PROPSED AMENDMENTS IN CIVIL PROCEDURE CODE

Transcription

1 PROPSED AMENDMENTS IN CIVIL PROCEDURE CODE BY MIAN ZAFAR IQBAL KALANAURI * The Civil and Criminal Justice System in Pakistan is confronted today with serious crises of abnormal delays. Delay in litigation of Civil and Criminal Cases has become chronic and proverbial. The phenomenon is not restricted to Pakistan; it is rather historical and universal. It is inherent in every judicial system, which meticulously guards against any injustice being done to an individual, in a civil dispute or criminal prosecution. A paramount principle of the Criminal Justice System is that an accused is punished only after his guilt is proved beyond a shadow of doubt. Similarly, justice demands that in the trial of a Civil Case, the dispute must be decided strictly in accordance with the law and on the principal of equity, justice and fair play. Such universally recognized and timetested principles are in accordance with the injunctions of Islam as Holy Quran ordains that Muslims must eschew injustice, coercion, and suppression. SERVICE OF PROCESS The parties to the litigation have great difficulty affecting service through the court. The service date has a great significance since it determines, the first date for appearance notified to the defendant after institution of the suit. The defendant after appearance has to file the written statement within 30 days on or before the first hearing. Summons are issued to the defendants under section 27 and the procedure for issuance of summons is prescribed under order 5 of C.P.C. Different modes for the service of summons are given in the said order 5. The court is to issue summons through the process servers of the court, through post, telegram, telephone, phonogram, telex, fax, radio, television, urgent mail service, public courier services, beat of drum in the locality where the defendant resides, affixation of a copy of summons at some conspicuous part of the house or place of business of the defendant or publication in the press. On the first date of hearing normally the courts order service of summons through its process servers and by post only. If the direct service cannot be affected then other modes as mentioned above are exercised by way of substituted service. The amendment in order 5 be made by inserting a new rule 1-A order 5 as under: * Chairman Law Reforms Committee Punjab Bar Council, Former President Lahore Bar Association, Assistant Professor of Law at Pakistan College of Law. Advocate Supreme Court of Pakistan.

2 The court shall issue summons to the defendants by all the modes on proper address via; by process server, by registered post, by urgent mail service or Public Courier Services, by any electronic device of communication which may include, telegram, telephone, phonogram, telex, fax, radio, television and by publication in two widely published English and Urdu language daily Newspapers." Provided that the court may use all or any of the aforesaid manners and modes of service simultaneously. Summons issued in the above manner if, either accepted or refused or returned with endorsement shall be presumed to be validly served upon the defendants. It is recommended that either the process service agency of the courts be privatized or in the alternate be strengthened by improving facilities. The service of process can also be party - controlled. The plaintiff can be burdened with service of process to initiate service. Plaintiff must send before hand a notice in writing to the other side of his filing of the case in the Court and append acknowledgement/postal receipt with the plaint, it shall be the responsibility of the plaintiff to get his opponent respondent served through all possible means. He may, however, get assistance of the court on proper showing. The plaint be served within (30) days of filing, within other (30) days period for substituted service, adding up to a total of sixty (60) days for the plaintiff to serve process. Failure to do so would require dismissal of the lawsuit. Production of the witnesses in the Court should likewise be the responsibility of the parties. However, in the larger interest of justice, the relevant public witnesses may be got summoned through Court but again to get them served shall be the sole responsibility of the party concerned. Of course, they can get the assistance of the Court in a proper case for valid reasons. The service of processes shall be affected within a month of the institution of the suit/proceedings and shall be presented before the Judge for appropriate orders after the expiry of that period. For this purpose fixation of cases in the cause-list may not be necessary and the judge may pass appropriate orders in his office. If a party has engaged a lawyer, service of processes shall be affected through him. Service of the opposite party shall be made by all possible means and if the notice/summons is not served the officer in charge for service shall be accountable for his inability to perform his duties. The litigant parties should also be encouraged to resolve their disputes through chamber-to-chamber correspondence/consultation before bringing their cases in the Courts. This would imply communication by one litigant party with the other party through lawyers, who can examine the legal and factual position of the case before it is actually filed in a Court.

