THE LITIGATION

PROCESS MBA-S 2019

CIVIL AND CRIMINAL
LITIGATION

The distinction between crimes and civil wrongs is

roughly that crimes are public wrongs and civil wrongs
are private wrongs… A crime then is an act deemed by
law to be harmful to society in general, even though its
immediate victim is an individual… Those who commit
such acts are proceeded against by the State in order
that, if convicted, they may be punished. Civil wrongs
such as breach of contract or trespass to land are
deemed only to infringe the rights of the individual
wronged and not to injure society in general, and
consequently the law leaves it to the victim to sue for
compensation in court.” [Salmond on Jurisprudence]
CIVIL AND CRIMINAL
LITIGATION
Different procedure for each.
 Code of Civil Procedure 1908
 Code of Criminal Procedure 1898

Different outcome of proceedings.

This lecture applies to civil litigation.
CIVIL COURTS
Court of District Judge
Court of Additional District Judge
Court of Civil Judge
All civil courts are subordinate to the High Court.
The District Judge has control over all courts within his district and
may distribute cases within those courts as he sees fit.
PARTIES IN LITIGATION
ARE:
1. Plaintiff – who files civil action
2. Defendant – who replies or is sued
3. Counter Claim
a) Counter Plaintiff
b) Counter Defendant
4. Third Party/Defendant – liability to defendant if defendant has
liability to plaintiff
CLASS ACTION SUIT
CAS is one in which one or more plaintiffs file suit on their own
behalf and on behalf of all other persons who may have a similar
claim e.g.

All users of drug Vs Drug Company

I HAVE A CIVIL CLAIM.
WHAT SHOULD I DO NOW?
Can I sue? What about the trial?
 Standing  Burden of Proof
 Res Judicata  Hearing of Evidence
 Witnesses
Where can I sue?
 Territorial Jurisdiction  Giving of Evidence
 Pecuniary Jurisdiction How will it end?
How do I sue?  Modes of disposing of suit
 Commencing Proceedings  Judgment and decree
 Reliefs
What happens next?  Costs
 Written Statement  Appeals
 First Hearing  Execution
 Framing the Issues
CAN I SUE?
STANDING TO SUE

A party who wishes to file a claim must have sufficient interest in

the matter to which the application relates.
Particularly relevant in relation to public interest litigation.
“All developed legal systems have had to face the problem of
adjusting conflicts between two aspects of the public interest - the
desirability of encouraging individual citizens to participate actively
in the enforcement of the law, and the undesirability of encouraging
the professional litigant and the meddlesome interloper to invoke
the jurisdiction for the Courts in matters that do not concern him.”
[De Smith, ‘Judical Review of Administrative Action’]
STANDING TO SUE

LOCUS STAND II
The plaintiff needs to show the court
1. Litigation Involves a case or controversy
2. The plaintiff has personal stake in resolution of the dispute
PUBLIC INTEREST
LITIGATION

Indian SC has taken a broad approach to locus standi in public interest

litigation.
In M.C. Mehta v Union of India (1988), a citizen filed a petition to enforce
the duties of municipal authorities and water authorities who had allowed
the discharge of sewage into the Ganges such that it had become too
polluted to bathe in. The Court stated of the petitioner: “He was a person
interested in protecting the lives of the people who made use of the water
flowing in the river Ganga and his right to maintain the petition could not
be disputed. The nuisance caused by the pollution was a public nuisance,
wide-spread in range and indiscriminate in its effect, and it would not be
reasonable to expect any particular person to take proceedings to stop it as
distinct from the community at large. The petition was entertained as a
Public Interest Litigation.”
PUBLIC INTEREST
LITIGATION

