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Timely Justice for all in Bangladesh: A CHALLENGE FOR CHANGE

January 14, 2016.

Complex procedures, case backlogs, and a lack of effective case management are key constraints to the court system in Bangladesh. They put pressure on the capacity of the system, and create challenges for citizens in accessing justice. UNDP supports the judiciary of Bangladesh to strengthen its capacity by reducing these constraints. This will in turn provide a sustainable foundation for citizens of Bangladesh, in particular women and vulnerable groups, to access justice.

This report is a result of a year-long a detailed analysis of case workflows, and aims to map the business processes of the courts. By analysing the different stages of a court case it provides evidence-based insight to support decision-making. It identifies causes for delays in court cases, areas that potentially undermine the efficiency in courts, and outlines key obstacles within the courts themselves to ensuring equal access to justice for all citizens.

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Home » Law and Ethics » CIVIL JUSTICE SYSTEM IN BANGLADESH

CIVIL JUSTICE SYSTEM IN BANGLADESH

CIVIL JUSTICE SYSTEM: Disputes are a fact of life. A. D. R. means Alternative Dispute Resolution, mostly applied to civil cases . It delivers formal justice and it is oblivious of the sufferings and woos of litigants, of their waste of money, time and energy and of their engagement in unproductive activities, sometimes for decades.

Most of us who are or were in the judiciary and were or are practicing in the Bar think that nothing can be done about it, or, at least, we have no role to play in the matter, either individually or collectively. We are drifting into a stage of aimlessness, inertia, inaction and helplessness.

What is Alternative Dispute Resolution (ADR?)

Alternative Dispute Resolution refers to the means of settling disputes without going through legal procedures. Normally authority does not challenge it. It is not institutionalized, but both the community members and the disputants accept it. There are different ways to resolve disputes.

Objectives of ADR

The prime aim of alternative dispute resolution system in civil justice delivery system in Bangladesh is closing the hostility between the disputing parties and restoration of harmony.

Different forms of ADR and their application in civil justice system:

Negotiation, mediation and arbitration are the most common features of ADR techniques in Bangladesh. Let us discuss the three important ways of dispute resolution .

Laws pertaining to ADR in Bangladesh:

A) code of civil procedure,1908.

Surely, this concept is a denovo in our civil justice delivery system. Now ADR has come within the domain of civil procedure code. Section 89A lays down that except in a suit under the Artha Rin Adalat Ain, 1990 (Act. no 4 of 1990)

The government by amending the Code of Civil Procedure expands the avenue for shalishi .  By The Code of Civil Procedure (Amendment) Act, 2003 two new sections were incorporated (section 89A, 89B) in the code. It empowers the court to solve the matter through mediation or conciliation before the beginning of the trial except case under Artha Rin Adalat Ain. However there remain some limitations too, it will not exempt the disputant parties from the appearance before the court. This law is only relating to the pending cases,

In the mediation procedure, the court may take initiative to settle the dispute in the suit by itself or by making reference to independent mediators. ADR system is gaining popularity. This procedure will help to reduce the huge backlogs of civil cases in courts.

Public confidence in the judiciary will thereby increase. Access to justice will be expanded. The provisions will also help develop a new culture of consensual settlement of disputes doing away with the existing adversarial procedure. It will help protect and preserve cohesion and fraternity in society. Of the mediator here the advocate or any other person may be hired for mediation.

b) Artha Rin Adalat Ain, 2003

The delay caused made the bank sector suffer for non-realisation of dues in time and the bankers gathered bitter experience in realising the same. To remove this difficulty, the government enacted a special piece of legislation named “The Artha Rin Adalat Ain, 1990” which had gone under some changes by way of amendments since its inception. The law brought changes to a great extent in the administration of justice delivery system for regulating those suits but it failed to fulfil the expectation of the legislators/bankers to recover the dues expeditiously from the defaulters. The thinkers on the subject gave second thoughts to frame a new law and ultimately the legislature passed “The Artha Rin Adalat Ain, 2003” (hereinafter Adalat) by repealing the earlier one.

The law came into force on 1st May 2003 except sections 46/47 which came into operation on 1st May 2004. Within a short span of time, the law has gone under an amendment by the Artha Rin Adalat (Amendment) Ain, 2004 which reflects weak draft of the law.

I have been working as a Judge of the Adalat for more than two years.

There is no such legal provision in the Environment Court Act, 2000 like the present one. Section 19 has provided provisions for setting aside the ex parte decree but it does not make any provision for notifying the plaintiff bank like Order 9 Rule 13 of the Code of Civil Procedure 1908. As a result, the plaintiff remains ignorant about restoration of the suit.

