In The Name Of ALLAH The Most Beneficent The Most
Description: In The Name Of ALLAH The Most Beneficent The Most Merciful 1 CIVIL TRIAL, AN OVERVIEW ZIA-UR-REHMAN District Sessions Judge Mansehra OBJECTIVES Sensitization about common mistakes causing delay Establishing effective control of the
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slide1. In The Name Of ALLAH
The Most Beneficent
The Most Merciful 1<br>
slide2. CIVIL TRIAL, AN OVERVIEW ZIA-UR-REHMAN
District & Sessions Judge
Mansehra<br>
slide3. OBJECTIVES Sensitization about common mistakes causing delay
Establishing ‘effective control’ of the court over the case
Proper understanding and application of the law
Expeditious dispute resolution(non-trial centric scheduled & time bound trial)
Curtailing cost of litigation
Restoring confidence of public 3<br>
slide4. OUTCOMES Participants are expected to:
Proactively assess & scrutinize the record of cases
Effectively control the proceedings
Avoid wasteful pre-trial activities
Explore options of non-trial centric adjudication
Decide admissibility of evidence before the trial
Schedule time bound proceedings 4<br>
slide5. A bird’s eye view of legal systems
Common law- adversarial
Civil Law – inquisitorial
Islamic Law 5 WHICH LEGAL SYSTEM WE FOLLOW<br>
slide6. Uniformity
Discipline
Parity
Systemization
Consistency
(PLD 2014 SC 89) 6 OBJECTIVES OF PROCEDURAL LAW<br>
slide7. 7 Do we have absolute trail centric code of Civil Procedure?<br>
slide8. Pleadings – Order 1-9 (adversarial)
Court’s power to investigate and summary adjudication – Order X-XV (Inquisitorial)
Trials – Order XVI-XX (adversarial)
Executions - Order XXI
Miscellaneous/supplementary 8 SCHEME FOR ADJUDICATION<br>
slide9. CHALLENGES Delay
Cost of litigation
Complex procedures
Conventional trial Centric Approach 9<br>
slide10. WRONG PRACTICES Adversarial Approach & misconception
Non application of limini doctrine
Mechanical Summoning and stereotyping
Trial Centric
Shifting Control
Mechanical Framing of Issues
Admission of Documentary Evidence without evaluating its relevance & admissibility. 10<br>
slide11. Plaint: (Setting law in motion, Pleadings, Relief sought, Scrutiny Mechanism & matters of jurisdiction),
Summons: (Registration of case, Cognizance/processes, Understanding summons, its kinds & procedure),
Appearance of the Parties: (marking attendance & endorsement, supply of documents & directions),
Interlocutory Proceedings: (Temporary Injunction (order 39) & disobedience petition, enforcement of injunction u/s 94 CPC, Appointment of Court Receiver (O.40), Appointment of Court Commissioner (O.26), Arrest and Attachment before Judgment (O.38),
Written Statement: (O.8) (particulars, rejoinder),
Examination of Parties: (O.10 CPC), 11 STAGES OF A CIVIL SUIT<br>
slide12. Framing of Issues: (O.XIV CPC)
List of Document relied by the Parties
Discovery, interrogatories & inspection: (O. XI)
Summary adjudication: (O.XV r/w 15-A CPC)
Adjudication on the basis of Affidavits: (O.XIX)
Admission and Denial of Document: (O.XII)
Commissions & local inspection/spot checks: (O.XXVI) 12 STAGES OF A CIVIL SUIT<br>
slide13. Production of Documents: (O.XIII)
Direct & indirect evidence: (Art. 70, 71 QSO 1984), or primary & secondary evidence (Art. 73,74 QSO 1984)
Burden of proof & shifting: (Art. 117 to 126)
Hearing &Examination of Witness: (Art. 132 to 133 QSO 1984) and Cross Examination of the Witness (Order XVIII r/w Art.134 QSO)
Argument: (Oral/written)
Judgment: (appreciation principles) 13 STAGES OF A CIVIL SUIT<br>
slide14. HOW TO TAKE COGNIZANCE Scrutiny (Order 7 Rules 10 & 11)
Issue of Process (Nature) (Order 5 Rule 5 ) 14<br>
slide15. Summons to be either to settle issues or for final disposal (Order V, Rule 5)
Court shall determines before issuing the process
Directions accordingly in the summons
Court of small claims shall always issue summons for final disposal
Summons for final disposal Appendix B, Form 1 and 2 15 SUMMONS<br>
slide16. The court may on its own or on application make order: (Sec 30 CPC)
Discovery and answering of interrogatories
Admission of documents and facts
Discovery, inspection, production, impounding, and return of documents
Summons to persons for evidence or production of documents
Submission of affidavit for proving any fact 16 LITIGANT BASED INVESTIGATION AND TRIAL NEED ASSESSMENT
(CASE MANAGEMENT)<br>
slide17. Supervision or management of the time and events involved in the movement of a case through the court system from the point of initiation to disposition, regardless of the type of disposition. 17 CASE MANAGEMENT<br>
slide18. Establishing an early control
Discouraging wasteful per-trial activities
Thorough preparation of the case by the parties & their counsel
Encouraging co-operation
Elimination of frivolous claims
Necessity or desirability of amendments , inspections & discovery.
