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.

 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.

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

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.

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 plaintiffs 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 authority1 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

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

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.

PROPOSED PROCEDURAL AUTHORITY FOR CASE

MANAGEMENT AND A.D.R. MECHANISMS
Proposed New Order 12-A.
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:

Within fifteen (15) days of the receipt of the copy of the plaintiffs 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.

Rule 3:

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.

Rule 4:

(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:
Rule 6:

The orders passed under Rule 4 shall not be subject to appeal or revision.
(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.

(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;

iv. Arbitration, under the Arbitration and Conciliation Act 1996(Part I).
Rules 8:

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.

Rule 9:

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:

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.

Rule 12:

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:

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.

Rule 14:

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.

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.
2.

A short synopsis/chronology of events is enclosed herewith.

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.

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 R2.

10.

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.
___________________

__________________

___________________

__________________

___________________

__________________

Signature of Plaintiff/s/

Signatures of the party

Defendant/s Advocate

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.
_________________________________
Signature of the Advocate for Plaintiff/Defendant
14.

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

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

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 courts consideration.)
____________________________________________
____________________________________________

____________________________________________
____________________________________________
____________________________________________
____________________________________________

(4)

The following parties are yet not served.

____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________
____________________________________________

(5)
Party

(6)
Party

Any additional parties that a party intends to join are listed below:
Additional Parties

Deadline

The amendment to its pleading, if any party wants to make one:

Deadline

(7)
Plaintiff/s/Defendant/s elect the following from the list of consensual dispute
resolution mechanisms. (Tick next to your selection).

Tick here

(8)

(a)

Mediation.

(b)

Judicial Settlement. _______________________________

(c)

Early Neutral Evaluation.

(d)

Arbitration.

(10)

_______________________________

_______________________________

Deadline for disclosure of witnesses:

Party

9.

_______________________________

Deadline

Trial Schedule
(a)

Trial Date

_______________________________

(b)
(c)
date

Anticipated length of trial

Final pretrial conference

Name of Trial Advocate:

His address:

_______________________________
_______________________________

_______________________________
_______________________________

His telephone Number

_______________________________

Advocate for:

_______________________________

Signature (Advocate):

_______________________________

(11)
Name of Trial Advocate:
_______________________________
His address:

_______________________________

(12)

His telephone Number:

_______________________________

Advocate for:

_______________________________

Signature (Advocate):

_______________________________

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