Updated: Friday January 25, 2019/AlJumaa Jamada El Oula 19, 1440/Sukravara Magha 05, 1940, at 05:46:46 PM

The Code of Civil Procedure, 1908

[1]Act No. V of 1908


[21st March 1908]

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows:---

PRELIMINARY

1. Short title, commencement and extent.- (l) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January 1909.

[2][(3) It extends to the whole of Pakistan.]

2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,---

(1) “Code” includes rules:---

(2) “decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [3][the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not include;

(a) any adjudication form which an appeal lies as an appeal from an order, or

 

(b) any order of dismissal for default.

Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely dispose of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

(3) “Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made:

(4) “District” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court:

(5) “Foreign Court” means a Court situate beyond the limits of [4] [Pakistan] which has no authority in [5][Pakistan] and is not established or continued by [6]the [7]Federal Government [8]***]:

(6) “Foreign judgment” means the judgment of a foreign Court:

(7) “Government Pleader” Includes any officer appointed by the [9][Provincial Government] to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader:

(8) “Judge” means the presiding officer of a civil Court:

(9) “Judgment” means the statement given by the Judge of the grounds of a decree or order.

(10) “Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made.

(11) “Legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermediary with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

(12) “Mesne profits” of property means those profits which the person in wrongful profession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession.

(13) “Movable property” includes growing crops.

(14) “Order” means the formal expression of any decision of a civil Court which is not a decree.

(15) “Pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a civil and an attorney of a High Court.

(16) “Prescribed” means prescribed by rules.

(17) “Public officer” means a person falling under any of the following descriptions, namely:---

(a) every Judge;

(b) [10][every person in the service of Pakistan].

(c) every commissioned or gazetted officer in the military, [11][naval or airy] forces of [12]Pakistan while in the service of the State];

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of [13][the Government] ] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 4[the 5[Government]], or to make any survey, assessment or contract on behalf of [14][the (Government], or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of [15][the [Government], or to make, authenticate or keep any document relating to the pecuniary interests of [16][the [Government] ] or to prevent the infraction of any law for the protection of the pecuniary interest of [17][the [Government] ]; and

(h) every officer in the service or pay of [18][the [Government]], or remunerated by fees or commission for the performance of any public duty:

(18) “Rules” means rules and forms contained in the First Schedule or made under section 122 or section 125.

(19) “Share in a corporation” shall be deemed to include stock, debenture-stock, debentures or bonds; and

(20) “Signed”, save in the case of a judgment or decree, includes stamped.

3. Subordination of Courts.- For the purposes of this Code, the District Court is subordinate to the High Court, and every civil Court of a grade inferior to that of a District Court and every Court of [Small Claims  and Minor Offences][19] is subordinate to the High Court and District Court.

4. Savings.- (l) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.

(2) In particular and without prejudice to the generality of the proposition contained in subsection (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5. Application of the Code to Revenue Courts.- (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the [20][Provincial Government] [21]* * * may, by notification in the [22][official Gazette], declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the [23][Provincial Government]*** may prescribe.

(2) “Revenue Court” in subsection (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Pecuniary jurisdiction.- Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts.- **********[24]

8. Presidency Small Cause Court.- Omitted by the 4.0, 1949.

[1908: ACT V]

Civil Procedure

(Part I.- Suits in General. Jurisdiction of the Courts and Res judicata)

PART I

SUITS IN GENERAL

JURISDICTION OF THE COURTS AND RES JUDICATA

9. Courts to try all Civil Suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred [or for which a general a special law is in force][25].

Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

COMMENTS

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction. PLD 1992 Pesh. 87 (D.B.)

Final decision with  regards to civil rights, duty, obligation and status of parties shall be that of civil court. PLD 1995 SC 457

Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction. Courts below correctly found that special banking court had exclusive jurisdiction –order unexceptionable. PLD 1992 PESH 87(DB)

10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [26][Pakistan] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [27][Pakistan] established or continued by [28][the [29][Federal Government [30]***] and having like jurisdiction, or before [31][the Supreme Court].

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in 1[Pakistan] from trying a suit founded on the same cause of action.

COMMENTS

In the absence of consolidation of suits and consolidation proceedings, evidence in one suit could not be read in the other suit. Muzaffar Hussain  Vs.  Mst. Bivi,
PLD 2012 Lah. 12

In law, sub judice, Latin for “under judgment,” means that a particular case or matter is currently under trial or being considered by a judge or court. The term may be used synonymously with “the present case” or “the case at bar” by some lawyers.

In England and Wales, Ireland, New Zealand, Australia, India, Pakistan, Canada, and Israel it is generally considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process.

In English law, the term was correctly used to describe material which would prejudice court proceedings by publication before 1981. Sub judice is now irrelevant to journalists because of the introduction of the Contempt of Court Act 1981. Under Section 2 of the Act, a substantial risk of serious prejudice can only be created by a media report when proceedings are active. Proceedings become active when there’s an arrest, oral charge, issue of a warrant, or a summons.

In the United States, there are First Amendment concerns about stifling the right of free speech which prevent such tight restrictions on comments sub judice. However, State Rules of Professional Conduct governing attorneys often place restrictions on the out-of-court statements an attorney may make regarding an ongoing case. Furthermore, there are still protections for criminal defendants, and those convicted in an atmosphere of a circus have had their convictions overturned for a fairer trial.

11. Res Judicata.- No Court shall try suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.- The expression “former suit” shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as $0 a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other.

Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.

12. Bar to further suit.- [32][(1)] Where a plaintiff is preclude by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

[33][(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.]

[(3) For purposes of the disposal of an application under subsection (2), the Court may, in the interest of expeditious disposal, apply such fair procedure as the circumstances of the case warrant, and shall, unless, for reasons to be recorded it directs otherwise, order any fact to be proved or disproved by affidavit.][34]

COMMENTS

Mere mentioning of words “Fraud”, “misrepresentation” and “want of jurisdiction” in passing judgment and decree were not sufficient – specific instances must be given.
Abdul Hameed  vs.  Mehmood, 2001 SCMR 1316.

Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C. and the same was set aside by Lower Appellate court in exercise of revisional  jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C.P.C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate. Muhammad Ismail     Versus    Rehmat Ali
2009 YLR 1265, Lahore-High-Court-Lahore

Forum: judgments and decrees of trial court were amended by High Court – Application under section 12(2) was filed before trial court – held – that as High Court passed final decrees in view of modification in its review jurisdiction, application u/s 12(2) shall lie in High Court. Muhammad Aslam Vs. Molvi Muhammad Ishaq, 2012 SCMR 147

13. When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter When thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except;

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where LI has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [35][Pakistan] in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan).

14. Presumption as to foreign judgments.- The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

15. Courts in which suits to be instituted.- Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject matter situate.- Subject to the pecuniary or other limitations prescribed by any law, suits;

(a) for the recovery of immovable property, with or without rent or profits;

(b) for the partition of immovable property;

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property;

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment;

shall be instituted in the Court within the local limits of whose jurisdiction the property is situated [36][, or, in the case of suits referred to in clause (c), at, at the place where the cause of action has wholly or partly arisen:---

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.- In this section “property” means property situate in [37][Pakistan].

17. Suits for immovable property situate within jurisdiction of different Courts.- Where a suit is to obtain relief respecting, or compensation for wrong to immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate:---

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.

18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain.- (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the-local limits of its jurisdiction:---

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under subs section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been consequent failure of justice.

19. Suits for compensation for wrongs to person or movables.- Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in [38][Karachi], beats B in [39][Quetta]. B may sue A either in [40][Quetta or [41][Karachi].

(b) A, residing in [42][Karachi] published in [43][Quetta] statements defamatory of B. B may sue A either in [44][Quetta] or in [45][Karachi].

20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be in a Court within the local limits of whose jurisdiction.

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either of the Court is given, or the defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation I.- Where a person has a one place and also a temporary residence shall be deemed to reside at both places in action arising at the place where he residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office in [46][Pakistan] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Explanation

(a) A is a tradesman in [47][Lahore]. B carries on business in [48][Karachi]. B, by his agent in [49][Lahore], buys goods of A and requests A to deliver them to the [Pakistan International Airways]. A delivers the goods accordingly in [50][Lahore]. A may sue B for the price of the goods either in [51][Lahore] where the cause of action has arisen or in [52][Karachi] where B carries on business.

(b) A resides at [53][Murree], B at [54][Lahore], and C at [Karachi]. A, B and C being together at [Bahawalpur] B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at [55][Bhawalpur], where the cause of action arose. He may also sue them at [56][Lahore], where B resides, or at [57][Karachi], where C resides: but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

21. Objections to jurisdiction.- No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

22. Power to transfer suits which may be instituted in more than one Court.- Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (ii any), shall determine in which of the several Courts having jurisdiction be suit shall proceed.

23. To what Court applications lies.- (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts arc subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24. General power of transfer and withdrawal.- (l) On the application of any of the parties and after notice to the parties and after hearing such of be heard, or of its own motion without such notice, the High Court or the District Court may at any stage,---

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or subordinate to it and competent same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1) the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section, and Assistant Judges shall be deemed to District Court.

(4) ****[58]

COMMENTS

Transfer of appeals appellate court earlier as trial court recorded evidence of some witnesses-had not recorded his own observation-no material order passed- still appeals recalled from him. PLD 1995 Lah 89

[59]24-A. Appearance of parties on transfer of suit, etc..- (1) Where any suit is transferred udder section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the., suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the’ application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.]”

[60]25. Power of Provincial Government to transfer suits.- 1* * * * * *

INSTITUTION OF SUITS

26. Institution of suit.- Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

SUMMONS AND DISCOVERY

27. Summons to defendants.- Where a suit has been duly instituted, a summons may defendants, be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

COMMENTS

Setting aside exparte decree – Purpose of service is that the defendant should be heard, but he cannot be allowed to frustrate proceedings by staying away. Once “summons are duly served” exparte decree can follow and execution can be levied against defendant because then he becomes “judgment debtor”. Any irregularity can be disregarded in service, if the court is convinced that the defendant had the knowledge of proceedings.
Usman Punjwani Vs. Ayaz Ali PLD 21012 Sindh 78.

28. Service of summons where defendant resides in another Province.- (1) A summons may be sent for service in another summons. Province to such Court and in such manner as may be prescribed by rules in force in that Province.

(2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

[61]29. Service of foreign summons.- Summonses [62][and other processes] issued by any Civil or Revenue Court situates [63][outside] [Pakistan] may be sent to the Courts [64][in] [Pakistan] and served as if they [65][were summonses] issued by such Courts:---

[66][Provided that the Courts issuing such summonses [67][or processes] have been established or continued by the authority of the [68][Federal Government] [69]* * * * * or that the Provincial Government [70][of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to [71][such Courts.]