3 One time process-fee (Talbana) One time Talbana should be deposited along with the filing of the suit/proceedings. Rates of Talbana may be revised accordingly. This will obviate the chances of adjournment on account of non-payment of Talbana fee. Suitable amendments may be made in the High Court Rules & Orders. Please add after Sub-Section 2 of Section 12 CPC the following words: But the proceedings would be of summary nature. In order 6 rule17 before framing the issues in place of at any stage. Please introduce a new Sub-Section in Rule 26 of Order 7 as under: In case of failure to comply with Sub-Section 1, the plaint shall stand rejected. In Rule 13 of Order 8 please add the following Sub-Section 4. In case of failure to comply with Rule 13-A and 8, the defense shall be struck off. Delete words or his Pleader is accompanied. From Rule of Order 10 CPC delete the words the Pleader Please add words: before framing the issues in Rule 4 of Order 10 CPC. Please add words before framing the issues in place of at any time during the pendency of the suit in Rule 14 of Order 11. After the early neutral evaluation only question of law could be formulated and reference can be sent to the High Court under Section 113 of CPC. For this purpose Section 113 CPC may be amended and the references may be laid at rest within one month. Order 8 CPC should be amended and if the denial of the defendant is false he should be prosecuted for the perjury and in case of false denial special costs should also be imposed upon the defendants. If the suit is frivolous then the special costs should be the rule and the said costs shall be determined under Section 35-A CPC and the courts shall decide the question of costs and compensation. If exemplary compensation and costs are awarded the same may reduce the false and frivolous civil litigation. If a party is held to have filed a false and frivolous claim or his defence is found to be false and frivolous, it should be made imperative for the court to burden the party

4 concerned with costs up to Rs.50, 000/- besides normal costs of the suit including fee of the counsel. These costs shall in no case be less than Rs.20, 000/- Order 17 should be amended and any adjournment should not be beyond fortnight. Order 16 rule1 should be amended and the court should record day-to-day evidence. Opportunities for producing evidence before the court must be limited to three chances and after first hearing, reasonable costs which shall not be less than Rs.500/- must be imposed and no case should be remanded or interfered with in appeal/revision on that ground alone unless grave miscarriage of justice has occasioned in a particular case. The costs shall always be paid to the parties and not to the lawyers. Necessary amendment in rules 1, 2 and 3 of Order XVII may be made. The duty roster of the court should be fixed and the time for recording of evidence in the case must be specified in the cause list as well as lawyer should also be intimated in this behalf. Many times, the cases are adjourned for arguments. Not more than two opportunities for advancing arguments be given to the parties and their counsel and they may also be required to submit summary of their arguments on the very first date of arguments failing that it will be lawful for the Court to decide the case on the basis of material on record. This will arrest unnecessary delay in disposal of the cases. Taking of Evidence In-Court. Greater use of out-of-court submissions and the encouraged utilization of affidavits for the recordings of evidence in chief, leaving cross-examination as the in-court process designed to evaluate credibility of oral testimony, would have a beneficial impact on disposal. The court should be provided with a mechanized reporting system for court reporters to record verbatim reproduction of oral testimony in written form. (Key Board, which converts shorthand into long hand by attachment to computer later on). On receipt of the plaint it should be the duty of the Court to examine it carefully in terms of Order VII Rule 11 and section 151, CPC. These provisions can be invoked at later stages also. Before striking issues, better statements of the parties should be recorded and Court should put questions to them to reduce the points of controversy to the minimum. The parties must be asked to produce all the documentary evidence at this stage.

