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October 5, 2003 

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Amendments of C. P.C and the ' Legal Practitioners' Order,1972

Can they serve the purpose of justice and democracy?

M. Moazzam Husain

Recently two laws came to light touching upon the legal arena, namely, Code of Civil Procedure (Second Amendment) Act, 2003, and the Bangladesh Legal Practitioners and Bar Council ( Amendment) Act, 2003 bringing about a number of amendments in the Code of Civil Procedure, 1908 (CPC) and in the Bangladesh Legal Practitioners and Bar Council Order, 1972, respectively.

The lawyers have come out on the street to protest against the amendments of two laws (except section 115 of CPC) calling them undemocratic and black laws. An extended meeting of the Bangladesh Bar Council held on the 26th September attended by the Presidents and Secretaries of all the 65 Bar Associations of the country condemned the laws and demanded their immediate repeal. Later in the day a six- point- program is launched in fulfilment of the demands. The Demand Implementation Committee announced a month-long program including country-wide court-boycott on the October, 1.

It is learned that meanwhile Government has backed out from giving effect to the CPC (Amendment) Act and is going to get the law examined by experts so as to identify and remove the inexpediency, if any, in it. Let us see for ourselves the amendments that have sparked off the lawyers resentment against the same.

Amendment of the CPC

Substitution of new section 35A

The Code of Civil Procedure (Second Amendment) Act, 2003 has made a number of amendments which includes, inter alia, substitution of the old section 35A by new 35A with provision for enhanced compensatory cost ranging from a minimum of Tk.5000/ to Tk.100000/ to be imposed upon the party whose claim or defence in any suit or proceedings, objected to by the other party as false or vexatious, is disallowed. The court, in the circumstances, shall, after recording its reasons for holding such claim or defence to be false or vexatious make an order for the payment of the cost to the objector.

There is a serious pitfall inherent in the wordings of the new law. It has introduced a short-cut to the court's satisfaction as to the falsity or vexatious nature of a claim or defence. It is extremely difficult to determine to the full satisfaction whether any claim or defence is false or frivolous. Mere disallowing a claim or defence on the objection of the other party cannot lead to the conclusion that the same is false or frivolous. There are many different factors involved in it. Making a short-cut to decision of the kind is, more often than not, bound to defeat justice and make innocent parties suffer. Most of the litigants in our country come from poor agrarian background. The stupendous amount of cost once imposed on a poor litigant rightly or wrongly he stands trapped in the technicalities of law and cannot pay his way out. Therefore, in our socio-economic background virtually it will drive out the poor and economically weaker from justice. In the old law the amount of cost was much lesser and satisfaction of the court was controlled by three safeguards which are omitted by the amendment, namely, a) the objection has to be raised at the earliest opportunity b) claim or defence has to be found false or vexatious to the knowledge of the party by whom it has been put forward and c) if the court is satisfied of the justice thereof, that is, if the court feels such imposition will serve the purpose of justice. Therefore, imposition of such a high amount of cost upon a litigant in absence of adequate safeguards can not serve the purpose of equity, justice and good conscience.

Insertion of new section 35B

Newly inserted Section 35B provides for 'cost for delay in making application etc in respect of interlocutory matters. This new section makes provision for imposition of cost up to Tk.5000/- but not less than Tk1000/- for default in filing application or written objection in any suit or proceedings within the time fixed by the court. The time is made a deadline not to be extended in any circumstances be that a natural disaster or for reasons beyond the control of the party. Sub Section (2) of the inserted Section says- after filing of the written statement if any application is made on any matter which, in the opinion of the court could be or ought to have been made earlier and likely to delay the main proceedings of the suit, the application may be admitted but shall not be heard without payment by the defaulting party an amount of Tk. 2000/- at the minimum which may be extended up to Tk.10,000/-.

This newly inserted Section seems to be devoid of rationale and again oblivion of the socio-economic condition of our people. The provision and practices of adjournment has not been developed out of fancy for delaying the suit or proceeding. There are human exigencies and compelling circumstances beyond control of the parties in which question of adjournments comes up as of necessity. It depends upon the attendant facts and circumstances in which the delay is caused and the satisfaction of the court whether the delayed step is attributable to an intention to delay the suit or proceeding. Human exigencies do not permit any superimposition of deadline as sacrosanct. Whether an adjournment is necessary for ends of justice must be left to the discretion of the court to decide. This will virtually serve as a tool in the hands of the economically stronger for grabbing the property of the weaker precisely because, the stronger can get over the hurdle by paying off the cost while the poor cannot.

Insertion of new sub rules in Order XVII

The newly inserted sub rules under Order XVII seems to be more draconian and unrealistic than the foregoing amendments. These new rules provides for imposition of a minimum amount of Tk. 500/- as against each adjournment that may follow from the third one irrespective of its justifications and the amount of cost may be extended to Tk 2000/-. Failure to pay the cost by the plaintiff shall render the suit liable to be dismissed and if it is by the defendants the suit shall be liable to be disposed of ex parte. No discretion is left with the court to extend time for whatever good reasons. More rigorous and harsh aspect of this provision is if the suit is dismissed or disposed of ex parte the party affected shall have to pay TK.5000/- for restoration or setting aside the ex parte order/decree as the case may be regardless of his fault.

Insertion of rule 16A under Order XVIII

The rule 16A, newly inserted under Order XVIII makes a short-cut to cross-examination. That is, the phase of examination-in chief is dropped. Consequently the plaintiff or defendant shall be directly exposed to cross-examination as soon as he takes oath without proving his case for himself. The apparent intention of law is minimising time. This is like saving the money of medicine to buy a space for grave. I am afraid, no purpose of justice will be served by this short-cut. Over and above question of demeanour in assessing evidence is no less important. This is a gratuitous legislation as the necessity of examination-in-chief of any kind has never been doubted or questioned from any quarters at any point of time.

Insertion of rules 5A and 5B under Order XXXIX

Insertion of rules 5A and 5B under Order XXXIX CPC specially so far as those relate to the payment of compensatory cost in matters of loss caused to the other party by order of injunction and furnishing security bond as condition precedent before obtaining an order of injunction is by far the most irrational, inexpedient and utterly draconian legislation. It is not clear what jurisprudence do they fit into and what purpose of law do they serve. It is bound to spell disaster on our poor litigants. They will hardly feel encouraged in filing injunction petitions regardless of merit and virtually be deprived of justice for want of money.

The CPC (Amendment) Act by most part is inherently prone to discrimination between the rich and the poor. It being predominantly oriented to high compensatory cost poorer section of the people will shy out with the feeling that justice is meant for the rich not for them. The amendment has virtually closed the door of justice for the poor and for the richer opened the avenues of sufferings through injustice.

Amendment of the 'Bar Council Order. 1972

Among the amendments brought to the Bar Council Order,1972, the most crucial ones are disqualifying an Advocate who has been elected for two consecutive terms as member of the "Council" from seeking election for the term following next and reconstitution of the enrolment committee including in it non-elected persons.

Bar Council is an autonomous body. It has its own laws rules and practices governing its internal administrations, including election, finance and enrolment of Advocates. As in any other democratic society it is expected that Government should facilitate democratic practices in an autonomous body and not hinder them by unnecessary interference. If any problem is found to creep into it that should be dealt with democratically within the framework of law governing the body. But superseding an elective body, as it is hoped in the preface of the new law, cannot enhance the dignity of the Council, by non-elected persons.

I hope the Government will take a more conscientious view and will avoid setting example detrimental to democratic practices for which we are so much striving.

M. Moazzam Husain is an Advocate of the Supreme Court.

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