Code of Civil Procedure Amendment Act 2020

AS INTRODUCED IN THE NATIONAL ASSEMBLY A Bill further to amend the Code of Civil Procedure, 1908 WHEREAS it is expedient further to amend the Code of Civil Procedure, 19011 (Act V of 1908) for bringing procedural reforms in order to provide inexpensive and expeditious justice; It is herereby enacted as follows:- 1. Short title, commencement and extent, {l) This Act may be called the Code of Civil Procedure (Amendment) Act,2019. (2) It shall come into force at once. (3) It shall extend to the Islamabad Capital Territory. 2. Amendment of section I, Act V of 1908, - In the Code of Civil Procedure, 1908 (Act V of 1908), hereinafter referred to as the said Act, in section l. after sub-section (3), the following new sub-section shall be inserted, namely:- "(4) The primary objective of this Code is to enable the Courts to- (a) deal with the cases justly and fairly; (b) encourage parties to alternate dispute resolution procedure if it considers appropriate; (c) save expense and time both of courts and litigants; and (d) enforce compliance with provisions of this Code.". 3. Substitution of section 3, Act V of 1908. - In the said Act, for section 3, the following shall be substituted, namely:- '3. Subordination of Courts.- For the purposes of this Code, the hierarchy and subordination of Civil Courts shall be the same as prescribed ') in the West Pakistan Civil Courts Ordinance, 1962 ( W.P. Ordinance No. Il of 1962);'. 4. Substitution of section 6. Act V of 1908.- In the said Act, for section 6, the following shall be substituted, namely:- *6. Pecuniary jurisdiction.- Save in so far as is provided for the Islamabad High Court ,exercising original civil jurisdiction at Islamabad, all civil suits shall be filed in the following manner, namely:- (a) where the amount or value of the subject matter of the suit is below rupees fifty million, the suit shall be filed in the court of Civil Judge, as may be prescribed by the High Court; and (b) where the amount or value of the subject matter of the suit is above rupees fifty million the suit shall be filed in the court of District Judge as may be prescribed by the High Court. ". 5. omitted. Omission of section 7, Act V of 1908. - In the said Act, section 7 shall be 6. Substitution of section 26, Act V of 1908.- In the said Act, for section 26, the following shall be substituted, namely:- *26. Institution of suits through plaint or otherwise.- ( I ) Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. (2) On presentation of the plaint, it shall be the duty of the Court to prima facie, satisfy itself of jurisdiction, cause of action and limitation: Provided that if Court does not satisfy itself, it shall be bound to record . reasons for doing so. (3) The plaintiff shall, at the time, file as many copies of the plaint and accompanying documents as there are defendants to the suit to be sent along with the summons and two extra copies of the entire set. (4) It shall be duty of the Court to maintain electronic records of proceedings in suits as may be prescribed. Explanation.- For the purposes of this sub-section suits includes any proceedings in applications, appeals, review, revision or anything incidental thereto. 264. Written statement and proposed issues by the defendant.-(i) The defendant shall file written statement not later than thirty days from the date of service to the plaintiff: Provided that if the defendant fails to file written statement on the date fixed, the Court may grant an opportunity to file the same not later than fifteen days subject to payment of adjournment costs: Provided further that if the defendant fails to file after the opportunity given under the first proviso, a final opportunity' may be given by the Court to file the written statement not later than fifteen days subject to payment of' adjounment costs after which the defendant shall lose the right of defence and the Court shall close the right to defend the case: Provided also that the written statement may be allowed to be filed by the Court upon payment of costs to be determined by it, if the defendant through an application supported by an affidavit, satisfies the Court that he had just and sufficient cause and the Court record reasons for it. (2) The defendant shall file proposed issues along with the written statement: Provided that if no issues are proposed by the defendant, the Court shall permit the defendant to file proposed issues not later than seven days upon payment of cost to be determined by the Court. ( Il (3) The defendant shall provide additional copies of written statement and of the documents annexed therewith for each of the parties and the Court. 268. Proposed issues by the plaintiff.