Service Of Process: An Archaic, Obsolete System In Need Of Reform - Experts say 25 per cent delays in delivery of justice are caused because of corrupt process servers and inefficient system.
In Pakistan, civil litigation can be a nightmare for everyone involved. Delays in court procedures can be endless and the pursuit of justice can take forever.
While there are many problems in the justice system of the country, the process gets hamstrung at a very early stage.
It is a common observation that in a court of justice even the initial stage of issuance of summons to the defendants can take months to complete. The indolence of process servers at the Nazir Office and their corrupt practices is an open secret.
A lawsuit often begins with a “service of process” through which a party or court gives a notice of an initial legal action to another party or the defendant so as to enable that person to respond to the proceeding before the court.
In Pakistan, the service of process is done through process servers at the Nazir Office.
After a suit is filed, the court issues summons to the defendant through the Nazir Office. From then on, it is the duty of the process server to serve notices on the defendants. The malpractices and delaying tactics which the process servers employ in order to mint money from the litigants is so common that no one even bats an eye over it.
Pakistan Today asked prominent lawyers about the role played by process servers in the course of civil litigation.
Majid Bashir, a senior associate at ABS & Co and a former district and session judge with 18 years of experience in judiciary, when asked about the service of process in Pakistan said:
“Nowhere in the world are the summons or notices served the way we do it in Pakistan. The British introduced the process service back in the early 20th century. At that time, the cities were small and few, the litigants far fewer than nowadays. The process service was practicable back then and besides, there was no other option. In present day, however, it is utterly impractical. The parties ‘manage’ the process servers by bribing him with paltry sums. Many of the process servers have no ride of their own while the compensation for process serving is insufficient, so it is almost impossible for them to do their job.”
USING PROFESSIONAL SERVICES:
When asked what can be done to alleviate the suffering of the litigants, Majid said that the courts must collaborate with private courier companies like TCS, FedEx, Gerry’s and many others and learn from their experience. After relevant legislation, a pilot project on experimental basis should be initiated in major cities like Islamabad, Lahore and Karachi.
“If we just manage to revamp our process service, we can get rid of 25% of the delayed litigation,” he said.
“The Civil Procedure Code, 1908 is the principal law which governs the proceedings of a civil nature in Pakistan,” said Nasrullah Shah, who is a practicing lawyer in Rawalpindi District Courts. “But the population has increased manifold since the early 1900’s, the cities have evolved from being small, tiny towns to humongous metropoles. Thus, the old way of serving notices and summons is not viable anymore.”
He said that as lawyers of district courts, they encounter the laziness, demands of money and depraved practices of process servers on a daily basis and from time to time reprimand them too.
“It is a common practice among them to not budge from their offices and report the next day that the address was wrong, the name was not proper and other similar excuses. If one greases their palm and offers them a ride to serve the process, then they do it happily. It is about time that new legislation is done and the whole process service is revamped completely,” Nasrullah said.
PENNY WISE, POUND VERY FOOLISH:
Mushtaq Mohal advocate, a Supreme Court lawyer with more than 25 years of standing said:
“The civil judges and additional judges are either afraid or unaware of the powers that CPC bestows upon them. Section 32 and 94 of Civil Procedure Code, 1908 are clear in this case as the former empowers the court to compel the attendance of any person for whom a summons has been issued. A warrant can be issued for their arrest, their property can be attached and a fine can be imposed.”
Mohal said the latter section also endows the court with powers to make sure that the defendant is presented before it. The High Court serves process through a senior civil judge; the Supreme Court directly orders DPO in civil matters; why can’t an SHO or someone from the police personnel be made to serve the process. He said the delaying tactics must be weeded out at all costs.
“The ex parte decree is passed against the defendant and after six months he appears and starts wailing that he was not served the process and the whole proceeding has to start afresh,” Mohal said, and added, “This is nothing short of miscarriage of justice. Judges of the lower judiciary hardly use the power vested in them by the CPC. The provisions have become redundant due to lack of use and lack of knowledge. The loss of resources, time and money because of this barely-functional process serving is incalculable. The judges should be properly trained and made aware that they better use their judicial powers for good.”
An earlier version of this article appeared in Pakistan Today and it is being republished here with permission.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.