Significance of procedural law

According to Encyclopedia Britannica,

[P]rocedural law, also called adjective law, the law governing the machinery of the courts and the methods by which both the state and the individual (the latter including groups, whether incorporated or not) enforce their rights in the several courts. Procedural law prescribes the means of enforcing rights or providing redress of wrongs and comprises rules about jurisdiction, pleading and practice, evidence, appeal, execution of judgments, representation of counsel, costs, and other matters. Procedural law is commonly contrasted with substantive law, which constitutes the great body of law and defines and regulates legal rights and duties. Thus, whereas substantive law…”

It follows that procedural law is a body of rules applied by courts to ensure fairness, certainty, transparency and predictability in judicial proceedings. It reduces discretion and chances of abuse of judicial process. It is a tool of promoting legal justice and an element of the rule of law, particularly, in newly emerging democracies, like Pakistan. Formal aspects of rule of law include legal norms that are clear and determinate, public and prospective, general and stable. Commentators have set out what they call a procedural list for an efficient rule of law (Waldron: 2010). The list is as follows:

A.      a hearing by an impartial tribunal that is required to act on the basis of evidence and argument presented formally before it in relation to legal norms that govern the imposition of penalty, stigma, loss etc.;

B.      a legally-trained judicial officer, whose independence of other agencies of government is assured;

C.      a right to representation by counsel and to the time and opportunity required to prepare a case;

D.     a right to be present at all critical stages of the proceeding;

E.      a right to confront witnesses against the detainee;

F.      a right to an assurance that the evidence presented by the government has been gathered in a properly supervised way;

G.      a right to present evidence in one’s own behalf;

H.     a right to make legal argument about the bearing of the evidence and about the bearing of the various legal norms relevant to the case;

I.        a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it; and

J.        some right of appeal to a higher tribunal of a similar character.

It is thus indispensable for every Judicial Officer to know and understand the object and importance of procedural law, with all its niceties. The proper place of procedure in any system of administration of justice is to help and not defeat the ends of justice. It is worth appreciation that the use of procedural law as a tool of delay will dither the very foundations of the rule of law.

A debate: Is procedural law the main cause of delay?

I. CIVIL PROCEDURE

I.1 Broad steps in the conduct of a civil suit

·         Filing of a plaint

·         Service of summons

·         Submission of written statement

·         Framing of issues

·         Recording of evidence

·         Arguments

·         Pronouncement of judgment

·         Drawing up of a decree

It is imperative to apply the relevant procedure and rules at each of these step with due diligence and care.  

I.2 Procedures related to a suit:

I.2.1 Plaint

·         Plaint should be in accordance with O. 6 & 7, CPC (particularly those relevant to admission of plaint).

·         Permission to amend plaint is laid down in O. 6, r. 17 & 18 CPC).

·         Grounds for rejection and return of plaint are laid down in O. 7, r. 10 & 11 CPC)

Activity 01: Draft a plaint.  Present it to the mock court. Activity 02: Scrutinize the plaint. Activity 03: Decide an application for amendment of plaint.

Apply the following

·         Read the relevant provision as mentioned above

·         Ensure that name of the parties and their addresses are mentioned in the heading of the plaint

·         Ensure that the claim is precisely stated

·         Ensure that the cause of action is clearly stated

·         Ensure that court has jurisdiction

·         Ensure that the suit is properly valued for the purpose of court fee

·         Ensure that the court fee is affixed

·         Ensure that  amendment in plaint is necessary for  effective adjudication

  

I.2.2 Issuance of process

·          Process is to be served according to O. 5, CPC

·         Consequence of non appearance after service. (O. 9, r. 13)

Prepare different process according to appendix-H, CPC.

I.23 Written Statement

·         Written statement should be ensured to be according to O. 8, CPC.

·         When parties are not at variance, procedure laid down in O. 12 & 15, CPC may be followed.

·         For better statement, procedure contained in O. 6, r. 5, may be followed.

