(Originally published in Dawn, Sept 7, 2009. Click here.)
KARACHI, Sept 6: Despite Chief Justice Iftikhar Mohammad Chaudhry’s National Judicial Policy requiring all rent cases to be decided within four months (and subsequent appeals within 30 days), rent cases in the city’s courts continue to be dragged out, mainly because of the “delaying tactics” of lawyers, a survey shows.
The NJP 2009 stipulates various measures to be taken to speed up the process of hearing rent cases, but legal analysts warn that it may be too early to judge the system. Lawyers at the city courts, however, say that changes are being made.
“It is ambitious, but it is doable,” a lawyer who deals with rent cases on a regular basis at the city courts told Dawn on condition of anonymity. He quickly added, however, that the policy can only be implemented “if lawyers cooperate with it”. Elaborating, he explained that most rent cases are “fairly straightforward, in terms of the law”, but can be dealt with within the stipulated four months only if lawyers do not ask for dates of adjournment and stop filing various petitions and applications that, in some cases, may be irrelevant to the matter in hand.
“The court can enforce control on them to a degree,” he said, “but in some cases even the court’s hands are tied.
“The speed has increased significantly, however, from what it was before. It is getting more and more difficult to get adjournments, and closer dates are being given for hearings. So, for example, where once one’s next hearing would be a month away, it is now just four days away.
“Judges are also dismissing sides if they do not appear on the date of hearing to deliver evidence or arguments or to offer testimony. Unlike their earlier practice, they sit for longer hours in courts.”
Each judge, on average, has about 500 cases on his or her board, with between 100 and 150 pertaining to rent matters, say lawyers. And this is where another snag in the legal process presents itself. Even with quicker procedures being adopted, the system remains clogged with the sheer weight of numbers.
“If your turn comes, then [a four-month period] is very possible,” said a lawyer. “But there are so many cases, though, and that is the problem.”Increasing the number of judges, lawyers say, can only help so much, as the city’s courts are already at bursting point. There would, quite literally, be nowhere for justice to be delivered.
A lengthy process
The process in rent cases, too, is fairly arduous.
Rent cases begin when a notice is sent to a tenant or landlord, as the case may be, by the applicant. The case is heard in the court of a rent controller for the relevant district. Rent controllers are also senior civil judges, and hear a variety of other cases as well. In Sindh, rent cases are decided under the Sindh Rented Premises Ordinance, 1979.
Once the case is filed, the defence files its written statement, explaining its position. Parties will then appear in court to present evidence and deliver testimony. For example, in a case involving the fixing of a fair rent, a litigant may ask a real estate agent to deliver his ‘expert opinion’ (an interesting fact, as there is no standard certification for real estate agents in this country) in the matter.
The law, say experts, is skewed in favour of the tenants, as the intention is to prevent illegal evictions and to ‘protect’ renters more than landlords.
After the evidence has been presented, advocates deliver their final arguments and the RC gives his or her verdict. That verdict can, of course, be appealed against (through the First Rent Appeal, Section 21 of the SRPO 1979) in the court of a district judge or additional district judge. The DJ/ADJ will review the decision and will decide whether to send the matter back to the RC for retrial.
“In the appeal stage, only the RC’s judgment is being questioned. There is no new evidence being presented and so it is very possible to dispose of it within 30 days if there is the will to do so,” said a lawyer.
If litigants are unsatisfied with the result of the appeal, they can also file a constitutional petition in the Sindh High Court. And if they remain unsatisfied, they can take the matter to the Supreme Court on another CP.
So how long does all this take?
“It takes three or four years, even for the simplest cases, and that too only in the trial court,” a lawyer experienced in rent cases told Dawn. “It’s because advocates will file miscellaneous applications regarding technicalities and side issues. The rent arrears, for example, are often a point of contention.”
‘Flaws at the very first stage’
As for litigants, they are convinced the process is flawed from the very first stage.
Enam Elahi, a landlord who has been tied up in litigation since 2004 regarding the premises he owns in the old quarters of the city, says that even the sending of notices to opponents takes months on occasions, as it is a process of sending multiple notices by hand, publishing advertisements in newspapers, and then finally pasting them on the premises.
“There is simply no penalty for not responding to legal notices,” he says, “and so advocates advise their clients to simply ignore them until they are directed by court to appear in person after a few months.”
Mr Elahi’s cases are not uncommon: he owns premises at Guru Mandir, where tenants have been paying the same rent since before partition. He has applied to the court to have the rent rates increased from Rs50-Rs100 per unit to a rate that is more in line with today’s market. “It is a simple thing,” he says, “and the courts should not overcomplicate it. And the advocates continue to take new dates, they are simply not pushed to get it done. Even they want to drag it out for as long as possible.
“Both the judges and the lawyers need to have a sense of social responsibility, and to simply get these cases done, rather than prolonging them.”
That is a thought echoed by Mrs Feroze Afaq Khan, another litigant, who has been pursuing cases regarding her properties on M.A. Jinnah Road since 1994. And the time it’s taken simply does not surprise her any longer, she says. “I’ve seen people who have been coming here for 10, 15, 25 years,” she says.
Mrs Khan would like to see changes being made by the judges, but more so by the lawyers. “The lawyers are a part of the judiciary,” she says. “They simply keep seeking new dates, keep delaying, keep filing miscellaneous applications. Their attitude is really quite lackadaisical. Unless we revamp our whole system, we can’t expect any changes.”
She added that one of the problems she has noticed is that the medium of the law is English, while many judges and most litigants are not well-versed in the language. Further, she added that even when cases end, they continue to be delayed. For example, if a case is decided in one’s favour, she said, and an eviction is ordered, then “you have to go all the way back to the senior civil judge to get eviction notices issued. And then you’re back to square one”.
“If I was dependent on my properties for my income,” she concludes, “then I would be in a terrible state. The government keeps raising the property taxes and fees that I pay, but the courts refuse to allow me to raise rents above what they were before partition.”
Do litigants think there is any hope, then, for the NJP to really be enforced?
“It can be done in four months, absolutely,” says Mr Elahi, “but it needs a will behind it. The judges need to penalise both lawyers and litigants if they resort to delaying tactics, but, more than that, the lawyers’ cooperation is essential.”
Other litigants, meanwhile, believe the system requires a complete overhaul, even as most agree that stricter penalties need to be enforced against those who would delay the legal process.
All in all, then, it appears that while the judiciary is taking steps to speed up the hearing of rent cases, which form perhaps the largest chunk of at the very least Karachi’s court cases, much more remains to be done. Significantly, the lawyers who fought for the restoration of the chief justice of Pakistan and for the ‘independence of the judiciary’ are being expected to show the same sort of ‘social responsibility’ when it comes to dealing with actual cases.