SYARIAH CIVIL PROCEDURE SYARIAH CIVIL PROCEDURE

CONTENTSCONTENTS

�� INTRODUCTIONINTRODUCTION

�� DISCOVERY & INSPECTIONDISCOVERY & INSPECTION

�� SETTLEMENT, WITHDRAWAL,  SETTLEMENT, WITHDRAWAL,

DISCONTINUANCE AND SULHDISCONTINUANCE AND SULH

�� SUBPOENASSUBPOENAS

PART XIPART XI--DISCOVERYDISCOVERY

�� Discovery is the process of finding out Discovery is the process of finding out

materials facts, documents from an materials facts, documents from an

adversary in orderadversary in order

�� --to know and to ascertain the nature of to know and to ascertain the nature of

the case the case

�� --in order to support his own case in order to support his own case

�� --in order to narrow the points in issuein order to narrow the points in issue

�� -- to avoid proving admitted facts.to avoid proving admitted facts.

ContCont……..

�� It enables all the parties to an action to It enables all the parties to an action to
ascertain all the material facts ascertain all the material facts
constituting the case. constituting the case.

�� Every party to an action is entitled to Every party to an action is entitled to
know the nature of his opponentknow the nature of his opponent’’s case so s case so
that he may know before hand what case that he may know before hand what case
he has to meet at the hearing.he has to meet at the hearing.

�� The process of discovery operates in 3 The process of discovery operates in 3
stages namely:stages namely:-- Disclosure, Inspection Disclosure, Inspection
and Production.and Production.

SECTION 85SECTION 85

�� The court may order any party to state on oath The court may order any party to state on oath
orally or by affidavit what document he has or orally or by affidavit what document he has or
has had in his possession or power relating to has had in his possession or power relating to
the matters in question. the matters in question.

�� To produce any document in his possession or To produce any document in his possession or
power.power.

�� If a company or body , officers of the co. may If a company or body , officers of the co. may
be ordered to comply with the order. be ordered to comply with the order.

�� The Ct may stay the proceedings pending The Ct may stay the proceedings pending
compliance of the order.compliance of the order.

SECTION 86SECTION 86

�� Any party shall be entitled to inspect and Any party shall be entitled to inspect and

copy any document in the possession or copy any document in the possession or

power of another party and referred to in power of another party and referred to in

any pleading, affidavit filed by him in the any pleading, affidavit filed by him in the

proceedings or on oral examination.proceedings or on oral examination.

SECTION 87SECTION 87

�� Production and inspection of documents Production and inspection of documents
shall be subject to the provisions of law shall be subject to the provisions of law
relating to privilege communication and relating to privilege communication and
documents.documents.

SECTION 88SECTION 88

� There shall be no appeal against any
order of the court under this part except
in an appeal against the judgment as a
whole.

SETTLEMENT, WITHDRAWAL SETTLEMENT, WITHDRAWAL

AND DISCONTINUANCE AND DISCONTINUANCE

� Before the hearing the court will advise

the parties to settle the case through

settlement.

� Settlement can be either through:-

� (1) Settlement outside court (sulh)

� (2) Withdrawal

Section 94

�� Settlement of actionSettlement of action

Where by agreement of the parties an Where by agreement of the parties an

action has been settled the court may at action has been settled the court may at

any time , by consent of the parties any time , by consent of the parties

record the fact of such settlement with record the fact of such settlement with

the terms thereof and the record of the the terms thereof and the record of the

settlement shall afford asettlement shall afford a defencedefence by way by way

ofof res judicatares judicata to subsequent proceedingsto subsequent proceedings

Section 95Section 95

�� The Pt may with leave of the court at any The Pt may with leave of the court at any
time before judgment withdraw any time before judgment withdraw any
proceedings wholly or in part by giving proceedings wholly or in part by giving
notice in Form MS 19 to the court and notice in Form MS 19 to the court and
serving a copy of the notice to the serving a copy of the notice to the
defendant.defendant.

�� Where the Pt withdraws any proceedings Where the Pt withdraws any proceedings
under subsection 1 the DT shall be under subsection 1 the DT shall be
entitled to the cost of the proceedings.entitled to the cost of the proceedings.

Section 96Section 96

�� Effect of withdrawal on future Effect of withdrawal on future

proceedings.proceedings.

�� Where the Pt has withdraws any Where the Pt has withdraws any

proceedings under s95 he shall not proceedings under s95 he shall not

thereafter bring an action for the same or thereafter bring an action for the same or

substantially the same cause of action substantially the same cause of action

unless the court has granted leave to unless the court has granted leave to

institute fresh proceedings.institute fresh proceedings.

Section 97Section 97

�� Where the PT. Has withdrawn any Where the PT. Has withdrawn any

proceedings under s 95, and he is liable to proceedings under s 95, and he is liable to

pay any otherpay any other’’s party costs if the action, s party costs if the action,

then if before payment of such cost he then if before payment of such cost he

subsequently brings an action for the subsequently brings an action for the

same the court may order the same the court may order the

proceedings to be stayed until such costs proceedings to be stayed until such costs

are paid.are paid.

