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Procedural Experiences from the Civil Courts of Bangladesh: Case

Management as a Potential Means of Reducing Backlogs
Article · January 2015
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Australian Journal of Asian Law, 2015, Vol 16 No 1, Article 5: 1-22
Procedural Experiences from the Civil Courts of

Bangladesh: Case Management as a Potential Means of
Reducing Backlogs
Ummey Sharaban Tahura ∗ and MRLL Kelly♣
Bangladesh has a very large population of 160 million, although it is relatively small geographically, covering an area of only
143,998 sq km. The backlog of cases in the Subordinate Courts of Bangladesh reached 2,495,944 at the end of 2014, putting
great pressure on the legal system and those who use it. Research has been conducted to isolate the causes of the backlog, to
study the potential impact of case management in reducing case backlogs, and to adapt these findings to suggest a suitable
case management method for the civil courts of Bangladesh. Semi-structured, open-ended interviews with lawyers, litigants,
judges, and court staff were conducted in seven districts 1 of Bangladesh between September 2013 and January 2014. This
article outlines the preliminary results of empirical research into the nature and causes of backlogs in the civil courts of
Bangladesh, and makes recommendations arising from those preliminary results.
Given that Bangladesh has such small territory (143,998 sq km) sustaining such a large population
(160 million) (Central Intelligence Agency, nd), litigation concerning land is of prime importance,
and access to the courts and speedy resolution of litigation is of great significance. Lord Woolf
(Woolf, 1995: 2) noted that in ensuring access to justice, a civil justice system must: 2
(a) Be just in the results it delivers
(b) Be fair in the way it treats litigants
(c) Offer appropriate procedures at a reasonable cost
(d) Deal with cases with reasonable speed;
(e) Be understandable to those who use it;
(f) Be responsive to the needs of those who use it;
(g) Provide as much certainty as the nature of particular cases allows; and
(h) Be effective: adequately resourced and organised.
Islam and Solaiman (2003: 30) pointed out that a former Chief Justice of Bangladesh noted that the
judiciary in Bangladesh once enjoyed the confidence of the common people but this is changing,
largely because cases had been pending for over a decade. They also mentioned some specific causes
for those delays, for example, because the judiciary was running short of judges due to inadequate
salaries, government witnesses were slow to appear, and so on. They argued strongly that the lower
courts are especially overburdened. They equated delay with injustice and viewed it as a major
systemic flaw in the justice system, because it violated the fundamental rights of people to a
prompt trial, guaranteed in art 35(3) of the Bangladesh Constitution (Islam and Solaiman, 2003:
32).
M Shah Alam has expressed his concern over the backlogs of cases, arguing that such delay
was detrimental to justice and the economic development of the country (Alam, 2000). His view was
that although the common law legal system has both merits and demerits, recent developments in
Bangladesh demonstrate that its demerits currently outweigh its merits, as manifested in crippling
backlogs and delays. He noted that when justice is delayed, the winning party is not compensated
for its huge costs in terms of time, money and energy. He maintained that the standard time for
disposal of a case should be one to two years but that in reality it often drags on for 10 to 15 years –
∗
Judge of the Subordinate Court, Bangladesh and M Phil candidate, Macquarie Law School.
♣
Senior Lecturer, Macquarie Law School.
1
Divisions are the largest administrative unit in Bangladesh.
2
This research, like Lord Woolf’s comments, is confined to the civil justice system.
Australian Journal of Asian Law Vol 16 No 1
sometimes even more (Alam, 2000). If the situation persists, he said, the rich will be the ultimate
winner, not justice.
Most developed countries have by now embarked on a ‘second generation’ of case management
development (Victorian Law Reform Commission, 2008: 291). Bangladesh, however, has not as yet
introduced any case management system at all, despite that being an almost overwhelming
necessity given the delays and backlogs that plague the system.
It should be noted that the court system of Bangladesh is adversarial, and that the judges play
a largely silent role. It could be argued that the introduction of case management would require
judges to play a more active role as the controllers of the court. The question thus arises whether
the adversarial system and an active role for judges are in conflict. Australian courts, however, also
have an adversarial system and they have successfully introduced case management, empowering
judges to control court procedure. Their experience provides a good model for the courts of
Bangladesh.
Alternative Dispute Resolution (ADR) mechanisms have already been introduced into court
proceedings in Bangladesh as a compulsory matter, 3 although with little real success to date. The
Code of Civil Procedure (CPC) 1908 (Bangladesh) allows judges to cross-examine witnesses to
establish the truth, 4 a power that is inconsistent with the adversarial system. These provisions
have been adopted to ensure fair and speedy justice, and they have proved capable of adaptation
within the Bangladeshi adversarial system. Making judges more active by adopting case
management will not necessarily conflict with the country’s adversarial system. The former Chief
Justice of New South Wales, the Hon JJ Spigelman, expresses the same view. He states that ‘there
is no inconsistency’ between an expanded managerial role for the judiciary and the essential
requirements of an adversarial system (Spigelman, 2009: 26).
Against this background, this research seeks to find the reasons for the huge backlogs in
Bangladesh’s civil trial courts, and to suggest a suitable case management method for reducing
them.
Methodology
Empirical research can be a way of examining whether the purposes of laws are fulfilled or not. The
aim of such research is to establish how the law works in practice, by collecting and analysing
relevant data (Galligan, 2010: 978). Galligan argues that empirical research can stimulate
theoretical reflection and perhaps contribute to better legal theory (Galligan, 2010: 990).
Determination of the method of empirical research is the first step; and collection and coding data
is the second (Epstein and Martin, 2014: 29). Thus once the method is designed, the researcher
should collect and code the data, then translate data into a form suitable for analysis. This research
applies a ‘grounded theory’ view of empirical research within a doctrinal-comparative approach.
Grounded theory is a general method of comparative analysis (Glaser and Strass, 1967: 1). It
involves an interplay between systematic data collection and analysis that aims to produce a theory
during the research process (Bowen, 2006: 2). Data collection, analysis, and theory thus stand in a
symbiotic relationship with one other. Sociologists Glaser and Strauss identified grounded theory
in the 1960s (LaRossa, 2005: 839). They argued that generating a ‘grounded’ theory is a way
arriving at a theory suited to its supposed uses, as opposed to theory generated by logical deduction
from a priori assumptions (Glaser and Strauss, 1967: 3). Strauss and Corbin refined the approach
(Corbin and Strauss, 1990: 6-11). Data collection assists in determining how laws are applied and
interpreted differently in practice as opposed to theory. It can also help identify any procedural
and/or substantive changes needed to incorporate case management into court proceedings. In this
work, some doctrinal analysis is necessary to support the empirical research and to understand the
legal framework and the rules and procedures of the civil courts of Bangladesh. Qualitative
research was chosen to explore the uniqueness of individual cases or classes of behaviour to
promote understanding of how and why certain phenomena occurred, not just what occurred
3
See s 89 A of the Code of Civil Procedure 1908 (Bangladesh).
4
See s 165 of the Evidence Act 1872.
2
(Livingston, 2012: 306). By these means, the causes for the backlogs in the civil trial courts of
Bangladesh may be ascertained.
Having obtained the appropriate ethical approval for this research, and in particular for the
questionnaires used, semi-structured open-ended interviews with lawyers, litigants, judges and
court staff in seven divisions 5 of Bangladesh were conducted in September through December
2013. 6 The seven districts chosen were within the seven national divisions: Dhaka, Rajshahi,
Khulna, Chittagong, Barishal, Sylhet and Rangpur. Different sets of questionnaires for each group
were prepared, although some questions were common to a number of the questionnaires, and
others were common to all. As an application of ‘grounded theory’, any initial observations made
while collecting the data were included, as well as some government statistics (Strauss and Corbin,
1998: 49-52). To enable Bangladeshi judges to participate in the research, permission was obtained
from the Bangladeshi Ministry of Law, Justice and Parliamentary Affairs to interview the judges
and examine case records from the seven districts. These interviews were necessary for gathering
information about current court proceedings and interviewees’ insider experiences, opinions and
evaluations regarding those proceedings.
As a basis for data collection, seven civil cases from the seven districts of Bangladesh were
chosen on a random basis to make the research representative. In this regard, the procedure
adopted was as follows. In Bangladesh, each court maintains a list known as the Cause List. 7 The
purpose of the Cause List is to declare the case’s number, the purpose for which the case has been
listed, and what stage the case has reached, along with a short description of what is to be done on
the day the cases on the Cause List are scheduled to proceed. The cases that are ready for a
peremptory hearing (taking evidence) are also listed here on the waiting list for a Settling Date for
the Peremptory hearing (the ‘SD’ stage, discussed later). The Cause List is publicly available and
the number of cases listed for peremptory hearing on the particular day was examined. The focus
then shifted to advanced cases, because they have gone through more stages, making it possible to
analyse how laws were applied in those stages. Whether the clients in such cases were in
attendance was checked with their lawyers and, if lawyers from both sides were available, they
were approached to see if they were willing to participate in the research. After obtaining their oral
consent, interviews were conducted. All interviewees in each group were asked the same questions,
to ensure parity of comparison. Interviewees were supplied with the questions in advance, so that
they could prepare themselves with relevant information. They were also briefed on the purpose of
the study and the ethics procedures through which the research proposal had passed — procedures
that included an assurance of interviewees’ privacy. Prior to participating in the interview process,
all the interviewees had signed a consent form.
The case records of the litigants were also examined after obtaining permission to do so from
the Bangladesh Government through the Ministry of Law, Justice and Parliamentary Affairs. The
purpose of this was to compare the experiences of the interviewees with the formal records to
investigate possible gaps between laws and their application in practice, and the reasons behind
such gaps. This method assisted in suggesting how the application of the law may more fruitfully
serve the purposes of justice, rather than just a purely formal purpose. It was also hoped that it
would discover a suitable case management method and a supporting theory for an effective civil
court system.
To facilitate confidentiality, all identifying information was subsequently removed from the
data, with each participant and case records being assigned an alphanumeric code. For example,
judges were identified as ‘J’ with number (J1, J2 … J7); court users or ‘clients’ as ‘C’ with a relevant
matching number (C1, C2 … C7); court staff were added as ‘S’ (S1, S2 … S7); and lawyers as ‘L’
(L1, L2 … L7). These codes were assigned at random to participants and do not represent the
5
‘Divisions’ are the largest administrative unit in Bangladesh.
6 Macquarie University Human Research Ethics Committee (HREC) approved this research (Ethics Approval
5201300485).
7
The Cause List is contained in the office registrar book that maintains the suit number and the date of hearing. A daily
Cause List in the prescribed form is posted in some conspicuous part of every court-house for the information of the
parties, their advocates and the public. Cases and appeals shall be shown in the order in which they appear in the
Diary: rule 13 of Civil Rules and Order (Bangladesh).
3
sequence in which the interviews occurred. All the interviewees from one district can, however, be
identified by a similar numeric number, according to the district. In addition the case records were
numbered as CR-1, CR-2, CR-3….CR-7 and the courts were numbered as D1, D2, D3………D7 (see
Appendix A). Memo writing and comparative analysis were used throughout the study and also
assisted the process of open, axial and selective coding suggested by Corbin and Strauss (1990: 12-
16; LaRossa, 2005: 840) that was relied upon.
Analysis and Findings
What the Law Says and How It Is Applied

