Closing doors on litigants

Two amendments recently passed by the Punjab Assembly to the basic law of procedure in all civil matters, the Civil Procedure Code 1908, are devastating to the rights of litigants and the quality of provision of justice. These two amendments, one limiting the jurisdiction of the civil courts, and the other removing the remedy of revision to the high court against many appellate orders of district judges, along with 17 other amendments (mostly minor, some useful) form part of the Civil Procedure Code (Punjab Amendment) Act of 2018. They represent attempts to wholesale cut down remedies available to the litigant, instead of improving the faltering system. Further, they also highlight and demonstrate the lack of transparency, capacity and forethought on the part of the executive which proposed the amendments and the legislators who passed them.

These amendments were enacted with no discussion with any of the stakeholders and were bestowed without knowledge of even the most well-informed lawyers.

Historically, for more than a hundred years, one of the key protections, in most cases, to the civil litigant against certain orders had been the remedy of the revision before the high court after an appeal to the district judge. With the decline of quality of provision of justice at the lower courts, the high court in many cases had become the first real forum where one got a proper, confidence-inspiring hearing. This remedy of revision, in some twenty-four types of orders — including essential and fundamental orders relating to execution, stays and objections — after appeal to the district court, has now been removed. Not only does this have the effect of closing the door on such remedies in the future, the future of a huge number of such revisions which have been pending for years before the Lahore High Court also has become doubtful. They may well now with a single stroke of a legislator’s pen have all been rendered into oblivion. In that, the change for civil litigants and litigators is earthshaking and an arbitrary, unconsidered one: the only reason seems to have been to wipe out such cases off the books by ending the possibility of such cases being filed, regardless of merits of a person’s grievance.

This development also indicates a new troubling trend. Previously most direct regular first appeals which had been pending before the Lahore High Court were sent down to the district courts for complete rehearing using the tool of increasing the pecuniary jurisdiction of the district court. Now, the new amendment too seems to be a continuation of the effort to lessen the load of the high court, by getting rid of cases regardless of merits. This is unwarranted as now the Lahore High Court, having more judges than ever before, is more equipped for a greater workload than a lesser one.

The second objectionable amendment introduces deep confusion at the heart of civil law. Section 9 of the Code, a section which is generally called the most important section of the entire code, deals with the jurisdiction of the civil court: it simply states that unless the jurisdiction of the court is expressly or impliedly barred by another law, the civil court will deal with all civil matters. The new amendment has introduced an utterly unwarranted further condition that the jurisdiction of the civil court would be barred if there exists a general or special law dealing with the matter at hand. This seems to staggeringly reduce the jurisdiction of the civil courts in Punjab. General and special laws exist and apply to almost all matter. So it would follow that in such matters, the jurisdiction of the civil court has ceased.

This would be regardless of whether the general or special law offers remedies to the litigant or not or had barred the jurisdiction of the civil court or not. In effect, a lot of people in a gamut of issues by this startling amendment have been rendered remediless. Rather than fixing the system, the legislative response seems now to be close doors on the litigants.

Quite what the need was to disturb a section which was settled and well understood for over a hundred years is lost to almost all practitioners. This merely seems to be a misguided attempt to remove the only remedy of the civil court against government officers and tribunals before the civil court, one that has been enacted with such inappropriate words that it goes beyond anything that could have been reasonably justifiable.

Much of the other amendments introduced by the same act are minor, and would not have mattered if they were made or not: a lot of the changes have been occasioned because the small causes court was replaced by the court of small causes and complaints and the latter has its own special law. A handful of amendments, such as those widening the court’s powers to order payment of costs and liberalising procedure for deciding particularly protracted matters relating to orders obtained by fraud or misrepresentation are welcome.

In conclusion, one is reminded of the quote that the road to hell is paved with good intentions. Even if one were to give the benefit of doubt to the legislators meaning well, the two amendments enacted are devastating and confusion-inducing. It is therefore recommended that the same are immediately reversed at the earliest, as they are likely to result in the generation of many more rounds of litigation and prejudice to the cause of the already harried litigant.

Published in The Express Tribune, April 8^th, 2018.

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