.

Maximum of the provisions are mandatory in nature and in very few of them the

discretion lies with the court.

5.3. General Civil Procedure

Now once a party has filed the suit then he has to comply, all the provisions one by

one within the stipulated time. If the table shown as above is effectively

implemented then no prejudice is likely to be caused to either of the parties and it

will be a milestone in disposing off the civil suit in a stipulated time, with

procedural fairness and due process of law, respecting the intention of the

legislature. Now it is for us to decide whether to follow the provisions or the

practice while interpreting and implementing the provisions of the code.

To satisfy the requirements of due process of law, the following steps have to be

ensured;

1) The aggrieved party is required to ensure that adequate legal notice has been

served to the defendants prior to institution of the suit.

 If there is no respond, or attempts of reconciliation fail, or negotiations

don’t work, then plaintiff can knock the doors of Court.

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 10

2) Plaintiff has to file the plaint complying, the provisions in all respects as

contemplated under Order 4 read with Order 6 and 7 of the code.

 Plaintiff(s) must make sure suit is filed within limitation period, when he

files suit after limitation period, plaint must show grounds of exemption

from limitation period as per Order 7, R 6.

 Plaint should be presented in court having jurisdiction keeping in view

sections 15-26. Otherwise court shall return plaint according to Order 7,

R 10.

 Court shall reject plaint as per Order 7, R 11 on such grounds as given in

said rule.

3) The court shall frame the suit as per Order 2.

4) Plaintiff has to issue summons within 30 days from the institution of suit. For

issuance of summons, Sections 27-32 and Order 5 are to be consulted.

 Summons may be required to be affixed on defendant’s residence or where

hhe carries business if the defendant isn’t acknowledging receipt or if he

isn’t found on address mentioned according to Order 5, R 17.

 Substituted services of summons can be used in place of ordinary service

when defendant seems to avoid service of summons. These ways are

mentioned in Order 5, R 20.

5) After the service of summons defendant has to file his written statement within

30 days from the receipt of summons as per Order 8, R 1 of the code.

 If written statement isn’t filed in time fixed by court, the court may

pronounce judgment against him as per Order 8, R 10.

6) The parties shall appear before court in accordance with Order 9.

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 11

 Non-appearance of both parties may result in dismissal of suit as per

Order 9, R 3.

 Non-appearance of defendants will result in ex-parte proceedings as per

Order 9, R 6. However the ex-parte decree may be set aside in accordance

with Order 9, R 7, 13, 14.

 Where plaintiffs fail to appear, then the suit will be dismissed as per Order

9, R 8 to guarantee procedural fairness. Dismissed suit can be restored in

accordance with Order 9, R 4.

7) No further time exceeding 90 days after date of service of summons be

extended for filing written statement as per proviso to Order 8, R 1 of the

code.

8) Within 10 days from the filing of written statement, court has to examine the

parties so as to explore the possibilities of compromise in between the parties

and to refer the matter of settlement under section 89-A of the code.

9) If parties fail to compromise the matter then court has to keep the matter for

discovery and inspection within the time span of 7 – 10 – 10 – 3 days, as per

Order 11 of the code.

10) Then to adjourn the matter for admission within the time span of 15 days as

per Order 12 of the code.

11) Then parties have to file the original documents prior to framing of issues

within the time span of 7 days, as per Order 13 of the code.

12) Court has to frame the issues within 15 days as per Order 14 of the code.

13) Parties have to file the list of witnesses within 15 days from the date of

framing of issues as per Order 16 of the code.

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 12

14) Plaintiff has to issue summons to the witnesses either for adducing evidence or

for production of documents within 5 days of filing of list as per Order 16, R

1 (4) of the code.

15) Parties have to settle the date of evidence as per Order 16 of the code.

16) Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as

per Order 18, R 4 read with Order 17 of the code.

17) Court has to exhibit the documents considering their proof and admissibility

with a reasoned order as per proviso to Order 18, R 4 (1) of the code.

18) Cross examination of the plaintiff and his witnesses on day to day until all

the witnesses in attendance have been examined as per Order 18, R 4 (2) r/w,

Order 17 R 2 (a) of the code.

19) Defendant has to issue summons to the witnesses either for adducing evidence

or for production of documents as per Order 16, R 1 (4) of the code.

20) Defendant has to file the affidavits of all his witnesses within 3 adjournments

as per Order 18, R 4 r/w, Order 17 of the code.

21) Court has to exhibit the documents considering their proof and admissibility

with a reasoned order as per proviso to Order 18, R 4 (1) of the code.

22) Cross examination of the defendant and his witnesses on day to day until all the

witnesses in attendance have been examined as per Order 18, R 4 (2) r/w,

Order 17, R 2 (a) of the code.

23) Parties have to conclude their arguments within 15 days from the completion of

their respective evidence as per Order 18, R 2 (3A) of the code.

24) Court has to deliver judgment forthwith or on or before 30 days and not

exceeding 60 days from the date of conclusion of the arguments as per Order

20, R 1 of the code.

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 13

 A decree shall follow the judgment of court as per section 33.

25) The judgment debtor has the right to file first appeal against the judgement as

per section 96-99 in higher court.

26) Second appeal can also be filed in High Court against decree of first appeal as

per Section 100-103, 107, 108.

 Second appeal will only lie on grounds mentioned in Section 100.

27) After the final decree, the execution will take place as per sections 36-74.

6. Conclusion

Pleading is an art that plays very important role in the proper disposal of suit. If due

process of law is followed, then there is no doubt there will be justice. The above

mentioned steps are the ones required by law to be pursued. Following these shall

guarantee due process of law. Procedural fairness can be achieved if courts practice

discretionary powers in good conscience.

PROCEDURAL FAIRNESS AND DUE PROCESS OF LAW 14

INDEX OF AUTHORITIES

 Statutes

 The Code of Civil Procedure 1908

 Case Laws

 2014 MLD 625

 P 2008 K 109

 1995 CLC 1529

 P 1992 L 250

 PLD 2010 Lah. 498

 Others

 Encyclopaedia Britannica Editors, ‘Due Process’ (Encyclopaedia Britannica, 4 April

2007) <www.britannica.com/topic/due-process> accessed 12 December 2018

 Bill Lane, ‘The “No Evidence” Rule’ in Matthew Groves and Hoong Phun Lee

(eds), Australian Administrative law: Fundamentals, Principles and

Doctrines (Cambridge University Press, 2007) 233, 241–2.

 Westlaw AU, The Laws of Equity (at 1 March 2014) 2 Administrative Law, ‘2.5

Judicial Review of Administrative Action: Procedural Fairness’ [2.5.150].

 Aronson and Groves, above n 1, 549; Westlaw AU, The Laws of Australia (at 1 March

2014) 2 Administrative Law, ‘2.5 Judicial Review of Administrative Action:

Procedural Fairness’ [2.5.630].