30. Power to order discovery and the like.- Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party:---

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

[(c) order any fact to be proved or disproved by affidavit.][72]

COMMENTS

Affidavit can only be considered when filed on direction of court.

In affidavit information obtained from others “I am informed” and add “and verily believe it to be true”. PLD 1995 Lah. 98.

31. Summons to witness.- The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. Penalty for default.- The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property;

(c) impose a fine upon him not exceeding [73][two thousand] rupees;

(d) order him to furnish security for his appearance and in default commit him to […..] prison.

[33. Judgment and Decree.--- The Court, after the case has been heard, shall pronounce judgment maximum within fifteen days and on such judgment a decree shall follow simultaneously.][74]

INTEREST

34. Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.

(2) Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.

[75][34.A. Interest on public dues.- (l) Where the Court is of opinion that a suit was instituted with intent to avoid the payment of any public dues payable by the plaintiff or on his behalf, the Court may, while dismissing such suit, make an order for payment of interest on’ such public dues at the rate, of two per cent. above the prevailing bank rate.

(2) Where the Court is of opinion that the recovery of any public dues from the plaintiff was unjustified, the Court may, while disposing of the suit, make an order for payment of interest on the amount recovered at the rate of two per cent., about the prevailing bank rate.

Explanation- In this section-

(a) “bank rate” means the bank rate determined and made public under the provisions of the State Bank of Pakistan Act, 1956 (XXXIII of 1956); and

(b) “public dues” includes the dues of any bank owned by the Federal Government or of any corporation or undertaking owned or controlled by the Federal Government or a Provincial Government or of any local authority.]

[76][34.B. Interest, etc., on dues of banking company.- Where and in so far as a decree is for payment of money due to a banking company in repayment of a loan advanced by it, the Court shall, in the decree, provide for interest or return, as the case may be, on the judgment debt from the date of decree till payment,---

(a) In the case of interest-bearing loans, for interest at the contracted rate or at the rate of two percent above the bank rate, whichever is the higher;

(b) In the case of loans given on the basis of markup in price, lease, hire-purchase or service charges, for the contracted rate of mark-up, rental, hire or service charges, as the case may be, or at the latest rate of the banking company for similar loans, whichever is the higher; and

(c) in the case of loans given on the basis of participation in profit and loss, for return at such rate, not being less than the annual rate of profit for the preceding six months paid by the banking company on term deposits of six months, accepted by it on the basis of participation in profit and loss, as the Court may consider just and reasonable in the circumstances of the case, keeping in view the profit-sharing agreement entered into between the banking company and the judgment-debtor when the loan was contracted.

Explanation.-(1) In this section in clause (a), “bank rate” has the same meaning as in section 34-A].

COSTS

35. Cost.- [(l) Subject to such conditions and limitations, as may be prescribed, and to the provisions of law for the time being in force, the costs of an incident to all suits and other proceedings in the suit including execution proceedings, shall follow the event, and the Court shall have full power to determine by whom or out of which property and to what extent such costs are to be paid, and to give all necessary directions for the purpose aforesaid.

1a. The fact that the Court has no jurisdiction to try the suit shall be no bar to exercising the powers under subsection (1).][77]

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.

(3) The Courts may give interest on costs at any rate not exceeding six percent per annum, and such interest shall be added to the Costs and shall be recoverable as such.

[78][35-A. Compensatory costs in respect of false or vexatious claims or defences.- (l) If in any suit or other proceeding [79][including an execution proceeding)], not being an appeal, any party objects to the claim or defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the. Court, if the objection has been taken at the earliest opportunity and if it is satisfied of the justice thereof, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, of costs by way of compensation.

(2) No Court shall make any such order for the payment of an amount exceeding [one hundred thousand][80] rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:---

****[81]

Provided [82], that the High Court may limit the amount which any Court or class of Courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.]

COMMENTS

Ss.35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction. Kawas B . Aga Versus City District Government, Karachi (CDGK) through Nazim-e-Ala 2010 PLD 182 Karachi-High-Court-Sindh

PART II

EXECUTION

GENERAL

36. Applications to orders.- The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.

37. Definition of Court which passed a decree.- The expression “Court which passed a decree” or words to that effect, shall, in relation to the execution of decrees unless there is anything repugnant in the subject or context, be deemed to include,---

(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the first instance, and

(b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

38. Courts by which decrees may be executed.- A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.

39. Transfer of decree.- (l) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court;

(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b) if such person has not property within the Local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or

(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it; or

(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.

(2) The Court which passed a decree may of its own motion it for execution to any subordinate Court of competent Transfer of decree to Court in another Province. Result of execution proceedings to be certified.

40. Transfer of decree to Court in another Province.- Where a decree is sent for execution in another Province, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that Province.

41. Result of execution proceedings to be certified.- The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.

42. Power of Court executing transferred decree.- [83][(1)] The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed Court in by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner ac if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.

[84][(2) Without prejudice to the generality of the foregoing provision, the Court executing a decree sent to it shall have the following powers, namely:---

(a) power under section 39 to transfer the decree to another Court, if necessary;

(b) power under subsection (1) of section 50 to permit execution to proceed against the legal representatives of a deceased judgment-debtor;

(c) power under section 152 to correct clerical or arithmetical errors;

(d) power under rule 16 of Order XXI to recognize the assignment of a decree;

(e) power under sub-rule (2) of rule 50 of Order XXI to grant leave to a decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm;

(f) power under clause (b) of sub-rule (1) of rule 53 of Order XXI to give notice of attachment of decree passed by another Court.]

43. Execution of decrees passed by British Courts in places to which this Part does not extend or in foreign territory.- Any decree passed by a civil Court established in any [85][area] in [86][Pakistan] to which the provisions relating to execution do not extend [87][……………..] may, lilt cannot he executed within the jurisdiction of the Court by which it was passed, be executed in manner herein provided within the jurisdiction of any Court in [88][Pakistan].

[89][44. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory.- [Omitted by Ordinance (27 of 1981), Second Sched., item 46(5)].

[44.A.- Execution of decree passed by Courts in the reciprocating territory.--- (1) Where a certified copy of a decree of the Superior Courts of the reciprocating territory has been filed in a District Court, the decree may be executed in Pakistan as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1.-”Reciprocating territory” means such country or territory as the Federal Government may, from time to time, by notification in the Official Gazette, declare to be reciprocating territory for the purposes of this section, and “superior Courts” with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2.- “Decree”, with reference to a superior Court, means any decree or judgment of such Court under which a claim of money is payable, not being a sum payable in respect of taxes or other charges of a like nature, or in respect of a fine or other penalty, and does not include an arbitration award, even if such award is enforceable as a decree or judgment.][90]

45. Execution of decrees in foreign territory.- [Omitted by Ordinance (27 of 1981), Second Sched., item 46(5) ].

46. Precepts.- (l) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:---

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

47. Questions to be determined by the Court executing decree.- (l) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether any person is or is representative of a party, such question shall, for the purpose of this section, be determined by the Court.

Explanation.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

COMMENTS

All questions relating to execution discharge or satisfaction of decree arising between the parties to the suit in which the decree was passed would be determined in execution proceedings and not by a separate suit. 1995 MLD 1943 (entire case law discussed)

LIMIT OF TIME FOR EXECUTION

[91]48. Execution barred in certain cases.- (1) Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of [92][six] years from,---

(a) the date of the decree sought to be executed, or

(b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree.

(2) Nothing in this section shall be deemed,---

(a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of ‘[six] years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at some time within [six] years immediately before the date of the application; or

(b) to limit or otherwise affect the operation of article [93][83 of the First Schedule to the Limitation Act, 1908].

COMMENTS

O.IX Rule-9 is designed for restoration of suit whether in whole or in part dismissed under Rule-8 and it does not speak anything for restoration of application even about an execution petition. But the same principles will apply and applications/petitions can be restored even under inherent powers. U.B.L.     VS.    Plastic Pack Pvt. Ltd. 2012 CLC 229 Sindh.

TRANSFER FEES AND LEGAL REPRESENTATIVES

49. Transferee.- Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

50. Legal representative.- (l) Where a judgment-debtor dies before the decree has been fully satisfied; the holder of the decree may apply to the Court which passed it to execute the same against the legal Representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree holder, compel such legal Representative to produce such accounts as it thinks fit.

PROCEDURE IN EXECUTION

51. Power of Court to enforce execution.- Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder order execution of the decree,---

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison;

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require.

[94][Provided that [95][***] execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied:---

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,---

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court; or

(ii) has, after the institution of the decree was passed, dishonestly transferred, concealed, or removed any part committed any other act of to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected same; or

(c) that the decree is for a sum for which the judgment debtor was bound in a fiduciary capacity to account.

Explanation.- In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree].

52. Enforcement of decree against legal representative.- (l) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.

(2) Where no such property remains In the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if they decree had been against him personally.

53. Liability of ancestral property.- For the purposes of section 50 and section 52, property in the hands of a son or other descendant which is liable under Hindu law for the payment of the debt, of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.

54. Partitions of estate or separation of shares.- Where the decree is for the partition of an undivided estate assessed to the payment of revenue to [96][the [Government]) or for the separate possession of a share of such as estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.

ARREST AND DETENTION

55. Arrest and detention.- (l) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court [97][which may make an order for his detention in prison to suffer simple imprisonment for a period not exceeding one year;]

Provided, firstly, that, for the purpose of making an arrest under this section, no dwelling house shall be entered after sunset and before sunrise;

Provided, secondly, that no outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment-debtor and he refuses or in any way present access thereto, but when the officer authorized to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which be has reason to believe the judgment-debtor is to be found;

Provided, thirdly, that if the room is in the actual occupancy of a woman who is not the Judgment debtor and who according to the customs of the country does not appear in public, the officer authorized to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest;

Provided fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him;

(2) The [98][Provincial Government] may by notification in the [99][official Gazette], declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the [Provincial Government] in this behalf.

[100][(3) A judgment-debtor detained in prison under sub section (1) shall not, merely by reason of undergoing such imprisonment, be discharged from his liability under the decree, but he shall not be liable to be re-arrested under the decree in execution of which he was so detained in prison.]

56. Prohibition of arrest or detention of women in execution of decree for money.---Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the [101][* * *] prison of a woman in execution of a decree for the payment of money.