SC has quoted the Indian approach in Mehta with approval and taken a
similar approach where a petition is submitted under Article 184(3).
“…where there are violation (sic) of Fundamental Rights of a class or
group of persons… then the traditional rule of locus standi can be
dispensed with, and the procedure available in public interest litigation
can be made use of, if it is brought to the Court by the person acting bona
fide… If the framers of the Constitution had intended the proceedings for
the enforcement of the Fundamental Rights to be in a strait-jacket, then
they would have said so, but not having done that, I would not read any
constraint in it. Article 184(3) therefore, provides abundant scope for the
enforcement of the Fundamental Rights of an individual or a group or
class of persons in the event of their infraction.” [Fazal Din v LIT (1969)]
RES JUDICATA (BARRED)
“…a res judicata, that is to say a final judicial decision pronounced by a
judicial tribunal having competent jurisdiction over the cause or matter in
litigation, and over the parties thereto, disposes once and for all of the
matters decided, so that they cannot afterwards be raised for re-litigation
between the same parties or their privies.” [Bower]
Section 11 CPC
No Court shall try any suit or issues in which the matter directly and
substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they
or any of them claim… in a Court competent to try such subsequent suit…
and has been heard and finally decided by such Court.
FOREIGN JUDGMENT AS RES
JUDICATA
Section 13 CPC
A foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between
the same parties or between parties under whom
they or any of the claim litigating under the same
title except [in certain circumstances including
where the foreign court did not have jurisdiction
or where the judgment was not on the merits].
BARRED BY LIMITATION
The Limitation Act 1908 needs to be satisfied.
The Court can Condone delay in certain cases.
WHERE CAN I SUE?
JURISDICTION
Article 175(2)
“No court shall have any jurisdiction save as is or may be conferred
on it by the Constitution or by or under any law.”
Jurisdiction is “the authority for the courts to exercise judicial
power.” [Justice Fazal Karim]
“The jurisdiction of a court is its area of competence and authority.”
[Francis Bennion]
Whether a court has jurisdiction is to be determined at the
commencement of proceedings.
OBJECTIONS TO
JURISDICTION
A party to proceedings may object to the jurisdiction of the court if
the court lacks:
 Territorial jurisdiction, or
 Pecuniary jurisdiction.

If the court has no jurisdiction, it will return the plaint.

Subject matter jurisdiction
TERRITORIAL
JURISDICTION
The jurisdiction of a court has geographical limits.
The Supreme Court has jurisdiction over Pakistan.
Each high court has jurisdiction over the province in which it is
situated.
Each district court has jurisdiction over the district in which it is
situated.
TERRITORIAL
JURISDICTION
How do you identify the territoriality of a claim?
 Rules 16 - 20 CPC specify the court in which a suit is to be
instituted.
 Suits in relation to immovable property to be instituted in the
Court within the limits of whose jurisdiction the property is
located.
 Suits for compensation for a wrong done to a person or
movable property may be instituted in either the Court where
the wrong was done or the Court where the defendant
resides/works.
 Other suits may be instituted where the defendant resides or
the cause of action arises.
WAQAR MALIK V ARMED
FORCES INSTITUTE OF
PATHOLOGY [1991]
P needed a kidney transplant so he and his sister went to the Armed
Forces Institute of Pathology in Rawalpindi for medical tests to find
out whether she could donate a kidney to him. The Institute told him
that she could and so P and his sister flew to London for the
operation. The hospital they went to in London informed them that all
of the tests carried out by the Institute were incorrect and P’s sister
could not donate a kidney to him. P and his sister returned to Pakistan
and P sued the Institute for the wasted cost of their journey. He filed
the claim in Peshawar where he and his sister lived. The Civil Judge
in Peshawar returned the plaint on the basis that the Court did not
have jurisdiction. P appealed to the High Court.
COURT HELD
Held: Under s. 19, a plaintiff can choose between the place where D
resides or carries on work and the place where the wrong occurred. In
this case, D carried on work in Rawalpindi and the wrong was
committed in Rawalpindi. Therefore, the Peshawar Court did not
have jurisdiction. Appeal dismissed.
PECUNIARY
JURISDICTION
High Court may determine the pecuniary limits
of a subordinate court’s jurisdiction.
No pecuniary limit on jurisdiction of District
and Additional District Judge.
In Sindh:
 Civil Judge I (excl Karachi): unlimited
 Civil Judge I Karachi: 5 lac Rs
 Civil Judge II: 50,000 Rs
 Civil Judge III: 25,000 Rs
SUBJECT MATTER
JURISDICTION
The power over the issue involved in a case
Some courts have general jurisdiction (power to
hear any type of case)
Some courts have limited jurisdiction i.e.
 Family courts
 Rent Controllers
HOW DO I SUE?
PARTIES
There may be multiple plaintiffs and defendants.
A plaintiff may represent a class.
The Court may add or strike out a party.
A party may appear in person or by his agent/pleader.
The Government may sue or be sued (2 months notice
must be given to sue).
Minor may sue through a next friend or be sued through
a court appointed guardian.
In suit by corporation, pleading may be signed on
behalf of corporation by secretary, director or other
authorized principal officer.
COMMENCING A SUIT
Suit instituted by presenting a plaint to the Court
(Rule 1, Order IV, CPC).
Plaint: shall contain all material facts on which
party relies for his claim, specify the relief he seeks
and shall provide plaintiff’s address for service. A
claim or relief omitted to be included will be barred
as res judicata.
Plaint must include:
 Full description of parties;
 Facts constituting cause of action, and
 Facts showing court has jurisdiction.
PLEADINGS
Plaint may be returned if the Court lacks territorial or pecuniary
jurisdiction, in which case P may submit plaint to a court with
jurisdiction.
Plaint may be rejected if it does not disclose a cause of action or is
barred under law (e.g. on principle of res judicata).
PRESENCE OF
DEFENDANT
After suit has been instituted, Court will issue summons
to defendant to appear and answer claim (s. 27 CPC)
unless defendant has already voluntarily appeared
before the Court.
Summons will contain copy of plaint and may require
D to appear in person before the Court.
Summons may be for determination of issues or final
disposal of suit.
If for final disposal, summons will direct D to produce
evidence on which he relies.
Summons may be served in person, by post, by
affixation to D’s place of residence, by publication
WHAT HAPPENS
NEXT?
DEFENCE