5 Interim Orders For interim relief, the Judge should hear interim orders on the very next day following the filing of the application in order to allow reading and preparation. Judges working under single assignments should allocate a reasonable amount of time separately in the morning session to handle interim order applications and courts working under general assignments may wish to organize their rosters to allow for temporary specialization in interim order applications. A security posted as bond in application for interim orders should be mandatory, leaving to the judge's discretion the amount of such security in light of the potential harm to defendant and the plaintiff s ability to pay. Proof of prior notice on defendant prior to the seeking of exparte interim relief should be made mandatory, unless the plaintiff can effectively show cause why notice could not be affected. Applications and oppositions should require the filing of a simple form that provides summary information in less than two (2) pages relating to the nature of the suit (such as in trademark), the right to enjoin (prima facie case); the threat posed by defendant (apprehension of act or omission; the harm if the injunction is not granted (irreversible prejudice); and the balance of convenience and of hardships. additionally, the form should include attachments of affidavits, relevant documents, and legal authorities. The hearing of arguments should be restricted to a limited period, the norm set at two to three minutes, with ten minutes allocated to exceptionally complex cases. The orders granted exparte should automatically expire after thirty (30) days, unless the defendant has had a hearing before the court. Interlocutory Appeals Broad and expansive rights to interlocutory appeals are a large source of unnecessary litigation, estimates indicate that over fifty per cent of interim orders are appealed under Order XLIII or other similar authority 1 and such appeals have the practical effect of a stay of the primary suit proceedings in a large percentage of those cases. In order to limit partially these rights of appeal, it has that, whereas the grant of an interim order should give rise to an appeal as of right, the dismissal of an interim applicable should be appeal able only if it presents a substantial issue of fact and/or law. An additional recommendation is to place a greater burden on any moving party by requiring a security bond for the filing of an interlocutory appeal against an interim order (or a pre deposit, as appropriate in a money suit). Petty/small causes involving recovery up to Rs.50,000/- should be made non-appeal able unless jurisdictional defect is found which has led to miscarriage of justice. Cases involving recovery up to Rs.50,000/- should be made exclusively try able by Conciliation Courts. Execution in all cases should be carried out immediately after decision of the courts of the first instance and in money decrees by arrest of the judgment-debtor and

6 simultaneously by attaching his property unless he produces a reasonable security for payment of the decretal amount. A mention shall be made in the Memo of Appeal of his having furnished the security; otherwise no appeal shall be competent. Copies of the judgments must be delivered to the parties at the time of their announcements. In order to eliminate unnecessary delay in litigation, the court should invariably ask the party against whom judgment is delivered in matters involving recovery of money if he accepts the judgment and if the reply is in affirmative, no appeal shall lie against that judgment on any ground and trial court must give reasonable time, not more than 60 days in any case to satisfy the decree, or within the time voluntarily settled between the parties. Judgments and their copies The two common complaints are that judgments so pronounced were not written or that the file is not sent to the Copying Branch promptly after pronouncement of the judgment so that a party can obtain a copy thereof in time. The second complaint is that the Court Staff allows unauthorized photocopies of the court record in lieu of trivial tips/baksheesh. To rid off these two problems, copies of the judgments should be supplied to the parties in the court at the time of announcement of the judgment as is done in appeal able criminal cases. (The parties may be required to pay fee for the same). Similarly unattested/photostat copies of record of pending or decided cases may be allowed on payment of fee. Order XX may be amended accordingly. Filing of appeals A common cause of delay in the processing of an appeal is that the record of the lower Court is not forwarded to the Appellate Court in time and the respondent avoids service to delay the hearing of the appeal. It is, therefore, proposed that all appeals may be filed through the court, which had decided the case. The record of the trial court shall be retained by that court till the expiry of limitation of appeal or till the receipt of appeal, whichever is earlier. The trial court shall forward the record and the appeal to the Appellate Court within 24 hours of its receipt. Order XLVII be amended accordingly. Power of Attorney One common device used by the lawyers to obtain an adjournment in a case, particularly when the witnesses of the opposite party are present in the Court, is to file a fresh power of attorney and request the Court for an adjournment so that he could prepare the brief. Similarly, once a case is decided, the lawyers from either side are generally reluctant to accept service of notices on the pretext that their clients have not issued any instructions. To ward off this problem, power of attorney filed by a lawyer shall be valid for all stages

