Judicial Procedure means the procedure followed by a Court of Law in deciding matters that are presented before it in a formal way for its decision by initiating a proceeding. Proceeding means the form in which an action is brought or defended before a court. As a rule, all court proceedings must be held in open court. There are exceptional circumstances in which the court may sit in camera. The court's jurisdiction may also be exercised in private, when the judges aced other judicial officers transact such business as they are authorized by the rules of court to transact in chambers only, parties to the dispute and their lawyers being admitted.

 

 

 

CIVIL PROCEEDINGS

 

All civil actions follow adversary procedure and the cases are decided on the balance of probabilities. A civil proceeding is one, which is taken for the enforcement or assertion of a civil right. It relates to private rights of properties, money or office and remedies given to individuals or corporations as members of the community. There may be proceedings, which are neither civil nor criminal.

 

The law of civil procedure called the ‘Civil Procedure Code’ codified in 19081 regulates civil proceedings. Prior to 1859, there was no uniform procedural law in the country.

Special Regulations regulated the procedure in Mofussil Courts. In 1859, the fist Civil Procedure Code2 was enacted. Thereafter, two Codes were enacted and repeated one after another in 1877 and l882 and as they were insufficient to meet the requirements of civil litigations, the present Code came into force on the 1st day of January, 1909.

 

The existing Code consists of one hundred and fifty eight sections setting out vital principles of due process and fifty Orders each dealing with a specific subject. Each Order contains a number of Rules. These Orders and Roles are the machines to carry out the vital principle set out in the sections. Some of the provisions of the Code have been omitted or repealed.

 

The common form of proceedings is an action commenced by the plaintiff or his representative in a subordinate court with original jurisdiction by filing a plaint known as suit. The plaint so filed is registered on being examined by the court, to see if the relief claimed has been property valued and court fees paid and it discloses a cause of action. In the next step, summons with a copy of the plaint is served on the defendant. The summons together with the copy of the plaint states the nature of the plaintiff's claim against the defendant and the remedy he seeks to obtain, which may be damages, or the recovery of a debt, or recovery of possession of immovable property, or an injunction

restraining the defendant from carrying out a course of conduct. If the defendant intends to contest the claim, he 'enters an appearance' by informing the court to this effect on the appropriate form. The defendant appears and files written statement. Plaint and written statement are called 'pleadings', which play a central rote in the trial of civil cases. 'They are the nucleus around which the whole action revolve throughout alt its stages'. 'Pleadings' may be and normally are drafted by a lawyer. Prior to the trial, either party may apply for an order that the other should clarify his pleadings or disclose additional documents relevant to the dispute.

 

Because civil proceedings are private matters, they can usually be abandoned or compromised without the court's leave. In fact, in many cases, the parties to a dispute are able to settle their difference through their lawyers before the stage of actual trial is reached.

 

If the case is not compromised, the disputants are brought before the court. Parties to the suit may be examined. Parties concerned make statements on oath. Interrogatories are delivered and answered. Documents produced by the parties are inspected and in the next step, the court frames issues for determination of the case on the basis of allegations made in the pleadings, the statements made by the parties on oath and the documents produced by them.

 

After the issues have been framed in a suit, the contending parties are in a position to make-up their mind about the persons who should be summoned by them to substantiate or disprove the issues of the case. The parties generally file the list of their witnesses. When the suit approaches the stage of final bearing, summons on the witnesses are issued. When all steps have been completed, the court has to fix up a date of hearing. On the appointed date, witnesses are examined, documents proved, arguments of the parties or their lawyers are heard. After final hearing, the court pronounces its judgment followed by a decree. The rate is that the plaintiff it to prove his ease by best evidence, oral and documentary and can not rely on the weakness of the defense, but then the defendant can admit his liability in part or whole. When plaintiff has proved his case, the defense must by evidence rebut it, otherwise the plaintiff wins. The entire proceedings are concluded by the stages set out above and it the takes normally a year to bring a suit to an end but because of accumulation of work, pendency of suits up to five years is not rare.

 

 

A Subordinate Judge or a Munsif usually tries suits that are brought to court. Judgments in civil cases are enforceable through the authority of the court known as execution proceedings. Most of them are for payment of sums of money, and these may be enforced in cases of default by seizure of the debtor's goods or property. A judgment may also he enforced by attachment of earnings that is to say, by an order of court addressed to an employer to require him to make periodic payment to the court by deduction from the debtor's salary. A judgment for the possession of land is enforced by the court with the aid of the executive authority entering upon the land and putting the plaintiff in possession. Refusal to obey a judgment directing the defendant to do something or to abstain from doing something may result in imprisonment for contempt of judicial authority. As a rule, the costs of an action, i.e., the Lawyer-fees, court fees and other disbursements, are in the discretion of the court, but normally the court orders the costs to be paid by the party losing the suit.