When a dispute arises, the aggrieved person comes to the Court to express his or her concerns and
seek justice through due process. Every civil court is obliged to try all suits of a civil nature if they
are not explicitly barred by law. A civil suit comprises any suit arising from a dispute over a right
to property or a right to an office. Though the Code has not defined the word ‘suit’, a suit is
considered to be a civil proceeding filed in a civil court by an aggrieved person, institution, legal
entity or the state, in a case where a civil right has been violated (Haque, 2011: 3). The law also
holds that every suit should be tried in the court of the lowest grade that is competent to try it. 8 For
that reason, for data collection purposes, civil courts of the lowest grade of competence were chosen
– the Assistant Judge’s Court and the Senior Assistant Judge’s Court.
Stages of civil suits in the court of original jurisdiction 9

Stages of the Civil Suits in law Time limit in law for each Time spent in practice in each
stage (in days) stage in the seven sample
suits (in days, on average)
Submission of plaint 0 0
Issue of summons 35 68
Appearance of defendant/s and 60 275
submission of written statement
ADR/Mediation 107 541
Framing of Issues 15 282
Steps for discovery production 24 77
and inspection
Settling date for peremptory 0 435
hearing
Peremptory Hearing 120 1680
Argument 0
Pronouncement of Judgment 7
Total 368 3357
Figure 1: 10 Time spent in Stages of Civil Suits in Bangladesh. (Note that none of the seven sample suits had
completed the peremptory hearing stage (taking evidence). 11
Submission of plaint
When a dispute arises regarding a matter of a civil nature, any party may file a suit through
application, which is commonly known as the plaint. This is the very first step of a civil suit. The
person who submits the plaint is called the plaintiff and the person against whom the plaintiff files
the suit is called the defendant. Along with submitting the plaint, the plaintiff must pay court fees
8
See s 15 of the Code of Civil Procedure 1908 (Bangladesh).
9 The original court also conducts the trial. It is also known as a court of first instance.
10
The stages of a civil case were created, along with time allocations for each stage, by the Code of Civil Procedure (CPC)
1908 (Bangladesh).
11
None of the suits was disposed through mediation, nor were there even proper attempts to mediate.
4
and the cost of serving summons, and must also submit as many copies of the plaint as there are
defendants. 12 The Court officer (known as the Sheristadar 13 in Bangladesh) examines the plaint to
ascertain whether it has been duly presented in accordance with the provisions of the CPC 1908, 14
after which he/she will list the case in the register book, along with the number of the case.
In practice, the lawyer prepares the application and submits it, with all necessary documents,
to the court. Most of the clients interviewed were found to be illiterate, and simply did what their
lawyer advised them to do. Moreover, it emerged from the interview that most clients were
completely ignorant about their case, not even knowing what type of case it was. This was true for
five of the seven clients interviewed.
Preliminary observation found no delays occurred at this stage.
Service of summons
This is the process by which the court officer is obliged to inform the defendant that a suit has been
filed against him or her. A court notice is sent to the defendant along with a copy of the plaint, so
that the defendant knows what allegation has been made, enabling him or her to prepare
accordingly. 15 Generally, the time limit for issuing a summons is five working days, and it should
be served within thirty days but the means of service of the summons depends upon the
judge. 16 Recent amendments have allowed the use of a courier, fax and electronic mail as
alternative modes of serving a summons, 17 as well as the summons being served by the plaintiff
him- or herself. 18 The amendments also require the court to determine the time of appearance of
the defendants at the time of issuing the summons, and whether it is for the settlement of issues or
for final disposal of the suits. 19 This ensures the defendant has sufficient time to prepare and
present his or her witnesses. 20 This requirement is, however, seldom applied by the courts.
At the time of data collection, hardly any of the sample cases had reached the peremptory
hearing stage. From the sample of suits (seven cases) it emerged that it had, on average, taken 68
days for the summons to be served, the longest time being 170 days, in the case of CR-6, D6. In this
case the summons had been served on 6 February 2007, while the case had been filed on 20 August
2006. The record revealed no reason for this delay. Research found that the court had first fixed a
date for the return of summons on11 October 2006 but as only an adalot summons 21 was returned
and the postal summons was not returned by the scheduled date, the court fixed another date for
return of the postal summons. According to the 2012 amendment, service of summons in only one
mode, either by a court officer, post or courier service or even by the plaintiff, would have been
enough to satisfy the Court. 22
12
See Or. IV rule 1 of the Code of Civil Procedure, 1908 (Bangladesh).
13
The Sheristadar is the administrative officer of the Assistant Judge Court. The Sheristadar is responsible for the
administrative work of the Court. He or she is appointed by the government and does not necessarily have a legal
background.
14
See Vol 1, Chapter 2, rule 55 of the Civil Rules and Order (Bangladesh).
15
See, s 27 of the Code of Civil Procedure, 1908 (Bangladesh).
16
See, Order V rule 1 and 9(5) of the Code of Civil Procedure (Amendment) Act 2012 (Bangladesh).
17
See s 9A of the Code of Civil Procedure (Amendment) Act 2012 (Bangladesh).
18
See Order V rule 9A of the Code of Civil Procedure (Amendment) Act 2012 (Bangladesh).
19
Order V rule 5,6 of the Code of Civil Procedure, 1908 (Bangladesh)
20
Order V rule 8of the Code of Civil Procedure, 1908 (Bangladesh)
21
An adalot summons is sent by the court’s officer to the defendant’s address/es. It is also known as ‘personal service’. A
postal summons is sent through the government post office to the defendant’s address/es. See Order V rule 10 and 19B
of the Code of Civil Procedure 1908 (Bangladesh).
22
See Order V rule 31 of the Code of Civil Procedure, 1908 (Bangladesh).
5
1. The Judge will