Section 98Section 98

�� A A DtDt. May at any time by giving notice to . May at any time by giving notice to

the Pt. Withdraw his defense or any part the Pt. Withdraw his defense or any part

thereof and shall in such event be thereof and shall in such event be

precluded from defending the precluded from defending the

proceedings or any part thereof as the proceedings or any part thereof as the

case may be. case may be.

SULHSULH--S99S99

-- SurahSurah AlAl--HujuratHujurat:9:9--1010

-- ““If two parties among the believers fall into If two parties among the believers fall into

fight make peace between themfight make peace between them……....””

-- ““ The believers are brothers to one another, The believers are brothers to one another,

therefore make reconciliation between your therefore make reconciliation between your

brothers and fear Allah, so that you may be brothers and fear Allah, so that you may be

shown mercyshown mercy””

Condition for Condition for sulh sulh

�� (1)(1) SulhSulh can only be permissible in matters can only be permissible in matters
involving right of man.involving right of man.

�� (2) Court shall not order the the case to be (2) Court shall not order the the case to be
settled by settled by sulh sulh if it is apparent that one party if it is apparent that one party
is right in dispute.is right in dispute.

�� (3) It (3) It shoud shoud not contravene with the not contravene with the
principle of principle of syariahsyariah. .

�� (4) (4) Sulh Sulh is not applicable in the case already is not applicable in the case already
been decide by the court.been decide by the court.

ContCont……....

Functions of Functions of SulhSulh

-- To solve problems of backlog cases in the To solve problems of backlog cases in the

courtcourt-- InIn Selangor SulhSelangor Sulh has decreased about has decreased about

65% cases in Court.65% cases in Court.

-- As an arbitrator, to provide settlement on As an arbitrator, to provide settlement on

win win basis.win win basis.

-- Majlis sulhMajlis sulh will be attended by the disputed will be attended by the disputed

parties only and not in open court.parties only and not in open court.

Section 99Section 99

��The parties to any proceedings may at any

stage of the proceedings hold sulh to settle

their dispute in accordance with such rules

as may be prescribed or in the absence of

such rules in accordance with hukum

syarak.

Manual Kerja Sulh provided by JKSM.

CasesCases

�� Semek bt Mamat Semek bt Mamat v v Zubaidah Zubaidah Bt Bt YassinYassin

�� Mother claimed for Mother claimed for harta sepencarian harta sepencarian

against her daughter.against her daughter.

�� Defendant agreed to settle by way of Defendant agreed to settle by way of

sulhsulh..

SubpoenasSubpoenas

�� An order from the court to any party An order from the court to any party

(witness) to come to the court to give (witness) to come to the court to give

explanation on certain issue.explanation on certain issue.

�� 2 types:2 types:

�� (1) Subpoenas Ad (1) Subpoenas Ad TestificandumTestificandum

�� (2) Subpoenas (2) Subpoenas duces tecumduces tecum..

Section 102Section 102

�� Request for issue of subpoenasRequest for issue of subpoenas

�� Form MS20Form MS20

�� Filed in courtFiled in court

�� Contained name, address or name of the Contained name, address or name of the

firmfirm

�� Being sealed in by an officer of the court.Being sealed in by an officer of the court.

Section 104Section 104

�� Subpoenas to produce documentsSubpoenas to produce documents

�� He shall sufficiently comply. He shall sufficiently comply.

Section 105Section 105

� Amendment of subpoenas

� Reseraled and endorsed amended and

resealed.

Section 106Section 106

�� Shall be served personally Shall be served personally

�� Service shall be done within 12 weeks Service shall be done within 12 weeks

after the date of the issue of the after the date of the issue of the

subpoena.subpoena.

Section 109Section 109

�� Attendance of prisoners as witness or partyAttendance of prisoners as witness or party

�� Exparte Exparte by notice in Form MS 24.by notice in Form MS 24.

�� The cost of conveying of the witness in safe The cost of conveying of the witness in safe

custody and from the court shall paid in the custody and from the court shall paid in the

first instance.first instance.

�� Order in Form MS25.Order in Form MS25.

Section 110Section 110

�� Tender of expensesTender of expenses

�� Shall not be compelled to attend Shall not be compelled to attend

�� Unless reasonable sum to cover his expenses.Unless reasonable sum to cover his expenses.

Section 111Section 111

� Affidavit of service.

““““““““Justice must not only be Justice must not only be Justice must not only be Justice must not only be Justice must not only be Justice must not only be Justice must not only be Justice must not only be

done  but must be seen to done  but must be seen to done  but must be seen to done  but must be seen to done  but must be seen to done  but must be seen to done  but must be seen to done  but must be seen to

be donebe donebe donebe donebe donebe donebe donebe done””””””””........

Thank YouThank You

Zulkifli Bin Zulkifli Bin HasanHasan

Lecturer Faculty ofLecturer Faculty of SyariahSyariah & Law& Law

EE--mail: mail: zul361977@yahoo.comzul361977@yahoo.com..

Tel. No: 06Tel. No: 06--7988 4077988 407

H/Phone No: 012H/Phone No: 012--31985143198514