Critical Analysis Of Code Of Civil Procedure Amendment Act, 2020

CRITICAL ANALYSIS OF CODE OF CRITICAL ANALYSIS OF CODE OF CIVIL PROCEDURE AMENDMENT ACT, 2020 By Syed Sabee ul Hassan and Muhammad Saqib Bhatti Advocates High Court Suffer any wrong that can be done you, rather than come here1. Charles Dickens famous novelist in "The Bleak House" drew attention towards the inglorious evils of Civil Justice System prevalent at court of Chancery. His writing foreshadowed the ordeal an individual litigant suffers at the hands of the civil Justice System. The Civil Justice System is fraught with obstacles and agonizing moments for litigant that he has been advised to avoid any pursuit of justice from prevalent adjudicatory system. Over the time, legal academics, judiciary, legal practitioners classified these stumbling blocks in the form of cumbersome, expensive and stone-walled process which led to years of research, consultative processes and eventually, the Government of UK introduced Woolf Reforms in year 1999. Still a decade has passed, but these reforms are under heavy scrutiny to improve the civil justice System. Our adjudicatory process is also one of those systems which was inherited from common law jurisdiction. In an attempt to extricate the civil justice system from impregnated problem, the Federal Government has also envisioned bringing reformative legislation to deal with recent challenges faced by litigants involved in the Civil Justice System. Recently, amendments have been introduced in the Civil Procedure for Islamabad, Punjab and KPK. In particular, our discussion would be aimed at the legislation applicable to the Islamabad Capital territory2 on February 22, 2020. However, these amendments encountered criticism from legal fraternity which has been termed as old wine into new bottle without any panacea for the ills faced by public at large. It has been argued that Amendment Act, 2020 failed to assuage the predicament faced by a litigant. The importance of the procedural laws has been emphasized over the time by the Apex courts. The Hon'ble Supreme Court of Pakistan has made keen observation in favor of adherence to procedural laws while emphasizing that "in the process of administration of justice, the litigants should not be knocked out on technical grounds, however certain provisions of law were of vital procedural significance and if they were not followed in letter and spirit, there would be wee (little) possibility of a conclusive trial of a civil case and the process might suffer on account of unbridled exercise of discretionary empowerment of the courts. Such circumstances could stall the fair trial of the matter, which was against the very purpose and object of law (especially procedural law). Adherence to such provisions in letter and spirit and the mandate of law to be followed could hardly be termed as mere ' technicalities' on account of which it might ultimately be held that no one should be knocked out for such technical reasons3". Thus, there is inevitable significance of procedural laws, which are often applied where legislature left the room for the courts to devise their own procedure. Without casting aspersion over the intention of legislature, the objective behind latest amendments can be gauged from the amendments made in the Preamble of the Amendment Act, 2020. It has been emphatically maintained that the Amendment Act, 2020 has been aimed to provide expeditious and inexpensive justice to the public at large. However, it can be achieved or not, it is yet to be determined in the long run but promulgation of Act, 2020 has been subjected to unrequited love by the local Bar Associations on the pretext of practical aspects. It is argued by the legal fraternity that there are various procedural hurdles which have not been addressed by the legislature. For instance, no time frame has been mandated for the disposal of interlocutory applications which amounts to delay in the proceedings of a civil suit. The various provisions of laws provided in Amendment Act, 2020 has been dubbed to be in conflict with the existing laws which are still in place and no overriding effect has been afforded to these newly introduced provisions. Under section 6 of the Act, the litigant has been burdened with cost of additional copies of plaint, annexures, miscellaneous documents to accompany the notices addressed to the opposing party. Thus, the measures to make process of court inexpensive cannot be meet as efficiently and effectively as desired by the legislature and public at large. In contrast, as per legislation made to the extent of Punjab, only two sets of plaints are required. A classic example to reflect the cost argument would be in the partition suits where all the shareholders are required to be impleaded and number of copies would be of such quantum that a poor co-sharer would crumble under the cost involved in mere issuance of process. Without bringing landscape reforms in the adjudicatory process, the Amendment Act, 2020 aims to shift the focus of duties and responsibilities from court to litigants, hence, made it a litigant driven process driving it out of ambit of supervisory role of the court. The litigants have been obligated to propose issues out of divergent pleadings, instead of requiring the presiding officer to frame issues while considering the controversy between the parties. In case of failure to propose issues, cost has been imposed and outsourced the duty of court to an individual. To ease the burden from courts, the newly introduced provision of law delegated the recording of evidence to a commission. The said commission is to be selected from the list of advocates, retired judges proposed by the Hon'ble Islamabad High Court. Till date, the rules for recording of evidence has not been formulated along with the requisite list of local commission who shall be tasked for evidence recording. However, the method of recording of evidence has been made contrary to the express provisions of the Code of Civil Procedure, 1908. As per Order XVIII, Rule 5 evidence of each witness shall be taken down in writing, in the language of the court by or in the presence and under the personal direction and superintendence of the judge. The legislature intentionally used the words of "Judge" instead of court just to emphasize the nature of the proceedings which should be conducted directly by the judge himself and did not use the word "Court" which