- The plaintiff shall file proposed issues not later than seven days from the date of receiving the written statement: Provided that in case the plaintiff fails to file the proposed issues, the Court shall permit the plaintiff to file proposed issues not later than seven days upon payment of cost to be determined by the Court. 26C. Framing issues and filing of list of witnesses and recording of evidence.- (i) Not later than ninety days of the institution of a suit the Court after considering the pleadings and issues proposed by parties, shall determine the rnaterial propositions of fact and laws which the parties are at variance and frame lssues. (6) immediately upon framing of issues and filing of the list of witnesses, the Court shall direct the recording of evidence through Commission in the prescribed rnanner. (2) For the purposes of sub-section (1), the Court in its discretion as it may deem fit may proceed to frame issues without hearing. (3) In case issues are framed without hearing, any party, not later than seven days of the framing of issues, may file an application seeking modification of the issues, which application shall be decided within fifteen days. (4) After framing the issues, the Court shall order parties to file list of witnesses, not later than fifteen days. (5) If any party fails to comply with the orders of Court in sub-section (4), a final opportunity may be given by the Court to file list of witnesses not later fifteen days subject to payment of adjournment costs. {' (7) For the purposes of sub-section (6) of this section, the Court shall appoint a Commission frorn a list of approved panel of such Commission, comprising advocates and retired judges maintained by the Court in the prescribed manner, on such fee and terms and conditions as determined by the Court. (8) The parties shall file affidavits as evidence of their respective witnesses, before the Commission which shall be construed to be examination-in-chief. (9) On the affidavits in evidence, the witnesses shall be subjected to cross examination and if necessary, just and expedient, shall be subjected to reexamination followed by cross-examination or re-examination. (10) The Commission shall record the evidence and proceedings thereof in written and audio and video recording. (11) Not later than ninety days ofthe order under sub-section (6), the Commission shall finalize the recording of the evidence and submit a report in this regard to the Court along with the complete written, audio and video record of the proceedings under sub-section ( 1 0). (12) The High Court shall frame rules for the purposes of recording of evidence through Commission, inter alia, empowering the Commission to regulate the Commission's proceedings including but not limited to allowing or disallowing questions, documents, choosing sides, extension of Commission and passing such ancillary or other orders which are necessary to carry out the functions of the Commission. 26D. Hearing of final arguments.- (1) The Court after submission or closing of evidence, as the case rnay be shall fix a date not later than fifteen days, for hearing of final arguments by parties. (2) The Court may require the parties to file their written arguments rn addition to oral arguments.". Amendment of section 27, Act V of 1908.- In the said Act,- (a) in section 27, after the word "claim", the words "not later than fifteen days" shall be inserted; and (b) after section 27, as amended hereinabove, the following new section shall be inserted, namely:- "27A.Process of summons to be simultaneous (1) Summons shall be sent simultaneously unless otherwise ordered by the Court, to the defendant, by registered post acknowledgment due and another copy of the summons by courier service signed and sealed in the manner prescribed, or as the court may determine, by urgent mail service of Pakistan Post, at the cost of plaintiff (2) The acknowledgement, purported to be signed by the defendant, ol' the receipt of the registered communication or an endorsement by a courier lnessenge; or postal employee that the defendant refused to take delivery of the 'summons shall be deemed by the Court issuing the summons to be prima facie proof of the service of summons. (3) Simultaneously, the Court shall order service by- (a) affixing a copy of the summons at some conspicuous place of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain: (b) any modern device including electronic device of communication which may include mobile, telephone, telegram, phonogram, telex, fax, radio, television etc. in a prescribed manner; (c) urgent mail service or public courier services; (d) beat c f drum in the locality where the defendant resides; i (e) announcement through, mosque, temple, community centre etc.; (f) publication in the press in the prescribed manner; or (g) any other manner or mode as it may think fit: Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously. (4) If the defendant fails to appear, the Court may direct service again by any of the modes mentioned in sub-section (3) to appear on a date not later than seven days. (5) Location of bailiff or process-server serving the summons shall be monitored by modern devices, in a manner prescribed, and a photograph shall be taken of the defendant or the premises or the person accepting summons on behalf of defendant and be made part of the record as a proof of delivery.". 