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Apex court proposed to relax perjury laws.

Byline: Hasnaat Malik

ISLAMABAD -- Barrister Salahuddin Ahmed has advised the Supreme Court to direct all provincial governments to bring new legislation for an effective cost regime as 'rigorous exercise of perjury laws deters people from filing/raising false or frivolous cases/defences'.

'A reduced workload would allow judges to focus on genuine cases and decide them quickly,' says a reply submitted by Ahmed, who has been appointed an amicus curiae (friend of the court) on bringing judicial reforms in the country.

Five lawyers namely Umer Gilani, Hadiya Aziz, Muhammad Haider Imtiaz, Attaullah Hakim Kundi and Raheel Ahmed have filed the case under Article 184(3) of the Constitution for judicial reforms. Registrars of all high courts as well as the federal and provincial governments have been made respondents.

Ahmed asked the Supreme Court should be directed all provincial governments to lay bills for consideration of their respective legislatures to bring amendments to Sections 35, 35-A and 35-B, CPC in line with Cost of Litigation Act 2017 passed in respect of the Islamabad Capital Territory, which has removed this maximum cap in cases of false or vexatious claims/defences and has also allowed courts to impose costs for adjournment not less than Rs5,000 per adjournment and further mandated that parties must file details of their actual costs before final decision.

Moreover, the reply recommends that Law and Justice Commission of Pakistan (or any committee) be directed to frame a template of rules for the assistance and guidance of the respective high court to structure the statutory discretion conferred by the CPC for imposition of costs.

'Guidelines for determining quantum of costs in miscellaneous applications (especially frivolous ones) and interlocutory proceedings along with the recovery mechanism and consequences for non-payment in cases where they are not just added to the overall costs of suit; Guidelines for determining the quantum/scale of special costs recoverable for false or vexatious claims/defences'

It is clarified costs or special costs need not necessarily be compensatory in nature but may also cater to wastage of the court's time and mandate that the details of the fees and expenses agreed between client and counsel be filed when the Vakalatnama is filed. Such details should be supported by affidavit sworn by the party and supplemented by filing a sworn certification of total costs immediately prior to judgment.

'The LJCP (or any Committee thereof) be directed to frame a draft amendment to Order 20 Rule 5 CPC for the assistance and guidance of the High Courts to make it mandatory upon judges to separately include, in any final judgment, their opinion as to whether any evidence led or produced before them was false or fabricated and whether, in their opinion, the same justified the initiation of proceedings for perjury, fabrication of evidence etc. under section 476 or 476-A Cr.P.C,' read the reply.

It is also proposed that a senior sitting judge of the Supreme Court be appointed as head of the LJCP and assigned the task of implementing and monitoring these reforms. It is further suggested the judge be exempted from judicial duties for a period of three months to ensure expeditious completion of reforms.

About summons, notices, service and exchange of applications/documents, the reply reads that too much time is wasted on getting service of summons/notices effected and supplying copies to the other side. Merely having service 'held good' may consume months. On the other hand, if service is wrongly 'held good'it inevitably leads to applications to set aside ex-parte orders/judgments and section 12(2) CPC applications and even more wasted time for courts and litigants.

Meanwhile, it is also proposed that first service in every civil suit should be simultaneously by registered A/D, courier, bailiff and pasting. The cost of doing so far outweighs the time saved. Bailiffs must use their phones to capture the process which will become part of the service report and the original summons should include notice of all miscellaneous applications preferred in the suit so far. In case of first service being ineffective, publication to be ordered in top Urdu and English newspapers but not more than 30 days should lapse between institution of a suit and for service to be held good.

'Regular litigants (such as government departments, banks, large companies) should be permitted or directed to maintain physical or electronic drop-boxes in courts which shall be sufficient for service upon them'

It is also said that wherever possible, courts are to maintain electronic records (in addition to physical records) of every suit. Every pleading, application or affidavit (including annexures) should be uploaded at the time of filing. This will have two advantages. It is not uncommon for case files to be misplaced so an electronic backup will be useful. Moreover, it shall allow for copies of documents to be kept in an electronic drop-box accessible to all parties/counsel so time-wasting over supply of copies is avoided.

'Summons/notices should reproduce the title and prayers in the suit, the prayers in any miscellaneous application therein and any court orders thereon. Copies of the plaint/applications need not be provided along with the summons/notices (as defendants habitually deny receipt and claim copies later at the time of hearing). Instead, the summons/notice should inform defendants that it is their responsibility to collect copies of the relevant documents from the court's electronic drop-box or manually from its office upon payment of requisite costs'

'At first appearance, parties and their counsels should be directed (as far as possible) to supply their email addresses/mobile numbers. Future notices (i.e. of applications filed during pendency of suit) can be sent to the electronic drop-box for the case along with a copy of the application which would then automatically generate an email/SMS to the parties/counsel concerned informing them that they can download copy of the application from the drop him box or collect it manually from the court office.'

It is pointed out that the problem is two-fold. First, there are far too many interlocutory orders that can be appealed. Where no appeal lies, resort is made to revisions and constitutional petitions. Second, it is possible in most cases to challenge an interlocutory order all the way up to the Supreme Court itself (i.e. three superior forums).

'Most interlocutory orders should not be challengeable at all (whether by way of appeal or revision). Where permitted, the challenge should be restricted to one or two superior forums at most.'

Even the reply says that if an error has been committed at the interlocutory stage it should be left for correction of the appellate court after the final judgment is passed. At that stage, appellate and even constitutional courts should be encouraged to freely address and remedy any prejudice that might have been caused to a party by an interlocutory order below themselves without needing to remand the matter to the trial court for fresh decision.
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Publication:The Express Tribune (Karachi, Pakistan)
Date:Oct 8, 2018
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