[102]57. Subsistence allowance.- [* * * * * * *]

[103][58. Release from detention.- Every person detained in prison in execution of decree shall be released from such detention, before the expiry of the period of detention, if-

(a) the amount mentioned in the warrant for his detention is paid to the officer in charge of the prison; or

(b) the decree against him is otherwise fully satisfied; or

(c) the person on whose application he has been detained so requests;

Provided that he shall not be released from such detention without the order of the Court.]

[104]59. Release on ground of illness.- [* * * * * * * *]

60. Property liable to attachment and sale in execution of decree.- (1) The following property is liable to attachment and sale in execution of a decree, namely, lands houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all 4other saleable property, movable or immovable, belonging to the judgment-debtor, or over which or the profits of which. be has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust of him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:---

(a) the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife and children, and such personal ornaments as in accordance with religious usage, cannot be parted with any woman;

(b) tools of artisans arid, where the judgment-debtor is art agriculturist, his implements of husbandry and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such, and such portion of agricultural produce, or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist and occupied by him;

(d) books of accounts;

(e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to [105][pensioners of the Government], or payable out of any service family pension fund notified [106][in the] [107][Official Gazette] by [108][the [109][Federal Government] or the Provincial Government in this behalf, and political pensions.

[110](h) the wages of labourers and domestic servants, whether payable in money or
in kind; [111]* * * * *;

[112](i) Salary to the extent of the first hundred rupees and one half the remainder;

Provided that where such salary is the salary of a [113][servant of the State] or a servant of a railway [114]* * * or local authority and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree;]

(j) the pay and allowances of persons to whom the [115][ [116][Pakistan Army Act, 1952],
[117]* * *applies], [118][or of persons other than commissioned officers to whom the [119][Pakistan Navy Ordinance, 1961 (XXXV of 1961) applies];

(k) all compulsory deposits and other sums in or derived from any fund to which the
Provident Funds Act [120][1925], for the time being applies in so far as they are declared by the said Act not to be liable to attachment;

[121](l) any allowance forming part of the emoluments of any [122][servant of the State] or of any servant of a railway [123] * * * or local authority which the [124][appropriate Government] may by notification[125] in the [126][official Gazette] declare to be exempt from attachment, and any subsistence grant or allowance made to [127][any such servant] while under suspension; (in) an expectancy of succession by survivorship or other, merely contingent or possible right or interest;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

(n) A right to future maintenance;

(o) Any allowance declared by [128][any Pakistan law] to be exempt from liability to
attachment or sale in execution of a decree; and

(p) Where the judgment debtor is a person liable for the pays merit of land revenue,
any movable property which, under any law for the time being applicable to him,
is exempt from sale for the recovery of an arrear of such revenue.

[129][Explanation 1] The particulars mentioned in clauses (g), (h), (i), (j), (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, [130][and in the case of salary other than salary of a [131][servant of the State] or a servant of a railway [132] *** or local authority the attachable portion thereof is exempt from attachment until it is actually payable].

[133][Explanation 2.-In clauses (h) and (1), “salary” means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.]

[134][Explanation 3.-In clause (I) “appropriate Government” means,---

(i) As respects any [135][person] in the service of the [136][Federal] Government, or any servant [137][of railway or] [138]* * * * cantonment authority or the port authority of a port, the [139][Federal] Government:---

[140]* * * * * * * * * * * * * * *

(iii) As respects any other [141][servant of the State] or a servant of any [142]* * * * local authority, the Provincial Government].

(2) Nothing in this section shall be deemed [143]* * * * * to exempt houses and other buildings (with the materials and the sites thereof and the lands immediately appurtenant thereto and necessary for their enjoyment) from attachment or sale in execution of decrees for rent of any such house, building, site or land.

[144]* * * * * * * * * *

61. Partial exemption of agricultural produce.- The [145][Provincial Government] [146]* * may by general or special order published in the [147][official Gazette], declare that such portion of agricultural produce, or of any class of agriculture produce, as may appear to the [148][Provincial Government] to be for the purpose of providing until the next harvest for the due cultivation of the land and for the support judgment-debtor and his family, shall, in the case of all agriculturists or of any class of agriculturist be exempted from to attachment or sale in execution of a decree.

62. Seizure of property in dwelling-house.- (1) No person executing any process under this directing or authorizing seizure of movable property shall any dwelling-house after sunset and before sunrise.

(2) No outer-door of a dwelling-house shall be broken open unless such dwelling-house is in the occupancy of the judgment. debtor and he refuses or in any way prevents access thereto, but when the person executing any such process has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe any such property to be.

(3) Where a room in a dwelling-house is in the actual occupancy of a woman who, according to the customs of the country does not appear in public, the person executing the process shall give notice to such woman that she is at liberty to withdraw; and, after allowing reasonable time for her to withdraw and giving her reasonable facility for withdrawing, he may enter such room for the purpose, of seizing the property, using at the same time every precaution, consistent with these provisions, to prevent its clandestine removal.

63. Property attached in execution of decrees of several Courts.- (1) Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees.

64. Private alienation of property after attachment to be void.- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

Explanation.- For the purposes of this section, claims enforce under an attachment include claims for the rateable distribution of assets.

65. Purchaser’s title.- Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.

66. Suits against purchaser not maintainable on ground of purchase being on behalf of plaintiff.- (l) No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

(2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.

67. Power of Provincial Government to make rules as to sales of land in exercise of decrees for payment of money.- [149](1) The [150][Provincial Government] [151]* * * * * may by notification in the [152][official Gazette], make rules for any local area imposing conditions in respect of the sale of any class of interest in land in executing of decrees for the payment of money, where such interests are so uncertain or undetermined as in the opinion of the [153][Provincial Government], to make it impossible to fix their value.

[154][(2) When on the date on which this Code came into operation in any local area, any special rules as to sale of land in execution of decrees were in force therein, the [155][Provincial Government] may, by notification in the [156][official Gazette] declare such rules to be in force, [157]* * * * * or may, by a like notification, modify the same.

Every notification issued in the exercise of the powers conferred by this subsection shall set out the rules so continued or modified]

DELEGATION TO COLLECTOR OF POWER TO EXECUTE DECREES AGAINST IMMOVABLE PROPERTY

68. Power to prescribe rules for transferring to Collector execution of certain decrees.- The [158][Provincial Government] may, [159]* * * *  declare by notification in the [160][official Gazette] that in any local area the execution of decrees in cases in which a Court has ordered any immovable property to be sold, or the execution of any particular kind of such decrees, or the execution of decrees ordering the sale of any particular kind of, or interest in immovable property, shall be transferred to the Collector.

69. Provisions of Third Schedule to apply.- The provisions set forth in the Third Schedule shall apply to all cases in which the execution of a decree has been transferred under the last preceding section.

70. Rules of procedure.- (l) The [161][Provincial Government] may make rules consistent with the aforesaid provisions,---

(a) for the transmission of the decree from the Court to the Collector, and for regulating the procedure of the Collector and his subordinates in executing the same, and for re-transmitting the decree from the Collector to the Court;

(b) conferring upon the Collector or any gazetted subordinate of the Collector all or any of the Court might exercise in the execution of the decree if the execution thereof has not been transferred to the Collector.

(c) providing for orders made by the Collector or any gazetted subordinate of the Collector, or orders made on appeal with respect to such orders, being subject to appeal to, and revision by, superior revenue authorities as nearly as may be as the order made by the Court, or orders made on appeal with respect to such orders would be subject to appeal to, and revision by, appellate or revisional Courts under this Code or other law for the time being in force if the decree had not been transferred to the Collector.

(2) Jurisdiction of Civil Courts barred.- A power conferred by rules made under sub­section (1) upon the Collector or any gazatted subordinate of the Collector, or upon any appellate or revisional authority, shall not be exercisable by the Court or by any Court in exercise of any  appellate  or  revisional jurisdiction which it has with respect to decrees or orders of the Court.

71. Collector deemed to be acting judicially.- In executing a decree transferred to the Collector under section 68 the Collector and his subordinates shall be deemed to be acting judicially.

72. Where Court may authorize Collector to stay public sale of land.- (1) Where in any local area in which no declaration under Section 68 is in force the property attached consist of land or of a share in land and the Collector represents to the Court that the public sale of the land or share is objectionable and that alienation of the land or share, the Court may authorize the Collector to provide for such satisfaction in the manner recommended by him instead of proceeding to a sale of the land of share.

(2) In every such case the provisions of sections 69 to 71 and of any rules made in pursuance thereof shall apply so far a they are applicable.

73. Proceeds of execution-sale to be ratably distributed among decree-holders.- (1)  Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets, after deducting the costs of realization, shall be ratably distributed among all such persons.

Provided as follows:---

(a) where any property is sold subject to a mortgage or charge, the mortgagee or incumbrancer shall not be entitled to share in any surplus arising from such sale;

(b) where any property liable to be sold in execution of a decree is subject to a mortgage or charge, the Court may, with the consent of the mortgagee or incumbrancer, order that the property be sold free from the mortgage or charge, giving to the mortgagee or incumbrancer the same interest in the proceeds of the sale as he had in the property sold;

(c) where any immovable property is sold in execution of a decree ordering its sale for the discharge of an encumbrance thereon, the proceeds of sale shall be applied,---

            first, in defraying the expenses of the sale;

            secondly, in discharging the amount due under the decree;

            thirdly, in discharging the interest and principal monies due on subsequent encumbrance (if any); and

            fourthly, ratably among the holders of decrees for the payment of money against the judgment-debtor, who have, prior to the sale of the property, applied to the court which passed the decree ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.

(2) Where all or any of the assets liable to be ratably distributed under this section are paid to a person not entitled to receive the same, any person so entitled may sue such person to compel him to refund the assets.

(3) Nothing in this section affects any right of [162][the Government].

COMMENTS

Exertion defective not giving particular as under O-21 R-11 but good enough for -purposes of Sec. 23.

RESISTANCE TO EXECUTION

[163][74. Resistance to execution.- (l) Where the Court is satisfied that the holder of a decree for the possession of property or a purchaser of property sold in execution of a decree has been resisted or obstructed in obtaining possession of the property by the judgment-debtor or any other person on his behalf and that such resistance or obstruction was without any just cause, the Court may, at the instance of the decree holder or the purchaser, order the judgment-debtor or such other person to undergo simple imprisonment for a term which may extend to thirty days and may further direct that the decree-holder or the purchaser be put into possession of the property.

(2) Notwithstanding anything contained in subsection (1), where a judgment-debtor or my other person resists or obstructs the execution of a decree, the Court may direct the officer in charge of the police-station within whose jurisdiction the judgment-debtor or such other person resides or where the property to which the decree relates is situate to provide, the necessary police assistance for the execution of the decree.]