Time bound disposal of miscellaneous applications.
Scrutiny of documentary evidence
Summary adjudication
Trial schedule 18 Case Management & Scheduling Conference<br>
slide19. EVOLUTION OF CASE MANAGEMENT Roscoe Pound’s theory of supporting justice 1906- one cause of dissatisfaction with the administration of justice is: “Behavioral Manifestation” – Resulted into “diagnoses of case management”
Pre-Trial Conference – Rule 16A of the Code of Civil Procedure of USA, 1938. 19<br>
slide20. EVOLUTION OF CASE MANAGEMENT Sir Raymond Evershed’s recommendations 1953:-
Call for more active judiciary- Judges should pursue a more active and dominant course in the interests of the litigants.
Case Flow Management: Maureen Soloman’s recommendations – USA 1970
Docket System adopted by Australian Federal Court in 1987 20<br>
slide21. EVOLUTION OF CASE MANAGEMENT UK’s Wolf Reforms- Pre-Trial Conference & scheduling –Rules of civil procedure 1998
New Zealand, South Africa, Singapore, Sir Lanka & Malaysia etc.
Order IX-A and Order XV-A CPC (Peshawar High Court)
Order IX-A, IX-B & Amendments in order XI-XII CPC (by the Lahore High Court). 21<br>
slide22. Examination ------- Order X CPC
Purposes is to ascertain whether allegations are admitted or denied
May be oral or in writing
Court may put questions
Substance to be recorded 22 LITIGANTS BASED INVESTIGATION<br>
slide23. Personal attendance of the parties (where court sees reasons) Order V, Rule 3
Default, without lawful excuse, to appear in person may result into pronouncement of judgment against or into any other appropriate order (Order X, Rule 4)
Summary adjudication 23 LITIGANTS BASED INVESTIGATION<br>
slide24. Discovery & Inspection ------- Order XI CPC
By interrogatories:
Questions, with leave of the court, to be answered by the opponents
Answers on affidavits
By Application for discovery of documents
Any party may apply without affidavit
Court may refuse or allow
Objections on affidavit
Production Order (Rule 14)
Production on oath (Affidavit)
Inspection 24 LITIGANTS BASED INVESTIGATION<br>
slide25. Discovery & Inspection ------- Order XI CPC
Non-compliance;
To order to answer interrogatories or for production or inspection- if plaintiff – be liable to have his suit dismissed for want of prosecution – if defendant – to have his defense struck out.
