Faulty Procedure, Filthy Practices—The Mockery Of Law At Its Best

Faulty Procedure, Filthy Practices—The Mockery Of Law At Its Best

“The civil law as practised in the Pakistani legal system breeds delay. I am 72. My list of blunders is long. I was wrong for being born in this country. I was at fault that I served this nation my entire life. I slipped for aspiring for a decent dwelling. And the most heinous crime I committed was to approach the justice system of Pakistan,” an old depressed baba exploded with tears. “I offered the highest bid for a residential plot in a local developmental authority. On being declared a successful bidder, I deposited 25% of the amount in advance and the authority issued a proper allotment in my favor. However, after ten months, the allotment was canceled for no reason. I gambled. I approached the civil court in 2004. It is now 2017. I even won the case at the highest forum of the province, but there is still no allotment,” he went on saying. I eschewed my emotions.  A tear gushed down his grey whiskers. He swabbed it with his apparently lumpy hands and continued his address. He was Aslam—an ordinary litigant. He was the advocate of his own case. Bursting with emotions, his sermon was a complete post-mortem of the civil justice system, of which I am also a part.

It was a bright sunny day. The reader of the court was marking attendance of the parties while the stenographer was screwing my mind with the taka tak of the typewriter. As I was preparing a case for judgment, I observed an elderly litigant gazing at me intently. I felt that he was craving to talk to me yet I overlooked him. Hushing for a while, I completed reading a case file. Dog-earing some pages, I noted that he was gearing for a verbal assault. As I closed the file, he while quivering stood up to the dais and started his sermon. Sautéing in the presiding chair, I felt that his words would blow open my chest. For a while I tried to convince and console him, but it appeared that he had come with a firm determination of tearing his heart out. In the ordinary course of events, I made no compromise on maintaining court decorum that day, I was at the mercy of a poor litigant.

His chronicle is very significant. His case is one of those thousand cases which expose the inherent faults in our procedural law. For a petty matter, he went once to the Supreme and twice to the High Court. His case is a classic example of delayed and expensive justice. To his misfortune, a local developmental authority invited bids for the allotment of a one-kanal residential plot in the year 2003. He participated in the bid and was declared successful. The total price of the plot was fixed at Rs. 214,0000. According to the by-laws of the authority, he was asked to deposit 25 % of the sale price, which he did. Later on, the authority communicated that his allotment stood canceled. In his reply to the authority, he explained that he was declared a successful bidder and had already deposited part of the sale consideration, therefore, after inviting bids and making allotment order the authority couldn’t cancel the allotment. The authority paid no heed, thus he filed a civil suit on 12 April 2004.

In his suit for declaration, he challenged the power of the authority to cancel his allotment. Contrary to the pace of general civil cases in the trial court, his case was decided in one and half years on 22 December 2005. Mr Aslam found no favor in the trial court. The trial court ruled that under by-laws the authority had the power to cancel any allotment without assigning any reason, therefore withholding allotment in favor of the plaintiff was well within the domain of the authority.

Mr Aslam went on to appeal. On 6 June 2007, the first appellate court set aside the judgment of the lower court, enhanced the rate of the plot to Rs. 260,000 and directed him to deposit the remaining sale price within two months. The authority challenged the judgment of the first appellate court in the High Court. Pending revision in the High Court, the plaintiff Aslam submitted execution petition before the trial court 0n 14 October 2008. The High Court vide its ruling dated 14 September 2009 held that the revision petition was barred by limitation, therefore the same was dismissed. The respondent authority sought leave to appeal which was granted by the Supreme Court vide order dated 8 April 2010. The agonies of the plaintiff prolonged. In the executing court, the execution was adjourned sine die as the august Supreme Court requisitioned the record.

Time went by. It was the tenth year of litigation when on 14 June 2013 Supreme Court remanded the case to the High Court for a fresh decision. In this legal skirmish, the plaintiff laded his robes. After hitting the sack, he had no means to hire counsel, either in the high court or in the lower court, thus started advocating his own case. After remand, the High Court issued notices to the parties and fixed the date of 28 October 2013 for hearing. On the date fixed, the appellant failed to appear, thus the revision was dismissed for non-prosecution. The plaintiff Aslam took a sigh of relief. He submitted an application to the executing court for restoration. Thus the execution petition was restored. However, his agonies did not end here. The authority had decided to knock him over and get back the allotted plot by hook or crook. He received another notice from the High Court. This time, the authority had submitted an application for restoration of their main revision petition, previously dismissed in default. The High Court after hearing the parties, restored the main revision petition vide order dated 26 September 2016. Meanwhile, the trial court had no other option but to adjourn the execution petition sine die once again.

