CIVIL PROCEEDINGS: VARIOUS STAGES

Judicial proceeding, be it criminal or civil, means the way or form in which a legal action is brought or
defended in a court of law. It largely encompasses the whole process of beginning to end of a litigation.
However, this chapter will discuss only up to trial-stage of a civil suit; appeal, review, revision or
reference etc which are post-trial steps will be discussed in separate chapters.

Nature of Civil Proceeding

(i) Adversarial Process:
The civil litigation process in Bangladesh is, essentially, adversarial or accusatorial in nature
meaning that the whole process is a contest between two parties. As regards civil litigation,
these two parties are the plaintiff on the one hand and the defendant on the other hand. In
the process court takes a non-partisan role; court plays no significant role in preparation of a
case; the trial itself is not an inquiry into events but rather a hearing to decide within a
complex set of rules, whether the plaintiff is entitled to the right which the defendant
denies.
(ii) Balance of Probabilities:
As opposed to criminal standard of proof (beyond reasonable doubt), in civil litigation the
standard of proof is balance of probabilities, i.e ., more probably true than false. Thus if the
plaintiff can establish a prima facie case before the court in favour of his claim and the other
party does not adduce any evidence in his defence, the judge should find for the plaintiff.
Making a prima facie case (more than 50% truth) is enough for the plaintiff and this is civil
standard of proof. On the other hand, if the plaintiff fails to raise a prima facie case in
relation to his claim, a defence submission of 'no case to answer' is likely to be successful.
(iii) The expression 'civil proceeding' covers all proceedings in which a party asserts civil rights
conferred by a civil law. Civil justice consists in the enforcement of civil rights while criminal
justice consists in the punishment of wrongs-doers. In a civil proceeding the affected person
claims a right which has been denied by the defendant. He is thus a claimant for redress and
the court makes an attempt to constrain the defendant to perform a duty or to respect a
right.
(iv) All civil proceedings in Bangladesh are regulated under the Code of Civil Procedure Code
1908 unless otherwise excluded.
(v) Generally three types of laws are involved in a civil proceeding: the CPC, the CRO (Civil
Rules and Orders) and Civil Suits Instruction Manual.

Stages in a Civil Proceeding:

The stages may be divided into four periods:
1) Pre-Proceeding Stage;
2) Proceeding Stage;
3) Trial Stage;
4) Judgment; and
5) Enforcement and execution

Pre-Proceeding Stage
This is the initial stage of conciliation and mediation with a view to resolving the dispute amicably
between the parties. However, unlike the system in the UK there are no statutory provisions for
mediation in civil proceedings as a pre-proceeding step. The only available mandatory mediation process
is in the family matters under the Muslim Family Law Ordinance 1961 and the Family Court Ordinance,
1985. As per section 10 of the Family Court Ordinance, 1985 after filing the written statement, the court
is to fix a date within 30 days for a pre-trial hearing. On that date the court after examination of the
plaint and written statement shall ascertain the issues and attempt to effect a compromise or
reconciliation between the parties, if possible. Apart from reconciliation proceeding under the Family
Court Ordinance there has, however, been a recent change in the CPC adding the provision of ADR in all
civil cases which has been discussed in this chapter. However, this is also not a pre-proceeding step.