Summary Adjudication 25 LITIGANTS BASED INVESTIGATION<br>
slide26. 26 LITIGANTS BASED INVESTIGATION<br>
slide27. Production, impounding & return of documents ------ Order XIII CPC
Documentary evidence at first hearing-
shall produce
Court may call upon to admit or deny (mandatory in Punjab Order XII Rule 2)
Record admission or denial
Effect of non production
Shall not be received subsequently without showing good cause
Reasons to be recorded for allowing belated production 27 LITIGANTS BASED INVESTIGATION<br>
slide28. Endorsement on rejected documents (irrelevant or inadmissible)
To be returned
Endorsement on admitted documents
Number and title of the suit
Name of the person producing the document
Date of production
Order / statement of its having been so admitted
Signature of the judge 28 LITIGANTS BASED INVESTIGATION<br>
slide29. Issues ----- Order XIV
Issues of law to be decided first
Material from which issues may be framed (R 3)
Allegations in pleading
Allegations on oath
Answers to interrogatories
Contents of documents 29 LITIGANTS BASED INVESTIGATION<br>
slide30. Agreement of parties in form of issues (R-VI)
Hearing & decision on agreed upon issues (R-VII)
Summary Adjudication
Referral to ADR 30 LITIGANTS BASED INVESTIGATION<br>
slide31. Significance
Scope
Procedure
Impact 31 SUMMARY JUDGMENT<br>
slide32. Partition Case,
WAPDA Case
Specific Performance
Declaratory Suit
NADRA Case,
Land Acquisition Reference,
Removal of Encroachment, 32 PRACTICAL EXERCISES<br>
slide33. Trial Management Civil
Preliminaries (Order 9-A Rule 4)
Consultation with parties and councils within 07 days to establish a schedule for;
Presentation & exchange of list of witnesses on proforma F1 &F2
Certificate of readiness on proforma.
Deposit of Diet money (TA, Expenses & remuneration Order 16 Rule 1 & 4)
Lawyers Database
Schedule an Event, not dates
De Die in Diem (Order 9-A Rule 4 (c) & Order 17 Rule 1- provisio
Within 06 months (Act) & 01 years (Rules) 33<br>
slide34. Order of examination
Official witnesses, of facts and record
Diet money
Oral and documentary evidence
Exhibits, marks and annexures
Significance of supervision of examination of witnesses
Handling objections
Penal provisions and judicial restraint 34 EVIDENCE RECORDING<br>
slide35. Significance of notes
Dealing with precedents 35 HEARING OF ARGUMENTS<br>
slide36. Essentials
Appreciation of evidence
Decree sheet, common mistakes 36 JUDGMENT WRITING<br>
slide37. TIPS Take ‘effective’ Control of the proceedings,
Plan time frame for a case,
Devise adjournment plan,
Engage lawyers in scheduling your plans,
Supervise examination and decide objections,
Award Costs,
Ensure file completion and compilation. 37<br>
slide38. Q & A THANKS 38<br>
The Most Beneficent
The Most Merciful 1<br>
slide2. CIVIL TRIAL, AN OVERVIEW ZIA-UR-REHMAN
District & Sessions Judge
Mansehra<br>
slide3. OBJECTIVES Sensitization about common mistakes causing delay
Establishing ‘effective control’ of the court over the case
Proper understanding and application of the law
Expeditious dispute resolution(non-trial centric scheduled & time bound trial)
Curtailing cost of litigation
Restoring confidence of public 3<br>
slide4. OUTCOMES Participants are expected to:
Proactively assess & scrutinize the record of cases
Effectively control the proceedings
Avoid wasteful pre-trial activities
Explore options of non-trial centric adjudication
Decide admissibility of evidence before the trial
Schedule time bound proceedings 4<br>
slide5. A bird’s eye view of legal systems
Common law- adversarial
Civil Law – inquisitorial
Islamic Law 5 WHICH LEGAL SYSTEM WE FOLLOW<br>
slide6. Uniformity
Discipline
Parity
Systemization
Consistency
(PLD 2014 SC 89) 6 OBJECTIVES OF PROCEDURAL LAW<br>
slide7. 7 Do we have absolute trail centric code of Civil Procedure?<br>
slide8. Pleadings – Order 1-9 (adversarial)
Court’s power to investigate and summary adjudication – Order X-XV (Inquisitorial)
Trials – Order XVI-XX (adversarial)
Executions - Order XXI
Miscellaneous/supplementary 8 SCHEME FOR ADJUDICATION<br>
slide9. CHALLENGES Delay
Cost of litigation
