Civil litigation involving real property in Pakistan is often prolonged and inefficient. The current judicial system is burdened with delays and lacks integration with modern technologies for effective case management. These issues pose significant challenges for Pakistani citizens residing abroad, making it difficult for them to pursue their claims in local courts.
To address these concerns, the federal government enacted the Establishment of Special Court (Overseas Pakistanis Properties) Act, 2024 (the “ESCOPP Act“). This legislation aims to streamline the resolution of property disputes involving overseas Pakistanis. The ESCOPP Act not only mandates the creation of special courts but also introduces procedures designed to ensure the timely adjudication of disputes. These special courts are to be presided over by experienced and senior judges or lawyers granted the powers of district courts.
Below is an overview of the ESCOPP Act, along with answers to common questions about its application:
Who Qualifies as an Overseas Pakistani Under the ESCOPP Act?
The ESCOPP Act outlines two criteria for an individual to qualify as an overseas Pakistani:
Relevant Documentation: The individual must hold one of the following:
- Pakistani passport;
- Pakistani Computerized National Identity Card (CNIC);
- Pakistan Origin Card (POC); or
- Membership card from the Overseas Pakistanis Foundation (OPF).
Residency Requirement: The individual must be living, working, or studying outside Pakistan permanently or temporarily for more than 182 days in a tax year.
What Types of Disputes Fall Under the Jurisdiction of Special Courts?
The jurisdiction of the special courts extends to disputes concerning immovable properties involving overseas Pakistanis. These may include disputes over ownership or the right to use immovable property, such as issues arising from agreements for the sale or purchase of immovable property.
For the purposes of the ESCOPP Act, immovable property includes:
- Land;
- Buildings;
- Benefits arising out of land;
- Items attached to the earth or permanently fastened to anything attached to the earth; Rights of way, lights, and similar entitlements.
What Types of Disputes Fall Under the Jurisdiction of Special Courts?
The jurisdiction of the special courts extends to disputes concerning immovable properties involving overseas Pakistanis. These may include disputes over ownership or the right to use immovable property, such as issues arising from agreements for the sale or purchase of immovable property.
For the purposes of the ESCOPP Act, immovable property includes:
- Land;
- Buildings;
- Benefits arising out of land;
- Items attached to the earth or permanently fastened to anything attached to the earth; Rights of way, lights, and similar entitlements.
What is the procedure for commencing proceedings before the Special Court?
Proceedings under the ESCOPP Act are initiated by submitting a written petition to the Special Court designated by the federal government, based on territorial jurisdiction. The petition must include a concise statement of the facts underlying the dispute, the relief sought, and any additional information required by the rules prescribed by the Islamabad High Court.
Can Petitions Be Filed Electronically with the Special Court?
Yes. The ESCOPP Act permits the filing of petitions, responses, and related documents through electronic means. The Islamabad High Court is tasked with establishing rules for electronic submissions to streamline this process.
Is Personal Attendance Required for Petitioners at Special Court Hearings?
No. If requested by the overseas petitioner, the special court must facilitate participation in proceedings via video link. Evidence from overseas Pakistani litigants or witnesses may also be recorded through video link under the supervision of a relevant Pakistani high commission, embassy, or consulate abroad. The Islamabad High Court is required to develop rules for conducting hearings and recording evidence electronically.
Does the ESCOPP Act Specify a Time Limit for Final Adjudication?
Yes. The special courts are obligated to deliver a final judgment within 90 days from the date of granting leave to defend to the respondent. If delays are attributable to the respondent’s conduct, the court may require the respondent to furnish security deemed appropriate.
Additionally, the special courts have the authority to summon official records from public authorities to expedite proceedings.
What Procedural Steps Ensure Timely Adjudication Under the ESCOPP Act?
The ESCOPP Act prescribes the following measures to ensure timely adjudication:
- The respondent’s appearance date must be fixed within 10 days of issuing the notice. A second notice, if needed, will set a date not later than 7 days. Failure to appear may result in ex-parte proceedings.
- Respondents must obtain leave to defend the petition. Failure to do so results in the petition’s contents being deemed admitted, enabling the court to pass a judgment in favor of the petitioner.
- Applications for leave to defend must include written affidavits, relevant documents, and affidavits from no more than two witnesses. These applications are decided within 15 days of filing.
- Leave to defend is granted only if substantial questions of law or fact are raised. Conditions, such as furnishing security, may be imposed. If leave is refused, the court proceeds to judgment. If leave is granted, affidavits filed by the parties serve as examination-in-chief, with deponents subject to cross-examination. Each party is allowed no more than two opportunities to produce evidence.
Does the ESCOPP Act Apply Uniformly Across Pakistan?
No, the ESCOPP Act applies exclusively to the Islamabad Capital Territory (“ICT“). Its application does not extend to other parts of Pakistan.
However, the ESCOPP Act does not explicitly define the extent of the special court’s jurisdiction. These courts may interpret their jurisdictional limits in various ways, potentially exercising authority in cases where:
- The disputed property is located in ICT;
- The defendant resides or works for gain in ICT; or
- The cause of action has arisen wholly or in part within ICT.
An overseas Pakistani does not need to have an address in ICT to file a petition before the special court under the ESCOPP Act. However, the court’s jurisdiction does not extend to disputes entirely outside ICT. In such cases, litigants may need to approach a special court established by a provincial government or an ordinary civil court.
Concluding Remarks
The ESCOPP Act marks an advancement in addressing the challenges faced by overseas Pakistanis in resolving property-related disputes in Pakistan. By establishing dedicated courts and introducing modern procedural mechanisms, the ESCOPP Act aspires to deliver timely and efficient resolutions.
The success of the ESCOPP Act depends on the effective implementation of its provisions. In this context, it is crucial for the Islamabad High Court to promptly frame the rules under the Act. This step is essential to ensure uniform application and to enable litigants to fully benefit from this progressive legislation.
Additionally, it is recommended that the scope of the ESCOPP Act be expanded nationwide, or similar legislation be enacted across Pakistan to ensure broader access to these benefits.