 Legal and Regulatory Environment of Business

 The Litigation Process

 Overview

 Civil and Criminal Litigation

 Bringing a civil suit

 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?

 Standing

 Res Judicata

 Where can I sue?

 Territorial Jurisdiction

 Pecuniary Jurisdiction

 How do I sue?

 Commencing Proceedings

 What happens next?

 Written Statement

 First Hearing

 Framing the Issues

 What about the trial?

 Burden of Proof

 Hearing of Evidence

 Witnesses

 Giving of Evidence

 How will it end?

 Modes of disposing of suit

 Judgment and decree

 Reliefs
  Costs

 Appeals

 Execution

 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

 Litigation Involves a case or controversy

 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.

 Daya Sapra v Vishnu Dutt Sharma [2007]

 P filed a complaint against D that D had borrowed 1.5 lac Rs from him and issued a cheque as
repayment and that the cheque had been dishonoured. As per the Negotiable Instruments Act
1881, the drawer of a cheque that has been dishonoured is guilty of an offence if he has been
given notice of dishonour and has not made payment. There was a criminal trial and P filed a
civil suit as well. D was acquitted in the criminal trial on the basis that the cheque was obtained
by coercion. D applied for rejection of the civil plaint on the grounds of res judicata. Trial judge
found for D. HC reversed.

 Held: SC reversed judgment of HC. S. 11 CPC did not apply as criminal case had not been finally
decided at the time civil suit was filed. General principle of res judicata did not apply as burden
of proof different in civil and criminal proceedings. Cause of action was different in both cases.
Ordinarily the decision in a criminal court will not be binding on a civil 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].

 Mohd Bibi and ors v Abdul Ghani and ors [1975]

 Abdul Rehman died at Karachi in 1963 leaving a widow, two daughters and two sons and
property in Pakistan and Uganda. The widow and daughters filed a suit for the administration of
 his estate claiming that he died intestate. The sons contested the application on the basis that
he left a will which was executed in Uganda.

 Held: the relevant law of probate to be applied was the law of the domicile of the deceased. His
domicile was Uganda. As per Ugandan law, he could leave any immovable property in Uganda
and movable property anywhere by will. His will had been proven and executed in Uganda and
he had left all of his property to his sons.

 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

 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

 Objections to Jurisdiction

 S. 21 CPC: no objections to jurisdiction allowed on appeal unless such objection was made in the
Court of first instance.

 Regional Development Finance Corp v Haji Gul Hassan (2009)

P successfully sued D for recovery of a loan in the Banking Court in Peshawar. D appealed to the
HC. HC set aside decree by Trial Court on the basis that the Court in Peshawar had no jurisdiction as the
banking documents were prepared in Islamabad. P appealed to SC.

SC held: the Court in Peshawar had jurisdiction as D resided there. However, as per s. 21 CPC, no
objection to jurisdiction could be made at the appellate court unless it was made at the court of first
instance. HC had wrongly allowed the appeal. Appeal accepted.

 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

Mohd Bibi v Abdul Ghani (1974)

The Court framed the following issues:

(1) Was the alleged will dated 16 January 1959 executed by the deceased Abdul Rahman? If
so, is the said alleged will valid and binding on the plaintiffs? If not, what is the effect?

(2) Do the properties mentioned in Schedules ‘A’, ‘B’, ‘C’ and ‘D’ to the plaint belong to the
estate of the deceased? What other properties are left by the deceased?

(3) Has this Hon’ble Court jurisdiction to administer the estate left by the deceased Abdul
Rahman in Uganda?

(4) To what reliefs are the plaintiffs entitled?

(5) General.
 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.