The poor old retired man had no other choice but to keep waiting for the High Court to hear his case for a final decision. In this tug of war, one fortunate day he found the gods of law in his favor. On completion of thirteen and half years of drained litigation, the High Court eventually dismissed the revision of the authority on 28 November 2016. Having mixed emotions of anguish and glee, the depressed baba was completely frustrated by that time. He hurriedly submitted an application to the executing court for getting an allotment of the plot and its possession. His execution petition was restored and a notice was issued to the authority on 26 January 2017.

This justice system sometimes makes fun of the aggrieved litigants. When the court restored the execution petition, it was informed that the judgment debtor had assailed the order of the High Court in the Supreme Court, thus the execution petition was suspended till the final decision. By then, this author was presiding over the executing court. Judges are said to have no emotions, nonetheless, I felt that the authority was virtually killing the elderly, shuddering litigant. I refused to suspend the execution in absence of a restraint order. The authority was directed to issue proper allotment order in favor of the plaintiff. On the next date, to the utter surprise of both myself and the plaintiff Aslam, the judgment debtor submitted an objection petition. On hearing this, the plaintiff went berserk. The authority in its objection petition pleaded that the price of the plot had now risen to Rs. 6 million, and that the plaintiff had not deposited the sale price as per order of the first appellate court within the stipulated time, therefore the execution petition was not maintainable. Along with this, they submitted an application for suspension of execution proceedings. I asked the plaintiff/decree holder to submit a reply. He refused to submit any for various reasons: firstly that he had already deposited the sale price; secondly, the authority was using delaying tactics.

As a slave of procedural law, I somehow succeeded in getting the reply. However, I directed the authority to produce the allotment order in favor of the plaintiff, pending objection petition. Initially, they resisted on two grounds. Not only their revision petition was pending in the Supreme Court but the objection petition was also pending adjudication. However, while keeping in view the agonies of the plaintiff, I used authoritative influence and succeeded in getting an allotment order in favor of the plaintiff.

On that day, I and the baba were very content. On getting the allotment order, the poor litigant looked towards the blue sky as if he was expressing his gratitude, even if for belated justice. When tears crossed the fringes of his eyelids and bordered his eyelashes, he positioned himself with difficulty and saluted like a young cop. His way of expressing his content was perhaps stolen by his tears. That day I presumed that his agonies had finally come to an end. However, legal presumptions are always rebuttable. On the next hearing, when I was about to order the authority to hand over the possession of the plot, I was astonished when the counsel of the authority informed me that this court was not competent to order handing over the possession. Upon my query, I was confronted with the original plaint and was told that the plaintiff had not sought possession of the plot. I was further informed that the original claim was only for cancellation of the letter of the authority vide which the allotment order had been canceled. Hearing this, the palsy baba stood up, burst into tears and started cursing the system in whatever words he could. Traumatized, I controlled my nerves and stepped into my chamber and started writing this up.

As noted earlier, the case exposes the inherent faults in our procedural law. Some of them are discussed in the following words:

  1. After putting in appearance, the authority absented itself. The matter proceeded ex parte. After two months, it submitted an application for the setting aside of ex parte proceedings. The said application lingered on for foru months for a reply. When the reply was submitted, the application remained pending for arguments for another three months. The application was ultimately accepted. The questions that arise are: when the application was submitted within time, why was a reply sought? Why was it not accepted there and then to save the time of the court and the parties? An issue which could have been resolved on the same day, took eight months to fulfil legal formalities. This is a strong case for policy-makers to amend procedural law and empower the courts to decide on a miscellaneous application after hearing the parties orally, without getting and waiting for replies. Lawyers of parties on the flip-side adopt such filthy practices to delay disposal of cases. It is high time to empower courts to take disciplinary action against such lawyers in order to revamp the system.
  2. This case was transferred twice from one court to another. To get the benefit of the faulty procedure, the defendant adopted filthy practices and didn’t appear in the transferee court. Thus the transferee courts were constrained to issue notices to the defendant. This exercise took almost four months. This practice is exercised in almost all transferred cases, wasting dozens of months. To do away with this faulty procedure, the transferor court shall write the order sheet, mark attendance of the parties and direct them to appear in the transferee court on the same day. This will save time and energy of the court to a considerable extent.
  3. Procurement of a written statement has also become an uphill task. Though the law provides a sizeable period for its submission, members of the bar consider its submission to be under their own prerogative. An average written statement takes six to nine months, despite a prescribed period of maximum fifteen days. In the current legal milieu, it becomes impossible to procure a written statement for various reasons: firstly members of the bar use various tactics to delay its submission; secondly, even if the defense is struck down, the appellate courts exercise maximum leniency and set aside the orders of the lower courts. This discourages the lower courts, and while apprehending reversal of their orders they wait till the written statement is submitted, whenever this may be. The time for submission of written statements is already fixed by law. When the trial courts show their tentacles, the appellate courts are found quite often to be accommodating the appellants. How can a verdict based on a point of law be at variance? Either the law should be followed in letter and spirit or it should be repealed altogether, leaving the procedure at the mercy of the bar.
  4. Recording the evidence of record-keepers of a public department is the ugliest proceeding in a civil case, except in this case the evidence of Patwari Halqa, ADK (Assistant Daftar Kanoongo), DK (Daftr Kanoongo) and such other official witnesses take years to produce record. Based on my personal experience, 60% time of a civil case is consumed in recording statement of revenue officials. In a recent case, I counted the number of dates adjourned for recording statement of Patwari Halqa and was astonished to note that 76 dates, stretching over 46 months, were wasted in recording such statement. This is the filthiest and the most cunning way to block and waste the time of an opposite party. An irrelevant record is noted and asked from revenue officials. Most of the time this record is not even referred to. Under the law, there is no need for recording evidence of a record-keeper, and the attested copies of such records are as admissible in evidence as a record produced by such witness. Civil law is always ruthlessly mocked at the stage of recording of official evidence. To do away with the delay in civil cases, there should be a complete ban on official witnesses, unless the court deems it appropriate that the matter can’t be resolved otherwise. Parties should be bound to produce attested copies of revenue record only. This would save the time of revenue officials, court staff and the court. Moreover, an eventual tussle between the revenue department and judiciary could be minimized to a greater extent.
  5. In the case in hand, the second revisional court (the High Court) dismissed the revision petition only on the ground of limitation. The other merits of the case were not discussed. The said order was challenged in the Supreme Court. The latter remanded the case to the High Court. The time spent on the second revision and remand stretched to four years. The counsel for the authority used the order of the High Court as a tool for delay. He succeeded in convincing the Supreme Court that the order of the High Court was based on technical grounds and that substantial justice could only be possible when the decision was based on law and facts. Secondly, after remand, he himself again took shelter under the technicalities of the law. He was smart. He knew that if his revision was even dismissed in default, he could maneuver it to get it stored, albeit at a nominal cost. Thus he intentionally absented himself resulting in the dismissal of the revision. As he expected, the said revision was later restored without any cost. This exercise took nine months.
  6. Two points need special attention in the preceding paragraph. If the High Court would have decided the case on merit, the authority would have once challenged the same in the Supreme Court. The latter would have disposed it off and the chances of remand would have been minimal. On remand, the authority misused the technicalities of law to the disadvantage of Aslam. They advertently remained absent and later on succeeded in getting their petition restored. On the final adjudication of their revision petition in the High Court, they got another opportunity to delay the disposal of the case for a considerable length of time by challenging it again in the Supreme Court.
  7. Laws neither have a heart that throbs nor do they have any emotions to feel sorry. The law, over and over again, seized Aslam in its pitiless orifice, squeezed his blood mercilessly and paralyzed him for almost two decades. When the High Court dismissed the revision of the authority, Aslam submitted execution petition. The authority did not waste a single minute, and as part of filthy practices, it straightaway submitted an objection petition. Though the objection petition was turned down, the authority got it challenged and succeeded in getting a restraint order from the first revisional court.
  8. The agonies still and will continue. It is in the offing that when the revisional court finally disposes of the objection petition, the same will be challenged in the High Court and the execution petition will be suspended for an indefinite period. Additionally, as stated earlier, the authority would challenge the competency of the court for taking possession of the plot as no such plea is ever taken in the plaint. The matter would go on and on, the law continuously and fearlessly mocked, justice dazed, and the system would continue to be abused, while the litigant is let down.

Even if Aslam gets the plot now, he would get it after 15 years of litigation. Such justice can neither be termed as inexpensive in terms of money nor in terms of time. The courts of Pakistan are jam-packed with thousands of such inopportune cases. Decades have gone by and the system has failed to keep its pace with the pace of time. Neither the system nor justice is a priority of the state, so the system will remain as an eye-wash till its complete overhaul by a revolutionist — a dream though.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asghar Ali Salarzai

The writer is a career judge and a Ph.D scholar from Khyber Pakhtunkhwa. He is also the first judicial officer in the province who designed a training course for journalists in Khyber Pakhtunkhwa.



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