Proposed sytem of jurisdiction in the bill made to amend and unify laws related to the procedures of Civil Court cases, 2067

The Civil Court Procedure Code, 2067 draft has clearly provisioned for the jurisdiction of Civil Court cases.

Dec. 3, 2013, 5:45 p.m. Published in Magazine Issue: Vol: 07 No. -11 Nov. 29- 2013 (Mangsir 14, 2070)

Jurisdiction is a synonym for rights. As soon as the word jurisdiction is used it can be understood whether there are rights or not. The Brihat Nepali Shabdakosh (Published by Nepal Academy, Pg no 278) defines jurisdiction as “right to hear cases of a special region or cases of special kinds and the right to [make decisions] regarding a special sector”.

System of jurisdiction in the Civil Court Procedures Code

The Civil Court Procedure Code, 2067 draft has clearly provisioned for the jurisdiction of Civil Court cases. Paragraph 3 has provided for the jurisdiction, for the first time in Nepal. Before this there used to be different provisions in the concerned Act, the Muluki Ain.

The Code, has clearly defined the term “court” and specifically pointed out the Supreme Court, Appelate Court, District Court, Empowered Court, other judicial agency or officer in Article 2 (a). This has included both judicial as well as semi-judicial. This has given the court the jurisdiction to decide and order the agency.

Likewise in cases where a lower court decision is unacceptable to a party, and a request has been filed in a higher court for a retrial explaining why there should be a retrial, the request for a retrial has been defined as appellate letter and the higher court given the jurisdiction to hear the case (Article 2 (F)). Besides this the Code also mentions that wherever legal provisions are prevalent it shall be as mentioned and where there is no written legal provision it shall be as defined by the Code (Article 3). This clarifies that the Code is yet incomplete.

Paragraph 2 envisions a capable and independent court saying that the court shall be capable of case proceedings, hearing, and judgement, that rights shall be determined by the court, debates regarding legal standing shall be determined by the concerned court, the capacity of the defendant shall be honored, property rights jurisdiction shall not be nil, and that there shall be the Appellate Court, keeping jurisdiction inseparable. (Article 4-15).

Paragraph 3 has determined the limitations of the jurisdiction saying that the court shall have the rights to proceed, hear and decide as per the law. It has incorporated the principle natural law by stating that out of jurisdiction hearing or decisions shall be void. The legal basis for the received right shall be explained (Article 16)

Jurisdiction of the court (Article 17)

  1. Case hearing and judgement
  2. Hearing the retrial
  3. Retrial
  4. Review

Jurisdiction of the District Court (Article 18-19)

Subject:

  1. Issues related to any immovable property where due to the nature of the details of the case a field investigation is required
  2. Cases related to services, canals, border
  3. If in a case it is seen from the claim petition that land, building, or place should be investigated, the District Court of the district where the land, building or place is shall process, hear and decide on the case.
  4. If issue of rent, harvest, or fraudulently acquired wealth is in question or ownership of property, right to the property or related to rights and no rights
  5. Related to halting immovable property or mortgage
  6. Distribution of immovable property
  7. Mortgaging immovable property or using or causing to be used
  8. Any concerns or issues related to immovable property
  9. Compensations related to immovable property

Which District Court has the jurisdiction?

  1. In the context of property disputes the District Court of the district where the claim has been filed will have the right to process the case, hear it and give its decision.
  2. The District Court of the district where the claimant is, or whichever district where the work has been done, will process, hear and judge the case. (“District where the claimant is” means the district where the claimee lives and in terms of legal person, the main office of such persons.)
  3. If both claimant and defendant are conducting any business in a place within Nepal outside of the area they are in, the District Court of the area the business has been conducted in or the District Court of the area the claimant is in, where the claim petition has been filed will process, hear and decide about the case.
  4. If there are more than two defendents, the case has to filed in the District Court of the district where most of the defendents are. If there are equal number of defendents in more than one district the case can be filed in the District Court of the district where the defendent lives.
  5. As there are also provisions for cases to be filed in a court in Nepal even if the business transaction or contract has taken place in a foreign country, the District Court of the district where the claimant or defendant lives will process, hear and decide on the case (Article 20).
  6. The proceedings, hearing and judgement of cases of business transactions conducted in airplanes or boats or ships registered legally in Nepal, that are outside of Nepal, will be conducted by the Court of Nepal as per Article 20. (Article 21)
  7. If a state employee has to file a claim petition in the capacity of the official position, or if anyone files a claim petition making the state employee a defendant, the claim petition should be filed in the District Court of the district where the employee’s office is located. (Article 24 (1))
  8. When a state employee has to file a personal claim petition or a written answer to a claim filed against him, the case can be registered in the District Court of the district he is working in (Article 24(2)). Such a claim petition or answer registered in the court has to be sent to the concerned District Court (Article 24 (3)). The concerned District Court will process, hear, and decide about such claim petitions or answers as per the law (Article 24 (4)).
  9. If a court does not have the legal jurisdiction to process, hear or decide on a case, the District Court will have the authority to process, hear and decide on such cases. (Article 25)
  10. If different claims have been filed in different courts regarding the same issue, the claims will be registered in a court that both parties agree on and this will be filed in another court. Upon receiving such claims the court must annul the claim. However if the parties cannot reach consent the court in which the claim was first registered will process the claim without changing it while the the claim in the other court will be annulled.  (Article 26)

Jurisdiction of the High Court       

  1. If cases have been filed in the lower as well as higher court on an issue that is in the jurisdiction of both the courts the higher court has the jurisdiction to process, hear and decide on it. (Article 22)
  2. When a case has been registered in a court, processed, heard and decided upon, the court that has the legal jurisdiction to review the order or decision made by the first court, will do so as per the law. (Article 27, 210)