D may (or may be required to) file at or before

first hearing written statement in response to
plaint.
Written statement must raise all matters which
show that suit is not maintainable.
Denials must be specific. Allegations in the plaint
which are not denied or stated to be not admitted
in the written statement are taken to be admitted.
FIRST HEARING
Court may dismiss suit if neither party appears
or if only P does not appear.
If D does not appear, Court may proceed ex
parte if summons have been served on D.
 Court may pass decree without recording evidence.
 If ex parte proceedings are adjourned, D may attend on
subsequent hearing date and participate if he provides a
good reason for his previous non-appearance.
 D may apply for ex parte decree to be set aside if he can
prove summons were not served or that he had good
reason for not attending.
PRE-TRIAL REMEDIES

“To prevent the ends of justice from being defeated”

the Court may grant certain remedies between the
start of proceedings and the trial.
If D is about to dispose of his property or remove it
from the jurisdiction, the Court may direct him to
provide security to the Court for a specified sum or
place the property at the disposal of the Court.
The Court may grant a temporary injunction to
require D to do something or restrain D from doing
something.
PRE-TRIAL PROCEEDINGS

At first hearing, Court to ascertain whether allegations in plaint are

acknowledged or denied by D and allegations in written statement are
acknowledged or denied by P.
Court may suo moto or on application, direct a party to answer
interrogatories or produce documents for inspection by the other party.
Under English law, parties usually required to make “standard
disclosure”: to disclose those documents the party intends to rely on,
documents adverse to his/her case, documents in support of the other
party’s case.
Under CPC, a party may request disclosure of documents relating to the
matter in question and shall be entitled to inspect documents which the
other party refers to in his pleadings/written statement.
In PK, “less than 2 percent of cases have any discovery whatsoever”
(ADB).
PRE-TRIAL PROCEEDINGS
At first hearing Court to “ascertain upon what material propositions
of fact or of law the parties are at variance” and thereupon frame and
record those issues.
Framing of issues based on pleadings, written statement,
interrogatories, documents produced by parties.
FRAMING THE ISSUES

The facts are sieved out.

The issues require production of evidence.
Once framed, the TOR of the trial are fixed.
WHAT ABOUT THE
TRIAL?
THE TRIAL
On day that issues are framed, court will fix suit for hearing of
evidence.
 If court considers that no evidence is required, it may proceed without evidence and
pronounce judgment.

When hearing has begun, it must continue from day to day until all
witnesses have been examined.
BURDEN OF PROOF
Burden of proof: establishing a case on
preponderance of probability.
Burden of proof lies on that person who would fail,
if no evidence at all were given on either side (Art
118, QeS 1984).
Onus of proving a fact may shift from one party to
another. E.g. if an issue is whether a party owns
something and the party seeking to rely on his
ownership of that thing can show that he is in
possession of it, the onus of proving that he is not
the owner shifts to the party who affirms that he is
not the owner.
HEARING OF EVIDENCE
P must file with plaint documents which are the basis
of his claim.
P must attach to plaint a list of documents upon
which he relies as evidence in support of his claim.
P will not be able to rely on documents as evidence
which are not filed with or listed in the plaint (unless
the Court gives leave).
HEARING OF EVIDENCE
The parties must produce at first hearing all documents in their
possession or power on which they intend to rely.
A party may not submit documents in his power or possession as
evidence subsequently without leave of court.
Where a party does not know of the existence of a document at the
time it should have been filed, he may later submit it.
Where a party requires the leave of court to submit a document as
evidence, leave should be granted where the document is an official
record which may assist the Court.
WITNESSES

