Inexpensive, speedy justice remains a dream for litigants in property cases

Updated October 20, 2019

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Till July, there were nearly 40,000 property suits pending disposal in the district courts of Sindh. — Reuters/File
Till July, there were nearly 40,000 property suits pending disposal in the district courts of Sindh. — Reuters/File

KARACHI: “For six to seven months, it made my heart bleed when I pursue justice,” Kirsti Robert says, trying to summarise her six-month experience of litigating over a piece of land she owns.

The 55-year-old started the legal battle earlier this year against her ex-husband over a house she claims she owns.

“If you are filing a case in court, you have to put everything aside and keep visiting the court,” she said, sharing the views of hundreds of thousands of citizens engaged in civil litigation across the country.

A mother of four, she told Dawn how she was compelled to institute a property suit against her former husband over the house they once purchased together decades ago.

Ms Robert’s claims to have contributed up to 95 per cent of the total cost of the 200-sq-yd house that her ex-husband wants to sell just to get his five per cent share.

Prolonged property litigation

Till July, there were nearly 40,000 property suits pending disposal in the district courts of Sindh.

According to official statistics, over 21,000 of such cases have been pending before the subordinate courts in Karachi’s East, West, Central, South and Malir districts alone.

However, hundreds more cases pending disposal in the superior courts could add more to the numbers.

Over 21,000 property-related civil cases have been pending in district courts of Karachi

While access to inexpensive and expeditious justice is a basic right of every citizen as guaranteed in Article 37(d) of the Constitution, there is a common impression that litigating over property disputes is the last choice of any citizen given the prolonged and complicated legal procedures and delayed judicial proceedings.

Abdul Mujeeb Pirzada — a senior Supreme Court lawyer specialising in constitutional, criminal and civil matters — opined that the trio of the state machinery, the judiciary and the lawyers were not to be blamed for unnecessarily prolonged litigation in civil matters.

“The low number of judges and overburdening of the courts and tactics played by the lawyers result in lengthy proceedings in the matters of civil nature,” Mr Pirzada told Dawn.

“Secondly, the laws have not been updated that add to the delays in the proceedings,” he said, referring to certain key laws such as the Criminal Procedure Code of 1908, the Evidence Act of 1872, the Criminal Procedure Code of 1898, etc.

Judicial sources blamed the backlog of civil litigation on the incompetency and lethargic attitude on part of the government departments or agencies dealing with land matters in addition to the traditional delaying tactics of lawyers. In turn, the lawyers pointed fingers at the state and policymakers for failing to legislate to ensure swift trials.

Ironically, litigating over property has become a more complicated and nerve-testing task.

Litigants blame lawyers

However, litigants appear to be the ones who suffer, says Ms Robert.

The female litigant said after exhausting all other means of finding an amicable solution, she decided to take the matter to court.

“One by one, I got engaged three different lawyers, including a female, to plead my case in court. Each of them would receive the professional fee in advance but never turned up in court on a single hearing,” she alleged. “This way, I have been cheated thrice of around Rs650,000 collectively.”

After months of suffering and humiliation, Ms Robert said she reluctantly hired a fourth lawyer, who bargained the professional fee at Rs250,000 in two instalments — half after winning the interim stay order against the sale of the plot and remaining upon final disposal of the case.

“All the lawyers promised that he/she would obtain a stay on the very first hearing or maximum in the second. Finally, the fourth lawyer fulfilled his promise,” she added.

Civil litigation cycle

A property suit takes nearly up to 30 years to finally decide in favour of either party — from its beginning in the district court to the appellate forums, according to a survey conducted by the Supreme Court some time back.

Under the existing law, the litigation over property is filed in the court of a civil judge and its decision is challengeable before the district and sessions’ judge.

Later, the district and sessions’ judge’s order can be appealed in the high court, where it is take up initially by a single bench. The verdict of the single bench can be reviewed before a division bench.

The property matters ultimately reach the Supreme Court, where the decision becomes final after the SC decides the appeal and its review petition.

After attaining finality, successful litigant must undergo another round of litigation, said the lawyers having expertise in civil litigation.

The litigant goes to the clerk for the issuance of a decree, which is then produced before a civil judge. The process continues until it is again decided by the SC, they explained.

Old laws in new era

The sources and lawyers blamed the existing civil law — the Criminal Procedure Code (CrPC) — under which the property cases are instituted in the courts. Introduced by the British rulers in 1898, it is said to be the basic reason behind the unnecessarily prolonged litigation.

While a few amendments had been made to the 120-year-old law during different times, rights activists believe the law adopted after the creation of the country direly needed major overhaul to make litigation easy for the contesting parties.

In October last year, Federal Law Minister Dr Farogh Naseem told the press that his ministry had proposed cutting the duration of the civil litigation by amending the existing law in such a way that the final decision in a civil suit may be passed and implemented in less than five years against the prevailing practice of more than 25 years.

According to the minister, the proposed law would not be applicable to the pending civil cases, which were estimated at around two million back then.

With the federal government having not passed the proposed legislation, the model civil trial courts, set up by the Supreme Court for quick disposal of long-pending civil cases, offer a bit of relief to litigants.

Experts believe that the sufferings of the citizens will not end until “coordinated” efforts are made by all the stakeholders.

Published in Dawn, October 20th, 2019