Registering a review petition   

  1. The court that makes the decision can register a review petition. Such petitions need to be sent to the court that will hear it. (Article 215)
  2. Government officers can register their cases in the Appelate Court in the area they are working in or if such is lacking in the District Court such review petitions will be sent to a court that will hear it. (Article 216) 

Jurisdiction of the Court to hear the review petition (Article 221)

  1. Accept or deny a lower court’s decision
  2. Partially or completely change a lower courts decision
  3. If a decision has been made without taking into consideration a certain evidence, such evidences must be taken by the Court or orders given to the lower court to accept the evidence as well
  4. If decisions have been made without establishing the issues, such issues will be established or orders given to the lower court to do so
  5. Make partial or contextual changes in the decision
  6. Make uses of the first courts jurisdiction (Article 222)

Jurisdiction of the Supreme Court (Paragraph 20)

  1. Repeating a case
  2. Reviewing       

Implementation of Decisions

  1. For implementation of a foreign court’s decision, request the concerned Appelate Court and if given recognition the concerned District Court will impement it (Article 238 and 239)
  2. Implementation of the decision will be conducted by the concerned District Court (Artcle 244)
  3. During the course of the implementation of the decision if the actions of any official is unsatisfactory to a concerned stakeholder such must file a complain with the judge of the court within 15 days. If the concerned stakeholder is still not satisfied with the decision on such a complain the concerned may file a review petition in the Appelate Court. (Article 264)

Other provisions

  1. Review petitions must be filed in court within the deadline (Article 47)
  2. When a claim has been filed and there is no space for jurisdiction later the action must be completed (Article 57)
  3. Unless officials are appointed the deadline will not start (Article 61)
  4. In debates that are connected to the rights, welfare or concern of the Nepal Government or for public welfare or concern any Nepali citizen can file a claim seeking permission from the court. (Article 91)
  5. The concerned court can order to arrange the timeline (Article 106 (19))
  6. The concerned court can fine those who not assist in arranging the timeline. (Article 109(2))
  7. Maintaining the defendant (Article 123 and 124)
  8. In relation to the claim if there is no jurisdiction to process, hear or decide it can be addressed in the answer given. (Article 131 (c )
  9. In the initial hearing the issue of jurisdiction must be established (Article 132), requests can be made against the establishment [of the jurisdiction] of the concerned Appelate Court (Article 134 (3), if it does not hold jurisdiction the case will be annulled. (Article 133)
  10. The official lawyer should be certified by the concerned court judge.(Article 158 (4))
  11. Right to issue indefinite order. (Article 161)
  12. Go to a court that will review the request against the indefinite order. (Article 162)
  13. Issue interim order. (Article 163)
  14. The same court can be pursued to annul. (Article 164 (1))
  15. Claim for compensation will be filed in the same court. (Article 165 (1))
  16. Requests for reconciliation paper will be filed in the same court. (Article 198, 199)
  17. Suspending or reviving. (Article 206, 207)
  18. The Supreme Court can transfer the case to a court of the same level. However the review will be held at the court where the claim petition was first filed. (Article 208 (2))
  19. If during proceedings of any case in any court, complicated questions relating to the Constitution or any other legal definitions arise, or if the case can only be heard after questions of public interest or stake are established, as per the claim of any party related to the case, or is seen in the concerned court’s report, the Supreme Court can call for the case to be heard and decided upon opening why it is so, and after establishing such questions, the case can be sent back to the concerned court. (Article 209)
  20. Traditional judicial assistance (Paragraph 21)      

Positive Aspects

  1. An able, independent judiciary has been envisioned.
  2. There will not be a state where jurisdiction is nil.
  3. Jurisdiction has been clearly defined.
  4. Issues related to jurisdiction have been kept in the same paragraph.

Weaknesses

  1. Some subjects in the current Act have been included while others have not which shows dual code.
  2. Provisions related to jurisdiction as per the Supreme Court Act 2048 and the Judicial Administration Act 2048 have been kept as it is.
  3. As it has been provisioned for many issues to be taken to the regular court, there might be conflict of interest with the local government. Eg. Court/Local government
  4. In jurisdiction, the initial review, repeatation, claim petition all could have been put in the same paragraph but are in different ones.
  5. The draft has been prepared with the need to search as current prevalent laws.
  6. What case can have Article 22? Whatever the reason, it will be most appropriate to establish the trend to start the initial proceedings from a lower court. The reason for the provision in Article 25 is also not clear.
  7. A state has been created where the methodology to be adopted by the Appelate Court must be looked up in the concerning Act.
  8. Article 26 violates the principle of first decision.
  9. At a time when the country is heading towards a federal system, the question of how the jurisdiction of the Supreme Court of the state and the federal Supreme Court can be determined is yet to be answered.

This investigative recommendation was prepared by Joint Secretary Udayraj Sapkota for the Nepal Constitution Foundation with final inputs from representatives of women, indigenous communities, Dalit, Madhesi, youth and other pressure groups of the concerned sector. The Foundation is grateful to Milan Kumar Rai, Ram Kapali, Niurpama Yadav, Jaymangal Prasad, Pabitra Raut, Binit Kumar Jha, Kumar Ignam, Shyam Biswakarma, Dinesh Tripathi, Krishna GB Ghimire, Jagannath Mahato Singh, Basudev Neupane, Dilip Raj Ghimire, Himlal Belbase, Krishna Karki, Khimraj Poudel, Abhishek Adhikari, Phurpa Tamang, and Dr. Bipin Adhikari.

This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.

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