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February 12, 2019

Civil nature cases disposal in one year: People of KP yet to benefit from amendments to British-era law

Peshawar

February 12, 2019

PESHAWAR: People of Khyber Pakhtunkhwa have yet to benefit from the major amendments to the British-era Code of Civil Procedure 1908 enacted by the previous Pakistan Tehreek-e-Insaf-led provincial government in January 2018 and proposed by the Peshawar High Court to dispose of civil nature cases within a period of one year.

When the civil courts started implementation of the “Khyber Pakhtunkhwa Civil Procedure Code (Amendment) Act 2018, the legal fraternity started protests against the amendments with the claim that the amendments were neither acceptable nor practically applicable. The lawyers refused to appear and argue cases under the new law even after receiving the court notices.

During the passage of the Khyber Pakhtunkhwa Civil Procedure Code (Amendment) Act 2018, the then KP chief minister Pervez Khattak at a press briefing had claimed that the people of the province would get expeditious justice in civil cases in a period of one year. He said that before passing these amendments, people had to wait for 20 to 30 years for decisions in the civil nature cases, mostly land disputes.

However, no case has been decided within one year by the civil courts in the province under the new law.

Interestingly, when the civil courts started issuing notices to the lawyers and litigants under the new law, the lawyers claimed that implementation of the new law was impossible. They started protesting against the law.

The Khyber Pakhtunkhwa Bar Council passed a resolution on January 19, stating that trial of cases under the amended CPC was not possible. It issued a resolution stating that the bar associations of the province had unanimously decided that the amendments to the CPC were neither acceptable nor practically applicable.

The lawyers stated that they had reservations over the “Case Management and Scheduling Conference” proposed under the supervision of the court for expeditious disposal of cases and to discourage frivolous litigation by engaging the counsel and parties in the case.

It said the majority of the amendments to the orders/rules were itself in violation of the sections of CPC, due to which the lawyers and litigants would face difficulties if these were implemented.

The KP Bar Council also stated that the implementation of the amended CPC be suspended.Talking to The News, Secretary General Peshawar High Court Bar Association Yasir Khattak said that though the lawyers were onboard in the consultation process for the law, they knew that some amendments were not practically possible for both the lawyers and litigants as well.

He questioned how it would be possible for lawyers and litigants to submit all applications and documents before the start of the case, which were even not necessary.In the new law, the judge is also bound to record reasons in case he failed for not calling the conference of the parties and lawyers.

It was further added that at any conference under the rule, the court may take appropriate action and pass a scheduling order with respect to the formulation and simplification of issues including elimination of frivolous claims and defenses, determining the appropriateness and timing of summary judgment under Order-XV, conducting trial management for a speedy trial and facilitating the just, speedy and inexpensive disposal of cases.

In the new law, a penalty is also imposed that states that, “If a party or his counsel fails to appear at a case management and scheduling conference, or is substantially unprepared to participate or does not participate in good faith in the conference, or fails to obey the case management and scheduling order, the court in addition to any other penalty under this code shall order the party to pay reasonable expenses, unless such non-compliance was substantially justified or other circumstances made an award of expenses unjust or impose of fine.”

On the other hand, the PHC had recently issued a statement after the KP Bar Council resolution and claimed that all stakeholders, including bar associations, had been taken on board prior amendments to the Civil Procedure Code (CPC).

“The amendments in question were issued vide notification No.15-J dated 23.01.2018. It was done with a view to curtailing the delay in disposal of civil litigation,” the PHC said.It said the KP Judicial Academy arranged a seminar on April 18, 2017 which was attended by all stakeholders.

“The Rules Committee of the Peshawar High Court attended the seminar. The participants included members of almost all the High Courts and Judicial Academies of Pakistan,” it said, adding that the Judicial Academy prepared a draft in accordance with section 122 of CPC and sent it to the PHC for necessary action.

After the KP Bar Council resolution and lawyers’ denial to argue the case under the new law, an official said, the PHC has once again started consultations with the lawyers for valuable suggestions and further amendments to the CPC.

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