7 of the proceedings and before all courts until properly revoked by the party or his lawyer. Where a lawyer of a party intends to revoke a power of attorney, both of them shall appear before the court in which the case is pending and make a statement to the same effect. In no case a lawyer shall be allowed to unilaterally withdraw his power of attorney in a case. Separate Judges for various categories of cases The Judges may be assigned judicial work according to their attitude, expertise and specialization. As a general rule civil and commercial cases may be assigned to senior judicial officers while rent and injunction cases may be entrusted to comparatively junior judges. Family cases should always be entrusted to senior most Judges and may preferably be heard in the chambers without recourse to formal procedure of the courtrooms. Recording of lengthy evidence of witnesses should be discontinued. The Presiding Officers may only be required to make a notice of the evidence produced from either side. The emphasis of these proceedings should be on reconciliation and not a decision. Ladies Judges can also be appointed for the Family Courts who may sit along with a male Judge to constitute a Family Court Bench for the hearing of such cases. Benches of Judges may be constituted to hear important cases, which may be categorized. Written Arguments Counsel of the parties may be required to file synopsis of their arguments at the end of the case. Detailed and lengthy written arguments should be discouraged/disallowed. Only one date for the oral arguments may be allowed and no adjournment for any reason may be allowed on that date. The Court may be required to announce decision of the case within seven days after the date fixed for hearing of final arguments. CONSENSUAL D1SPUTE RESOLUTION MECHANISMS Before the framing of issue the counsel for the parties should submit a summary of the early neutral evaluation and for this purpose there should be a specific provision for referring the matter to the neutral evaluators, mediators and arbitrators and if this offer is accepted and the parties have referred the matter to the arbitrators the parties may be exempted from the payment of court fee. This process is more conciliatory and less formal and more flexible. The pretrial proceedings can be introduced. The interrogatories and admissions of the documents and facts, discovery, inspection, production, impounding and returning of documents shall be laid at rest before the formulation of issues.

8 PROPOSED PROCEDURAL AUTHORITY FOR CASE Proposed New Order 12-A. MANAGEMENT AND A.D.R. MECHANISMS Rule 1: Within fifteen (15) days from the date of filing the written statement(s) by defendants(s), Plaintiff shall file with the court a case management statement in Form No. 13 of Appendix-C (hereinafter, the Case Management Statement ) after serving a copy of such statement upon all the other parties. Rule 2: Rule 3: Rule 4: Within fifteen (15) days of the receipt of the copy of the plaintiff s Case Management Statement, defendant(s) shall file with the court a case management statement in the form of Appendix C, No. 12(A) after serving a copy of such statement upon all the other parties. After fifteen (15) days from the date of filing the Case Management Statements by all the parties, but no later than thirty (30) days thereafter, the court shall fix the date for a Case Management Hearing to ensure compliance to review in the presence of the parties the Case Management Statements and to pass appropriate orders thereon with reference to the questions raised therein. (1) In the event of failure by the plaintiff to submit the Management Statement within the period by Rule 1, the court shall direct the dismissal of the suit (unless the court extends such time for exceptional reasons to be recorded in writing). (2) In the event of failure by the defendant to submit the Case Management statement within the period specified by Rule 2, the court shall strike the defence(s) of said defendant(s) (unless the court extends such time for exceptional reasons to be recorded in writing). (3) The extension(s) referred to in Rule 4(1) and 4(2) above shall in any event not exceed a maximum of 30 days. Rule 5: The orders passed under Rule 4 shall not be subject to appeal or revision. Rule 6: (1) After the expiry of time for compliance of the order passed under Rule 3, if the court is of the opinion that on admission of facts, it is in a position to pass appropriate orders for disposal of the suit under Order XII,Rule 6 of the CPC, the court shall do so.

