Excerpts from amendments in Civil Procedure Code notified by Peshawar High Court on 23.1.2018 [gazette on 29.1.2018]. [following copied from a brief] The Code of Civil Procedure, 1908 is a body of law that sets out the rules and standards that courts follow when adjudicating a civil suit. These rules govern how a civil case may be commenced, tried and disposed of. Under the existing provisions of the CPC, a civil case before finalization has to go through the following stages: (1) Institution of suit by filing a plaint by the plaintiff (2) Issue and service of summons to the diffident (3) Filing of written statement and rejoinder etc. (4) Discovery and interrogatories. (5) Framing issues. (6) Submission of list of witnesses. (7) Recording of evidence. (8) Hearing of arguments. (9) Judgment by court. (10) Issuance of Decree. (11) Execution of Decree. Amendments made will have the following impact: (1) A system of case management and scheduling conference under the supervision of the Court for expedition disposal of the cases and to discourage wasteful pre-trial activity by engaging the counsels and their parties. (2) Sixty (60) days in which the court shall complete the pleading stage including miscellaneous application. If any order is made by the court on the miscellaneous application the same shall not be appealable or revisable except in an appeal or revision in the main suit. (3) After pleadings stage, thirty (30) days have been fixed for investigation, inspection and examination of all the exhibits and if the court deems appropriate may pass Summary judgments. (4) Thereafter trial stage will be commenced and the issues shall be framed within a period of seven (07) days. The Court shall complete the trials within one (01) year by making all it efforts to hold day to day trial. (5) The Court shall impose penalties on the parties who fail to obey case management and scheduling order. (6) The Court has been given the power of the Summary judgment at any stage of the suit. (7) The Appellate Court has been given the responsibility to preferably record additional evidence itself at the appellate stage. (8) The Trial Courts and the Appellate Courts shall announce the judgment within fifteen (15) days. (9) Execution proceeding has also been brought under the purview of case management and scheduling conference. It is pertinent to mention that for the purpose of compelling the judgment debtor for execution of the decree, blockage of Computerized National Identity Card has been included Outcome: Effective and speedy disposal of civil cases and its execution.
Order IX-A inserted
“Order IX-A – Case Management and Scheduling Conference
1. Case management and scheduling conference.—(1) The Court shall, under its own supervision, in each and every case, after receiving a plaint, petition or appeal, as the case may be, and having regard to the provisions of the Code and these rules, start case management and scheduling conference. For the purpose of these rules case management and scheduling conference means and includes:
(i) expeditious disposal of the cases;
(ii) establishing an early and continuing control of the Court over the case, so that it cannot be protracted because of lack of management;
(iii) discouraging wasteful pre-trial activities;
(iv) improving the quality of trial through more thorough preparation of the case by the parties and their counsel;
(v) encouraging the parties to cooperate with each other in conducting the Court proceedings;
(vi) fixing time tables or otherwise controlling progress of the case;
(vii) giving directions to ensure that the trial of a case proceeds quickly and efficiently; and
(viii) for facilitation of the parties, if so required, seeking consultation of the parties or their counsel in the case management and scheduling conference through telephone, mail or other modern technologies:
Provided that in case the Court does not call for such conference, it shall be bound to record reasons for not doing so.
(2) At any conference under this rule, the Court may take appropriate action and pass a scheduling order with respect to-
(i) the formulation and simplification of issues, including elimination of frivolous claims and defenses;
(ii) the necessity or desirability of amendments in the pleadings;
(iii) the necessity or desirability of joining other parties;
(iv) the necessity or desirability of any local inspection through commission;
(v) obtaining proposed exhibits from the parties and scrutinizing them within the mandate of Order-XIII, and identifying witnesses;
(vi) determining the appropriateness and timing of summary judgment under Order-XV;
(vii) control of discovery through discovery management;
(viii) disposal of pending miscellaneous applications;
(ix) conducting trial management for a speedy trial; and
(x) facilitating the just, speedy and inexpensive disposal of cases.
(3) Seven days prior to conducting any case management and scheduling conference for hearing of the applications, discovery, settlement or trial, the Court shall serve the agenda items of the conference to the parties or their counsel through proformas-A, B, C and D, as specified in the Fifth Schedule.
2. Management and disposal of miscellaneous applications.—(1) The Court shall manage the miscellaneous applications, arising out of the suits or proceedings, in the following manner:
(a) the Court, after consultation with the parties and or their counsel, shall fix the following three dates:
(i) a date by which the parties shall file any of the applications under this Court, required for completion of pleadings, or any other equity based applications, and shall provide copies of such applications to the other party or parties, as the case may be;
(ii) another date by which the parties shall file written replies to such applications, and shall give copies of written replies to the opposite parties; and
(iii) a third date by which unless the hearing is adjourned, the applications shall be disposed of:
Provided that the whole proceedings, under this clause, shall be completed within a maximum period of sixty (60) days, commencing from the date of attendance of the parties;
(b) no opportunity shall be provided to any party for making any such applications, if he opts not to file such applications or reply thereto, after exhausting the opportunity provided under clause (a);
(c) any order made under this rule shall not be appealable or revisable except in an appeal or revision, as the case may be, in the main case; and
(d) if it is not convenient to decide all the applications collectively, the Court may decide them separately by making a fixed schedule for their disposal, subject to the provisions of clause (a).