2. The Court
order for issue and
officer will issue
return of summon on
summons if the
a fixed date if the
plaintiff pays
case is primarily
necessary fees
maintainable.
3. proper
6. The Peskar will
officer/plaintiff/cour
update the record and
ier service will serve
will produce before the
the summons on the
judge
defendants
5. The
sheristadar will 4. Returned to the
make a note and court with service
add that to the report
record
Figure 2: Service of summons in the civil courts of Bangladesh
A judge (J2) we interviewed said:

We the judges do not monitor whether the summons has been returned or not, and if not, why? The
receipt is left in the office day after day and the Peshkar 23 assigns dates one after another and the judge
hardly can manage time to go through each document as he is already overburdened.
He suggested that strong monitoring and coordination is required to speed up the service of
summonses. Because a number of people are involved in this process, it is necessary that there be a
good co-operation between them. Not enough time has passed since the 2012 amendment to
examine its effectiveness but preliminary observation suggests that it is unlikely to make any
difference because, as J2 pointed out, no proper system has been put in place to monitor whether
summonses are returned after service or not.
Submission of the written statement

When the defendant knows the allegation made against him or her, it is his or her duty to go to the
court and submit a statement in writing. Usually the time limit for the submission of this written
statement is 30 working days. 24 The court can, however, extend the time to up to 60 working days if
it thinks necessary. 25
If the defendant does not appear in court within the time specified in the summons, or does not
submit a written statement within the required time—say 60 working days—then the court may
hold an ex parte hearing and, after taking documentary and oral evidence, pronounce judgment. 26
The seven sample suits suggest that, in practice, each case needed, on average, 275 days for the
submission of written statements. Of these, the most drawn-out case was that of CR-7(D7), which
took 539 days (18 months). The defendant did not initially appear in this case, and the Court held
an ex parte hearing. While the case was proceeding ex parte, the plaintiff appeared for an
interlocutory matter (a prayer for injunction). At that time the court then again issued a notice to
the defendant, following which the defendant appeared at the court and finally submitted a written
statement. The court accepted the written statement at the cost of BDT 300. It was asked, ‘Why
was the written statement, which was submitted beyond the specified time, accepted?’ J5 explained
that there is scope for going to a higher court if a written statement is not accepted by the judge
23 Peshkar is the Court’s Assistant or Bench Clerk.

24
See Order VIII rule 1 of the Code of Civil Procedure, 1908 (Bangladesh).
25
See Order VIII rule 1 of the Code of Civil Procedure, 1908 (Bangladesh).
26
See Order VIII rule 1 of the Code of Civil Procedure, 1908.
6
because it has not been submitted in time—an opportunity often taken up by defendants. So
usually the judges accept defendants’ written statements even if they are not submitted in time to
avoid the possibility of appeal to a higher court. None of the seven cases examined maintained the
60 day time limit for submitting the written statement.
Alternative dispute resolution

An optional ADR provision was inserted in the CPC 1908 in 2003, and in 2012 it became
compulsory for the judge to suggest mediation to resolve disputes between parties. 27 There are
options to appoint an outside mediator and the cost of mediation will be borne by the parties. If
they fail to agree upon a mediator, the court will appoint one. The mediator is required to stipulate
the conditions and terms of mediation between the parties in writing, and both parties must sign
with thumb impressions. That document is then submitted to the court if the mediation is
successful. 28 If mediation is unsuccessful, the mediator will refer the matter back to the court. The
general rule is that mediation must be concluded within 60 days of the referral for mediation,
which can be extended for only another 30 days. 29 The whole procedure is not to exceed 107 days. 30
In two of the sample suits it was found that the case did not proceed to mediation, nor had the
court even recommended mediation. The parties and their lawyers had overlooked this stage. In
the case of CR-4, it was found that the court had skipped this stage, and at the time of the
interview, C4—the plaintiff—stated that the defendant met her once personally to mediate out of
court, without lawyers’ or court involvement but the plaintiff expressed no interest because she
thought that if she agreed to mediation she would lose the case, so the mediation failed. The same
happened in CR-5’s case, where the mediation stage was skipped and the case went directly to the
next stage. C5, one of the plaintiffs in CR-5’s case, strongly expressed his opposition to mediation at
the time of interview: ‘Why should I mediate, I have filed the case not to mediate with the
defendants’. The plaintiffs’ views in those two cases were that if they mediated they would lose.
Most judges and lawyers appear disappointed at the low number of instances of disposal of
cases through mediation. The only exception was in D5, where the judge had been successful in
mediating between the parties in 80 per cent of cases. The court statistics showed, however, that in
2012, only 11 percentage of the total number of cases disposed had been finalised through
mediation. At the time of interview it was revealed that the interviewee judge in D5 was appointed
from a magistrate’s court to that court just the month prior to the interview, and the 80 per cent
figure, in fact, related to his previous court. The majority of judges and lawyers believe that the
present law is perfect for mediation, except L3. He said that the system should be easier and
simpler.
The statistics from the D4 court showed that the total number of cases disposed of in the year
2012 (with 3107 cases still pending) was 406 and that of these, mediation was successfully used in
only 27 cases. In D5 it was found that only 30 cases of 263 were resolved through mediation. The
disposal rate through mediation is clearly not satisfactory. In the seven sample suits, none were
disposed of through mediation, although the time devoted to the stage allocated for mediation (even
if it did not occur at all or was unsuccessful) was on average 541 days.
27
Mediation has become compulsory by s 89A of the Code of Civil Procedure (Amendment) Act 2012 (Bangladesh), which
came into effect on 24 September 2012.
28
See s 89(5) of the Code of Civil Procedure 1908 (Bangladesh).
29
See s 89(4) of the Code of Civil Procedure1908 (Bangladesh).
30
See s 89A of the Code of Civil Procedure1908 (Bangladesh).
7
Judgment (19%)
Mediation (6%)
Other(dismissed for
default, transferred to
another court, and so
on) (74%)
Figure 3: Manner of disposal of suits in seven courts in 2012 31
Framing of issues
If mediation is successful, the dispute will end there. If it fails, however, the case will go back to the
original court (or an alternative court if the District Judge thinks it appropriate) and the court will
proceed with first hearing of the suit from the stage at which it stood before the decision to mediate.
At the first hearing, the court will ascertain from each party or his or her pleader whether he or she
admits or denies such allegations of fact as are made in the plaint or written statement. The court
will record such admission or denial. 32 During this stage the court isolates the issues, both in law
and the facts, regarding which the parties disagree. 33 The time limit for framing issues is 15 days
from the date of first hearing, or the submission of a written statement, whichever is later. 34
In the seven sample suits, it was found that on average it took 282 days for the framing of
issues. In CR-4’s case this stage took 1490 days. The reason for this delay was that the court had to
frame the issues twice following the submission of written statements by the defendants, as there
were a number of sets of defendants. At the hearing stage in CR-4’s case, it was revealed that the
suit needed to cure non-joinder of parties, 35 as new defendants needed to be added. The case was
therefore pushed back to the earlier stage of service of summons through amendment of the plaint,
the new defendants were added, 36 and then the court reframed the issues. In the cases of CR-1 and
CR-3 this stage of framing the issues took 157 and 101 days respectively. None of the seven cases
completed this stage within the required time. The fastest was the case of CR-6, which took 26
days.
31
If a case is disposed through mediation, the case is disposed of finally, as no appeal/review lies from mediation. If a case
is disposed through judgment, an appeal/review can still arise from that judgment. If a case is disposed of through
other methods, for example, transfer to another court, the case is, in fact, not finally disposed of but rather simply
shifted from one court to another. Even if a case is disposed through dismissal for default, that case could be restored
again.
32
See Order X rule 1 of the Code of Civil Procedure 1908 (Bangladesh).
33
See Order XIV rule 4 of the Code of Civil Procedure 1908 (Bangladesh).
34
See Order XIV rule5 of the Code of Civil Procedure 1908 (Bangladesh).
35 Non-joinder of parties generally means that not all the persons who need to be joined in the suit have been joined.
Order I rule.9 of the Code of Civil Procedure 1908 (Bangladesh) ensures that no suit shall be defeated only for the non-
joinder and misjoinder of parties. There are, however, some specific laws that impose an obligation to cure non-joinder
of parties by, for example, including all the co-sharer tenants as parties to a tenancy suit: s 96(2) of the State
Acquisition and Tenancy Act 1950 (Bangladesh).
36 See Order I rule 10(4) of the Code of Civil Procedure 1908 (Bangladesh).
8
Steps for discovery, production and inspection