The Proceeding Stage

1. Institution of Suit/ Issue of Plaint: According to section 26 of the CPC every suit shall be instituted by
the presentation of a plaint1. Once the plaint is ready, it is to be filed in the court which has both
territorial and pecuniary jurisdiction. According to section 15 of the CPC a suit triable by a civil court
must be instituted in the court of the lowest grade competent to try it. Once a plaint is taken to the
court, the court officer, i.e. the Sheristadar shall examine, inter alia, if the relief claimed has been
properly valued and the court fees paid etc. After such examination he puts a serial (consecutive)
number of the suit and will enter the suit into a Register called the Register of Suits. The date of filing
shall also be stamped on the plaint as soon as it is filed. Once this is done a civil suit is said to have been
started. The machinery of a court is set in motion by the presentation of a plaint, which is the first stage
in a civil suit.
2. Issue of Process: Once the suit is filed and registered, the next step is to issue of process, i.e, issue of
summons by the court to the defendant to appear and answer the claim (section 27, Order V/CPC).
3. Service of Summons: Summons with a copy of the plaint which is served on the defendant 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 debt, or recovery of possession of property, or an injunction etc. Normally
service of summons is done by the court officer and the normal method is by registered post (Order
V/CPC).
4. Return of Summons/ Filing Written Statement etc: On the summons a date is put by the court for the
appearance of the defendant. Once the defendant receives the summons and he intends to contest the
claim, he is to appear in the court on the day fixed in the summons to appear. On this day the defendant
either submits his written statement or asks for time to file the same in some future date. The
defendant has to file his written statement either on or before the date of first hearing (Order VIII/R-1).
Again, on this date if the court finds that the plaintiff has failed to pay the required court fee or postal
charges for service of summons, the court may dismiss the suit on that day (Rule 2/Order IX).
5. Alternative Dispute Resolution (ADR): Once pleading is complete, the disputes between the parties
become clear and the court normally fixes a date for first hearing. However, in 2003 a new method of
ADR was introduced in the CPC in sections 89A and 89B and chapter V of the Artha Rin Ain, 2003. In
sections 89A and 89B two methods of ADR has been enacted- 'mediation' and 'arbitration'.
The term 'mediation' has been used in section 89A which lays down that except in a suit under the Artha
Rin Ain, 1990 after filing of written statement, if all the contesting parties are in attendance in the court
or in person or by their respective pleaders, the court may by adjourning the hearing, mediate in order
to settle the dispute in the suit or refer the dispute in the suit to the engaged pleaders of the parties, or
where no pleader or pleaders have been engaged, to a mediator from the panel as may be prepared by
the District Judge under sub-section 10 of section 89A, for undertaking efforts for settlement through
mediation.
As far as arbitration in section 89B is concerned, it is stipulated that if the parties to a suit at any stage of
the proceeding, apply to the court for withdrawal of the suit on the ground that they will refer the
dispute in the suit to arbitration for settlement, the court shall allow the application and permit the suit
to be withdrawn; and the dispute shall be settled in accordance with Salish Ain, 2001.
6. First Hearing and the Examination of Parties by the Court: If the system of ADR is undertaken and it
is
successful, the dispute will end there. However, if ADR fails, the court shall proceed with hearing of the
suit from the stage at which the suit stood before the decision to mediate. Given that an ADR is not
undertaken or fails, the court will fix the date for first hearing. The first hearing of a suit means the day
on which the court goes into the pleadings of the parties in order to understand their contentions. At
the first hearing of the suit the court shall ascertain from each party or his pleader whether he admits or
denies such allegations of fact as are made in the plaint or written statement. The court will record such
admission or denials (R-1/Or-X). Issues are normally framed at this first hearing.
7. Framing of Issues: Issues are of two kinds- issues of fact and issues of law. Issues arise when a
material proposition of fact or law is affirmed by the one party and denied by the other. Each material
proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
Thus, no issues arise in regard to admitted facts. At the first hearing of the suit the court shall, after
reading the plaint and the written statements and after examination of the parties, if required, ascertain
upon what material
propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record
the issues on which the right decision of the case appears to depend. The duty to frame issues primarily
rests with the court. However, the advocates appearing for both the parties also should assist the court
in framing issues. Issues must be confined to the material questions of law or fact and not on
subordinate facts or evidence by which the material questions fact or law are proved or disproved. If the
court is of the opinion that the issues cannot be framed without the examination of some person not
before the court or without the inspection of some document not produced in the court, it may adjourn
the framing of issues to a future date (Order XIV). In cases in which no issues need be framed, e.g. a
small cause suit, the first hearing would be the day on which the trial starts.
8. Section 30 Step and Settling of Date for Hearing (SD): Though these two steps are known in civil suits,
they are not that much followed by the courts now a days. Section 30 step is related to the orders with
regard to the delivery and answering of interrogatories, the admission of documents and facts, and the
discovery, inspection, production, impounding and return of documents or other material objects
producible as evidence. Apart from the section 30 steps, once the issues are framed, the court will fix a
date for settling the date of final or peremptory hearing, i.e. the trial. On this 'settling date' (SD) the
court
insists on the parties for filing their lists of witnesses and applying for any commission that may be
required for examination of witnesses. On the SD the presiding judge should fix the date of peremptory
or final hearing. After a peremptory hearing date has been fixed, no further adjournment is normally
granted except for the most urgent and special reasons.