has been used interchangeably in other parts of the Code of Civil Procedure, 1908. As per new amendment, the process of recording of evidence needs to be recorded in Video and audio format too. Rarely, this practice has been adopted earlier and finding such facilities with lawyers is also an uphill task. The legislature failed to consider the financial aspect of recording of evidence through a commission. At one stage, the litigant will be burdened with lawyer's fee, court process for summoning of opposing parties, simultaneously, left the cost of recording of evidence on the whims and wishes of local commissioner. No rule or provision has been provided in the Amendment Act 2020 which could deal with the issue of cost. No penal consequences have been provided if the commission failed to record the evidence in stipulated time. Another obstacle in the process of evidence would be summoning of summoned and expert witnesses which was otherwise possible through process of court. The courts have been equipped with laws and machinery to enforce the presence of witnesses but no such mechanism has been devised for the local commission entrusted with recording of evidence. Moreover, it is also observed that the act is silent as to the authority competent to prescribe the manner of filing of suit. In such eventuality, the legislature also left the Amendment Act, 2020 silent which would open the gate of abuse of process of law causing injustice to a litigant. The District and Sessions Judge has been granted supervisory role over its subordinate judges and same has to be reflected in the annual performance evaluation scheme of a judicial officer. But haplessly, Amendment Act, 2020 enabled the litigant to seek its remedy from Hon'ble High Court being its Appellate and Revisional forum. It is also worth pointing out that Amendment Act 2020 by way of incorporating sections 3, 6, 10 and 12 made the provisions of West Pakistan Civil Court Ordinance, 1969 redundant as these sections are in direct conflict with the scheme of hierarchy of courts and pecuniary jurisdiction. By way of making amendments in the General law (C.P.C., 1908), the legislature gave general law precedence over the special law which is against the settled principles of law. Similarly, time frame has been proposed for each stage of civil trial without stipulating the penal consequences for failure to observe timelines. Ironically, no time frame has been proposed for decision of interlocutory applications and another court required to be established for decision of interlocutory applications so that focus of main trial should not divert in decision of interlocutory application which would likely impede the disposal of civil disputes pending adjudication. It is pertinent to make an observation here that applications for amendment in pleadings, addition/deletion of parties, are required to be filed and decided by trial court seized with matter. However, prompt disposal of interim injunction application cannot be triumphed until and unless application for Amendment in pleadings and addition/deletion of parties are decided by Trial Court. As discussed above, no timeline has been provided for disposal of such application, thus, objective of early decision of civil disputes cannot be achieved. In an attempt to reduce the burden of cases from civil court, original and Appellate pecuniary jurisdiction has also been altered without considering the effect over the pendency of important case already pending adjudication before Hon'ble High Court. By way of New section 115, the scope of revision has been limited, in consequence of which, the Hon'ble High Court has been further overwhelmed with disputes of every brewhouse. Interestingly, stakeholders (legal fraternity, Bar Associations) and effected parties have never been associated in the consultative process of Amendment Act, 2020. It also appears that legislation has been proposed and drafted in the closed doors without making any empirical research and adopting any scientific methods. The practical aspect of these procedural laws has not been considered and neither any legal practitioner well abreast with intricacies of civil trial has been associated in this process to have insight of the agonies faced by a litigant and lawyers. Even the parliamentary debate can reflect the seriousness of the matter and hurried promulgation of Amendment Act, 2020. The corridors of power wanted another feather in their cap being oblivious of the actual hurdles in the expeditious disposal of civil disputes. As ill luck would have it, the Amendment Act, 2020 is nothing less than a long-winded writing filled with legalese, disoriented drafting, and convoluted sentence structure. The self-appointed solon deluge of craftsmen, culminated into defective legislation, exacerbating the agonies of the litigants, lawyers and the judicial system with expensive, cumbersome, complex, unpredictive procedure. The KPK Bar Council and respective Bar Associations of the province had been on strike for months against proposed amendment which led to another enactment resulting in end to agitations of the lawyers. The Government of KPK by way of Ordinance repealed the amendments earlier promulgated through Amendment Act which also proposed similar legislative reforms in the Civil procedural laws. By virtue of new ordinance, establishment of separate court for decision of interlocutory application is no longer a requirement but same court would act as Trial court and separate file will be maintained for decision of interlocutory applications. Likewise, section 115, C.P.C. has been restored to its original position and only two separate sets of plaints are required to be annexed with plaint. Furthermore, the recording of evidence has been made optional for just convenience of the parties whereas for ICT it is still a mandatory provision. In sequel of the above discussion, it is suggested that all the stakeholders shall be engaged and proposals should be solicited from judiciary as well as lawyers and real issues should be addressed while considering the practical aspects of the amendments. The uniformity in the procedural laws among provinces must be brought to avert any confusion among the public. Besides, the proposal from Bar Associations as well as Judiciary, empirical data must be collected to identify the real hurdles and problem which made the current civil adjudication expensive and cumbersome process.