Any of the parties may seek interrogatories requiring discovery, inspection, production,
impounding and return of documents or other material objects producible as evidence. This is done
by request to the other party in writing. An application for interrogatories must be made within 10
days of the framing of the issues and the court should make a decision as to the necessity to answer
such interrogatories within 14 days. 37 The total time for this stage is limited to 24 days. This stage
is important for preparing the parties for the hearing, and also providing relevant documents to
each side, although the use of this step is very limited in practice.
In the seven sample suits this stage took, on average, 76 days. In the case of CR-5 it took 212
days. After perusing his case records, it was found that both parties had applied for extra time, and
that the court had allowed it. In this case, the plaintiff and the defendants were at least able to use
the time for delivering interrogatories. In the rest of the sample suits, however, neither party took
any such initiative. In the case of CR-2, the court skipped this stage altogether, and simply set a
date for the next stage. The seven sample suits suggest that in most of the cases neither the court
nor the parties or their lawyers feel the necessity to either use this stage proactively or to comply
with the statutory deadlines.
After this discovery stage, the suit is scheduled for the peremptory hearing but, by convention,
there is a transitional stage.
Settling date for peremptory hearing (SD)

This ‘settling date’ (SD) stage is a transitional one between the discovery stage and the peremptory
hearing stage. It is a conventionally accepted stage, although it is not specified in the CPC 1908.
The practice is to defer the suit in this stage if the Court Diary 38 is full. According to the Civil Rules
and Order (CRO), there may not be more than five cases in the list for peremptory hearings for
each working day, and the total number of cases set for hearing (taking evidence) in the Cause List
of the Court at a time may not exceed 100 cases. 39 The CPC 1908 is very clear and restrictive about
the fixing of the number of suits in the daily Cause List. If there are more than 100 cases pending
for trial, the new cases being readied for trial must remain pending until the number in the Cause
List has been reduced.
The empirical evidence provided by the seven sample suits indicates that settling the date for
the peremptory hearing (SD) stage takes, on average, 435 days. Among the sample suits, the case
of CR-4 was delayed at this point for 1226 days. On perusing the case record it was found that the
SD stage for this suit was initially scheduled for 16 March 2010 but the plaint was amended, new
defendants added, and the suit was referred back to the service of summons stage. The SD stage
was then set to begin on 19 May 2013. In the rest of the cases it was found that the court’s diary
was full and the court therefore could not insert the new case into the list. Observations made
while selecting the cases for the interviews showed that, although there is a restriction against
scheduling more than five cases for hearing on each day, the usual practice is to list eight to ten
cases for hearing because of the extraordinary pressure from clients for new cases to go to trial and
because of the backlogs. Once a date has been settled, the case proceeds to hearing.
Peremptory hearing (PH)

A peremptory hearing is the trial stage in the progress of a suit. Here the judge takes evidence,
both oral and documentary, relevant to the questions of law and facts that will determine the suit.
It is generally accepted that the plaintiff starts to give evidence through an opening speech.
Examination of a defendant’s witnesses before the examination of the plaintiff is not regarded as
acceptable (Islam and Neogi, 2006: 772). It really depends, however, on who bears the burden of
37
See s 30 and Or XI rule 1-2 of the Code of Civil Procedure 1908 (Bangladesh).
38
A Diary in the prescribed form to be called the Diary of the Court is maintained by each Civil Court in the manner
prescribed by Rule 12 of Civil Rules and Order (Bangladesh).
39
See Order XVIII Rule 20 of the Code of the Civil Procedure 1908 (Bangladesh).
9
proof in the matters in issue at the trial. 40 As soon as the case is opened by the plaintiff (or
defendant depending on Order XVIII rule 1 of the CPC 1908), he or she will call the witnesses on
his or her side one after another and will examine them. 41 If there is any documentary evidence to
be produced, it is presented to the court at this stage. It is each party’s responsibility to ensure
their witnesses are prepared to give evidence. The witnesses are then summoned to give evidence.
Section 32 of the CPC 1908 confers power on the Court to compel the attendance of a witness by
issuing a warrant of arrest if they do not appear before the court after service of summons. The
Court also has discretion, if sufficient cause is shown, to allow adjournment up to a maximum of six
times for each party. 42 Order XVII, rule 1 states that the court shall award costs to the other side in
case of adjournment beyond six times.
None of the sample suits had completed its peremptory hearing. In the case of CR-1, the
peremptory hearing stage had already comprised 642 days, and only the examination of the
plaintiffs’ witnesses having been completed, with the examination of the defendant’s witnesses still
to come. In CR-2’s case, 3,869 days had passed in this peremptory hearing stage. The case record
showed that the case had been fixed for its peremptory hearing on 26 February 2003. The case did
not proceed to hearing, as further service of summonses was needed for defendants newly-inserted
because of amendment of the plaint, and the case therefore reverted to the service of summons
stage, and then the settling of date stage. Finally a date was again fixed for the peremptory hearing
on 5 August 2008, which was still in progress at the time of data collection.
It was found that in most of the sample cases, both plaintiff/s and defendant/s petitioned for
extra time. In the case of CR-3, 23 dates were fixed at this peremptory hearing stage for examining
the plaintiff and his witnesses, and the examination had still not been completed. These dates were
all one and a half months apart. Of those 23 dates, the court was otherwise occupied on four of
them, the parties petitioned for extra time in nine of them (which the court allowed), and two of the
dates were used for other purposes—for example, issuing summonses to witnesses. Only the
remaining eight dates were used for examination of witnesses.
The Judge
The
parties/lawyers
Other purposes
Examination of
witnesses
Figure 4: Time actually allocated to examining witnesses, including delays by participants in CR-3’s case (D3)
(16 May 2011 - 29 August 2013).
40 Order XVIII Rule 1 of the Code of the Civil Procedure 1908 (Bangladesh).
41 Order XVIII Rule 2-17 of the Code of the Civil Procedure 1908 (Bangladesh)
42
See Order XVII Rule 1 of the Code of Civil Procedure 1908 (Bangladesh).
10
Argument
This is another stage that exists in practice but for which there is no specific time allocation in the
CPC 1908. Order XVIII, Rule 2 (2) and (3) of the states:
The other party shall then state his case and produce his evidence (if any) and may then address the
Court generally on the whole case. The other party beginning may then reply generally on the whole case.
In practice, after completion of the production of evidence by both parties, the court fixes a later
date for hearing the summary of the case, and the lawyers of the both parties argue on their clients’
behalf according to the evidence and the law. That is, argument summarising the clients’ cases does
not occur contemporaneously with the production of evidence. Generally, delays do not occur in this
stage. None of the sample suits had reached this stage.
Judgment
After the case has been heard the Court pronounces judgment, 43 and a decree follows. 44 A judgment
must be based on the evidence on record and should be concise but must touch on all the important
questions raised by the parties with reference to the issues in the suit (Haque, 2011: 83).
Judgments are enforced according to the direction written in the judgment. If there is no such
direction, the decree holder must file a separate execution suit according to s 38 of the CPC 1908. 45
Appeal, Review, Revision, Reference in Civil Suits

There are four avenues available to seek reconsideration of a court’s decision. They are different in
kind and in outcome.
Appeal
‘Appeal’ is an undefined term that refers to shifting a case from a lower court to a higher one in the
same hierarchy to test the soundness of the decision of the lower court. It is a continuation of the
original suit before a higher court. Decrees are generally appellable but orders are not appellable, 46
except those allowed in s 104 of the CPC 1908. 47 Not all orders are appealable, however, only those
in s 104 of the CPC 1908. 48 An appeal from any order allowed by the Code shall be to the Court to
which an appeal would run from the decree in the suit. 49 The right of appeal is substantive right.
Unless otherwise is specified an appellate court can:
• determine the case finally by way of confirming, verifying or reversing the decision of original
court;
43
‘Judgment’ means a statement made by a judge of the grounds of a decree or order: see s 2(9) of the Code of Civil
Procedure 1908.
44
45
See Order XXI of the Civil Procedure Code 1908 (Bangladesh).
46
‘Orders’ are different from judgment and decrees. According to s 2 of the Code of Civil Procedure1908 (Bangladesh), a
‘judgment’ is a statement given by the judge of the grounds of a decree or order; ‘decree’ is defined as the formal
expression of an adjudication that conclusively determines the rights of the parties; ‘order’ means the formal expression
of any decision of a Civil Court that is not a decree.
Section 104 of the CPC 1908 specifies orders that are appellable:
47
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of the Code or
by any law for the time being in force, from no other orders:
(ff) an order under section 35A;
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil
prison of any person except where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed by rules;
Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an
order for the payment of a less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
48 Section 104 of the Code of Civil Procedure 1908 (Bangladesh)
49
See s 106 of the Code of Civil Procedure 1908.
11
• send back the case on remand; 50