This anomaly should be removed by inserting appropriate provision. Section 20 of the law has given finality to the order, judgment and decree of the Adalat. In spite of that the defaulter(s)/borrower(s) is/are challenging the same in the writ jurisdiction of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh and obtaining stay orders from the High Court Division.

c) Family Courts Ordinance, 1985:

The Family Courts Ordinance, 1985 speaks for the settlement of dispute through conciliation inside the Court before the formal proceeding of the trial started. The court may initiate a pre trial hearing to settle the disputes relating to dissolution of marriage, maintenance, and dower, restitution of conjugal rights as well as guardianship and custody of children. Besides, the Muslim Family Laws Ordinance 1961 empowers the Union Parishad to form an Arbitration Council for reconciliation between the parties wishing to dissolve their marital tie through Talaq and to deal with the polygamy.

“ADR in family court”

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; The procedure provides in family court is-

i) When the written statement is filed, the Family Court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit. [6]

ii) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement and documents filed by the parties and shall also, if it so deems fit, hear the parties. [7]

iii) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this be possible. [8]

iv) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinarily of not more that thirty days for recording evidence. [10]

vi) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties. [11]

vii) If such compromise or reconciliation is not possible, the Court shall

Arbitration Act 2001.

Arbitration law in bangladesh.

Bangladesh has enacted the Arbitration Act 2001 (the Act). It came into force on 10 April 2001, repealing the Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940, legacies of the British Raj in India. The new Act was again amended in 2004 in certain respects. Such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in various sectors, especially in natural gas and power, and the ever-growing export trade with the rest of the world. The Act consolidates the law relating to both domestic and international commercial arbitration . It thus creates a single and unified legal regime for arbitration in Bangladesh. There are also stray provisions as to arbitration, scattered in special Acts.

Concluding Recommendation:

The key to success of A.D.R. in Bangladesh lies in the manner of its introduction. A.D.R. is no longer an unheard of concept of dispute resolution among judges, litigants and lawyers of Bangladesh. The mediation output of all the Assistant Judges, taken together, is something to be proud of. The Ministry of Law only needs to collect maintain and update all relevant statistics in this regard. Other initiatives are given below:

1)      Creating awareness about ADR

2)      Spreading the success story of ADR

3)      Encouraging NGOs to become involved in ADR

4)      Involving the Bar Associations in ADR

5)      Providing training for mediators

6)      Matching Government and NGO efforts.

7)      A. D. R. will have a-smooth transition if it is introduced on a pilot court basis.

[1] Hazel Genn, Mediation in Action: Resolving

[2] SK Golam Mahbub, Alternative Dispute Resolution in Commercial Disputes: The UK and Bangladesh Perspective 2005, at p. 21.

[3] P. C Rao, Alternative to Litigation in India, 1997, p.26

[5]  found in http://www.guidedways.com/chapter_display.php?chapter=4&translator=2, last accessed on 18.04.2010

[6] Section 10  of the Family Court Ordinance 1985

[9] Section 14 (1 of the Family Court Ordinance 1985

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Delays in Litigation of Judicial Administration in Bangladesh

• Living reference work entry
• First Online: 26 November 2021
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Abdur Rahman (Zibol)

Litigants or Disputants

Delays in litigation refers to the degree to which litigants must wait too long, and pay too much, to resolve their disputes which stained to the administration of justice to meet out as promptly as possible.

Introduction

The provisions of Article 31 and 35 denotes the fundamental rights as guaranteed in the Constitution of the People’s Republic of Bangladesh to have a speedy and fair trial in judicial proceedings. Delays in litigation are blight or disease in all the judicial administration. Lawyers preference a delay in litigation as a professional disease or as a privileged anecdote. Access to a reasonable hearing is not a shaggy dog story. Most lawyers and judges familiar with civil or criminal trial practice agree that the most critical problem is a delay in either trying or disposing of the cause. Judiciary does not work as a single device but a mixed mechanism of linking administrations likely police, land, health, local government,...

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Ali Farazmand

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Abdur Rahman (Zibol). (2021). Delays in Litigation of Judicial Administration in Bangladesh. In: Farazmand, A. (eds) Global Encyclopedia of Public Administration, Public Policy, and Governance. Springer, Cham. https://doi.org/10.1007/978-3-319-31816-5_3234-1

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Alternative Dispute Resolution (ADR): A New Key for Implementing Civil Justice in Bangladesh

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Alternative Dispute Resolution (ADR) is an alternative to a full-scale court proceeding and is applied in different situations in different ways, both formally and informally, mostly in civil cases in Bangladesh. Traditionally, people in rural areas have preferred to settle their disputes by the ADR process particularly, negotiation, mediation, conciliation and arbitration because this process is less time consuming and cheaper as well. An ADR process is very popular in Bangladesh as both the plaintiff and the defendant get their benefits from this process and as a matter of fact, the ADR reduces the work load of a formal judicial system in Bangladesh to a great extent. However, the laws relevant to the ADR processes are inadequate in various legal and litigative aspects and perspectives and there is no uniform law for the ADR in Bangladesh. Therefore, this research will critically analyze the existing laws relevant to the ADR and will suggest some guidelines to improve the existing process in Bangladesh by adopting qualitative research method.