Parties to produce a list in court within 7 days of settlement

of issues of witnesses they propose to call to give evidence
or produce documents.
A party may not subsequently call a witness who was
omitted from that list without leave of court and good cause
for omission, unless it is a witness produced by the party
himself.
The party calling the witness will issue him with a summons
signed by the Judge.
Where a witness fails to attend, the Court may issue a
warrant for his arrest.
Court may require witness to give evidence orally or by
affidavit.
GIVING OF EVIDENCE AND
ARGUMENTS
P generally has right to begin. Will state his case and
produce evidence.
D will state his case and produce evidence.
P may reply.
Where there are several issues to be proven and the
onus for proving some of them is on D, P may produce
his evidence on those issues after D has stated his case.
D may respond. P entitled to reply generally finally.
On completion of evidence, Court to fix a date, not
exceeding fifteen days, for hearing of arguments of
parties (Rule 1, Order XX, CPC).
HOW WILL IT END?
MODES OF DISPOSING OF
A SUIT
By returning the plaint.
By rejecting the plaint.
By withdrawal or abandonment.
By confession of judgment.
By consent/compromise.
On merits after due contest.
WITHDRAWAL OR
ABANDONMENT
P may withdraw suit or abandon part of claim at
any time after institution (Order XXIII, CPC).
P will be liable for costs awarded by the Court.
P will not be able to institute a fresh-suit in
respect of the same subject-matter or same part of
the claim unless he has permission from the
Court to do so when he withdraws/abandons.
MODES OF DISPOSING OF
A SUIT
Compromise or Consent
Where a suit has been adjusted wholly or in part by
any lawful agreement or compromise or where D
satisfies P in respect of the whole or part of the subject
matter of the suit, the Court will record such
agreement or compromise and pass a decree in
relation to it insofar as it relates to the suit.
Judgment by Confession
D acknowledges his liability by admitting P’s claim.
JUDGMENT AND DECREE
After the case has been heard, the Court shall
pronounce judgment on a day not exceeding thirty
days (s. 33 CPC).
On such judgment, a decree shall follow in
accordance with the judgment.
Judgment means the statement given by the Judge
of the grounds of a decree or order (s. 2(9) CPC).
Decree means the formal expression of an
adjudication which conclusively determines the
rights of the parties (s. 2(2) CPC).
RELIEFS
If suit fails, judgment will state that suit is dismissed.
If suit succeeds, judgment will state that suit is decreed (wholly or
partly).
Plaint to state relief claimed by P. Court will usually only provide
relief asked for by P but may provide such relief as justice demands.
COSTS
Matter of costs will be addressed when suit is
dismissed or decreed.
General rule is that costs must follow the event - i.e.
successful plaintiff will be compensated for costs of
litigation and unsuccessful plaintiff will have to
compensate defendant for costs of litigation.
The Court may make an order for compensatory
costs [not exceeding 25,000 Rs] in relation to false
or vexatious claims.
APPEALS

Under the CPC, an appeal lies from every decree

passed by any court exercising original jurisdiction (s.
96).
Appeal from a decree issued by a Civil Judge will be to
a District Judge if the value of the suit is no more than
50,000 Rs. If the value of the suit is more than 50,000
Rs, appeal will be to the High Court.
Appeal from a decree issued by a District Judge or Ad.
District Judge will be to the High Court.
Appeal from a decree issued by the High Court
exercising original jurisdiction may be Intra-Court (to
another bench of the High Court).
APPEALS
Appeal must be filed within time limits specified in Limitation Act
1908.
Appeal filed by presenting memorandum to the Court setting forth
the grounds of objection to the decree appealed from.
May be on point of fact or point of law.
FURTHER APPEALS
Second appeal may be made to the High Court from
every decree passed in appeal by a subordinate court.
Second appeal may only be made on point of law.
Appeal from High Court to Supreme Court under Art.
185 of the Constitution:
 Where value of subject-matter of dispute is not less than 50,000
Rs and HC has varied or set aside judgment of court below; or
 Where judgment involves claim respecting property of like value
and HC has varied or set aside judgment of court below; or
 Where HC certifies that case involves substantial question of law
as to interpretation of Constitution, or
 Where SC grants leave.
EXECUTION
“…the difficulties of a litigant in India begin when he has
obtained a decree.” [Privy Council, 1872]
Decree for payment of money:
 Decree holder may apply orally for execution at the time of the passing
of the decree and the Court may order immediate execution thereof by
the arrest of the judgment debtor (Rule 11, Order XXI, CPC).
Otherwise:
Where the holder of a decree desires to execute it, he shall apply to the
Court which passed the decree or if the decree has been sent to another
Court then to such Court (Rule 10, Order XXI, CPC).
Decree holder must apply for execution within specified
time period (3 years for lower courts).
MODES OF EXECUTION
By delivery of movable or immovable property.
By attachment and sale of property.
By arrest and detention in prison.
By appointing a receiver.
By any other manner as required.
EXAMPLES
Decree for payment of money
Court may order detention of judgment debtor
and/or the sale of his property to pay the debt.
Decree for specific movable property
Court may order seizure of property and delivery to
the person entitled.
Decree for immovable property
Court may order delivery of possession and may
break open any door or lock or remove any person
from the property for that purpose.