Table of Contents
Here is a Step-By-Step Guide on Civil Procedure and Civil Proceedings in Nepal:
Pre-Trial Civil Procedure
Step 1: Initiation of Lawsuit Filing
The commencement of every civil procedure begins with the submission of a lawsuit.
The lawsuit submitted by the plaintiff must encompass the sought damages, details of the defendant, the nature of the civil case, and the applicable legal provisions. Proper jurisdiction is a requisite for filing the case.
Subsequently, the court officials affix their signatures to the lawsuit, and a copy of the lawsuit is furnished to the defendant, who is then required to provide a defense against the plaintiff’s claims.
Step 2: Revocation in Civil Procedure
After the initiation of Lawsuit Filing, the Civil Procedure continues to Revocation.
Revocation involves retracting the complaint from the court prior to the final court decision.
This step is taken when the plaintiff acknowledges their inability to furnish sufficient evidence against the defendant.
The request for revocation must be presented to the court where the civil proceedings were initiated.
Step 3: Notice to Defendants
Following the plaintiff’s lawsuit submission, the defendant is afforded a reasonable opportunity to mount a defense. Within thirty days of the lawsuit filing, the defendant can respond to the plaintiff’s claims.
However, it is crucial that the defendant is the same individual against whom the lawsuit was filed. The court itself generates the notice.
In case of the expiration of the time limit, the defendant can seek an extension for a specified duration.
Italayana denotes the time limit allocated for the defendant or witnesses to appear in court.
When the successor or legal representative of the defendant appears in court to request an extension of the time limit or present a claim against the plaintiff, it is referred to as Myad Tameli.
Step 4: Submission of Defense
The official response provided by the defendant, either in support or opposition to the plaintiff’s claims, is termed the defense.
The defense is presented by the defendant in a court of law. Generally, the defense critically assesses the plaintiff’s claims in a legally structured manner.
Step 5: Date of Appearance
The Submission of Defense furthers the Civil Procedure to the Judge providing a date of appearance for both parties.
The Date of Appearance, or “Tarekh” in Nepali, designates the day on which the lawsuit’s plaintiff is required to be present in court.
In essence, it signifies the court’s instruction to both the plaintiff and the defendant regarding their mandatory presence in court.
Following the collection of evidence, the plaintiff or defendant, with court authorization, can be absent during subsequent civil proceedings.
Step 6: Individuals Mentioned in Written Records and Documents
If any individual, apart from the plaintiff and defendant, is referenced in the writings, deeds, defense, or other relevant documents related to the lawsuit, they are termed Persons Mentioned in Written Records and Documents.
Should these individuals actually exist, they are treated as defendants and are allocated a Date of Appearance in court.
Section 123 of the National Civil Procedural Code mandates that any other individual with an interest, right, or connection to the case must be assigned a Date of Appearance and treated as a defendant.
Step 7: Waris
“Waris” refers to the representative of either the plaintiff or the defendant. A document certifying a specific individual as their representative is mandatory for their recognition in court.
The authority to appoint representatives or Waris involves two types:
- General representatives are chosen for a specific case and confined to the lawsuit itself.
- Authorized representatives are vested with the legal capacity equivalent to the individuals they represent, and these representatives may also possess the authority over the individual’s immovable property.
Step 8: Court Orders
Prior to reaching a final decision, the court goes through various stages of the civil procedure.
Different determinations are also reached during the case investigation. In general, the court issues two types of orders:
- Interlocutory orders are decisions made during the ongoing lawsuit to prevent grave consequences that may arise.
- Final orders represent the conclusive judgment after which the lawsuit concludes.
Trial Civil Procedure
Step 9: Evidence Collection and Examination
Once the court has designated the date of appearance and both parties, with their representatives or themselves, are present, evidence examination is initiated.
The claims presented by the plaintiff and defendant in their respective applications to the court are scrutinized, and related evidence is meticulously examined within the courtroom.
If both parties’ claims are substantiated by evidence, they are accepted as facts.
Step 10: Witness Examination
Following the evidence examination, witnesses are summoned to the court for examination.
Witnesses pledge an oath of truthfulness before the judge and serve as human evidence, distinct from the involved parties, contributing to case determination.
Witness testimonies and examinations are particularly significant in cases where conflicting evidence emerges between the plaintiff and defendant. The witness examination involves:
- Direct examination: A question-and-answer session between a witness and the legal representative of the same party.
- Cross-examination: An inquiry of the witness by the opposing party’s legal representative.
- Re-examination: A re-questioning of the witness by the legal representative of the original party to clarify or dispute points raised during cross-examination.
Step 11: Postponement/Adjournment
Upon the completion of evidence and witness examinations, the judge might opt to postpone or adjourn the case.
This is a rare practice and typically occurs when cases are simultaneously filed by the same parties in different district courts or when a case is registered both within Nepal and a foreign country by the same parties.
Step 12: Compromise (Milapatra)
Compromise denotes an agreement wherein both parties decide to end their conflict and mutually sign an agreement that benefits both sides.
This occurs when parties reach an understanding, creating a win-win scenario, usually before the final decision is rendered.
Step 13: Mediation
If both parties submit an application to the judge for Alternative Dispute Resolution (ADR), it is termed mediation.
Alternatively, the court itself can suggest mediation as an alternative means of resolution.
Step 14: Judgment
In the event that parties do not pursue a compromise application or mediation, the judge must provide the final decision after thirty days of receiving the evidence.