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Comprehending the application of intellectual property law in internet marketing strategies…, the clause of “special circumstances” under section 19 of cmra for…, right to water: from international to national legal arena, adr mechanism in ordinary civil courts of bangladesh.

Focus Keyword: ADR in Civil Justice System in Bangladesh

Bangladesh judiciary is deadlocked in a vicious circle of delays and backlogs. According to a report of the Law Commission, till 31 st December of 2014 there are more than 2.6 million cases are pending in district courts. Present rate of disposal of cases and accumulation of backlogs is alarming for justice, rule of law and economic development of the country. In spite of best effort and full utilization of manpower, it is not easy to combat with such alarming backlog situation without taking recourse to Alternative Dispute Resolution (ADR). In such circumstances, ADR system has been introduced within the formal justice system to minimize inordinate delays and to reduce undue litigation costs. In Bangladesh we find practices of ADR in three different forums i.e. formal (e.g. Family Court), Quasi-formal (e.g. Village Court) and informal (e.g. village shalish ). At present, a number of statutes in Bangladesh have implemented a judicial practice of ADR through mediation, conciliation and arbitration.

The most notable ADR within the formal justice system is the one introduced to ordinary civil courts in 2003 by the amendment of Code of Civil Procedure (CPC), 1908. Though previously ADR was in practice in some special civil courts, sections 89A and 89B was inserted by this amendment to incorporate the systems of mediation and arbitration of civil disputes that lie before the court. This amendment gives option to the court to mediate between parties or refer the dispute to the pleader or the parties themselves (where no pleaders have been engaged) or to the mediator from the panel to be prepared by the District Judges. In 2006, the CPC was further amended to insert section discussing the provision of conducting ADR (mediation) during appeal. Despite the effort, the scheme did not actually work well; there was an option for the court to decide whether the dispute should be referred for mediation. Thereby, there is an exigent need for further amendments which would make ADR mandatory.

In 2012 the CPC was again amended to replace the word ‘may’ with ‘shall’ in section 89A and 89C to make mediation mandatory in both pre-trial and appellate stage in every civil litigation and sections 89D and 89E were newly added. Section 89D provides special provision for mediation when the contesting parties to a suit or of an appeal applied for mediation thereof started before the amendment of 2012. Section 89E provides for application and commencement of the provisions of section 89A and 89C in the following words- ‘the provision of section 89A or 89C shall be applied to such area, and commenced on such date as the government may by notification in the official Gazette, fix’. But government has not yet issued any Gazette notification fixing the date and specifying the area for its application. As a result, ADR has not been started yet in the ordinary civil courts of Bangladesh after an era of introducing the provisions in the CPC.

Mediation under the CPC is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties’ disputes. After the appointment of mediator by the parties or by the court, mediation work must be completed within 60+30 days from the date of appointment of mediator. The court shall pass decree/order according to the terms of compromise within 7 days from the date of getting report of the mediator. If mediation attempt undertaken by the court fails, the same Judge shall not hear the suit subsequently.

Introduction of compulsory mediation system in the ordinary civil courts is obviously a positive step not only to reduce huge number of pending cases but it has also a healthy impact on the society and social relations of the litigants. Now we are waiting for government’s initiative to start full-fledged ADR in the ordinary civil courts of Bangladesh. At last, the famous words of Abraham Lincon emphasizing deep significance of ADR may be recalled. He said- “Discourage litigation; persuade your neighbors to compromise, whenever you can; point out to them the nominal winner is often a real loser, in fees, expenses, and waste of time.”

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Jurisdiction of Court

Every court of Bangladesh  possesses jurisdiction over matters only to the extent granted to it by the Constitution of Bangladesh or legislation of this country. The Superior Court of Justice in Bangladesh is named as Supreme Court of Bangladesh followed by a hierarchy of civil and criminal court at the district level. Jurisdiction of all courts of Bangladesh is discussed below-  

Supreme Court of Bangladesh

In exercise of powers conferred under Article 94 of the constitution the Apex Court of the country was established which consists of:

• the Appellate Division, and
• the High Court Division.