PART III

INCIDENTAL PROCEEDINGS

COMMISSIONS

75. Power of court to issue commission.- Subject to such conditions and limitations as may be prescribed the Court may issue a commission,---

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition.

76. Commission to another court.- (1) A commission for the examination of any person Commission may be issued to any Court (not being a High Court) situate in a Province other than Province in which the Court of issue is situate and having jurisdiction in the place in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under subsection (1) shall examine him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed, shall be returned together with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission has otherwise directed in which case the commission shall be returned in terms of such order.

77. Letter of request.- In lieu of issuing a commission, the Court may issue a letter of request to examine a witness residing at any place not within [164][Pakistan].

78. Commission issued by foreign Court.- [165][Subject to such conditions and limitations as may be prescribed], the provisions as to the execution and return of come by foreign missions for the examination of witnesses shall apply to commission issued by [166][or at the instance of]

(a) Courts situate beyond the limits of [167][Pakistan and established] or continued by the authority of [168]* * * [169][the [170][Federal Government [171]* * *], or

(b) [172]* * *

[(c) Courts of any State or country outside Pakistan.]

PART IV

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST [173][THE GOVERNMENT] OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

[174]79. Suits by or against the Government.- [175]* * * In a suit by or against the [176][Government] the authority to be named as plaintiff or defendants as the case may be, shall be,---

(a) in the case of a suit by or against the [177][Federal Government], [178][Pakistan];

(b) in the case of a suit by or against a Provincial Government, the Province; and

[179]* * * * * * * * * * * * * * * * * * * * * * * * * * *

[180][80. Notice.- (l) A suit may be instituted against the Government or against a public officer, In respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of,---

(a) in the case of a suit against the [181][Federal Government], a Secretary to that Government;

(b) (i) In the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the. Collector of the District; and

(ii) In the case of a suit against the [182][Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of’ action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shill not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff’s claim, within the period of two months from the date of the institution of the suit:---

Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement.]

81. Exemption from arrest and personal appearance.- In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity,---

(a) the defendant shall not be liable to arrest nor his property to attachment, otherwise than in execution of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without determent to the public service, it shall exempt him from appearing in person.

82. Execution of decree.- (l) Where the decree is against [183][the Government]] or Execution against a public officer in respect of any such act as aforesaid, a of decree time shall be specified in the decree within which it shall be satisfied; and if the decree is not satisfied within the time so specified, the Court shall report the case for ‘the orders of the [184](Provincial Government].

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such report.

[185][SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS, AMBASSADORS AND ENVOYS]

83. When aliens may sue.- (1) Alien enemies residing [186][in Pakistan] with the permission of the [187][Federal Government], an alien friends, may sue in the Courts [188][in the Provinces], as if they were [189][Citizens of Pakistan].

(2) No alien enemy residing [190][in Pakistan] without such permission, or residing in a foreign country, shall sue in any of such Courts.

Explanation.-Every person residing in a foreign country the Government of which is at war with [191][or engaged in military operations against] [192][Pakistan], and carrying on business in that country without a [license in that behalf under the hand [193]* * * of a Secretary to the [194][Federal Government] shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country.

84. When foreign States may sue.- (1) A foreign State may sue in any Court [195][in the Province]:---

Provided that such State has been recognized by [196]* * * * * the [197][Federal Government]:---

Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State iii his public capacity.

(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognized by [198]* * * * * the [199][Federal Government].

85. Persons specially appointed by Government to prosecute or defend for Ruler of foreign State.- [200](1) Persons specially appointed by order of the [201][Federal Government] at the request of the Ruler of any foreign State, or at the request of any person competent, in the opinion of the [202][Federal Government] to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, shall be deemed to be the recognized agents by whom appearances acts and applications under this Code may be made or done on behalf of such Ruler.]

[203]* * * * * * * * * * * * *

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the [204][Ruler].

(3) A person appointed under this section may authorize or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

[205]86. [Suits against Rulers.] Repealed by the State Immunity Ordinance, 1981 (VI of 1981), s.19.

86A. Suits against diplomatic agents.- (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to,---

(a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission;

(b) a succession in which the diplomatic agent is Involved as executor, administrator, heir or legates as a private person and not on behalf of the sending State;

(c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions.

(2) No measures of execution shall be taken in respect of a diplomatic agent except in cases which Come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence.

(3) The initiation of any proceedings in a Court by a diplomatic agent shall, preclude him from invoking immunity from jurisdiction under this section in respect of any counter-claim directly connected with the principal claim.

(4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be waived of by the sending State; and any such waiver shall be express.

(5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver still be necessary.

(6) in this section, ‘diplomatic agent’ in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.

[206]87. [Style of Rulers as Parties to suits.] Repealed by the State Immunity Ordinance, 1981 (VI of 1981), s. 19.

[207]* * * * * * * * * *

[208]87­A. [Application of sections 85 and 86 to Rulers of Acceding States, etc.]  Omitted by  the  Code of Civil Procedure (Amdt.) Act, 1972 (II of 1972), s.2.

INTERPLEADER

88. Where inter pleader suit may be instituted.- Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than or charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of’ interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:---

Provided that where any suit ii pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted,

PART V

SPECIAL PROCEEDINGS

ARBITRATION

89. [Arbitration] Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third Schedule.

[209][89A. Alternative dispute resolution.- The Court may, where it considers necessary, having regard to the facts and circumstances of the case, with the object of securing expeditious disposal of a case, in or in relation to a suit, adopt with the consent of the parties alternate dispute resolution method, including mediation and conciliation.]

SPECIAL CASE

90. Power to state case for  opinion of Court.- Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

SUITS RELATING TO PUBLIC MATTERS

91. Public nuisances.- (1) In the case of a public nuisance the Advocate-General, or two or more persons [with the leave of the Court][210], may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

92. Public charities.- (l) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust [with the leave of the Court][211], may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [212][Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree,---

(a) removing any trustee;

(b) appointing a flew trustee;

(c) vesting any property in a trustee;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust-property to be let sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

[(2) No suit claiming any of reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to, except in conformity with the provisions of that subsection.][213]

93. Exercise of powers of Advocate General.- The powers conferred by sections 91 and 92 on the Advocate-General may, [214]***, be with the previous sanction of the [215][Provincial Government], exercised also by the Collector or by such officer as the [216][Provincial Government] may appoint in this behalf.

PART VI

SUPPLEMENTAL PROCEEDINGS

94. Supplemental Proceedings.- In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,---

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(c) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;

[95.- Compensation for obtaining arrest, attachment or injunction on insufficient grounds.--- (1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction is granted under the last preceding section, it appears to the Court that:---

(a) such arrest, attachment or injunction was applied for on insufficient grounds; or

(b) there was no reasonable or probable ground for making the application:---

the Court may, on its own motion or on the application of the aggrieved party, award such punitive compensation as it deems reasonable to the aggrieved party for the expense and injury caused to him.

(2) In addition to the compensation awardable under subsection (1), the Court may also make any order directing the party at fault to deposit such amount in the public exchequer as the Court deems just, as penalty for abusing the process of the law and wasting the time of the Court.

(3) An order under this section shall bar any suit for compensation in respect of such arrest, attachment or injunction.][217]

PART VII

APPEALS FROM ORIGINAL DECREES

96. Appeal  from original decree.- (l) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex-parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

COMMENT

S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation. Mst. Parveen Akhtar V/S Muhammad Adnan 2010 C L C 380 Lahore High Court, Lahore

97. Appeal from final decree where no appeal from preliminary decree.- Where any party aggrieved by a preliminary decree [****][218] does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98. Decision where appeal heard by two or more Judges.­ (l) Where an appeal is  heard by a  Bench of two or more Judges, the appeal shall be decided in accordance with  the  opinion  of  such Judges or of the majority (if any) of such Judges.

 (2)Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:---

Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

[219][(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent any High Court.].

99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court

APPEALS FROM APPEALATE DECABRIS

100. Second appeal.- (l) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:---

(a) the decision being contrary to law or to some usage having the force of law.

(b) the decision having failed to determine some material issue of law or usage having the force of law

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

[220][(2) * * * *

COMMENTS

Concurrent finding of fact to be reversed when important points ignored and evidence misread. PLD 1994 SC 326

101. Second appeal or no other grounds.- No second appeal shall lie except on the grounds mentioned in section 100.

[102. No second appeal in certain case.- No second appeal shall lie in any suit when the amount or value of the subject matter of the original suit does not exceed rupees twenty five million.][221]

103. Power of High Court to determine issues of fact.- In any second appeal the High Court may, if the evidence on the record is sufficient determine any issue of fact necessary for the disposal of the appeal [222][which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in subsection (1) of section 100].

APPEALS PROM ORDERS

104. Orders  from which appeal lies.- (1) An appeal shall lie from the following orders, and save as otherwise express1y provided in the body of this Code or by any law for the time being in force, from no other orders:---

[223]* * * * * * * * * * * *

[224][f) an order under section 35-A;

(ff) an order under section 47;]

[(fff) An order under section 91 or section 92 refusing leave to institute the suit;][225]

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is express1y allowed by rules:---

[226][Provided that no appeal shall lie against any order specified in clause [227](f) save on the ground that no order, or an order for the payment of a Jess amount, ought to have been made].

(2) No appeal shall lie from any order passed in appeal under this section.

105. Others order.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appeared from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appea11ies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

106. What Courts to hear appeals.- Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

GENERAL PROVISIONS RELATING TO APPEALS

107. Powers  of  Appellate  Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:---

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in’ respect of suits instituted therein.

108. Procedure in appeals from appellate decrees and orders.- The provisions of this Part relating to appeal from original decrees shall, so far as may be, apply to appeal,---

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.

[228]APPEALS TO THE [229][SUPREME COURT]

[230][109. When appeals, lie to the Supreme Court.- An appeal from a judgment decree or final order of a High Court shall lie to the Supreme Court,---

(a) if the amount or value or the subject-matter or the dispute in the court of first instance was and also in appeal is (unless varied by an Act or Parliament) fifty thousand rupees or upward and the judgment decree or final order appealed from has varied or set aside the judgment decree or final order of the Court immediately below; or

(b) it the judgment, decree or final order involves directly or indirectly, some claim or question respecting property or the like amount or value and the judgment, decree of final order appealed from has varied of set aside the judgment decree or final order of the Court immediately below; or

(c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.]

