Procedural Law (Civil)

Importance of Procedural Law:

Procedural law comprises the rules by which a court hears and determines what happens in a civil, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process to all cases that come before a court. Question  arises  why procedure?  If  the objective is to decide disputes promptly and efficiently then why procedure has not been let at the discretion of the court. Particularly when in the modern days it has become a common talk that procedure causes the delay and intricacies of the procedural law hinder the administration of justice. It is true that one of the causes of the delay particularly in civil cases is the procedural law. Party interested in delaying the proceedings misuses various provisions of  procedural law. In fact procedures has been devised to promote the justice and not to hinder it. It has been devised to ensure the predictability and certainty of procedure to be followed in all the cases to minimize the discretion, to reduce the chances of abuse of process of law and to ensure that justice is not only done but seems to be done.

For the above reason it is necessary that one should know the object and importance of procedural law. Similarly the delicacies of the procedural law should also be known that a judge may not be mislead and is able to stop the exploitation of  provisions of procedural law.

Since the proper place of procedure in any system of administration of justice is to help and not defeat the ends of justice, therefore sensitization of the judicial officers in the key areas of procedures are essential.

A debate "Procedural Law is the main cause of delay"

Broad steps in the conduct of a Civil Suit:

·       Submission of filing a plaint

·       Service of summons

·       Submission of written statement

·       Framing of issues

·       Recording of evidence

·       Arguments

·       Pronouncement of judgment

·       Drawing up of a decree

For the smooth running of court business and disposal of cases by adopting a common procedure, skills on the part of judicial officer, in different areas of procedural law are vital. Keeping in views the overall scheme of procedural law, the following key areas are of significant importance. Emphasis is on those provisions which are necessary to be understood by presiding officer.

Procedures related to a suit:

Plaint:

·       Plaint is in accordance with Order 6 & 7 (Those provisions of Order 6 and 7 which are necessary for admission of plaint.

·       When permission to amend plaint is to be given? (Order 6, Rule 17 & 18)

·       Conditions when plaint is to be returned or rejected? (Order 7, Rule 10 & 11)

Draft a plaint, present it to mock court. Scrutinize a plaint. Decide an application for amendment of plaint.

Issuance of process:

·        Process serving in accordance with Order 5, CPC

·       Consequence of non appearance after service. (Order 9, Rule 13)

Prepare different process according to appendix.

Written Statement:

·       Written statement in accordance with Order 8

·       When parties are not at variance (Order 12 & 15)

·       If better statement is required. (Order 6, Rule 5)

·       When permission to amend written statement.  (Order 6, Rule 17)

Draft a written statement, present it to mock court. Scrutinize a written statement. Decide an application for amendment of written statement.

Jurisdiction of court and Res-Judicata:

·       Court to determine its jurisdiction (pecuniary, territorial and subject-matter) (Sec 9, 15 to 21 CCO)

·       Court to stay suit ( Sec 10)

·       Res-Judicata ( Sec 11)

·       Bar of Suit (Sec 12)

Issues:

When the plaint is perfect, written statement is ok, better statement has come or It was not needed and parties are clearly at variance on questions of fact and law, court shall frame issues. (Order 14)

Frame Issues

Summoning & Attendance of  Witnesses & Recording of Evidence:

·       Procure list of witnesses

·       Summon the witnesses required to be summoned

·       Record evidence

(Order 16 & 18 read with relevant provisions of Qunan-e-Shahadat)

Arguments:

·       Hear the arguments of the parties.

Judgment and Decree:

·       When hearing of the case is complete, write, sign and pronounce judgment.

·       Draw a decree sheet.

          (Order 20, CPC)

Restoration of Suit dismissed for non prosecution and Setting aside Ex-parte Decree. (Order 9, CPC)

Write an order for restoration. Write an order setting aside ex-parte decree.

Injunctions:

·       Order for interim injunctions.

·       Order deciding application of temporary injunction. (Order 39 CPC and relevant provisions of Specific Relief Act).

Write an order of temporary injunction. Write an order deciding application.

Attachment before Judgment and appointment of a receiver:

Miscellaneous:

·       Attachment before Judgment

·       Appointment of a receiver

·       Appointment of commission

·       Arrest before judgment

·       Review

(Order 38, 40, 26)

Execution of decree:

·       Execution of different kinds of decree (Order 21)

Special Suits:

·       Suits by minors

·       Suits by lunatics

·       Suits by or against the government

·       Inter pleader suits

·       Suits relating to mortgages

·       Pauper Suits

·       Suits by or against Non-Muslim

·       Suits by or against firms and cooperation

·       Suits by or against military and naval men

·       Suits involving a substantial question to the interpretation of constitutional law

          (Order 27 to 35, CPC)

Procedural Law (Criminal)

Importance of Procedural and Criminal Courts:

·       Scheme and objectives of CrPc

Jurisdiction, Classes of Courts and their Powers:

·       Court of Session Judge

·       Court of Additional Session Judge

·       Court of Section 30 Magistrate

·       Court of Judicial Magistrate

·       Special Courts (Chapter 15)