• re-frame issues and refer them for trial; and
• take additional evidence or require such evidence to be taken.
Review
Review means consideration, inspection or re-examination of a subject or thing. If a person is
aggrieved by a decree or an order from which an appeal is allowed by the Code or, where no appeal
is allowed, he or she may apply for a review of a judgment to the same court that passed the decree
or made the order, and the Court may make decisions thereon as it thinks fit, taking into account: 51
• any new and important matter or evidence is discovered, which after the exercise of due
diligence was not within a party’s knowledge, or could not be produced by him at the time
when the decree or order was passed;
• any mistake or error apparent on the face of the record; and
• any other sufficient reason.
Revision
Revision means re-examination of cases that involve the unlawful assumption, non-exercise or
irregular exercise of jurisdiction, especially in relation to an error of law. 52 Revision applies where
no appeal lies. 53 Unlike appeal, revision is a discretionary power of the court and, in revision, the
court cannot review evidence unless it is empowered to do so by statute. 54 In this fashion it differs
from both appeal and review. Only the High Court Division and the District Judge Court have the
power to revise. 55
Reference
This is a power of the High Court Division. The appeal court, the trial court or executing court may
at any time in determining any question of law or usage having the force of law, by its own motion
or upon the application of the parties, refer the matter to the High Court Division. 56 The High
Court Division may make such order as it thinks fit. 57
The provisions for appeal, review, and revision were taken into consideration during data
collection because sometimes delay in a case occurs because of appeal, review or revision. None of
the sample suits were, however, delayed for these reasons, because they had not yet completed
trial. Nevertheless, at the time of the interviews, all the judges agreed that appeal, revision or
review causes delay, as litigants frequently choose to seek a second opinion from a higher court
against an order given by the trial court, and that lawyers are always aware of this option. One of
the lawyers identified this interference as the main cause for delay. L6 commented: ‘the main cause
for delaying the court proceedings is the frequent involvement of the higher court with the lower
courts.’ Later, he described his own experience in a particular case:
Litigants went to the High Court Division for relief and the High Court Division without giving them
proper justice kept the matters pending for six years without showing any cause.
He strongly argued that this should be stopped and the law changed to prevent lawyers seeking
such review so as not to cause injustice to clients, since these methods are often used simply as a
means of delaying resolution of cases.
50 To send on remand means send back to the original court from which the case was appealed with specific directions.
51
See s 114 and Order XLVII rule 1 of the Code of Civil Procedure1908 (Bangladesh).
52
See s 115 of the Code of Civil Procedure1908 (Bangladesh).
53
54 See s 115 (1) (4) of the Code of Civil Procedure 1908 (Bangladesh).
55 S 115 of the Code of Civil Procedure 1908 (Bangladesh).
56 Section 113 and Order XLVI rule 1 of the Code of Civil Procedure 1908 (Bangladesh)
57
See s 113 of the Code of Civil Procedure1908 (Bangladesh).
12
General Findings and Observations from Empirical Data
Clients’ Knowledge of their Own Cases

The overwhelming conclusion from the interviews was that most litigants were either illiterate
(only able to indicate their own name) or almost illiterate. They knew little about their case or what
to do next. Six out of seven could not correctly describe their case, simply viewing it as a property
case or land case without any specific knowledge as to whether it was a suit for declaration of title
or suit for rectifying a deed. They followed their lawyer’s instructions blindly. They all agreed that
their case was delayed but could not say at which stage it was delayed. When asked, most of them
said they believed that the standard time for resolving their case should be not more than two
years, and expressed the wish that the procedural matters they were involved in—which are indeed
complex—were easier to understand. One client, C6, suggested that since the civil cases are mostly
document-based, it would be better not to waste time examining the witnesses and the
plaintiffs/defendants at great length in each case, and to place more emphasis on the documents.
As indicated above, the clients did not have a clear grasp of their suits and the relevant law.
Illiteracy may have had an influence here, or the fact that lawyers did not properly inform their
clients. J4 observed that clients’ lack of literacy meant it took time to make them understand the
court procedures, and because judges are always overburdened they prefer to communicate with
the client through the lawyer.
Relations among Litigants, Lawyers, Judges and the Court Staff

As mentioned, the clients in the cases examined tend to rely blindly upon their lawyers. Usually
they believe they have a very good relationship with their lawyers. They choose their lawyers either
on the basis of reputation or acquaintance, as someone from the same neighbourhood. The clients
usually obtain information about their case from their lawyer’s assistant. One judge from Rajshahi
was particularly concerned that most of the clients are illiterate and could not read the case list to
establish the next important date or what their case is about, thus perforce relying on their
lawyers, while the lawyers convince them that they can win the case without necessarily going into
the details of the case or the time involved. Most court staff think that the main cause for delay is
deliberate delay by clients and their lawyers. They explained that the defaulting party almost
always takes the opportunity to make the case as long as possible, often by involving higher courts
in interlocutory matters, even knowing they may lose. Some judges agreed with this view but
others did not accept that all clients frustrate court orders. The relationship between court staff
and judges depends on how well the judges manage their staff. Many clients said that they would
prefer to get information from their lawyers than directly from judges or the courts.
The following is a summary of preliminary analysis of the collected data in this respect. The
relationship between lawyers and clients appears generally sound. This is only to be expected,
because if the relationship deteriorated, the clients would change their lawyers, a view expressed
by the clients themselves. If the relationship between clients and their lawyers was as good as both
clients and lawyers believe, the clients would have a clear idea about their case and what the next
step was. As noted earlier, however, clients generally do not have any idea at all about their case.
What this demonstrates is that lawyers commonly let their clients down with regard to a very
important part of their relationship: keeping them informed and seeking instructions from them.
The relationship between the court staff and judges appears to be satisfactory, perhaps because
here the primary responsibility is upon the judges. The relation between court staff and
lawyers/clients varies. The most crucial relationship is between clients and the judge or court.
Clients indicated that they are mostly satisfied with the performance of the courts. This, however,
is in contradiction to their expectation that cases would be completed within two years, and every
client interviewed had experienced extraordinary delay in processing their case. From the data, it
can be inferred that the relationship between the judges and the clients is heavily influenced by the
performance of the lawyers, and lawyers’ relationship both with their clients and with the court
itself. As mentioned, it seems that lawyers are failing in their duty to their clients, leading to a
13
distance between the client and the court and the judge, the clients being ignorant of both the
relevant issues and the relevant processes. Because of the adversarial system, the judges play a
passive role and lawyers dominated the court system. From this it can be concluded that lawyers’
use of the adversarial process could be a significant cause of delay (Wolski, 2009: 199; Zuckerman,
1996: 773; Legg, 2011: 30).
Lawyers’ Accountability towards their Clients

It has become clear that most lawyers are overburdened with cases. They do not, however, claim
that this is a cause of delay in the progress of cases. They argue, rather, that they satisfy their
clients and this is why their clients come to them for legal assistance – if caseloads were a problem,
the clients would not come to them. The exception was L2, who remarked that overloaded lawyers
sometimes delay court proceedings. He gave an example from his own experience, saying that he
himself sometimes used to submit time petitions to the courts when more than one of his cases was
called for hearing in different courts at the same time, and he could attend only one. On the clients’
part, they want the best lawyer for their case as judged by the lawyer’s fame. This means that some
lawyers have too many cases and others too few.
It is obviously not possible for any lawyer, no matter how active, to allocate sufficient time and
concentration to his or her cases if the workload is too heavy. This, together with the apparent
intersection between the number of cases on hand and a lawyer’s fame and status, could indeed be
one of the major causes for case delay.
Low Rate of Disposal through Mediation