Complex procedures
Conventional trial Centric Approach 9<br>
slide10. WRONG PRACTICES Adversarial Approach & misconception
Non application of limini doctrine
Mechanical Summoning and stereotyping
Trial Centric
Shifting Control
Mechanical Framing of Issues
Admission of Documentary Evidence without evaluating its relevance & admissibility. 10<br>
slide11. Plaint: (Setting law in motion, Pleadings, Relief sought, Scrutiny Mechanism & matters of jurisdiction),
Summons: (Registration of case, Cognizance/processes, Understanding summons, its kinds & procedure),
Appearance of the Parties: (marking attendance & endorsement, supply of documents & directions),
Interlocutory Proceedings: (Temporary Injunction (order 39) & disobedience petition, enforcement of injunction u/s 94 CPC, Appointment of Court Receiver (O.40), Appointment of Court Commissioner (O.26), Arrest and Attachment before Judgment (O.38),
Written Statement: (O.8) (particulars, rejoinder),
Examination of Parties: (O.10 CPC), 11 STAGES OF A CIVIL SUIT<br>
slide12. Framing of Issues: (O.XIV CPC)
List of Document relied by the Parties
Discovery, interrogatories & inspection: (O. XI)
Summary adjudication: (O.XV r/w 15-A CPC)
Adjudication on the basis of Affidavits: (O.XIX)
Admission and Denial of Document: (O.XII)
Commissions & local inspection/spot checks: (O.XXVI) 12 STAGES OF A CIVIL SUIT<br>
slide13. Production of Documents: (O.XIII)
Direct & indirect evidence: (Art. 70, 71 QSO 1984), or primary & secondary evidence (Art. 73,74 QSO 1984)
Burden of proof & shifting: (Art. 117 to 126)
Hearing &Examination of Witness: (Art. 132 to 133 QSO 1984) and Cross Examination of the Witness (Order XVIII r/w Art.134 QSO)
Argument: (Oral/written)
Judgment: (appreciation principles) 13 STAGES OF A CIVIL SUIT<br>
slide14. HOW TO TAKE COGNIZANCE Scrutiny (Order 7 Rules 10 & 11)
Issue of Process (Nature) (Order 5 Rule 5 ) 14<br>
slide15. Summons to be either to settle issues or for final disposal (Order V, Rule 5)
Court shall determines before issuing the process
Directions accordingly in the summons
Court of small claims shall always issue summons for final disposal
Summons for final disposal Appendix B, Form 1 and 2 15 SUMMONS<br>
slide16. The court may on its own or on application make order: (Sec 30 CPC)
Discovery and answering of interrogatories
Admission of documents and facts
Discovery, inspection, production, impounding, and return of documents
Summons to persons for evidence or production of documents
Submission of affidavit for proving any fact 16 LITIGANT BASED INVESTIGATION AND TRIAL NEED ASSESSMENT
(CASE MANAGEMENT)<br>
slide17. Supervision or management of the time and events involved in the movement of a case through the court system from the point of initiation to disposition, regardless of the type of disposition. 17 CASE MANAGEMENT<br>
slide18. Establishing an early control
Discouraging wasteful per-trial activities
Thorough preparation of the case by the parties & their counsel
Encouraging co-operation
Elimination of frivolous claims
Necessity or desirability of amendments , inspections & discovery.
Time bound disposal of miscellaneous applications.
Scrutiny of documentary evidence
Summary adjudication
Trial schedule 18 Case Management & Scheduling Conference<br>
slide19. EVOLUTION OF CASE MANAGEMENT Roscoe Pound’s theory of supporting justice 1906- one cause of dissatisfaction with the administration of justice is: “Behavioral Manifestation” – Resulted into “diagnoses of case management”
Pre-Trial Conference – Rule 16A of the Code of Civil Procedure of USA, 1938. 19<br>
slide20. EVOLUTION OF CASE MANAGEMENT Sir Raymond Evershed’s recommendations 1953:-
Call for more active judiciary- Judges should pursue a more active and dominant course in the interests of the litigants.
Case Flow Management: Maureen Soloman’s recommendations – USA 1970
Docket System adopted by Australian Federal Court in 1987 20<br>
slide21. EVOLUTION OF CASE MANAGEMENT UK’s Wolf Reforms- Pre-Trial Conference & scheduling –Rules of civil procedure 1998
New Zealand, South Africa, Singapore, Sir Lanka & Malaysia etc.