Jurisdiction of the Appellate Division -

According to article 103 of the Constitution of Bangladesh jurisdiction of Appellate division are as follows-  

• The Appellate Division have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division.
• An appeal to the Appellate Division from a judgment, decree, order or sentence of the High Court Division shall lie as of right where the High Court Division-
• certifies that the case involves a substantial question of law as to the interpretation of the Constitution; or
• has confirmed a sentence of death or sentenced a person to death or to imprisonment for life, or
• has imposed punishment on a person for contempt of that division; and in such other cases as may be provided for by Act of Parliament.
• An Appeal from the judgments, decrees, orders or sentences of the High Court Division in a case to which clause (2) does not apply shall lie only if the Appellate Division grants leave to appeal.
• Parliament may by law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the High Court Division.

The Jurisdiction of the High Court Division

The High Court Division has original, appellate and other jurisdictions, powers and functions as are conferred by the Constitution and other laws-

• Original jurisdictions – in writ, company, Admiralty matters etc.
• The appellate and revisional powers are from the judgments and orders of the District Judges, Joint District Judges, Sessions Judges , Special Tribunals, Special Judges, Artha Rin Adalats, Druta Bichar Tribunals, and Bankruptcy Courts etc.
• Contempt matters.

Subordinate Court:

  Civil Court:

• The Court of District Judge.
• The Court of Additional District Judge.
• The Court ofJoint District Judge.
• The Court of Senior Assistant Judge.
• The Court of Assistant Judge.

Jurisdiction of Civil Court-

1. District Judge Court- Revisional jurisdiction , appeal of civil matters valuation of which is upto five crore taka, Probate matters etc.

 2. Additional District Judge Court-  Try cases transferred to this Court by District Judge.

3.Joint District Judge Court- i) Original Jurisdiction- hearing of civil suit of which valuation is from twenty five lac taka to unlimited,

ii)Try succession matter,

ii) Revision-  which case is transferred to this Court by District Judge,

iii)Appeal –which case is transferred to this Court by District judge.

4. Senior Assistant Judge Court-  try suits of civil nature of which valuation is fifteen lac to twenty five lac taka.

5. Assistant Judge Court-  to try civil suits of which pecuniary jurisdiction is below fifteen lac taka.

6. Small Causes Court – A Small Causes Court shall have jurisdiction to dispose of suits of a civil nature of which the value does not exceed twenty five thousand taka.

7. Family Courts –This court  try suits which are of family matters i.e.- dissolution of marriage, dower, custody and guardianship of children, restitution of conjugal rights and maintenance relating to matters.

Criminal Court:

(i)           Court of Sessions:  There shall be in every division the following Sessions Court-

                                               (a)  Sessions Judge

                                               (b) Additional Sessions Judge

                                               (c) Assistant Sessions Judge

For metropolitan area - In every metropolitan area there shall be the following Sessions Court-

                                        (a) Metropolitan Sessions Judge

(b)Additional Metropolitan Sessions Judge

( c) Joint Metropolitan Sessions Judge

(ii)  Magistrate Court:

For Metropolitan Area -  Hierarchy of  Magistrate Court for Metropolitan area are discussed below-

• Chief Metropolitan Magistrate
• Additional Metropolitan Magistrate
• Metropolitan Magistrate

All over the country other than Metropolitan Areas-

(a) Chief Judicial Magistrate,

(b) Additional Chief Judicial Magistrate,

(c) Magistrate of the first Class,

(d) Magistrate of the Second Class,

(e) Magistrate of the Third Class.

Jurisdiction of Criminal Court:

• Court of Sessions Judge and Additional Sessions Judge-This court may pass any sentence authorized by law but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court Division.
• Joint Sessions Judge- A  Joint  Sessions Judge may pass any sentence authorized by law, except a sentence of death or of transportation for a term exceeding  ten years or of imprisonment for a term exceeding   ten  years.
• Magistrate of first class/ Metropolitan Magistrate – maypass order for imprisonment for a term not exceedingfive years and fine not exceedingten thousand taka,
• Magistrates of the Second Class- may pass order for  imprisonment for a term not exceeding   three years and fine not exceeding  five thousand taka,
• Magistrates of the Third Class- may pass order for imprisonment for a term not exceeding two  year and fine not exceeding  two thousand taka.