Mediation is a method which could help parties to resolve their cases quickly. The interviews
suggest, however, that most clients do not want to mediate. It is possible that this is because they
only come to court when all possibilities of informal mediation have been exhausted.
The research found that the chief reasons why mediation has not been a solution to the
overburdening of the courts are: (1) clients do not want mediation; (2) lawyers do not encourage
their clients to go to mediation; (3) judges do not have enough time to consult with and convince
clients of the advantages of mediation. When judges do try to encourage mediation, clients do not
view this positively, as they think judges have self-interested reasons for doing so. This point was
made by J2. He added that this is a psychological matter, and that if the judges were trained
properly, they could assist clients to see why mediation should be taken into consideration.
The preliminary conclusion is that judges and lawyers agree that clients do not wish to mediate
their cases, and that even when the judges encourage mediation, clients misunderstand what they
are doing. From interviews with clients, it was found that they think that if they go to mediate that
means they are going to lose the case and must waive their claims. On the other hand, it was also
found that defaulting defendants are more willing to mediate. The lawyers identified the reason
behind reluctance to mediate as clients’ egoistic attitude and rigidity, leading to disinclination to
compromise. All the lawyers claim that they strongly take the initiative for mediation but that
their success rate is not satisfactory. Similar views were also expressed by the judges.
These observations lead to the conclusion that both judges and lawyers must be trained
properly in the use of mediation. Convincing clients to opt for mediation appears to be, on the
clients’ part, both a psychological and practical matter, requiring more information about the
process. This may well be true also on the lawyers’ part. There is clearly a need for better training
for both lawyers and judges in the utility of mediation for resolving cases promptly. One of the best
means of saving time, money and energy is to mediate cases at an early stage but for this to
happen, clients and lawyers will have to change their attitudes. Here, the role of lawyers is
paramount, because of their close relation with the clients.
Clients’ reluctance to mediate may well also stem from the fact that, given that the land area
available for agriculture in Bangladesh is so small and thus the land available per individual is so
limited, there it is not enough land to satisfy the agricultural needs of all. Thus each and every inch
14
of land is too precious to compromise in relation to a dispute about land, leading to a reluctance to
mediate as there is little possibility of it leading to an agreed solution.
The Accountability of the Judges and Courts

The total number of pending cases in the subordinate courts is more than two million, and the
number of judges is only around sixteen hundred. 58 Among the seven courts examined from each
division, it was found that, on average, each court was handling 2,250 cases at the beginning of
2013. J1 shared his experience: ‘Each day I had to hear around 300 cases, and it takes time to put
them in writing in the records.’ All the interviewees except J2 and J6 (26 out of 28), agreed that the
number of judges is too small in relation to the number of cases. The number of judges must be
increased. Although J2 did not directly agree that the number of the judges is very low, he did
admit that it had become difficult for a judge to go through each record of the cases pending for
hearing, as he is already overburdened. Moreover, it is the judge who has to find out whether
notices are served, whether defects are cured, and whether parties have taken various steps in
various stages. By so doing so, judges’ energy is considerably sapped even before a case begins (Rao:
10, nd).
The preliminary conclusion from the data collection and interviews is that judges try to go
through as many cases as they can manage, rather than going thoroughly through each case. The
reason might be that they want to assure the clients that ‘at least I touched your case’, even if they
failed to progress far with it.
Practical Support and Technical Assistance

All the interviewee judges and court staff agreed that the courts do not have sufficient logistical
support (meaning basic necessities to carry out their tasks). Sometimes court staff have to supply
paper, pens and other materials at their own cost. Few of them disagreed that this could delay
court proceedings. Moreover, J3 said that the responsibility to provide adequate support does not
end with providing a computer; rather, proper and regular maintenance should be ensured. J4
stated that if there were computer facilities, ‘we could have saved time in writing judgments.’
At the time of data collection it was found that five out of the seven courts visited had no
working computers. Although each court had a computer, a lack of proper maintenance meant
many did not work. Some of the interviewees disagreed that poor computer facilities could be a
cause of delay to court proceedings. It seems clear, however, that adequate working computer
facilities (with appropriate maintenance and training for judges and court staff) would not only
expedite the writing of judgments but would also make it easier to keep the records up to date and
to allocate and manage time arrangements for cases.
Involvement of the Higher Courts in Interlocutory Matters

The common tendency is for cases to be delayed by interlocutory matters. So, for example, clients
frequently submit applications for injunction or to appoint a receiver, or contesting whatever the
decision made by the trial court was; or the aggrieved party chooses to seek a second opinion from a
higher court, as mentioned. Sometimes the main case is long delayed because of these interlocutory
matters, a view expressed by L6. Although in the seven sample suits studied, no delay occurred due
to review by a higher court, all the judges and lawyers agreed at the time of the interviews that in
practice frequent involvement of the higher courts causes case proceedings to be delayed, and that
it is a common tendency for lawyers to go to a higher court, either for revision or to appeal against
some interlocutory matter.
The preliminary conclusion here is that if the lawyers go to higher courts on each and every
order of the trial courts that will surely delay the court proceedings. There should be limited
options to go to a higher court regarding interlocutory matters, and the law needs to be changed in
58 See The Daily Star, 2015. At the end of 2014, another 60 judges were appointed to the lower court of Bangladesh,
according to the Assistant Secretary, Law and Justice Division, Ministry of Law, Justice and Parliamentary Affairs.
15
this regard. Presently, the CPC 1908 ensures the option of involvement of a higher court in respect
of any simple order (s 104 and 105 of the CPC 1908), so parties often take that opportunity. In
addition CPC 1908 has not specified any time limit for resolving revision or appeal, which causes
the court proceedings to delay.
Recommendations
It is a simple fact that if the disposal rate is lower than the number of cases filed, backlogs occur. In
the seven courts of Bangladesh examined, it was found that the disposal rates in 2012 were 40%,
32%, 4%, 13%, 7%, 49% and 14% of the filing rate for Dhaka, Rajshahi, Khulna, Barishal,
Chittagong, Sylhet and Rangpur, respectively. On the other hand, it might also be worth trying to
decrease the filing rate of cases in order to help control backlogs, although this could, in some
circumstances, violate the fundamental right to the protection of law. 59 Two ways to reduce the
backlogs seem imperative: decreasing the time involved prior to disposal (finalisation of the case);
and increasing the rate of disposal.
To do this, the following recommendations regarding case management are suggested.
Differentiated Case Management