8. Amcndment of scction 33, Act V of 1908,- In the said Act, in section 33, after the word 'Judgrnent", the words "rvithin ninety days of the final hearing" shall be inserted. 9. Insertion of new section 75A, Act V of 1908.- In the said Act, after section 75, the following new section shall be inserted, namely:- "75A. Spot checks.-(1) In order to further the primary objective mentioned in sub-section (4) of section 1, in any proceedings in a suit, the Presiding Officer of the Court in its discretion may, on his own or at the application of any of the parties, at any stage may carry out spot checks including inspection of documents and premises in order to ascertain issues of partition, demarcation, possession, ' state of construction and anything incidental and ancillary thereto. r, Explanation 1.-For the purposes of this sub-section, spot checks tnay be carried out after passing of decree to ensure Court orders are implemented as decreed. Explanation 1/.- For the purpose of this sub-section a spot check conducted by Presiding Officer of a Courl should not be construed to be an inspection through the appointment of Cornrnission. (2) The Court may call for the evidence ofany person or documents at the spot' Explanation.- For the purpose of this sub-section, person includes parties to the suit, individuals preiient at the spot or any individual Court may deem proper' to give evidence in the rnatter in issue. (3) After conducting spot checks an interim order recording the findings o1' the spot inspection shall be prepared and signed by the Prcsiding Officer of the Court: Provided that the interim order shall state the date, time, purpose of visit, evidence recorded and interirn findings. (a) The Presidirrg Officer, in his discretion shall be entitled to pass an order orjudgment upon the basis of interim order mentioned in sub-section (3) of this section provided the same is confronted to all the parties, who are given a reasonable opporlunity to file objections to the same.". 10. Substitution of section 96, Act V of 1908. - In the said Act, for section 96, the following shall be substituted, namely:- "96. Appeal from final judgment or decree.- Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall tie to the High Court not later than thirty days from every . final judgment passed by any Court exercising original jurisdiction on any question of law or fact erroneously determined by the original court and the High Court shall decide the appeal within ninety days.". 11. Omission of sections, Act V of 1908 .- In the said Act sections 100, 101, 102 and 103 shall be omitted. 12, Amendment of section 106, Act V of 1908 .- In the said Act, for section 106, the following shall be substituted, namely:- "106. That Courts to hear appeals.- Appeals against order passed under this Code shall lie to the Court, directly from its subordinate court exercising original jurisdiction adjudicating the suit, in tiie manner prescribed.". 13. Amendment of section lll, Act V of 1908 .- In the said Act, in section i 11, clause (b) shall be omitted. 14. Amendment of section L14, Act V of 1908 .- In the said Act, in section tt4,- (u) (b) 15. Substitution of section 115, Act V of 1908 .- In the said Act, for section 115, the following shall be substituted, namely:- "115, Rcvision.- Any party aggrieved by an order under section 104, passed by the Court of District Judge or Additional District Judge in an appeal against an interlocutory order passed by a Civil Judge or Senior Civil Judge, as the case maybe, may within thirty days of the said order may file a revision to the High Court on an obvious misapprehension of law or in respect of a defect in jurisdiction.". in clause (b), the word "or", at the end, shall be omitted; and for clause (c) the following shall be substituted, namely:- '1nay apply for a review of judgment to the Court which passed the decree or mad the order, and the Court may make such order thereon as it think fi1.". 0 16. Amendment of section 128, Act V of 1908 .- In the said Act, in section 128, aftq sub-section (2) the following new sub-section (3) shall be inserted, namely:- "(3 ) The High Court shall make rules, not inconsistent with the provisions of this Code, lor case nranagement and scheduling conferences binding the parties to follow the schedules and timelines prescribed therein.". 