9 (2) After the expiry of time for compliance of the order passed under Rule 3. If the court is of the opinion that the case cannot be disposed of under Rule. 6(1), the court shall specify the date before which a Joint Case Management Conference between Advocates of the parties shall be held and a Joint Case Management in Form No.14 of Appendix C (with such modifications as required) including options for ADR exercised by the parties shall be filed in the court and shall fix the date for passing appropriate orders there on. (3) The advocates of parties shall be mutual agreement fix agreed time, dates and venue for Joint Case Management conference and endeavor to prepare a Joint Case Management statement in Form No.14 of Appendix C. (4) In case of disagreement amongst the advocates of the parties in arriving at a Joint Case Management Statement, the parties shall report the disagreement with reasons thereof in writing to the court and shall note such disagreement on the Joint Case Management Statement. (5) After receipt of the Joint Case Management Statement or the report of disagreement referred to in sub-rule 4 of Rule 6, the court shall pass appropriate orders thereon. (6) No appeal or Revision Application shall lie against the orders under Rule 6. (7) Such Joint Case Management Statement shall be completed and signed by parties jointly. Rule 7: (1) In the Joint Case Management Statement. the parties shall elect one from a list of consensual dispute resolution mechanisms available to the parties: i. Mediation, a confidential non-binding consensual dispute resolution mechanism. If the parties are willing, they appear before one of a certified panel of professional mediators (which may include sitting Judges not assigned to the case and volunteer members of the Bar). If the process is successful, the mediator assists the parties in memorializing their agreements to incorporation into a Judgment by the Court. ii..judicial settlement, a non-binding, confidential, conciliation or mediation by a sitting judge, who is not the judge assigned to the case: iii. Early Neutral Evaluation ( ENE ) a non-binding, confidential form of evaluation of the dispute performed by an advocate with at least fifteen (15) years standing at the Bar;

10 iv. Arbitration, under the Arbitration and Conciliation Act 1996(Part I). Rules 8: Rule 9: The court shall, by appropriate order, resolve all matters relating to settlement of issues, choice of CDR mechanism, schedules and deadlines for disclosure of witnesses, trial schedule and any other matter relating to or arising from the Court Case Management Statement. Such order by the Court shall not be subject to appeal or revision. In the event the parties cannot agree on the choice of a consensual dispute resolution mechanism, the court shall by order choose an appropriate mechanism in its discretion. Rule 10: In the event the parties fail to file a Joint Case Management within thirty (30) days, the court will be responsible for holding a hearing in order to develop said Statement at the Joint Case Management Hearing. Rule 11: Rule 12: Failure to comply with any order passed under Order 1 2-A may result in imposition of costs as provided in section 35-A and/or 35-B, CPC. The utilization of a consensual dispute resolution mechanism shall not extend sixty (60) days beyond the date of the Joint Case Management Order. Rule 13: Rule 14: If the aforementioned process is not entirely successful, the mediator, early neutral evaluator or arbitrator shall send the parties back to the Court for setting a trial date within sixty (60) days. The Court shall prepare the file and the parties for continuous trial and set an early trial date, the trial judge (who has not served either as a case manager or mediator in the proceedings) shall conduct a continuous trial.

11 No.13 (Order 12-A R1-2) CASE MANAGEMENT STATEMENT In the Court of Civil Suit No. AB Plaintiff against CDEF and GH By Plaintiff/s By Defendant/s Date of Filing Pursuant to Order 1 2-A R 1/2 of CPC, plaintiff/s/defendant/s as the case may be, submit Case Management Statement as under: - 1. A short synopsis/chronology of events is enclosed herewith. 2. The following parties are yet not served: a. b. c. 3. The following parties are necessary/proper to be joined in the suit proceedings: 4. The other parties should admit or specifically deny the following facts: (reference 010 R1, 012 R1, 012 R 4 CPC): a. b. c.