Alam defines case management as the detailed scheduling of the life and history of a case after
submission of written statement, drawn up by an early judicial intervention, that is, by a sitting
judge’s order, enforcing active participation of the parties and strict observance of the schedule
under the court’s supervision. In other words, it is the procedural calendar of a particular civil suit,
where the parties have to follow procedural stream-lining worked out by the court, and which also
includes initiation and coordination of consensual processes aimed at the resolution of the case
other than through a court trial (Alam, 2000).
Like medical treatments, lawsuits also need to be diagnosed on the very first day of their
registration. At that time, the court officer (Seristadar) classifies the case according to its
complexities and circumstances. The empirical research showed that all the interviewees agreed on
the classification of cases at the early stage of filing a suit so as to make it possible to proceed with
appropriate individual care and treatment. All of them agreed that the suits which are complex in
nature need separate treatment. All judges and lawyers agreed that suits for declaration of title
and partition suits were particularly complex and needed separate treatment.
There are rules in Bangladesh for the classification of civil cases. For example, the Civil Rules
and Order (Bangladesh) provides that civil cases are to be administered pursuant to the CPC 1908,
except certain personal matters mentioned in the law, such as, marriage, divorce, maintenance,
guardianship and custody of children and restitution of conjugal life. 60 If the parties of the suit are
Muslims, section 2 of the Muslim Personal Law (Shariat) Application Act 1937 (Bangladesh) will
apply and the case will be administered under Sharia law. Section 2 of the Muslim Personal Law
(Shariat) Application Act 1937 (Bangladesh) states as follow: 61
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession, special property of females, including personal property
inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution
of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship,
gifts, trust properties, and waqfs (other than charities and charitable institutions and charitable and
religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim
Personal Law (Shariat).
These matters will be administered by Family Courts Ordinance 1985 (Bangladesh) according to
Shariat law.
59
See art 31 of the Constitution of the Peoples Republic of Bangladesh 1972 (Bangladesh).
60 See s 5 of the Family Courts Ordinance, 1985 (Bangladesh).
61 Section 2 of the Muslim Personal Law (shariat) Application Act 1937 (Bangladesh).
16
CRO classified all the civil suits as below (rule 361 (Chapter 16) of the CRO):
• Class 1 includes: suits for affecting immovable property other than foreclosure, redemption or
sale under Order 34 of the CPC 1908, suits for succession, suits relating to public trusts,
charities, endowments, public or general rights or customs or other matters related to the
public interest, suits for dissolution of marriage and for restitution of conjugal rights, and suits
for perpetual injunction or declaration of rights;
• Class II includes: suits for a declaration of a right to maintenance with or without a charge on
an immovable property to determine the rate thereof, cases under s 96 of the state Acquisition
and Tenancy Act, 1950 (East Bengal Act), popularly known as a pre-emption case, contested
and uncontested suits and cases for probation and letters of administration and for the
revocation of the same, cases under the Guardian and Wards Act 1890 (Bangladesh), cases
under the Lunacy Act 1912 (Bangladesh), cases for succession certificate under the Succession
Act 1925 (Bangladesh), suits for foreclosure, redemption or sale under Order 34 of the CPC
1908;
• Class III includes: all suits and cases not already named under class I and II excluding suits
tried under the procedure prescribed for Small Cause Courts, suits for specific performance of
an agreement to sell immovable property or for cancellation of the deed of sale of immovable
property, suits for the recovery of arrears of maintenance, cases for the protection of the
property of a deceased person under part VII of the Succession Act 1925 (Bangladesh), cases
for the deposition of mortgage money under s 83 of the Transfer of Property Act 1882
(Bangladesh), cases under the Insolvency Act 1920 (Bangladesh);
• Class IV includes: proceedings in execution of decrees in suits belonging to Classes I, II, III;
and lastly,
• Class V includes: records of Miscellaneous Non-Judicial Cases which includes records of suits
of the Small Cause Court class tried under the Small Cause Court procedure by judicial
officers empowered under s 25, Act XII of the Civil Courts Act 1887 (Bangladesh).
Despite these classifications, the stages and procedures for all cases are mostly identical:
submission of plaint, service of summons, submission of written statement, mediation, Discovery,
settling date for peremptory hearing, peremptory hearing, argument and pronouncing judgment.
This raises the obvious criticism that if different procedures are not followed for different
classifications of cases, there is no purpose to their classification.
The Chief Justice of Western Australia, His Honour Wayne Martin, compared the process of
diagnosis at the early stage for each case separately with the medical procedure, and termed it a
‘triage’ (Wayne, 2009:4). He explained that just as in the medical case a particular patient is
assessed at the very beginning, so too such a procedure should be adopted in court cases. He gave
the example that if it is a case about inheritance, then the case should be sent straight for
mediation with family members (Wayne, 2009: 4).
In suits for succession in land, all the interested relatives of the deceased must be made party
to the suit. Inclusion of so many parties in a suit makes it complex and causes delay. As noted
above, however, the land area of Bangladesh is so small, and the land available per individual is so
limited in terms of sustaining agricultural needs that individual interest in land is at a premium,
and, that, in its own right, is a contributing factor to complexity of suits. 62 Therefore, suits of these
kinds should be identified at the filing stage and a different treatment applied to them.
Not all declarations of title are, however, of a complex nature, and not all suits for a permanent
injunction are simple – classification should therefore be done according to the complexities of the
suit. Even then, there should be an option for conversion from complex to simple or from simple to
complex at any stage of a suit. It is here that case-management under the control of the relevant
judge would appreciably streamline procedures and reduce delay.
The present research also finds that there is a tendency among Bangladeshi lawyers to submit
a vague and unduly lengthy pleading with the intent to impress their clients, rather than make the
case simple and easy. In addition, the process of taking evidence could be streamlined according to
62 See s 96(2) of the State Acquisition and Tenancy Act 1950 (Bangladesh).
17
the classification of the suits. On the empirical data, C6 also suggested that as civil cases are
mostly document-based, delay could be avoided by omitting oral evidence. Even the examination in
chief can be shortened by taking affidavits and thus cross examination would be limited to very
specific issues, where it is needed. Also, introducing summary judgment in appropriate cases may
significantly shorten litigation. Empirical research finds that the judges of the Assistant Judge
Court and the Senior Assistant Judge court do not have stenographers who can take dictation and
transcribe the judgment, giving judges time to manage other work. The traditional way of writing
judgments is that judges transcribe pleadings of both parties by hand and then make a decision
discussing the issues in detail, which is time consuming. This process, in addition to the mode of
taking evidence, needs to be changed.
Appropriate Alternative Dispute Resolution (ApDR)

The alternative dispute resolution (ADR) system in Bangladesh 63 has failed to achieve the goals set
for it when Justice Mustafa Kamal (former Chief Justice of Bangladesh) first introduced it into the
procedural laws of Bangladesh in 2000. The rate of mediation in civil courts is not satisfactory in
relation to the disposal rate. The preliminary results suggest that clients are not convinced by
mediation, and this is the main reason for its failing to achieve its object. To change the situation,
the parties have to be convinced of its advantages as a way of saving time, money and energy. Alam
has argued for institution of ADR in the pre-trial stage just after submitting the plaint and the
written statement, and gave the example of states in USA that were able to resolve 90 per cent of
cases through ADR at the pre-trial stage, with the rest going for trial – exactly the reverse of the
approach in Bangladesh. Alam (2000) has boldly argued that case management will specify the real
issues between the parties and create scope for parties to negotiate between themselves to resolve
disputes.
In civil cases, litigants do not calculate the cost of the whole case, nor are they given estimates
by their lawyers. It would be helpful if lawyers could calculate the approximate cost to clients at the
beginning of a case, and inform them. Such a procedure, if coupled with suggestions for mediation,
could well result in savings to litigants in time and money, while also leading to much earlier and
amicable resolution of disputes. This would, however, depend upon lawyers adopting a proactive
attitude towards mediation, as well as being prepared to work with court staff and mediators. The
whole situation invites courts to put emphasis on case management, such that ‘Alternative Dispute
Resolution’ can be redefined as ‘Appropriate Alternative Dispute Resolution’. Because mediation
may not succeed in all cases, and not all cases need the same method of mediation, proper case
management would find the appropriate dispute resolution method for each case.
Here, contrary to the call of Alam (2000), for mediation at the pre-trial stage, the
recommendation arising from the research is to shift the ADR stage to immediately after the
appearance of the defendants at the court in response to summons, even before submission of the
written statement. If the parties agreed to mediate then, it would save the time defendants spend
submitting their written statement. If the parties did not agree, the court, the plaintiff and the
defendant would still be able to identify those issues (both of law and fact) they could not agree
over, and thus save time.
Reform of Legislation
The law is ever evolving. As experience demonstrates, there will always be changes in the form of
new variations on old remedies. It is submitted that now is the time to change the law, and
introduce case management formally into the civil litigation system through amendment of the
CPC 1908, at the same time empowering judges to control case management properly. Alam (2000)
mentions that mere amendments would not be a complete solution; rather, it is high time for an
innovative approach to reconstructing the Bangladeshi judiciary. He gave the example of the USA,
63 In Bangladesh, ADR in civil cases is comprised of both mediation and arbitration; and mediation is now compulsory
(see s 89A of the Code of Civil Procedure (Amendment) Act 2012 (Bangladesh), effective from 24 September 2012).
18
and mentioned that proper court administration, effective case management and amicable
consensual dispute resolution can revolutionise the entire justice delivery system (Alam, 2000).
To make the changes more flexible and frequent, Practice Notes, as used in the District Court
of New South Wales, could also be an example for the system in Bangladesh. 64 The Supreme Court
of Bangladesh could issue such Practice Notes from time to time to assist both lawyers and
litigants.
In summary, the following changes to legislation would assist in streamlining the legal process
and reducing delay:
(a) The classification of civil cases should be re-arranged according to complexity and different
treatment should be ensured. Accordingly, rule 361 of the CRO should be changed in
relation to classification to ensure separate treatment for complex and simple cases. The
CPC 1908also needs amendment along these lines.
(b) ADR should come in the form of Appropriate Alternative Dispute Resolution (ApDR) and s
89 of the CPC 1908 should be amended. Case management would identify the ApDR for
individual cases rather making it compulsory for all cases.
(c) Case management should be brought formally into the civil litigation system as a legal
necessity through an amendment of the Code, at the same time empowering judges to
control cases. To make the changes more flexible and frequent (considering the practical
need), Practice Notes, as used in the District Court of New South Wales, could also be
incorporated in the Bangladesh system. The Supreme Court of Bangladesh has the power
to make rules (s 122 of the CPC 1908) though it hardly ever uses this rule-making power to
reduce the case backlogs.
(d) The way of writing pleadings should be changed by the Code. Unnecessary and vague
written statements should be a matter of costs for wasting the court’s time. At the same
time it should be ensured that the courts are empowered to strike out any part of the
pleadings if it seems inessential.
(e) A summary judgment system should be introduced for appropriate, simple cases. A new
provision could be added in Order XX of the CPC 1908 to this effect.
(f) The mode of taking evidence should be changed. Document-based cases can avoid oral
evidence and the examination in chief can be shortened by taking affidavits. Provision
could be made for this in Order XVIII of the CPC 1908.
Monitoring, Record Keeping and the e-Judiciary System

