Chief Justice Jawwad S Khawaja, Civil Justice: A Thematic Approach, Chapter 1

History

- Uniform CPC was introduced by British in 1859. Civil code wasn’t uniform before.
- CPC 1859 was discarded and CPC 1877 enacted.
- The current CPC, 1908, was enacted to revise the rigidity and conflict of judicial opinions of
previous code.
- In essence, CPC 1908 is revision of CPC 1882.
- CPC 1908:
o Fundamentals and structure of CPC has 158 Sections
o ‘The Rules’ of Procedure under First Schedule.
 The separation of procedure under First Schedule allows the procedural
matters to be amended by the legislature and high court of province. (This
was helpful before when CPC was in concurrent list, now it is exclusively in
the domain of province).

Workings of CPC:

- HCs have exercised their power to amend ‘the Rules’ but given how many times
amendments have happened, question of their efficacy is pertinent to ask.
- CPC delineates procedural requirement for litigating parties in a civil action.
- CPC is not only procedural law. It has aspects that are considered substantive.

Distinction between substantive and procedural nature of provision:

- Procedure:
o governs process of litigation.
o law of actions before the court.
o It is the means with which justice can be achieved.
o Steps for having rights or duties, judicially enforced (black’s law)
- Substantive law:
o everything other than procedure.
o relates to purpose of litigation and the subject matter.
o concerned with ends that justice seeks.
o Creates, defines, and regulates the rights, duties and powers of parties (black’s law)

Example of procedural vs substantive law in action:

- India Co and Pakistan Co set up a joint venture JVCo. The contract required IndiCo to provide
its technology to JVCo. Dispute arose because IndiCo provided limited amount technology.
- JVCo filed suit for specific performance in Tehsil Chunian, where JVCo has their facility. India
Co resisted that as per terms of contract only Indian Courts have jurisdiction.
- The court rules that while there is a breach on part of India Co. Section 12 to 28 of specific
relief act 1877 does not allow relief by way of specific performance because of jurisdictional
limitation.
 - JV Co files suit for damages for breach. But the court denies damages, as a dismissal of the
suit for specific performance of contract bars plaintiff’s right to sue for damages. (S.29 of
Specific Relief Act).

Example of differentiation:

- The S.29 of Specific Relief Act (bar on right to damages after dismissal of specific relief suit) is
procedural in nature. Whereas, the jurisdictional issue (S.12 to 30) is a substantive issue.
- The substantive issue here (jurisdiction) can be accepted in the court for discussion that is to
determine rights and duties of parties. In this case, the substantive issue is whether the
Chunia court has jurisdiction over the matter or not.
- Whereas, the procedural issue cannot be adjudicated, given the law of Pakistan and India
are different. This is because foreign law cannot override provisions of local law.

Jurisprudence on Substantive v. Procedure:

- Parties don’t have vested rights in procedure of civil actions. Essentially, procedural law can
be applied retrospectively to the pending proceedings
- Whereas, the substantive rights of parties only have a prospective (contemporary)
application in absence of statutory provision.
- Meaning, a new law of procedure will apply to a case as old as 100 years. But a new
substantive law wouldn’t apply to a case/contract that was created under an older law (us
time ka law estemal hoga).

Importance of Procedure:

- Complements substantive law. Procedure puts law into motion, and gives it remedy and
effectiveness.
- Protective character: maintain order, and functioning of legal mechanism, and due process.
- Remedial: enhances rules, and methods for conduct of the judicial process.

Issues with CPC (Access to Justice):

- Justice is costly and time consuming. Either a party in right may lack resources to access
justice, or a party in the wrong may abuse the process to extract advantage out of less
resourceful adversary.
- Procedural cost:
o Court fee, Counsel fee, expense on witness, expense on obtaining documents,
personal expense
- Delays:
o Intervals between stages of trial
o Procedure consumes time
o Burden on the court to go through tons of cases.
- Procedure is means to justice, not end. When the means assume undue importance, justice
can be defeated in process.
Section 151 CPC:

- Procedural gaps in CPC can be filled by the Courts. However, courts cannot override
substantive laws.
- Case law (15 pg) shows that S.151 is geared to justice.

Flexibility in CPC:

- There are directory and mandatory provisions of procedural code of CPC. For example,
‘liable to have his defense, if any, struck out’. The courts have interpreted this as creating a
possibility not mandate. (Ghulam Qadir vs Khuda Baksh)
- There are times when procedure is silent. That necessarily does not mean that the court
ought not to act on principle that every procedure is to be taken as prohibited unless it is
expressly provided for (H.M. Saya v Wazir Ali).
- Flexibility allows court to ensure that procedure is not misapplied.

Constitution of Pakistan, Article 175

PLD 1970 SC 1