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
1. Litigation Involves a case or controversy
2. The plaintiff has personal stake in resolution of the
dispute

Public Interest Litigation

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

Public Interest Litigation

SC has quoted the Indian approach in Mehta with approval and taken a
similar approach where a petition is submitted under Article 184(3).
where there are violation (sic) of Fundamental Rights of a class or
group of persons then the traditional rule of locus standi can be
dispensed with, and the procedure available in public interest litigation
can be made use of, if it is brought to the Court by the person acting
bona fide If the framers of the Constitution had intended the
proceedings for the enforcement of the Fundamental Rights to be in a
strait-jacket, then they would have said so, but not having done that, I
would not read any constraint in it. Article 184(3) therefore, provides
abundant scope for the enforcement of the Fundamental Rights of an
individual or a group or class of persons in the event of their
infraction. [Fazal Din v LIT (1969)]

Res Judicata (Barred)

a res judicata, that is to say a final judicial decision pronounced
by a judicial tribunal having competent jurisdiction over the cause
or matter in litigation, and over the parties thereto, disposes once
and for all of the matters decided, so that they cannot afterwards be
raised for re-litigation between the same parties or their privies.
[Bower]
Section 11 CPC
No Court shall try any suit or issues in which the matter directly
and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties
under whom they or any of them claim in a Court competent to
try such subsequent suit and has been heard and finally decided
by such Court.

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 Ps
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.

Jurisdiction clause
It is respectfully submitted that this
Honourable court has territorial jurisdiction
for deciding this case as the registered office
of the defendant is located within the
territorial jurisdiction of this court.
It is also submitted that the cause of action,
namely tests done which later proved to be
inaccurate, arose within the territorial
jurisdiction of this Honble court.

Pecuniary Jurisdiction
High Court may determine the pecuniary limits of
a subordinate courts 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 plaintiffs 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 Ds 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 partys 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 Honble 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 Ps 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.