Realistically, in order to assist efficiency and reduce delays, there is no alternative but to
computerise the whole court system. This would instantly provide courts with the information
needed for effective case management. It would also ensure good record-keeping and systematic
filing of cases. With a properly computerised system, it would be possible to monitor and track case-
flow in such a way as to identify the status of each case and its procedural position, and to locate
documents and records more easily, showing each case and its progress in a transparent manner.
To do so, two more things will be required:
(a) Computer training on a regular basis for both the judges and court staff; and
(b) Proper technical support and continuous maintenance of the computer system.
Computerisation alone, without necessary training and continuous maintenance and technical
support, would be futile. The absence of reliable computer facilities burdens the court and adds to
delays. A national budget allocation, perhaps assisted by international aid, would help to keep
computers available and working, thus keeping records up to date and ameliorating delay.
In addition, the number of the judges should be increased. Without doing so, and thereby
decreasing the workload judges face at present, efficient case management cannot be implemented
in practice.
64 Practice Notes are not legislation. They are directives of the court, authorised usually by court rules.
19
Conclusion
The principles that Lord Woolf (1995) identified as denoting a good and effective civil justice
system, are mostly absent in the civil justice system of Bangladesh. It is too slow in bringing cases
to a conclusion. It is also incomprehensible to many litigants. Above all, it is too fragmented in the
way it is organised—since there is no-one with clear overall responsibility for the administration of
civil justice—and too adversarial. Because cases are run by the parties and their lawyers, not by
the courts, the rules of court are all too often ignored by the parties and not enforced by the court.
In this situation, new amendments are required in the CPC 1908, incorporating case management;
empowering the judges to control the cases; changing the traditional pleadings procedure;
introducing summary judgments; reducing opportunities for appeal to a higher courts; motivating
clients to mediate; increasing the number of the judges; and ensuring computer facilities in each
court with proper maintenance and skilled persons to run them. It is high time to proceed with
incorporating case management methods in substantive as well as procedural laws to make the
legal system more effective and efficient, and to achieve maximum benefits for litigants. The data
set out in this paper demonstrates how and why delays occur and establishes a basis upon which
change could be made to reduce backlogs.
References
Alam, M Shah, (2000) ‘A Possible Way out of Backlog in Our Judiciary’, The Daily Star (Dhaka), 16 April
<http://ruchichowdhury.tripod.com/>.
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(Spring) Qualitative Sociology 3.
Corbin, Juliet and Strauss, Anselm (2008) Basics of Qualitative Research. California: Sage Publications.
Croft, Justice Clyde (2011) ‘The Civil Procedure Act and Case Management’, Supreme Court of Victoria’, a presentation given
at a seminar hosted by the Geelong Law Association on 18 January <www.supremecourt.vic.gov.au/>.
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Glaser, Barney (1978) Theoretical Sensitivity. CA: Sociology Press.
Haque, Justice Mohammad Hamidul (2011) Trial of Civil Suits and Criminal Cases. 2nd edition. Dhaka: Bhumika.
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Bangladesh’, 13(1) Journal of Judicial Administration 29.
Islam, Mahmudul and Neogi, Probir (2006) The Law of Civil Procedure, vols I and II. Dhaka: Mullik Brothers.
LaRossa, Ralph (2005) ‘Grounded Theory Methods and Qualitative Family Research’, 67(4) Journal of Marriage and Family
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Legg, Michael (2011) Case Management and Complex Civil Litigation. Sydney: The Federation Press.
Livingston, Armytage (2012) Reforming Justice A Journey to Fairness in Asia, 1stedition. New York: Cambridge University
Press.
Rao, Justice M Jagannadha (nd) ‘Case Management and its Advantages’, Indian Law Commission
<http://lawcommissionofindia.nic.in/>.
Roderick, Judge, Joyce QC and Zondag, Berry (2010) ‘The Case for Enhanced Case Management and Greater Judicial
Clarity’. Paper presented at the New Zealand Bar Association Annual Conference, New Zealand, <www.scribd.com/>.
The Daily Star (2015) ‘CJ Stresses More Transparency’, 19 January <www.thedailystar.net/>.
Spigelman, Chief Justice JJ (2009)‘Case Management in New South Wales’, paper presented at the ‘Judicial Delegation from
India’, Sydney, 21 September <www.lawlink.nsw.gov.au/>.
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<www.lawreform.vic.gov.au/>
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September<www.supremecourt.wa.gov.au/>.
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20
Zuckerman, Adrian (2009) ‘The Challenge of Civil Justice Reform: Effective Court Management of Litigation’, 1(1) City
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Cases
(list of the Case Records. For ethical purposes full name is not provided)
CR-1’s Case (Dhaka District)
CR-2’s Case (Rajshahi District)
CR-3’s Case (Khulan District)
CR-4’s Case (Barishal District)
CR-5’s Case (Chittagong District)
CR-6’s Case (Sylhet District)
CR-7’s Case (Rangpur District)
Legislation
Civil Rules and Order 1935 (Bangladesh)
Code of Civil Procedure 1908 (Bangladesh)
Code of Civil Procedure (Amendment) Act 2012 (Bangladesh)
Constitution of the People’s Republic of Bangladesh 1972
Evidence Act 1872 (Bangladesh)
Family Courts Ordinance 1985 (Bangladesh)
Insolvency Act 1920 (Bangladesh)
Lunacy Act 1912 (Bangladesh)
Muslim Personal Law (Shariat) Application Act 1937 (Bangladesh)
New South Wales District, Practice Note Dc (Civil) No 1
State Acquisition and Tenancy Act 1950 (Bangladesh)
Succession Act 1925 (Bangladesh)
Transfer of Property Act 1882 (Bangladesh)
Appendix A:
(list of the Interviewees. For ethical purposes full names and addresses are not provided)
J1, Senior Assistant Judge, Dhaka Court, Dhaka
J2, Senior Assistant Judge, Sadar Court, Rajshahi.
J3, Senior Assistant Judge, Court, Khulna
J4, Senior Assistant Judge, Court, Barishal, Bangladesh
J5, Senior Assistant Judge, Chittagong Court, Chittagong.
J6, Senior Assistant Judge, Sadar Court, Sylhet
J7, Senior Assistant Judge, Sadar Court, Rangpur
C1, Client, Dhaka
C2, Client, Rajshahi
C3, Client, Khulna
C4, Client, Barishal
C5, Client, Chittagong
C6, Client, Sylhet
C7, Client, Rangpur
L1, Dhaka Bar, Dhaka
L2, Rajshahi Bar, Rajshahi
L3, Khulna Bar, Khulna
L4, Barishal Bar, Barishal
L5, Chittagong Bar, Chittagong
L6, Sylhet Bar, Sylhet
L7, Rangpur Bar, Rangpur
S1, Court staff, Dhaka Court
S2, Court staff, Rajshahi Court
S3, Court staff, Khulna Court
S4, Court staff, Barishal Court
S5, Court staff, Chittagong Court
21
S6, Court staff, Sylhet Court

S7, Court staff, Rangpur Court
22
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Procedural Experiences from the Civil Courts of Bangladesh: Case

Article · January 2015

Ummey Tahura Margaret RLL Kelly

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Procedural Experiences from the Civil Courts of

Analysis and Findings

What the Law Says and How It Is Applied

Stages of civil suits in the court of original jurisdiction 9

1. The Judge will

Figure 2: Service of summons in the civil courts of Bangladesh

A judge (J2) we interviewed said:

Submission of the written statement

23 Peshkar is the Court’s Assistant or Bench Clerk.

Alternative dispute resolution

Figure 3: Manner of disposal of suits in seven courts in 2012 31

Steps for discovery, production and inspection

Settling date for peremptory hearing (SD)

Peremptory hearing (PH)

Appeal, Review, Revision, Reference in Civil Suits

• send back the case on remand; 50

General Findings and Observations from Empirical Data

Clients’ Knowledge of their Own Cases

Relations among Litigants, Lawyers, Judges and the Court Staff

Lawyers’ Accountability towards their Clients

Low Rate of Disposal through Mediation

The Accountability of the Judges and Courts

Practical Support and Technical Assistance

Involvement of the Higher Courts in Interlocutory Matters

Differentiated Case Management

Appropriate Alternative Dispute Resolution (ApDR)

Monitoring, Record Keeping and the e-Judiciary System

S6, Court staff, Sylhet Court

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