[231]110. [Omitted by Federal Adaptation of Laws Order (P.O.4 of 1975) w.e.f 1st August 1975]

111. Bar of certain appeals.- Notwithstanding anything contained in section 109, no appeal shall lie to [232][the Supreme Court]

(a) from the decree or order of one Judge of a High Court [233]***, or of one Judge of a Division Court, or of two or more Judges of such High .Court, or of a Division Court, constituted by two or more Judges of such High Court, where such Judges are cqua11y divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being; or

(b) from any decree from which under section 102 no second appeal lies.

[234]111.A.-[Omitted by the Federal Court Act, 1941 (XXI of 1941), S. 2.]

112. Savings.- [235](1) Nothing contained in this Code shall be deemed,---

(a) to affect the powers of the Supreme Court under Article [236][191 of the Constitution or any other provision thereof]; or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.

PART VII

REFERENCE REVIEW AND REVISION

113. Reference to High Court.- Reference to High Court. - Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

[114. [Review.-(1) Subject as aforesaid, any person considering himself aggrieved,---

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Code,---

may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. ][237]

(2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court.

[238]115. Revision.- [(1 )} The High Court may call for the record of any case which bas been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears,---

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit[:][239]---

[240][Provided that where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.]:---

[Provided further that the subordinate court shall provide copies of the documents to a person within three days of the decision, and the High Court shall dispose of such application within six months,][241]

[242][(2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (l) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them.

(4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.]

[(5) No proceedings in revision shall be entertained by the High Court against an order passed by the District Court under section 104.][243]

COMMENTS

Revision--- Term “case decided”---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in “any case which has been decided”---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term “case” has been used, thus the meaning cannot be restricted only to a final decision of a case---Term “case decided” is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of ‘case decided’---Powers conferred under section 115 C.P.C. cannot be restricted only to the extent of final decision of the case, rather it includes interlocutory orders also against which no appeal is provided.

Valuation given in plt.200- application for appointment of receiver from to be determined according to value given in the plaint. 1995 CLC 1874

S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation. Mst. Parveen Akhtar V/S Muhammad Adnan 2010 C L C 380 Lahore High Court, Lahore

S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S. 115, C.P.C. by aggrieved person is 90 days.

S. 115, proviso I & II---Expression “copies of pleadings, documents and orders”--- Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis of copy provided by the court---Court which passes the order only has to provide the copy of impugned order.
Allah Ditta    Versus    Lahore Development Authority and 5 others 2012 C L CL 271

If the courts below overlooked material facts or reached at an erroneous conclusion, it will be deemed as material irregularity, High Court could reverse such findings. Muhammad Suleman    V.    Rasheeda Bibi 2012 CLC 79 (Lah.)

S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable sui motu by High Court under S.115, C.P.C.---Principles. The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit. Zahir Hussain and 4 others    Versus      Bashir Muhammad and 5 others. 2012 C L C 377

Revision “case decided” terms “Suit”, “judgment”, order or decree have not been used in Sect. 115 rather “case”  has been used, thus, meaning cannot be restricted only to a final decision of a case. The term “case decided” is to be seen in broader sense and may include orders passed which determined only a part of the case. Muhammad Musa Vs. Hamid Ali. 2012 CLC 254 (Baluchistan)

Appeal which was found to be incompetent could be treated as revision and vise versa. 1991 CLC 853

“conversion of revisional petition into a constitutional petition-petitioner’s request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable. 1991 CLC 1768

“constitutional petition can be converted into a revision or vise versa if it does not prejudice the right of any party and advance cause of justice instead of frustrating the same. 1991 CLC NOTE 101 AT P.82

“No limit and bar on high court to convert a revision into a constitutional petition in exercise of its discretion. 1991 SCMR 1135

“Maintainability of appeal as RFA or RSA-held, proceedings originally instituted as  a writ petition  cannot be treated as a first or second appeal-proceedings of one kind can ordinarily be treated as proceedings of another kind provided period of limitation does not intervene subject to further qualification that such proceedings should otherwise be competent under provisions sought to be invoked. 1988 MLD 1445

Second appeal brought before high court exhibiting  certain features which demonstrated that it fell within scope of interference under sec.115 CPC-high court should in such cases, exercise its jurisdiction under said provision of law-high court, held, should have allowed conversion of said second appeal into revision and then proceeded to see ……
PLD 1987 SC 139

“Recalling order of high court-application for-high court converting constitutional petition as rent appeal-application for recalling order of such conversion not bared or support by legal grounds, held, was not maintainable and dismissed in circumstances. 1986 MLD 95

“Second appeal-revision-objection regarding competence of civil revision not taken up before high court but taken first time in supreme court, held, objection was an afterthought –such objection if taken up in high court and found tenable high court could have treated revision as second appeal subject to the satisfaction of other requirements. 1985 SCMR 27

“Appeal filed under sec.100 not found to be competent prayer on behalf of the appellant for conversion pf appeal into revision upon plea of ignorance of amendment such application belated-held, cannot be accepted. PLD 1984 QUETTA 52

“Second appeal against order of Majlis-e- shoora-conversion of appeal into revision –question of deficiency of court fee or limitation not involved and prayer bonafide –appeal treated as revision PLD 1984 QUEETA 92

Art.199 read wind military courts (validations of orders)ordinance(1 of 1980),s.2(2) martial law order MLA(Zone c) No.20 and Sindh rented premises ordinance(xvii 0f 1979)S.21 Writ petition-appeal-court, with a view to foster  justice, can take appropriate action or adopt prohibited by any provision of law –no prohibition in law against conversion of a writ petition into an appeal –impugned orders of military Court , during pendency of writ petitions , converted by validation ordinance into orders passed under Sindh rented premises Ordinance subject to right of appeal before High court-conversion of pending writ petitions into appeals-held, in furtherance of justice and to provide fair opportunity to parties before single judge of High Court under section 21 of Sindh Rented Premises Ordinance, 1979. PLD 1982 KARACHI 130

Courts are required to do substantial justice-one form of proceedings, in the interest of the justice may be treated as another Revisions, appeals and constitutional petitions have to be treated one or the other, interchangeably, to meet the end of the justice
1989 CLC 1949 (KARACHI) 1980 CLC 930

No period prescribed for filing – should be filed within 90 days failing which discretion might not be exercised in petitioner’s favour on grant of unreasonable delay.
1995 SCMR 69

Scope of revisional power is vest – corresponds to remedy of certiorari. 1995 SCMR 69

Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material  Irregularity. 1995 SCMR 105

High Court’s power of “Judicial Review” under Art.199 is assumable to its jurisdiction under Sect.115 CPC except in two aspects (i) abuse or (ii) excess of power which are well recognized grounds of intervention under Art.199 1995 SCMR 105.

Civil Laws (Reforms) Act XIV 1994; Civil Laws (Reforms) Act XDXIII 1993.

Revision can be filed either H.C. or Distt. Court – powers of H.C. not withdrawn by Act XIV of 1994. PLD 1995 Lah. 31.

PART IX

SPECIAL PROVISIONS RELATING TO [244]* * *

HIGH COURT

116. Part to apply only to certain High Courts.- This part applies only to High Courts [245]****

117. Application of Code to High Courts.- Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to [246]*** High Courts.

118. Execution of decree before ascertainment of costs.- Where any 1*** High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.

119. Unauthorized persons not to address Courts.- Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.

120. Provisions not  applicable  to  High Court  in original civil jurisdiction.- (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.

[247]* * * * * * * * * * * * *

PART X

RULES

121. Effect of rules in First Schedule.- The rules in the First Schedule shall have effect as if enacted in ,the body or this Code until annulled pt altered in accordance with the provisions or this Part.

122. Power of certain High Courts to make rules.- [248][The High Courts] [249]*** may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence, and may by such rules annul, alter or ad to all of any of the rules in the First Schedule.

123 Constitution  of Rules  Committees  in certain Provinces.- (I) A Committee, to be called the Rule Committee, shall be constituted at [250][the town which is the usual place of sitting of each of the High Courts [251] * * * * * *  [252]* * * * * *  referred to in section 122].

(2) Each such Committee shall consist of the following persona namely:-

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or [253]**** a Divisional Judge for three years.

(b) [254]* * * * * * *

[255][(c) 6[two advocates practicing in that Court and].

(d) a Judge of a Civil Court subordinate to the High Court, [256]* * * *

[257]* * * * * * * * * * * * * * * * * * * *

(3) The members of each such Committee shall be appointed by the Chief Justice [258]* ** who shall also nominate one of their member to be president:---

Provided that, if the Chief Justice [259]*** elects to be himself a member of a Committee, the number of other Judges appointed to be members shall be two and the Chief Justice [260]*** shall be the President of the Committee.

(4) Each member of any such Committee shall bold office f or such period as may be prescribed by the Chief Justice [261]* * * in this behalf; and whenever any member retires. resigns, dies or ceases to reside in the Province in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said Chief Justice [262]* * * may appoint another person to’ be a member in his stead.

(5) There shall be a Secretary to each such Committee who shall be appointed by the Chief [263]* * * * * Justice and shall receive such remuneration as may be provided in this behalf [264][by the Provincial Government].

124. Committee to report to High Court.- Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

[265][125. Power of other High Courts to make rules.] Omitted by the Central Laws (Statute Reform) Ordinance, 1960 (XXI of 1960), S.3 and 2nd Sch. (with effect from the 14th October, 1955).

[266][126. Rules to be subject to approval.- Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the Province in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous approval of the [267][Federal Government].

127. Publication of rules.- Rules so made and [268][approved] shall be published in the [269][official Gazette ***], and shall from the date of publication or from such other date as may be specified have the same force and effect within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the Pint Schedule.

128. Matters  for  which  rules may  provide.- (1) Such rules shall not be inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any maters relating to the procedure of civil Courts.

(2) In particular and without prejudice to the generality or the powers conferred by subsection (1), such rules may provide for all or any of the following matters, namely:---

(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment or livestock and other movable property the fees pay able for such maintenance and custody, the sale of such
livestock and property and the proceeds of such sale.

(c) procedure in suits by way of counter claim, and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging orders either fu addition to, or in substitution for, the attachment and sale of debts;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure,---

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract express or implied; on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty; or on a guarantee, where the claim against the principle is in respect of a debt or a liquidated demand only; or on a trust; or

(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or bas been only determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonotary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of civil Courts.

129. Power  of  [270]*  the  High  Courts  to   make  rules   as   to   their   original   civil procedure.- Notwithstanding anything in this Code, any High Court [271]*** may make such rules not inconsistent with [272][its Letters Patent] to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

[273]130. [Powers of other High Courts to make  rules as to  matters other  than  procedure.]  Omitted by A.O., 1961, Art . 2 and Sch. (with effect from the 23rd March, 1956).