Tribunals and Special Court-

• Nari-O-Shishu Nirjatan Daman Tribunal: The offences under the Nari-O-Shishu Nirjatan Daman Ain-2000 are being tried by this tribunal.
• Druto Bichar Tribunal- The offences under the Druto Bichar Tribunal Ain, 2002 are tried by Druto Bichar Tribunal (Speedy Tribunal).
• Druto Bichar Adalat: The offences under the Ain Shrinkhola Bighnokari Aporadh (Druto Bichar) Ain, 2002 are tried by Druto Bichar Adalat.
• Special tribunal-  The offences under the Special Powers Act, 1974 are tried by the Special Tribunal.
• Administrative Tribunal – This tribunal has exclusive jurisdiction to hear and determine applications made by any aggrieved person in the service of Government  in respect of terms and conditions of his service.
• Administrative Appellate Tribunal – An appeal from the decision of the Administrative Tribunal lies in Administrative Appellate Tribunal consisting of a chairman and two members.
• Labour Court- This court has been established to adjudicate disputes regarding employment of commercial or industrial disputes.
• Labour Appellate Tribunal – Any person aggrieved by an award of the Labour Court may prefer an appeal to this tribunal.
• Taxes Appellate Tribunal -   If an assesse is aggrieved by an order of the Appellate Joint Commissioner or Commissioner (Appeal), he may prefer an appeal to the Taxes Appellate Tribunal.
• Customs, Excise and Value Added Tax Appellate Tribunal- Any person                     aggrieved by an order or decision of the commissioner or commissioner (Appeal) may prefer an appeal to the Customs, Excise and VAT Appellate Tribunal.
• Artho Rin Adalat – A suit for recovery of loan of financial institutions including banks is to be tried by  the Court of Artho Rin Adalat.
• Special Judge Court -The offences under the Anti Corruption Act, 1957 and the Criminal Laws Amendment Act, 1958 are tried by Special Judges.
• Land Survey Tribunal- This Court has been established under section 145A of State Acquisition and Tenancy Act,1950 to solve dispute relating to survey of land.
• Marine Court- This court tries all cases relating to the marine accident case, defect of vessel and cases under Merchandise Shipping Ordinance and Inland Shipping Ordinance.
• Court of Settlement- This court has been established under the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985. This Court deals with the abandoned buildings and has all the powers of a civil court. No appeal can be preferred against the order of this court.
• Cyber Tribunal- This court tries all cases which are relating to cyber crime .
• Court of Environment- This court try all cases which arises from environment related issues.
• Court of Environment of Appeal- Any person aggrieved by an award of the Court of Environment  may prefer an appeal to this court.
• Special Tribunal, Securities & Exchange Commission- This tribunal deals with the cases which are related to securities and exchange.
• Forest Court- This court tries all cases under forest act, 1927 which is related to the offences committed inside forest.

The International Crimes Tribunal-

This Tribunal was constituted for the purpose of trial of offences such as-

(a) Crime against Humanity,

(b) Crime against peace,

(c) Genocide,

(d) war crime,

(e) Violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva conventions, 1949,

(f) Any other crime under the International Law.

All Judicial Portals

Court calendar.

© কপিরাইট ২০১৬

Civil Justice System

Introduction:

civil courts of a country are established to settle the dispute of the litigating parties by applying the prevailing civil laws. In civil justice system the provisions of arrest, detention and imprisonment are not common as the aim of this system is to enforce the right of the party on the basis of the evidence produced before the court. But in some exceptional cases the civil courts have to resort to the provisions of arrest, detention and imprisonment specified in the civil procedural law. Applications of these ultimate provisions in civil matters are rarely observed in the civil proceeding in the legal system of Bangladesh. This present writing is aimed at to find out the reasons of practical inapplicability and to recommend the necessary amendments in the provisions of arrest, detention and imprisonment in the civil justice system.

In a given legal system of a country there are two types of justice systems namely civil justice system and criminal justice system to administer justice. The purposes and ends of these two different justice systems are quite different and procedures of administering justice are also significantly different. The main purpose of civil justice system is to determine and uphold the various rights of the people while the main purpose of the criminal justice system is to maintain peace and tranquility in the society by bringing the offenders before courts of law and sentencing the convicts by sending jail in the name of imprisonment. Generally the concept of arrest, detention, imprisonment and fine are available in case of criminal justice system and these are not resorted in civil matter. But in some exceptional civil cases the provisions of arrest, detention and imprisonment come into the scene for smooth administration of civil justice. The nature of arrest, detention and imprisonment in civil justice system is dissimilar in many ways from the provisions of arrest, detention and imprisonment in criminal justice system. In reality the judges of civil courts are reluctant in application of the provisions of arrest, detention and imprisonment in the judicial proceedings and they use these weapons as the last resort to uphold the rights of the litigants and end of justice.

Different stages of civil suit:

For better understanding of the present topic it is advisable here to discuss the different stages of a civil suit in a short manner. One of the major characteristics of adversarial legal system is that civil litigation process is a contest between two parties. Bangladesh belongs to adversarial legal system and under this system in civil litigation the two parties are the plaintiff on one hand and the defendant on the other hand. Under this process the court takes a non partisan role and the court does not play any role in the inquiry into the events rather arrange a hearing between the parties to decide within the complex set of rule whether the plaintiff is entitled to the right claimed which the defendant denies. In civil proceeding the standard of proof is the balance of probabilities namely more probably true than false. Thus if the plaintiff can establish a prima facie case before the court in favor of his claim and other parties does not adduce any evidence in his defense the court should deliver judgment in favor of plaintiff. Balance of evidence in favor of plaintiff on civil proceeding is also commonly known as the prima facie case and if the plaintiff fails to raise the prima facie case the court should deliver judgment in favor of defendant on the basis of ‘no case to answer’. The whole civil judicial proceeding in courts is regulated by the different provisions of the Code of Civil Procedure-1908 and the Civil Rules and Order (C. R. O).