17. Substitution of sr:ction 141, Act V of 1908 .- In the said Act, for section l4i, the following shall be substituted, namely:- "141. Proceedings regarding application for injunctions and other miscellaneous application and issues.- ( 1 ) The procedure provided in this Code witl.r regard to suits shall be followed, as far as it can be made applicable, in all ;,legssdings in any Court of civil jurisdiction. (2) All sui.s, in which interlocutory applications have been filed, shall have duplicate sets, one of which shall be placed in the court hearing the main suit and other shall be placed in the court hearing interlocutory applications. (3) At all :raterial times, the respective offices of the two courts mentioned in sub-section (1) of this section, shall keep both the files in the two courts updated and tallied with each other in duplicate and identically including the respective orders and diary sheets. (4) Both the courts hearing the main case and the interlocutory applications respectively shall proceed collaterally according to the timelines prescrib:d in this Code and rules or by any order of the Court. Explanatiort.- It is clarified that the pendency of any interlocutory application shall be no ground to stay or delay the proceedings before the . Court hearing the main case. (5) All applications tbr addition, deletion and substitution of parties, amendments to pleadings, modification or alteration of issues, rejection of plaints, and stay of suits shall be heard and adjudicated by the Court Ir I.rearing the rnain case, while all other appiications shall be construed to be interlocutory applications warranting to be filed and decided by the Court hearing thc interlocutory applications. (6) The filing of any application including an application for the rejection of the plaint or a dismissal of suit shall be no ground to dispense with or waive thc requirement of filing a written statement within the timelines prescribed in this Code. (7) This section shall have effect notwithstanding any other provision in this Code or any other law for tirne being in forced.". 18, Amendment of section l5I, Act V of 1908 .- In the said Act,,in section I 5 I , after word "Court" occurring for the first tirne, the words "to be exercised after recording reasons" shall be inserted. 19. lnsertion of new section, Act No. V of 1908 .- In the said Act, after section 1 58, the following new section shall be inserted, namely:- " 159. Savings of proceedings .- Alt proceedings instituted prior to enactment of the Code of Civil Procedure (Arnendment) Act, 2019 shall be deemed to proceed and dealt in accordance with the provisions of Code of Civil Procedure which existed prior to the said amendrnent Act. Explanation.- In this section the expression "proceedings" includes suit, appeal, review, revision, cxecution applications or any other proceedings and any matter incidental thereto. ". STATEM,ENT OF OBJECTS AND REASONS Delay defeats justice. It is especially true in the context of disputes pending adjudication before civil courts as it takes many years or even decades to get cases decided by civil courts. T'his, in civil litigation practice, normally occurs when a Party files a suit accompanied with an injunction/stay appiication, the main suit does not proceed. The court only focuses on the stay application and it takes many years to decide the stay/injunction. The main suit remains in a state of inertia. In order to curb delays, a new concept of a two-tier system has been introduced where two different judges will hear the entire suit. In the first tier, the main case would be heard by one judge and not going to be interrupted till finalisation of the proceedings. If there are miscellaneous applications, in particular stay/injunction application, these are going be heard in second tier where a separate file is going to be opened and adjudicated by a different judge without interfering with the main case being adjudicated in first tier. In addition reforms are proposed with regard filing of plaint, service of summons, filing of' written statement, case management system, commission for recording of evidence, appeals, introduction of spot checks by Presiding Officer and limiting unnecessary discretion of courts and restriction in granting of adjournments and subjecting the parties at fault with heavy penalties in the shape of costs. The proposed amendment in the existing Code of Civil Procedure is aimed towards expeditious disposal of cases without compromising the fundamental right to fair trial. 2. The Bill is designed to achieve the aforesaid objects. Minister-in-Charge I