Order IX-A and Order XV-A CPC (Peshawar High Court)
Order IX-A, IX-B & Amendments in order XI-XII CPC (by the Lahore High Court). 21<br>
slide22. Examination ------- Order X CPC
Purposes is to ascertain whether allegations are admitted or denied
May be oral or in writing
Court may put questions
Substance to be recorded 22 LITIGANTS BASED INVESTIGATION<br>
slide23. Personal attendance of the parties (where court sees reasons) Order V, Rule 3
Default, without lawful excuse, to appear in person may result into pronouncement of judgment against or into any other appropriate order (Order X, Rule 4)
Summary adjudication 23 LITIGANTS BASED INVESTIGATION<br>
slide24. Discovery & Inspection ------- Order XI CPC
By interrogatories:
Questions, with leave of the court, to be answered by the opponents
Answers on affidavits
By Application for discovery of documents
Any party may apply without affidavit
Court may refuse or allow
Objections on affidavit
Production Order (Rule 14)
Production on oath (Affidavit)
Inspection 24 LITIGANTS BASED INVESTIGATION<br>
slide25. Discovery & Inspection ------- Order XI CPC
Non-compliance;
To order to answer interrogatories or for production or inspection- if plaintiff – be liable to have his suit dismissed for want of prosecution – if defendant – to have his defense struck out.
Summary Adjudication 25 LITIGANTS BASED INVESTIGATION<br>
slide26. 26 LITIGANTS BASED INVESTIGATION<br>
slide27. Production, impounding & return of documents ------ Order XIII CPC
Documentary evidence at first hearing-
shall produce
Court may call upon to admit or deny (mandatory in Punjab Order XII Rule 2)
Record admission or denial
Effect of non production
Shall not be received subsequently without showing good cause
Reasons to be recorded for allowing belated production 27 LITIGANTS BASED INVESTIGATION<br>
slide28. Endorsement on rejected documents (irrelevant or inadmissible)
To be returned
Endorsement on admitted documents
Number and title of the suit
Name of the person producing the document
Date of production
Order / statement of its having been so admitted
Signature of the judge 28 LITIGANTS BASED INVESTIGATION<br>
slide29. Issues ----- Order XIV
Issues of law to be decided first
Material from which issues may be framed (R 3)
Allegations in pleading
Allegations on oath
Answers to interrogatories
Contents of documents 29 LITIGANTS BASED INVESTIGATION<br>
slide30. Agreement of parties in form of issues (R-VI)
Hearing & decision on agreed upon issues (R-VII)
Summary Adjudication
Referral to ADR 30 LITIGANTS BASED INVESTIGATION<br>
slide31. Significance
Scope
Procedure
Impact 31 SUMMARY JUDGMENT<br>
slide32. Partition Case,
WAPDA Case
Specific Performance
Declaratory Suit
NADRA Case,
Land Acquisition Reference,
Removal of Encroachment, 32 PRACTICAL EXERCISES<br>
slide33. Trial Management Civil
Preliminaries (Order 9-A Rule 4)
Consultation with parties and councils within 07 days to establish a schedule for;
Presentation & exchange of list of witnesses on proforma F1 &F2
Certificate of readiness on proforma.
Deposit of Diet money (TA, Expenses & remuneration Order 16 Rule 1 & 4)
Lawyers Database
Schedule an Event, not dates
De Die in Diem (Order 9-A Rule 4 (c) & Order 17 Rule 1- provisio
Within 06 months (Act) & 01 years (Rules) 33<br>
slide34. Order of examination
Official witnesses, of facts and record
Diet money
Oral and documentary evidence
Exhibits, marks and annexures
Significance of supervision of examination of witnesses
Handling objections
Penal provisions and judicial restraint 34 EVIDENCE RECORDING<br>
slide35. Significance of notes
Dealing with precedents 35 HEARING OF ARGUMENTS<br>
slide36. Essentials
Appreciation of evidence
Decree sheet, common mistakes 36 JUDGMENT WRITING<br>
slide37. TIPS Take ‘effective’ Control of the proceedings,
Plan time frame for a case,
Devise adjournment plan,
Engage lawyers in scheduling your plans,
Supervise examination and decide objections,
Award Costs,
Ensure file completion and compilation. 37<br>
slide38. Q & A THANKS 38<br>