The stages of civil proceeding may be broadly categorized into the following stages:

(1)  Pre-trail stage

(2)  Trail Stage

(3)  Post trial stage

court. If a proceeding does not commence on the presentation of plaint it is not a suit even if a judgment may be passed in such proceeding. Plaint is considered to be document by presentation of which in a civil court, a party seeks relief from such court. 2

Summon: Once the suit is filed successfully a summon is to be issued upon the defendant to appear on a date specified in the summon to appear and answer the claim.

Filing Written Statement:

If the summon is duly served upon the defendant and a written statement containing the answer of the claim of plaintiff and his own claim is to be submitted to the court on the date fixed on the summon. Filing of written statement is obligatory and non-filing of written statement will be considered as of the facts by the defendants 3

Alternative Dispute Resolution:

By incorporating section 89A in the Code Alternative Dispute Resolution(ADR) was formally introduced in our legal system. Incorporation of ADR in  the  civil  proceeding  is  groundbreaking  step  taken by the Government of Bangladesh. 4 At this stage the court takes an attempt to mediate the dispute between the parties avoiding the formal procedure of litigation.

First Hearing:

If the ADR process fails the court shall proceed from the stage at which the suit stood before the decision of ADR. At this stage court will examine the pleadings of the parties and try to determine the core of dispute.

Framing Issues:

At this stage the court will determine the issue of the suit. Issue arises when material proposition of fact and law is affirmed by one party and

denied by the other party.

Step under Section 30:

After framing issue the court may give order on application of the parties with regard to the delivery and answering of interrogatories, the admission

of document and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence.

Settling Date (SD):

Now the court settles a date for peremptory hearing that is date for trial.

Trial Stage:

Opening the case:

It is the right of the plaintiff to open the case and at this stage the plaintiff states the nature of the case, issue in the case, evidence of the witnesses.

Peremptory Hearing (P H):

At this stage the plaintiff and defendant examine their own witness and cross-examine the witnesses of the other and may re-examine the witness.

After hearing the evidence of the witness of both parties the respective

pleaders will be called upon to argue their case.

Post-trial stage:

Pronouncement of judgment:

Once the hearing is complete the court will pronounce judgment at once or reserve the judgment for future date. Every judgment contains (i) a concise statement of the case (ii) points for determination (iii) decision theron (iv) reasons for decision.

By the words of decree the court specifically determines and pronounces the rights of the parties in the present dispute.

Execution of decree:

This is the last stage of a civil proceeding and by application of the decree holder the court takes necessary step to execute the decree.

The question of arrest and detention in the civil proceeding may come either at the trial stage or at the post trial stage. Apart from the two parties namely plaintiff and defendant in civil suit the existence of witness is indispensable for delivery of justice. So the plaintiff, defendant and witness are the role characters in a civil suit.

Arrest and detention at or before trial stage:

Arrest and detention of witness:

Generally it is the duty of the parties of the suit to bring their own witness at their own initiative. But for smooth operation of justice between the parties sometimes the court issues summon to the witness to appear before court to adduce evidence or to produce documents which is to be used as evidence in the present proceeding. If the witness fails to comply with the summon the court may order to arrest and detain him. Section 32 of the Code of Civil Procedure provides that the Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may issue a warrant for his arrest. It is again provided in the Code that where the court see the reason to believe that the evidence of the person summoned or the production of document under the possession of that person is material and that such person has without lawful excuse failed to attend or to produce the document or has intentionally avoided the service it may issue a proclamation requiring him to attend to give evidence or to produce document and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides. 5 In lieu of or at the time of issuing proclamation or at any time afterwards the court may in its discretion issue a warrant either with or without bail for the arrest of such person. 6 Generally the civil courts do not apply this harsh provision for attendance of witness rather in rare case courts use this power to compel the attendance of recalcitrant witness. The rule being highly penal, the court should construe the rule strictly and apply the rule only when the witness summoned neither appears nor gives any lawful excuse. 7