131. Publication of rules.- Rule made in accordance with section 129 [274]* * * shall be published in the 2[official Gazette * * *] and shall from the date of publication or from such other date as may be specified have the force of law.

PART XI

MISCELLANEOUS

132. Exemption of certain women from personal appearance.- (1) Women who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

133. Exemption of other persons.- (1) The [275][provincial Government] may, by notification [276]* * * in the [277][official Gazette], exempt from personal appearance in Court any person whole rank, in the opinion of such Government, entitles him to the privilege of exemption.

(2) The names and residences of the persons so exempted shall, from time to time, be forwarded to the High Court by the [278][Provincial Government] and a list of such persons shall be kept in such Court, and a list of such persons as reside within the local limits of the jurisdiction of each Court subordinate to the High Court shall be kept in such subordinate Court.

(3) Where any person so exempted claims the privilege of such exemption and it is consequently necessary to examine him by party requiring his evidence pays the costs of that commission, unless the party requiring his evidence pays such costs.

134. Arrest other than in execution of decree.- The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrest under this Code.

135. Exemption  from  arrest  under civil process.- (1) No Judge, Magistrate or other judicial office shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

(2) Where any matter pending before a tribunal jurisdiction having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenue-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in subsection (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.

[279]l35A. Exemption of members of Legislative bodies from arrest and detention under civil process.- (1) No person shall be liable to arrest or detention in prison under civil process:---

[280][(a) If he is member of a [281]* Legislature [282] *** [283] *** during the continuance of any meeting of such Legislature [284]**]

[b) If he is member of any committee of such [285][Legislature [286]* *], during the continuance of any meeting of such committee;

[287]* * * * * *

and during the fourteen days before and after such meeting of sitting.

(2) A person released from detention under subsection (1) shall, subject to the provisions of the said subsection, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1)]

136. Procedure where person to be arrested or property to be attached is outside district.- (1) Where an ap1ilication is made that and person shall be arrested or that property shall be attached under any provision of this Code not relating to the execution or decree, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made the Court may in its direction, issue a warrant or arrest or make an order of attachment and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situated a copy of the warrant of orders, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by Court subordinate to itse1f, and shall inform the Court which issued or made such warrant or order of the arrest or attachment

(3) The Court making an arrest under this location shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

[288]* * * * * * * * * * * * * * * * * * * * *

137. Language  of subordinate Courts.- (1) The language which, on the commencement of this Code, is the language of any Court subordinate to a High Court shall continue to be the language of such subordinate Court until the [Provincial Government] otherwise directs.

(2) The [289][Provincial Government] may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Code requires or allows anything other than the recording or evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment or the costs of such translation.

138. Power of High Court to require evidence to be recorded in English.- The [290][High Court] may, by notification in the [291][official Gazette] direct with respect to any] judge specified in the notification or failing under a description act forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under subsection (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

 

139. Oath on affidavit by whom to be administered.- In the case of any affidavit under this Code,---

(a) any Court or Magistrate, or

(b) any officer or other person whom a High Court may appoint in this behalf, or

[292](c) any officer appointed by any other Court which the [293][Provincial Government] has generally or specially empowered in this behalf, may administer the oath to the deponent:---

140. Assessors  in  causes  of savages,  etc.- (1) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may if it thinks fit and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed two competent assessors; and such assessor shall attend and assist accordingly:

(2) Every such assessor shall receive such fees to for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.

141. Miscellaneous proceeding.- The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

142. Orders and notices to be in writing.- All orders and notices served on or given to any person under the provision or this Code shall be in writing.

143. Postage.- Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post and the fee for registering the same, shall be paid within a time to be fixed before the communication is made:---

Provided that the [294][Provincial Government] [295]* * * may remit such postage~ or fee or both or may prescribe a scale of court-fees to be levied in lieu thereof.

144. Application  for the restitution.- (1) Where and in so far as a decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree of such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interested damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection (1).

COMMENTS

Court must remedy injury or wrong done to a party because of order of court---Procedure was provided under S. 144 C.P.C., while power to order restitution was inherent in court and should be exercised whenever justice demanded---Present was not a case of restoration of possession but of restitution of possession because order of revenue authority regarding dispossession was set aside by appellate authority declaring the same to be illegal and without jurisdiction. Parvaiz Versus Muhammad Ramzan 2009 CLC 513 Lahore-High-Court-Lahore

145. Enforcement of liability of surety.- Where any person has become liable as surety:---

(a) For the performance of any decree or any part thereof; or

(b) For the restitution of any property taken in execution of a decree, or

(c) For the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 47:---

Provided that such notice: as the Court in each case thinks sufficient has been given to the surety.

146. Proceedings by or against representatives.- Save as otherwise provided by the Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.

147. Consent or agreement by person under disability.- In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if liven or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such period, were under no disability and had given such consent or made such agreement.

148. Enlargement of time.- Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may, in its discretion, from time to, time, enlarge such period, even though the period originally fixed or granted may have expired.

149. Power to make up deficiency of court­fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee is payable, shall have the same force and effect as if such fee had bee paid in the first instance.

150. Transfer of business.- Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

COMMENTS

Breach of injunction – Business of the Court granting the injunction transferred to another court – Latter Court can entertain petition.

Transfer – Includes transfer of business under Civil Courts Act. The word “transfer” in Sec.150 is not inapplicable to a case where the District Judge fixed the jurisdiction of the Court under the Civil Courts Act and transferred the whole of the business within a certain area to it. AIR 1923 Madras 92.

151. Saving of inherent powers of Court.- Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court [to be exercised after recording reasons in writing][296] to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

COMMENTS

Inherent powers – withdrawal of suit on bonafide mistake on account of similarity in the names of defendants in two suits – suit to be restored under inherent powers which can be exercised when the provisions of CPC are not in conflict. PLD 1995 Kar. 282.

Order passed u/s 151 CPC revision competent when court has failed to exercise its inherent jurisdiction or where order impugned was perverse or illegal.
1995 CLC 1939.

Appellate & Revisional Jurisdiction – Distinction
Revision is:

(i)                  Where Court has exercised jurisdiction not vested in it.

(ii)                (ii) Where Court has not exercised jurisdiction vested in it.   (iii) or has acted in exercise of its jurisdiction “illegally”  or with “material irregularity”.

In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in “appeal” only not in “revision”.

Appeal & Revision are different species, appeal is continuation of original suit and has wide scope while “Revision” is limited to some illegality, material irregularity or jurisdictional defect. Abdul Razzak  v.  Lal Bux 2012 CLC 4 (Sindh) (DB).

Revision is not a matter of right and cannot be equated with right of appeal which is a substantive right. PLD 1996 Kar. 68

152. Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

153. General power to amend.- The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

154. [Saving of present right of appeal.] Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), s. 3 and Second Sch., item 46(11)].

155. [Amendment of certain Acts.] Omitted by the Federal Laws (Revision and Declaration) Ordinance, 1981 (XXVII of 1981), s. 3 and Second Sched.

156. Rep. by the Second Repealing and Amending Act 1914 (XVII of 1914), s.3 and Second Schedule.

157. Continuance of orders under repealed enactments.- Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.

158. Reference to Code of Civil Procedure and other  repealed enactments.- In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.

THE FIRST SCHEDULE

ORDER I

PARTIES SUITS

1. Who may be joined as pliantiffs.- All persons may be joined in one suit as Plaintiffs in whom any right to [relief in respect of or transaction or series of acts or transactions is alleged to exit, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.

2. Power of Court to order separate trials.- Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

3. Who may be joined as defendants.- All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, Whether jointly, severally or in the alternatively, where, if separate suits were brought against such persons, any common quest on of law or fact would arise.

4. Court may give judgment for or against one or more  of joint parties.- Judgment may be given without any amendment:---

(a)        for such one or more of the plaintiffs as may be  found to be  entitled to relief, for such relief as  he or they may be entitled to;

 

(b)         against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

5. Defendant need not be interested in all the relief claimed.- It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

6. Joinder of parties liable on same contract.- The plaintiff may, at his option, join as same suit nil or any of the persons severally, severally, liable on any one contract, including exchange, hundis and promissory notes.

7. When plaintiff in doubt from whom redress is to be sought.- Where the plaintiff is in doubt as to the person from whom be is entitled to obtain redress, he may join two or more defendants in order that the question as to winch of the defendants is liable, and to what extent, may be determined as between all parties.

8. One  person  may  sue  or  defend  on  behalf  of  all  in same  interest.- (l) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff’s expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub­ rule(1) may apply to the Court to be made a party to such suit.

9. Misjoinder and nonjoinder.- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in the matter in controversy so far as regards the rights and interests of the parties actually before it.

10. Suit  in  name  of wrong plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court unless the as may be the plaint thinks fit, effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where a defendant is added, the plaint shall, Court otherwise directs, be amended in such manner necessary, and amended copies of the summons and of shall be served on the new defendant and, if the Court on the original defendant.

(5) Subject to the provisions of the [297](Limitation Act, 1908 (IX of 1908)], section 22, the proceedings added as defendant shall be deemed to service of the summons.

COMMENTS

Misdescription of parties not fatal – can be corrected by court at any time. 1986 CLC 987
PLD 1985 SC 438 PLD 1988 Kar. 362 AIR 1933 B200 PLD 1976 Lah. 269 PLJ 1975 1016 O-1 R-10

Public at large already impleaded in application for grant of succession certificate – any body could assist trial court even without making application. 1995 CLC 1553

Necessary party not impleaded – technicalities cannot be allowed to unsuit a party on technical grounds case remanded for impleading. 1995 SCMR 1748
O-3 R-1 & 2; O-6 R-1; O-6 R-14 &15; O-7 R-10; O-29 R-1; O-33 R-3.

Defective signing or presentation or plaint by person not holding power of attorney – no violation – irregularity curable. PLD 1973 Lah. Note 33 P-41.

11. [Conduct of Suit.- The Court shall, at the time of framing of the issues, give the conduct of the suit to such party as it deems proper for expeditious adjudication of the suit.][298]

12. Appearance  of one  of several  plaintiffs  of defendants for others. - (l) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other, in any proceedings; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

13. Objections as to non­joinder or misjoinder.- All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently, arisen, and any such objection not so taken shall be deemed to have been waived.

ORDER II

FRAME OF SUIT

1. Frame of suit.- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

2. Suit to include the  whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished claim.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief; but if so omits, except with the leave of the Court, to sue for all such relief, he shall not afterwards sue for any relief so omitted.

Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Explanation

A lets a house to B at a yearly rent of Rs.1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.

