by Muhammad Alee
The issues that plague the legal system of Pakistan are no secret; rather, the struggle is in the search for its cure. According to a former Judge of the August Supreme Court, the average civil trial has a lifespan of 25 years, meaning thereby that a litigant must knock the doors of the entire hierarchical structure of the civil justice system to decide a moderately complex civil dispute in Pakistan – to say nothing of expecting such disposal to venture into the realm of justice. Effectively, a third of a lifetime is spend on a single civil dispute, all the way from the civil courts (‘Katcheri’) to the Hon’ble Supreme Court of Pakistan.
It is therefore logical that one of Pakistan’s biggest economic woes is this dysfunctional civil justice system, which, on account of its delays and lengthy proceedings, witnesses the dispensation of justice at a snail’s pace. This excessively long duration for the resolution of disputes is an unattractive feature for businesses, and only helps drive away investors, local or foreign.
It is often assumed, incorrectly, that the solution to this issue – the penultimate fixation of numerous lawyers in the past – lies in reworking and undoing the current system, and replacing it with a new civil justice system which, having taken into account the innumerable problems, will be a fresh, clean slate and a second chance at putting justice first. This view is mistaken and not just because the results promised are utopian and the task itself daunting. The answer, few would believe (and even fewer still know), already lies within our Civil Procedure.
The Code of Civil Procedure, 1908, (hereinafter referred to as “the CPC”) bequeathed to us by the British, is full of remedies. A recent judgment passed by the Supreme Court of Pakistan, which refers to one such remedy, has tremendous significance for resolving the aforementioned problem. While unreported, and largely escaping the attention of the legal community at large (perhaps a causal result of our stilted legal discourse), the judgment signifies the most important step in the right direction: the first one.
The judgment, titled Nausher v. Province of Punjab, etc (CA No. 1011 of 2016), directs its reader to a hidden gem, lost in this era of haste: Order XV of the CPC. The factual controversy in the case related to mutations of the suit property, located in Tehsil Mianchannu, in favor of a deceased individual. The issue as to the veracity of the impugned order in question, alleged by the appellants as lacking force due to insufficient recording of evidence, was settled by the Supreme Court of Pakistan in light of Order XV, holding that the statements of the parties along with the record of prior proceedings of the case are sufficient. Effectively, the Supreme Court held that the legality of an order passed by a Court relying on such documentary evidence as the Judge deems sufficient for adjudication is within the four corners of the law. For the litigant, such adjudication is within the four corners of justice.
Under Order XV, most necessary evidence required to adjudicate the matter can be gathered before the trial even begins. This is possible since Order XV empowers the Civil Judge to dispose the suit based on the record brought before it through pleadings of the parties and such other discovery as is conducted by the judge himself. This procedure is already followed in the High Courts in their Constitutional Jurisdiction. Without recording further evidence on the issues, the High Courts rely on the documents appended with the Petitions and the Replies (and any Applications thereafter) as part of the record, and adjudicate upon the matter without further ado. If the High Courts can dispose cases in such a manner, why not the Civil Courts?
If these pre-trial evidentiary tools are utilized, the need for trials would not arise and disputes could be disposed expeditiously and efficiently. It is pertinent to note that there is nothing new about this finding; it is a discovery, not a creation. Using the tools found within the CPC, one can find multiple solutions which would not only save time and costs, but would also open up Pakistan as an investment option for foreign and local investment based on the protection the civil legal system would provide in the shape of expeditious disposal of cases, should any such controversy arise. The socio-political and economic effects that the functioning of a civil justice system have on a nation are an underappreciated facet of the legal system. A delay in a civil dispute is not just a delay in the adjudication of the rights in question, but rather, the effect of the delay is wide and far-reaching. With this judgment of the Supreme Court of Pakistan, a new hope emerges for the speedy dispensation of civil disputes.
Courtesy of TLTP News