Arrest and detention of Defendant:

hi the civil proceeding the presence of defendant is imperative to settle the core of dispute between the parties and to determine the truth of the claim of plaintiff. Again if it is noticed at the earlier stage of the suit that there is strong probability (prima facie) of success of claim of plaintiff it is the duty of court to take necessary steps against any activities of the defendant which is aimed at to frustrate the plaintiffs claim. The Code of Civil Procedure prescribes specific provision in this regard that where at any stage of the suit the court is satisfied by affidavit or otherwise that the defendant with the intent to delay the plaintiff or to avoid any process of the court or to obstruct or to delay the execution of any decree that may be passed against him (i) has absconded or left the local limit of the jurisdiction of the court or (ii) is about to abscond or leave the local limit of the jurisdiction of the court or (iii) has deposed of or removed from the local limit of the jurisdiction of the court his property or any part thereof the court may issue the warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. 8 Again where at any stage of the suit the court is satisfied by affidavit or otherwise that the defendant is about to leave Bangladesh under the circumstances affording reasonable probability that the plaintiff will or may thereby obstructed or delayed in the execution of any decree that may be passed against defendant in the suit the court may issue the warrant to arrest the defendant and bring him before the court to show cause why he should not furnish security for his appearance. 9 Before exercising this extra-ordinary power the court must be satisfied that the plaintiff must have unimpeachable prima facie case in his favor. For the satisfaction of the court the applicant must make some concrete allegations and produce sufficient materials in support of the allegations. 10 Where the suit is for determination of the right to immovable property the court can not pass an order of arrest of the defendant under Order XXXVIII Rule 1 or in exercise of inherent power. 11 Again it is provided that where the defendant fails to show such cause the court shall order him to deposit either money or property or furnish security or surety for his appearance. The person who gives the surety for appearance of defendant may apply to the court to be discharged from his obligation and in that case court shall summon or issue warrant of arrest to the defendant to appear before court and furnish fresh security.

Arrest and detention at post trial stage:

As mentioned earlier that the last stage of a civil proceeding is the execution of the decree passed by the court. Apart from the other modes of execution of decree the court may on the application of the decree holder

The Code of Civil Procedure, Order XXXVIII Rule l(a)

The Code of Civil Procedure, Order XXXVIII Rule 1 (b)

Lawrence Loat Ltd Vs AJAX Inc 1997 BLD 159 Mosharraf Hossain Vs Hasian Begum, 43 DLR 254

The Code of Civil Procedure, Order XXXVIII Rule 2 and 3

order the execution of the decree by arrest and detention in prison. Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-

(a)  that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, –

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. 13 The provision of execution of decree by arrest and detention in civil prison should be applied by the court as the last resort of execution of decree. Simple default by the judgment debtor in paying the decretal amount is not enough for ordering arrest rather it must be shown that the judgment debtor is having funds and he is purposely delaying payment. 14 In case of decree to pay the money the judgment debtor must be given the opportunity to pay the amount by installments. Again it is provided that where an application is for the execution of a decree for the payment of money by the arrest and detention in the in the civil prison of judgment debtor who is liable to be arrested in pursuance of the application the court shall instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the court on the day to specified in the notice and show cause why he should not be committed to the civil prison.

Provided that such notice shall not be necessary if the court is satisfied that with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the court. Where appearance is not made in obedience to

The Code of Civil Procedure, Section 51. Alagapon Vs Rajaguru & Co, AIR 1985 Mad 353.

the notice the court shall if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor.

Procedure of arrest in civil proceeding:

A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the Government may appoint for the detention of persons ordered by the Courts of such district to be detained:

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise:

Provided, secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found. 16

Provided, thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest.

Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the court with all convenient speed unless the amount which he has been ordered to pay be sooner paid. 17

Period of Detention in Civil Prison:

Every person detained in the civil prison in execution of a decree shall be so detained,-

The Code of Civil Procedure, Order XXI Rule 37

The Code of Civil Procedure, Section 55.

(a)  Where the decree is for the payment of a sum of money exceeding fifty Taka, for a period of six months, and,

(b) hi any other case for a period of six weeks. 18

In case of arrest before pronouncing judgment no person shall be detained in prison for a longer period than six months nor for the longer period than six weeks when the amount or value of the subject matter of the suit does not exceed fifty taka. 1 The court has no power to fix a shorter period than prescribed time. 20

Subsistence allowance for detainee:

Unlike the criminal justice system the government does not pay any subsistence allowance for any person who is undergoing civil imprisonment. Subsistence allowance of the person in civil prison has to be provided to prison authority by the person on whose application the judgment debtor is kept in prison. The Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors. No judgment debtor shall be arrested in execution of a decree unless and until the decree holder pays to the court such sum as the judge thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest until he can be brought before the court. Where a judgment debtor is committed to the civil prison in execution of a decree the court shall fix for his subsistence such monthly allowance as he may be entitled to according to the scales fixed by the government or where no such scale have been fixed as it considers sufficient with reference to the class to which he belongs. The monthly allowance fixed by the court shall be supplied by the party on whose application the judgment-debtor has been arrested by monthly payment in advance before the first day each month. The first payment shall be made to the proper officer of court for such portion of the current month as remains unexpired before the judgment-debtor is committed to the civil prison and the subsequent payment shall be made to the officer in charge of the civil prison. 21 The rules of subsistence allowance for judgment-debtor apply to the case of arrest before judgment. 22

 The Code of Civil Procedure, Section 58.