Court Decisions

Latest Law Cases

 

Preliminary objection was raised--Second suit for declaration was liable to be dismissed--Bar a second suit based on different and distinct cause of actions--Held: It is an established principle of law that in order that a plea of bar u/Order 2 Rule 2, CPC should succeed defendant who raised plea must make out that second suit was same cause of action as that on which previous suit was based that cause of action plaintiff was entitled to more that one relief without leave obtained from Court omitted to sue for relief for which second suit had been filed--In order to prove bar contained in Order 2 Rule 2 CPC, pleadings in earlier suit should be exhibited or marked by consent or at least admitted by both the parties, so as to provide an opportunity to plaintiff to explain or demonstrate that second suit was based on different cause of action. PLJ 2012 Lahore 652 = 2012 Law vision 326

 

Right to file a separate suit for possession--Law does not permit second suit if a right to plaintiff is available at time of filing of the suit--A second suit in such like situation is otherwise barred under Order 11, Rule 2 of CPC. PLJ 2012 SC 768 = 2012 Law vision 59      

 

Object and purpose of both the suits was the same i.e. for execution of three documents, therefore, alleged violatin or infringement of such understanding constituted one and the same cause of action in respect of whole of the claim and any portion of which could not be omitted but plaintiff in her earlier suit did not mention anything about the portion of her claim relating to gift deed---While omitted claim regarding gift, deed, plaintiff made claim in respect of relinquishment deeds, therefore, portion of claim so omitted from earlier suit, could not be claimed afterwards by way of second suit---Plaintiff did not claim that at the time of filing her first / earlier suit she was not awere of her alleged right to the portion of the claim so omitted by her---second/subsequent suit was rightly found by single Judge of High Court to be hit by Order II, Rule, 2, C. P. C. and was barred by limitation and accordingly plaint was rejected---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court---Intra-court appeal was dismissed, in circumstances. 2012 C L C 1028

 

Plaintiff’s application for amendment of plaint to challenge sale in favour of subsequent vendee for being illegal, without consideration and inoperative against rights of plaintiff---Dismissal of such application b Trail Court---Validity---Subsequent vendee had been made party in suit---Plantiff could not be granted relief of specific of performance in suit without questioning genuineness of sale in favour of subsequent vendee---proposed amendment sought against subsequent vendee—Proposed amendment sought against subsequent vendee would not change nature and complexion of suit, rather same was essential for determining real controversy between the parties---In case of refusing proposed amendment, plaintiff would be debarred by virtue of O.II, R. 2, C. P. C. to question later on legality of sale in favour of subsequent vendee---Delay itself would not be sufficient to decline propose amendment---Trial court while passing order had failed to exercise jurisdiction vested in it---High Court set aside impugned order and accepted such application in circumstances. 2012 C L C 977

 

Petitioner in appeal omitted to sue respondent on the ground of his purported lack of qualification/eligibility to promotion wherefore she was debarred from suing respondent in the present appeal on the basis of the omitted claim under the provisions of Order II Rule 2, CPC--Leave declined. PLJ 2011 SC 488 = 2011 Law vision 570    

 

Statement of Advocate regarding withdrawal of the claim in the suit--Validity--An advocate had authority to make statement on behalf of his client, which was binding upon the client unless there was any thing contrary in Vakalat-Nama putting restriction on the authority of advocate to compromise or abandon claim on behalf of the client--Advocate’s power in the conduct of a suit allow him to abandon the issue which, in his discretion, advisible in the general interest of the client. PLJ 2011 SC 37 = 2011 Law vision 504      

 

1.                  Applicability

2.                  Bar of suit

3.                  Cause of action

4.                  Filing of second suit

5.                  Object

6.                  Relinquishment of claim in earlier suit

7.                  Scope

8.                  Second suit on same cause of action

9.                  Subsequent suit on different cause of action that had not accrued earlier.

10.              Principle of Res-judicata

11.              Multiplicity of suits

12.              Constructive resjudicata.

13.              Compromise out of court and withdrawal of suit

14.              Withdrawal of first suit

15.              Splitting up a cause of action

 

1.                  Applicability:- Civil Procedure Code 1908, having been excluded to proceedings before Family Court, plea that present case was hit by O. II, R.2 of C.P.C. was not sustainable – Besides, on the facts and circumstances of present controversy, principle incorporated in O.II, R.2 C.P.C. was not applicable at all, fresh cause of action had accrued to petitioner as a result of fresh invasion made on her vested rights had accrued. P L J 2004 Pesh. 14

 

2.                  Bar of suit:- Subsequent suit under O.II, R.2, C.P.C. would be barred only if in a previous suit, a relief which was available in relation to cause of action stated in said suit, but was not claimed. 2002 SCMR 300

 

3.                  Cause of action:- Cause of action’ means every fact that will be necessary for the plaintiff to prove if traversed in order to support his right to judgment—Cause of action has nothing to do with the defence set up by the adversary more it should be confined to nature and character of the relief sought. PLD 2002 Kar. 333

 

4.                  Filing of second suit:- Filing of a subsequent suit on the same cause of action and for the same relief is barred under the provisions of O.II, R.2, C.P.C. 2002 MLD 507

 

5.                  Object:- Omission or failure to include any of the reliefs in the plaint operated as relinquishment of that claim—Party instituting the proceedings had to include all reliefs flowing from main grievance, otherwise the omission was fatal, and as such, it was essential for the plaintiff to assert all claimable reliefs concerning the grievance of cause of action—Any such relief which flowed out of basic grievance if not claimed or omitted, then such party stood precluded from agitating such reliefs subsequently—Object of provisions of 0.11, R.2, C.P.C. was to avoid splitting of claim and restrict multiplicity of litigation in the matter.  PLJ 2002 Lah.. 1581+P L D 2001 S.C 325

 

6.                  Relinquishment of claim in earlier suit:- Earlier suit was withdrawn without any permission to file the fresh one on the same cause of action as a result of compromise effected between the parties out of Court—Plaintiff filed another suit on the same cause of action and the same was decreed by the Trial Court but High Court dismissed the same—Plaintiff had agreed to compromise with the defendant and had relinquished his other claim by filing statement for full and final settlement of his claim and did not reserve the right to claim compensation for filing the suit, as such his claim was not allowed by the High Court—Validity—Appeal of the defendant was accepted by the High Court with sound and cogent reasons and there being no error or irregularity in the judgment same was not open to exception, PLJ 2002 Lah.. 1581+P L D 2001 S.C 325

 

7.                  Scope:- Plaintiff filed suit for possession of property, which was resisted by defendant on pleas of adverse possession, being barred by res judicata and O.II, R.2, C.P.C.—Defendant also claimed compensation for raising construction over the property and making improvements—Trial Court decreed the suit, which was upheld in appeal—Previous suit was not filed on the basis of same cause of action, which was dismissed for non-prosecution—As to amount spent on construction and improvements, except statement of defendant, no other evidence was led—Defendant could not prove plea of adverse possession as required under law—Findings of Courts below did not suffer from any illegality such as misreading or non-reading of any material piece of evidence and as regard res judicata and applicability of O.II, R.2, C.P.C. 2002 SCMR 300

 

8.                  Second suit on same cause of action:- From averments made by plaintiff/appellant in relief clauses of plaints filed in two suits that according to plaintiff’s own case. there was only one cause of action. In both suits, he has mentioned that cause of action arose when plaintiff was re-instated on his post after previous litigation between parties. In both suits he has claimed compensation for period of his leave and other compensatory benefits etc. S.C is of the view that cause of action in both suits was same and plaintiff was not legally competent to file two suits by splitting up his claim. Neither any reason has been given for filing separate suits nor any permission was sought from District court in which he had instituted suit in first instance. PLJ 1998 SC (AJK) 171.

 

9.                  Subsequent suit on different cause of action that had not accrued earlier:-  Provision of O.II, R. 2 is against splitting of claim which plaintiff was entitled to make in respect of cause of action enjoining that whole of his claim in respect of cause of action should be agitated at one time. Order U, R. 2, however, would not insist on joinder of all causes of action available to plaintiff in one suit. O.II, R. 2 of C.P-C. would not therefore, bar subsequent suit on different cause of action or on cause of action that had not accrued earlier. One test for finding out whether subsequent suit would be a bar because of earlier suit would be whether claim in subsequent suit was in fact founded on cause of action distinct from that which was foundation of earlier suit. Plaintiffs former suit which was for perpetual injunction would not place penalty provisions enunciated by O.II, R. 2 CPC as hurdle in the way of present suit.  PLJ 1999 Lah.. 941 = PLD 1999 Lah. 340. Contention that under Order II Rule 2, entire claim has to be included in plaint and any relief available to plaintiff which had been given up by him in earlier suit, cannot subsequently be claimed in a fresh suit. There is no cavil with proposition of law but question is whether claim for relief sought in fresh suit was available to respondent at time of previous suit. Cause of action in first suit accrued in 1989 when registered document was non-extant while cause of action in second suit accrued to plaintiff when said documents were executed and registered subsequently. It cannot be said that second suit was hit by provisions of Order II Rule 2 of C.P.C.   PLJ 1995 Kar. 323 = NLR 1995 CLJ 611= PLD 1995 Kar. 416.

 

10.              Principle of Res-judicata:- Party to suit could not sue for any portion of claim which it had either omitted to sue or had relinquished in earlier suit. Such party could not assert its right to sue for such claim at later stage and court would not grant leave to bring fresh suit for such omitted or relinquished claim. Principle of res-judicata being mandatory has to be applied against parties and each agreement between parties could not operate against that principle. Where party in previous suit had right and option to Lake any ground of attack in respect of any issue framed against him and he did not exercise such option he would be debarred to bring fresh claim through subsequent suit. All grounds of resistence that are or were in knowledge of parties must be urged in defence as against claim set up by other party.   PLJ 1999 Pesh. 6 = 1999 MLD 2140.

 

11.              Multiplicity of suits:- Rationale behind Rule 2 (1) (2) (3) of Order 11 clearly indicates that Legislature introduced provisions to control splitting up of claim and to restrict multiplicity of suits. Petitioner had clearly omitted to sue for recovery of compensation in earlier suit for specific performance. He could not sue for this relief which he had omitted in earlier relief. Cause of action for both suits could be joined in one suit and having omitted latter cause of action, bar of Order II rule 2 C.F.C- was fully attracted. PLJ 1996 SC 678= 1996 SCMR 1047.