·         Permission for amendment in written statement may be given per O. 6, r.17, CPC.

Activity 01: Draft a written statement. Present it to the mock court. Activity 02: Scrutinize the written statement. Activity 03: Decide an application for amendment of written statement.

Apply the following

·         Read the relevant provision as mentioned above

·         Ensure that court has jurisdiction

·         Ensure that all the facts are specially pleaded

·         Ensure that all the points raised in the plaint are properly answered

·         Ensure that there is no evasive denial

·         Ensure that in case of set off, proper court fee is affixed

·         Ensure that  amendment in written statement  is necessary for  effective adjudication

  

I.2.2 Issuance of process

I.2.4 Jurisdiction of court and Res-Judicata

·         Court to determine its jurisdiction (pecuniary, territorial and subject-matter) (S. 9 &-15-21, CPC read with relevant provisions of the CCO).

·         Procedure for stay of suit is mentioned in S. 10 CPC.

·         Procedure for res judicata is reflected in S. 11, CPC.

·         Bar of Suit is laid down in S. 12 CPC.

I.2.5 Issues

When the pleadings (including better statement) are proper and it is clear that parties are at variance, issues of fact as well as law shall be framed.  (O. 14, CPC)

Activity: A is dealing in Rice business. B, a shopkeeper purchase 500Kg rice from A. The rice was delivered. It  was agreed between the parties that in total, 30% of the sale consideration will be paid in advance and the remaining will be paid within  two months of the delivery. B failed to make payment on time. A sue him in a court of law. In response, B submitted written statement. He alleges that the quality of the rice was not up to terms and conditions of agreement, therefore, A is not entitled to the remaining sale consideration. Frame proper Issues in the given circumstances.

Apply the following:

·         Read the relevant law as mentioned above

·         Frame issues in respect to jurisdiction and court fee

 

I.2.6 Summoning & attendance of witnesses & recording of evidence

Procurement of list of witnesses →Summon the witnesses if required→Record of evidence  (O. 16 & 18 read with relevant provisions of Qanun-e-Shahadat)

I.2.7 Arguments

·         Hear the arguments of the parties.

I.2.8 Judgment and Decree:

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

·         Draw a decree sheet. (O. 20, CPC)

I.2.9 Miscellaneous:

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

Activity 01: A pending suit was dismissed in default. An application was submitted for its restoration. it is alleged in the application that the absence was not willful but due to heavy rainfall the plaintiff could not make it to the court. Write an order for restoration the suit.

Apply the following:

·         See whether application is within time

·         See whether the factum of rainfall is establish on record

Activity 02:The case of Aslam was decreed Ex-parte against Ahmad. On getting knowledge, Ahmad appeared before the court and submitted an application for setting aside Ex-parte decree. It is alleged in the application that Ahmad was not properly served. Write an order setting aside ex-parte decree.

Apply the following:

·         See whether the application is within time

·         Check whether proper service is effected

Injunctions

·         Procedure for issuance of interim injunction is laid down in O 39, CPC.

·         Application for injunction be decided in accordance with  O 39 CPC,s 52-54,and 56 SRA.

Activity: A has brought a suit against the District Administration. It is alleged that the Administration is making construction in Children park, making it useless as park . It is also alleged that the Administration has no power to make such construction. Plaintiff has requested for an interim status quo order.  Write an interim order for issuance of temporary injunction.

Apply the following:

·         Read the above mentioned provisions of law carefully

·         See the prime facie case of the plaintiff

·         Check whether balance of inconvenience is in favor of plaintiff

·         Check the irreparable loss in favor of plaintiff

Attachment before judgment:

·         The procedure for attachment before judgment is prescribed in O 38, CPC

·         Receivers are  appointed under O. 40, CPC

·         Commissions are issued under O. 26CPC

·         Orders are reviewed under O 47CPC

·          

Execution of decree:

·         The procedure for execution of different kinds of decree are laid down in  o21CPC)

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)