The Code of Civil Procedure, Order XXXVIII Rule 4

Sujan Vs Sagor, 5 CWN 145.

The Code of Civil Procedure, Order XXI Rule 39 22 Law of Civil Procedure By M. Mahmudul Islam and Probir Neogi at P.939

Release from Arrest and Detention:

When a person is arrested and detained in civil prison whether before or after judgment he can be released on different grounds mentioned in the Civil Procedure Code. If warrant of arrest is issued against defendant before judgment the he shall not be arrested if he pays to the officer entrusted with arrest with execution of warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claim. 23 In order to give the judgment debtor an opportunity of satisfying the decree the court may before making the order of detention leave the judgment-debtor in the custody of the officer of the court for a specified period not exceeding fifteen days or release him on furnishing security to the satisfaction of the court for his appearance at the expiration of the specified period if the decree be not sooner satisfied. 24 Where the decree in execution of which judgment debtor is arrested is a decree of the payment of money and the debtor pays the amount of decree and the cost of arrest to the arresting officer such officer shall release him. 25 Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force. Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realized or commit him to the civil prison in execution of the decree.

The executing court is bound to inform the arrested judgment-debtor that he may apply for insolvency. 27

 The Code of Civil Procedure, Order XXXVIII Rule 1

The Code of Civil Procedure, Order XXI Rule 40

 The Code of Civil Procedure, section 55(1)

The Code of Civil Procedure, section 55(3 & 4)

Ram Vs Mackenzie, 50 PLR 1909.

Every person detained in the civil prison in execution of a decree shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be,-

(1) on the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil prison, or

(ii) on the decree against him being otherwise fully satisfied, or

(iii) on the request of the person on whose application he has been so detained, or

(iv) on the omission by the person, on whose application he has been so detained, to pay subsistence allowance:

Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the order of the Court.

(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison. 28

The immunity from re-arrest is applicable only when the judgment-debtor is released from detention in jail and not when he was released after arrest without being committed to civil prison which means civil jail not the court house. 29 Again a judgment-debtor may be released from prison on the ground of serious illness as government is not liable to pay subsistence allowance to him. At any time after a warrant for the arrest of a judgment-debtor has been issued the court may cancel it on the ground of his serious illness. Where a judgment-debtor has been arrested the court may release him if in its opinion he is not in fit state of health to be detained in the civil prison. Where a judgment-debtor has been committed to the civil prison he may be released therefrom by the Government on the ground of the existence of any infectious or contagious disease or by the committing court or any court to which that court is subordinate on the ground of his suffering from any serious illness. 30

Who can not be arrested:

In civil proceeding there are necessary limitations in respect of arrest, detention and imprisonment in civil prison either before or after judgment.

 Rajendra Vs Chunder, ILR 23 Cal 123.

The Code of Civil Procedure, Section 59.

Following    persons    is    immunized    against    arrest,    detention    and imprisonment in civil prison:

(i) The President of the Peoples Republic of Bangladesh. 31 (ii) The Government may by notification in the official Gazette declare that any person or class of persons whose arrest might be attended with danger and inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the-it Government in this behalf.

(iii) Notwithstanding anything contained in the provisions arrest and detention in civil proceedings the executing court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for payment of money.” 13 But under Artho Rin Adalat Ain-2003 a woman can be arrested in execution of a decree for payment of money.

(iv) In a suit against a public officer in respect of any act purporting to be done by him in his official capacity the defendant shall not be liable to arrest.

(v) No judge, Magistrate or other judicial officers shall be liable to arrest under civil process while going to, presiding in or returning from his court. 35

(vi) Where any matter is pending before a tribunal having jurisdiction therein or believing in good faith that it has jurisdiction the parties thereto, their pleaders, mukhters, revenue agents, and their witnesses acting in obedience in summons shall be exempted from the arrest under civil process. 36

(vii) No persons shall be liable to arrest or detention in prison under civil process (a) if he is a Member of Parliament during the continuance of any meeting of Parliament and during the fourteen days before and after of such meeting . (B) If he is the member of any committee of Parliament during the

The Constitution of B angladesh, Article 51.

The Code of Civil Procedure, Section 55 (2)

The Code of Civil Procedure, Section 56.

The Code of Civil Procedure, Section 81.

The Code of Civil Procedure, Section 135(1)

The Code of Civil Procedure, Section 135(2)

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