Trial Stage
1. Opening of the Suit: The plaintiff will have the right to start his opening speech first but
occasionally it might be the right of the defence to start the trial with a speech. It really depends
upon who bears the burden of proof on the matters in issue in the trial (Order XVIII/ Rule 1).
2. Peremptory Hearing (PH)/FH /Examination-in-Chief/Producing Evidence in Support of the suit:
3. Cross-Examination and Re-examination: After a party examines his witnesses in chief, his
opponent has the right to cross-examine him. The cross-examination usually follows
immediately upon the examination-in-chief. After cross-examination is complete, a party calling
a witness may recall him to re-examine. The purpose of re-examination is to clarify, explain or
develop matters arising out of cross-examination so as to limit, where possible, any damage to
the case.
 4. Summing Up/ Closing Speech/ Argument: As soon as evidence is closed, i.e ., after hearing of
both the evidences for the plaintiff and the defendant, the pleaders will be called upon to argue
their cases. The party beginning will have his argument at the end (Order XVIII/Rule 2 and Part-
XIII of the Civil Suit Instruction Manual). Thus usually the defendant's counsel goes first with his
closing speech. In a closing speech of a civil trial the counsel will normally substantiate the
following points: reinforcing the client's story into a coherent whole in so far as the evidence has
backed it up. This is to persuade the judge of the merits of the of the case (but definitely not by
misleading the court); Burden or proof and standard of proof an argument on law and legal
principles if any on the point, e.g. referring to case laws, authorities etc.

The Judgment
1. Pronouncement of Judgment: One the hearing is complete, the court will pronounce judgment at
once or will reserve the judgment for a future date. If a judgment is reserved, a definite date should be
fixed by the court for its delivery and notice of such date should be given to the parties. The essential
elements of a judgment are that there should be statements of grounds of decision. Every judgment
other than of a court of Small Causes should contain (i) a concise statement of the case; (ii) the points
for determination; (iii) the decision thereon; and (iv) the reason for such decision. A judgment of a court
of Small Causes may contain only points (ii) and (iii).
2. Decree and Order: The adjudication of a court of law may be of two types: (i) orders; and (ii) decrees.
Decree has been defined in section 2(2) of the Code.

Enforcement and Execution of Decree

1. Application for Execution: Execution is the enforcement of a decree by a judicial process which
enables the decree-holder to realise the fruits of the decree passed by the competent court in his
favour. All proceedings in execution commence with the filing of an application for execution. Such
application should be made to the court which passed the decree or where the decree has been
transferred to another court, to that court. Once an application for execution of decree is received by
the court, it will examine whether the application complies with the requirements of Rules 11 to 14. If
they complied with, the court must admit and register the application.
2. Hearing of the Application: The court on which the application is pending may fix a date for hearing
on the execution application. When the application is called out for hearing and the applicant is not
present, court may dismiss the application. On the other hand, if the applicant is present and other party
is absent, then the court may hear the application ex parte and pass such order as it may thinks fit. Rules
106 lays down that if the application is dismissed for default or ex parte order is passed, then the
aggrieved party may apply to the court to set aside the order.
3. Show Cause Notice for Execution: Rule 22 provides for the issue of show cause notice to the person
against whom execution is applied for in certain cases. As a general rule, law does not require any notice
to be issued for execution.
4. Procedure after Notice: If the person to whom the notice is issued does not appear or does not show
causes against the execution, the court may issue process for execution of the decree.
5. Mode of Execution: By delivery of any property specified in the decree or by attachment and sale or
by sale without attachment, or by arrest and detention in civil prison of the judgment debtor or by
appointing a receiver, or by affecting a partition, or in such other manner as the nature of the relief may
require.
 Summary

Pre-proceeding Stage
-Negotiation, Conciliation, Mediation
-Setting a lawyer
-Notice (if applicable)
-Preparation of Plaint
Proceeding Stage
-Institution of Suit
-Issue of Process
-Service of process/Summon
-Return of Summons/Written Statement
-ADR
-First Hearing and Examination of parties by the Court
-Framing of Issues
- Section 30 Step and Settling of Date for Hearing (SD)
Trial Stage:
-Opening of the Suit
-Peremptory hearing/FH/Examination of Witness(Examination-in-chief/Cross/Re-examination
-Summing Up/Closing Speech/Argument
Judgment/Decree
-Pronouncement of Judgment
-Decree/Order
Enforcement and Execution of Decree
-Application of Execution
-Hearing of the Execution
-Show cause Notice for Execution
-Procedure after notice
-Mode of execution