(2) Discovery management and scheduling orders.—After completion of pleadings, in accordance with the nature of the litigation, the Court shall fix a time schedule, which shall not exceed thirty (30) days, in any case, for-
(a) developing consultation with the parties or their counsel, as the case may be, a factual and legal statement of controversy;
(b) employing all or any modes of litigant conducted investigation, as specified in Orders-X, XI and XII of the Code; and
(c) requiring parties or their counsel, as the case may be, to submit their proposed exhibits along with proforma-E, as specified in Fifth Schedule, and conducting their scrutiny in accordance with the mandate of Order-XIII of the Code.
(4) Trial management and scheduling orders.—Before or after framing of the issues, if the case is not summarily decided and is fixed for trial, then the Court in consultation with the parties or their counsel, as the case may be, shall, within seven days, establish a time schedule for-
(a) presenting and exchanging the list of witnesses, which the parties intend to produce in the Court either to give evidence or produce documents, on the proformas-FI and F2, as specified in the Fifth Schedule;
(b) procuring the certificates of readiness from the parties to produce their witnesses and documentary evidence in the Court on proforma-G, as specified in the Fifth Schedule; and
(c) proceeding with the trial in accordance within the time schedule, within which, the parties shall be bound to present their evidence and cross examine each other’s witnesses. All efforts shall be made by the Court to hold de die in diem trials:
Provided that the Court shall conduct the trial within a period of one (01) year.
(5) Settlement conference and scheduling order.—At any stage during the proceedings of a case, the Court with the consent of the parties, may employ any of the modes of settlement of dispute for expeditious disposal of the case.
(6) Penalty for default in case management.—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 a 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 a fine. All orders under this rule shall be made justly and fairly, notwithstanding anything contained in any rule or order for the time being in force. When the non-attendance of a party or his counsel is justified, the Court may adjourn the matter and fix a final date for that matter.
(7) The provisions of this Order shall mutatis mutandis apply to all the pending cases before any Court.”.
Sub Rule (5) of Rule 1 in Order XIV replaced as follows:
(5) Subject to the provisions of Order-IX-A, if the case is not summarily decided, the Court shall, after examining the plaint and the written statement, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law, the parties are at Sub variance, and shall thereupon proceed to frame and record the issues, within seven days, on which the right decision of the case appears to depend.
Order XV-A inserted
“Order XV-A – Summary Judgment
1. Application for summary judgment.—Either party may move an application for summary judgment, identifying the whole claim or defense, or each claim or defense, as the case may be, on which summary judgment is sought, or the Court may grant such summary judgment on its own initiative, if-
(a) it is satisfied that-
(i) the respondent has no real prospect of succeeding on such claim or claims or successfully defending such claim or claims, as the case may be; and
(ii) there is no genuine dispute as to any material fact requiring a trial and a party is entitled to judgment as a matter of law; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the Court is satisfied that it is appropriate to grant summary judgment.
2. Time to file an application.—Subject to the provisions of Order-IX-A, unless the Court otherwise directs to prevent injustice, a party may file an application for summary judgment or the Court may consider the grant of summary judgment on its own initiative at any time after the close of period allowed to the parties for filing list of documents under rule 1 of Order-XIII.
3. Evidence for purposes of summary judgment hearing.—An applicant asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(a) citing particular parts of any documentary evidence filed with the Court along with the pleadings; or
(b) showing that the documentary evidence cited does not establish the absence or presence of a genuine dispute or that the respondent cannot produce admissible evidence to support the fact:
Provided, that documentary evidence shall be construed in a manner most favorable to the respondent and any doubts regarding the existence of a genuine issue of material fact shall be resolved against the applicant.
4. Procedure.—(1) When an application for summary judgment is filed, the respondent shall be given at least fourteen (14) days notice of the date fixed for the hearing along with a copy of the application.
(2) The respondent may file a reply to the application for summary judgment, and serve copies on every other party to the application at least seven (07) days before the summary judgment hearing and the applicant may file a rejoinder to the response, and serve copies on every other party to the application at least three (03) days before the summary judgment hearing.
(3) Where the summary judgment hearing is fixed by the Court on its own initiative, any party to the proceedings may file an affidavit citing particular parts of the documentary evidence filed with the Court to support or oppose the notice, issued by the Court to consider grant of summary judgment and serve copies of such affidavit on every other party to the proceedings at least seven (07) days before the summary judgment hearing, and any party may file a response to such affidavit and serve copies on every other party to the proceedings at least three (03) days before the summary judgment hearing.
5. Orders the Court may pass.—After giving notice and allowing the above specified time to respond, the Court may:
(a) grant summary judgment along with costs;
(b) dismiss the application along with costs;
(c) grant partial relief in relation to one or more claims or defenses identified in the application that shall be deemed to be established, unless the trial judge orders otherwise to prevent injustice; or
(d) issue any other appropriate order with directions about the management of the case.”.
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