 

An appeal is instituted by filing in the appellate court a memorandum, stamped with the proper court fee, setting out the grounds of appeal, together with a copy of the decree appealed from, and a copy of the judgment or order and within a prescribed time. Unless lawyer can satisfy the appellate court that there are merits in the appeal, it will be summarily dismissed without notice to the respondent. If the appeal is admitted, the trial court's record is sent for and notice is issued to the respondent, who may file a cross-objection if there is part decree against him. On hearing parties the appellate court delivers its judgment either confirming or setting aside or modifying the decree of the trial court, with or without coat.

 

 

Injunction

 

All the courts from the lowest level to the highest art authorized to issue orders of injunction both on the private citizen and on the Government. The courts may grant Injunctions in both civil and quasi-criminal matters, and in Bangladesh, one of the sources of the law relating to Injunction is the Constitution itself'. Furthermore, the law relating to the grant of Injunctions in civil matters is contained in the Code of Civil Procedure, l908, and the Specific Relief Act, 1887', which is supplementary to the Code. Besides, the Criminal Procedure Code, 1898', deals with the issue prohibitory order" by criminal courts of the country in urgent cases of nuisance or apprehended danger.

 

An Injunction may be either prohibitory or Mandatory. A Prohibitory Injunction forbids the defendant to do a wrongful act, which would amount to an infringement of some legal right of the plaintiff. On the other band, a Mandatory Injunction forbids the defendant to permit the continuance of a wrongful state of things though already exists at the time when the Injunction is issued. The effect of a Mandatory Injunction is to call upon the defendant to do some positive act, for instance, to putt down a wall in existence which restricts light lathe house of the plaintiff.

 

As regards duration, an Injunction may be either temporary or permanent. This classification is based on the time factor. A Permanent Injunction is based on a final determination of the rights of parties and is intended permanently to prevent infringement of those rights and to obviate the necessity of bringing action after action in respect of every such infringement. The temporary injunction which is also called 'interim or 'interlocutory' injunction, may be granted at any time daring the pendency of a suit but a perpetual injunction is granted only when the plaintiff establishes his right and the actual or threatened infringement of it by the defendant. The object of Temporary Injunction is to maintain status quo tilt the question at issue is decided. The court may by order grant temporary Injunction to refrain from such act or make such order for the purpose of staying and preventing the wasting, damaging, alienation, sate, removal or disposal of the property as the court thinks fit until the disposal of the suit or until further orders. The law lays down the circumstances under which temporary Injunction can be granted. Firstly, the applicant must show a prima facie case. He is not required to make out a clear legal title, but to satisfy the court he has to show that he has a fair question to raise at the trial. Secondly, the applicant must show that it is necessary to save him from some injury which is a serious and material one and not adequately reparable by way of damages. Thirdly, the balance of convenience must be in favour of granting the Injunction. Lastly, if a litigant seeks temporary Injunction, he must seek permanent Injunction on his plaint.

 

Before any Injunction is granted, a notice is issued to the defendant to show cause, but interim order may be passed pending the final hearing for granting of the temporary Injunction if it appears to the court that the object of the injunction would be defeated by delay. Disobedience to the order of Injunction amounts to contempt of court. An appeal lies to the superior court against an order of injunction passed by the trial court.

 

An Injunction is available in disputes between private individuals as well as between the subject and public authority. It is the remedy often used against local authorities and statutory corporations.

 

Receiver

 

A Receiver is appointed pendente lite or for the execution of a decree. A court may appoint a receiver either too mats, or on the application of a party to the suit. A receiver may even be appointed by the court on the application of a third party having an interest in the preservation of the property. However, the appointment of a receiver is in the discretion of the court subject to a right of appeal and the court makes the appointment only when it is just and convenient to do so. A party to the suit is ordinarily not appointed a receiver except where the other parties consent or there are exceptional circumstances. The choice of the person to be appointed receiver remains within the discretion of the court but such person should be disinterested in the matter in dispute between the parties and the court may at the time of selecting a receiver, take into consideration the wishes of the parties to the snit.