12 5. The other party/ies should answer the following: Interrogatories (reference 011 R1 and 4 CPC). 6. The other party/ies should discover on oath in Form No.5 of Appendix C of CPC the documents, which are or have been in his possession or power relating to any matter in issue in this suit (reference 011 R1 2 and 13 CPC). 7. The other party/ies has been served with a notice dated in Form No. 7 of Appendix C(CPC) to give inspection of the following documents referred to in his pleading or contained in list of documents annexed to his pleading that he has failed to give such inspection and therefore should be directed to give such inspection under 011 R 18 RC. 8. The other party/ies should be directed to produce the following documents under 011 R 14/0 12 R8 CPC. 9. The order party/ies should be directed to admit documents produced by plaintiff/s or defendant/s, under 012 R Plaintiff/s/Defendant/s are to be allowed documents enumerated separately. 11. (Plaintiff/s or Defendant/s) shall not produce any other documents except with the leave of the court. 12. Plaintiff/s or Defendant/s undertake to attend joint Case Management conference with the Advocate/s of the other side and submit joint Case Management Statement in form No.14 Appendix C CPC.

13 Signature of Plaintiff/s/ Defendant/s Advocate Signatures of the party Plaintiff/s/Defendant/s Certification by Advocate I,, Advocate for the Plaintiff/Defendant certify that I have explained to the plaintiff/defendant the procedures for the Case Management and CDR and he has understood the same. 14. Signature of the Advocate for Plaintiff/Defendant Certification by the Parties I,, Plaintiff/s/Defendant/s certify that the Advocate has explained to me, and I have understood, the case management and CDR procedures. Signature of the Plaintiff/s/Defendants/s

14 No.14 (0 12A R 62) Joint Case Management Statement In the Court of ) Civil suit No. ) Joint Case Management Statement and Proposed Order ) Case Management Conference. ) Date ) Place ) Time ) Present

15 Pursuant to) 12A R62, the parties (through their advocates) jointly submit this case management statement arid proposed order. Each party certifies that his advocate (who will try this case) met and conferred for the preparation of this Statement as required by 0 12A RB. (1) Statement of admitted facts. (2) Statement of disputed facts. (3) Issues arising for determination including preliminary issues, if any. (In case of disagreement on Issues enumerate issues which are agreed arid those which are riot Agreed for court s consideration.)

16 (4) The following parties are yet not served. (5) Any additional parties that a party intends to join are listed below: Party Additional Parties Deadline (6) The amendment to its pleading, if any party wants to make one: Party Deadline (7) Plaintiff/s/Defendant/s elect the following from the list of consensual dispute resolution mechanisms. (Tick next to your selection).

17 Tick here (a) Mediation. (b) Judicial Settlement. (c) Early Neutral Evaluation. (d) Arbitration. (8) Deadline for disclosure of witnesses: Party Deadline 9. Trial Schedule (a) Trial Date (b) Anticipated length of trial (c) Final pretrial conference date (10) Name of Trial Advocate: His address: His telephone Number Advocate for: Signature (Advocate): (11) Name of Trial Advocate: His address:

18 His telephone Number: Advocate for: Signature (Advocate): (12) Name of the Plaintiff/s Defendant/s: Signature (Plaintiff/s Defendant/s): The court finds that each party was represented by advocate responsible for trial of this matter and was given an opportunity to be heard as to all matters encompassed by the Case Management Statements by each party and the Joint Case Management Statement by all the parties. The Court adopts this statement as modified and enters if as the order of this court under 012A R 10 and/or 11 of CP Code. IT IS SO ORDERED