 

12.              Constructive resjudicata:- Matter of inheritance from plaintiffs deceased father was directly and substantially in issue in the former suit between the same parties and decided. Plaintiff omitted devolution of property in respect of present land in former suit and thus relinquished her share, therefore, in view of explanation 4 of S. 11 and O.II. R. 2 CPC suit is neither competent nor can be decided. Contention of. Principle of res judicata precludes piecemeal litigation and hardship and inconvenience resulting from repeated litigation on the same cause of action are checked. Bar contained in law for seeking remedy for any legal right under O.II R. 2 and S. 11 CPC was for purpose of, peace and repose in enjoyment of property by parties whose right in property have been once settled by courts of law and no decree would be granted for disturbing the same. Cause of action in earlier suit and in subsequent suit being in effect the same judgments and decrees of courts below decreeing plaintiffs suit. were set aside and plaintiffs suit was dismissed being hit by principle of res judicata.   PLJ 1996 Pesh. 320 = 1996MLD 1409. Suit for recovery of loan amount had been decreed and amount of loan was recovered from defendant. Decree of Court having been executed and total amount decreed having been recovered, there was no justification to allow amendment of plaint in that suit and decree the amount over and above the amount already decreed earlier. Provision of 0.11, R. 2 C.P.C. postulates that if any portion of claim was either omitted or intentionally relinquished, then plaintiff would not after wards, sue in respect of omitted portion or relinquished. Decree passed subsequently by Court as a result of amendment of plaint after execution and fulfillment of decree, being in excess of” jurisdiction and in sheer violation of O.VI. R. 17 C.P.C. was tainted with illegality and the same was set aside in circumstances. PLJ 2000 Pesh. 157 = PLD 2000 Pesh. 10. Cause of action in suit previously filed by plaintiff before Civil Court being entirely different from one upon which subsequent suit was based, said subsequent suit was not barred under provisions of O 2 R. 2. C.P.C. or O.23, R. 1(3), C.P.C. PLJ 2000 Kar. 201 = PLD 2000 Kar. 58.

 

13.              Compromise out of court and withdrawal of suit:- Second suit for recovery of compensation for blockade of money. Whether second suit was barred. Failure or omission to include any of reliefs operates as relinquishment of such claim. It is imperative for plaintiff to assert claimable reliefs concerning main grievance or cause of action. Primary object of Order II Rule 2 is to avoid splitting of claim and restrict multiplicity of litigation. Instant case relates to compensation for blocking amount due to respondent from appellant and it could simultaneously be claimed with principal amount. Order of withdrawal passed by trial court is simple withdrawal without permission to file fresh suit. Since originally neither compensation or interest was claimed nor it was claimed while making settlement, therefore, subsequent suit for compensation regarding blockade of money or interest, thereon, is patently ill-founded.   PLJ 1995 Qta. 34 = 1995 CLC 88.

 

14.              Withdrawal of first suit:- Application U/0. II  R- 2- Dismissal of. Revision against. Earlier suit was brought when according to agreement, defendant had to receive entire sale price and then to get sale deed registered, since, the defendant had failed to do so, plaintiff filed a separate suit for specific performance of contract and got his earlier suit dismissed as withdrawn. Therefore, provisions of law contained in 0.13 R. 2 not attracted, neither this law is bar to present suit. Contentions of petitioner misconceived. Petition dismissed in limine.  P.L.J.1999 Lah. 486 = 3998 CLC 1973 = NLR 1999 Civil 1.

15.              Splitting up a cause of action:- Filing of second suit on the same cause of action against the same parties—Plaintiff on the same cause of action, during the pendency of suit for declaration, filed another suit for perpetual injunction—Application of the defendant for rejection of the subsequent plaint was dismissed by both the Courts below-Plaintiff could not file a suit on the same cause of action while a previous suit on the same cause of action was pending—Plaintiff, in view of the embargo placed by O.II, R.2, C.P.C., had to sue for all the available reliefs in one suit and splitting up a cause of action was not permissible—Both the Courts below failed to appreciate the objection raised by the defendant in its correct legal perspective—Orders passed by both the Courts below were set aside and plaint in the subsequent suit was rejected under O.7, R.II, C.P.C. 2002 MLD 507

3. Joinder  of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit.

4.- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except,---

(a) Claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) Claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) Claims in which the relief sought is based on the same cause of action:---

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

5. Claims by or against executor, administrator or heir.- No claim by or against an executor, administrator or heir, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the Plaintiff or defendant sues or is sued as executor, administrator or heir, or are such he was entitled to, or liable for, jointly with the deceased person whom he represent.

6. Power of Court to order separate trials.- Where it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, the Court may order separate trials or make such other order as may be expedient.

[6-A. Consolidation of Suits.- Where two or more suits or proceedings of the same nature requiring determination of similar issues between the same parties are pending in relation to the same subject matter, the Court may, if considers it expedient for avoiding multiplicity of litigation or conflict in judgments, direct the consolidation of suit suits or proceedings as one trial, whereupon all such suits or proceedings shall be decided on the basis of the consolidated trial.][299]

7. Objections as to misjoinder.- All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues arc settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have waived.

ORDER III

RECOGNIZED AGENTS AND PLEADERS

1. Appearances etc., may be in person, by recognized agent or by pleader.- Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader [300][appearing, applying or acting, as the case may be,] on his behalf:---

Provided that any such appearance shall, if the Court so directs, be made by the party in person.

2. Recognized agents.- The recognized agent of parties by whom such appearances, applications and acts may be made or done are,---

(a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only where no other agent is expressly authorized to make and do such appearances, applications and acts.

3. Service  of process  on recognized agent.- (l) Processes served on the recognized agent of a party shall be as effectual as if the same had been served on the in person, unless the Court otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his recognized agent.

[301][4. Appointment of pleader.- (l) No pleader shall act for any person in unless he has been appointed for the purpose by such a document in writing signed by such person or by his agent or by some other person duly authorized by power of attorney to make such appointment.

(2) Every such appointment shall be filed in Court arid shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.

(3) For the purposes of sub-rule (2) an application for review of judgment, an application, tinder section 144 or section 152 of this Code, any appeal from any decree or order in the suit end any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of monies paid into the Court in connection with the suit shall be deemed to be proceedings in the suit.

(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating,---

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorized to appear:---

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such party.

5. Service of process on pleader.- Any process served on the pleader of any party or left at the office or ordinary residence of such pleader, and whether the same is for the personal appearance of the party or not, shall be presumed to be duly communicated and made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person.

6. Agent  to accept service.- (1) Besides the recognized agents described in rule 2 any person residing within the jurisdiction of the Court may be appointed an agent to accept service of process.

(2) Such appointment maybe special or general and shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

ORDER IV

INSTITUTION OF SUITS

[1. Courts to be numbered.- For the purposes of this Code, the Courts shall be numbered, identified and addressed with reference to the numbers allocated to them.

2. Commencement of proceedings in suit.- (1) Every suit shall be instituted, by presenting a plaint to a Court or such officer as it appoints in this behalf, and assigned to an Administrative Judge and a Trial Judge under this Code.

(2) Every plaint shall comply with the rules contained in Order VI and Order VII, so far as they are applicable.

3. Register of suits.- The Administrative Judge shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entry shall be numbered in every year according to the order in which the plaints are admitted.][302]

[ORDER IV-A

ADMINISTRATIVE JUDGES

1.      Administrative Judges.- The District Judge shall designate as many Civil Judges in the District as Administrative Judges as are necessary to the disposal of load of work with dispatch.

2.      The Administrative Judge shall take and complete pre-trial proceedings in a suit, after it has been registered, when he is satisfied that the plaint and the written statement complies with the provisions of Orders VI and VII.

3.      The pre-trial proceedings include the proceedings under Orders V, VIII, IX, IX-A, IX-B, X, XI, XII, XIII and XIV.

4.      Upon taking and completing his pre-trial proceedings, the Administrative Judge shall cause the suit along with the entire record, placed on a specific date, before the Trial Judge for its trial under the Code:---

Provided the Administrative Judge, before sending the suit, shall satisfy himself that witnesses of the parties to the suit enter their appearance before the Trial Judge on the date when the suit is to be placed before him.

5.      The Trial Judge, before commencement of trial, shall cause registration of the suit in the register of civil suits in the manner provided in Order IV.][303]

ORDER V

ISSUE AND SERVICE OF SUMMONS

1. Summons.- (l) When a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to tie therein specified:---

Provided that no defendant has appeared admitted the plaintiff’s claim.

(2) A defendant to whom a summons has been issued under sub-rule (I) may appear,---

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court.

[2. Copy or statement annexed to the summons.- Every summons shall be accompanied by a copy of the plaint, or if so permitted by a concise statement, and copies of the documents annexed with the plaint and a copy of the list under sub-rule (2) of Rule 14 in Order VII.][304]

3. Court may order defendant or plaintiff to appear in person.- 1 Where the Court sees reason to require the appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

(2) Where the Court sees reason to require the personal appearance of the Plaintiff on the same day, it shall make an order for such appearance.

4. No party to be ordered to appear in person unless resident within certain limits.- No party shall be ordered to appear in person unless he resides,---

(a) within the local limits of the Court’s ordinary original jurisdiction, or

(b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixth of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distance from the Court-house.

5. Summons to be either to settle issues or for final disposal.- (1) The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:---

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit.

[(2) When the summons are for the settlement of issues, the summons shall state that the defendant may present written statement of his defence before the day fixed for his appearance.][305]

6. Fixing day for appearance of defendant.- The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day.

7. Summons to order defendant to procure documents relied on by him.- The summons to appear and answer shall order the defendant to produce all documents in his possession or power upon which he intends to rely in support of his case.

8. On issue of summons for final disposal.- Where the summons is for the final disposal of suit shall also direct the defendant to produce, on the day his appearance, all witnesses upon whose evidence he rely in support of his case.

9. Delivery or transmission of summons for service.- (1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him or one of his subordinates.

(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him by post or in such other manner as the Court may direct.

[306][(3) Unless the Court otherwise directs, the proper officer or an officer authorized by him in this behalf shall cause the service of summons and return it to the Court within fifteen days of issue of summons.]

10. Mode of service.- Service of the summons shall be made by delivering or tendering a copy thereof signed by the Judge or such officer, as he appoints in this behalf, and sealed with the seal of the Court.

[10-A.- [Service by post.- (1) Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgement due, and another copy of the summons signed and sealed in the manner provided in rule 10 by courier service, or as the court may determine, by urgent mail service of Pakistan Post, at the cost of the Plaintiff.

(2) The acknowledgement, purported to be signed by the defendant, of the receipt of the registered communication or an endorsement by a courier messenger or postal employee that the defendant refused to take delivery of the summons shall be deemed by the Court issuing the summons to be prima facie proof of service of summons.][307]

11. Service on several defendants.- Save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.

12. Service to be on defendant in person when practicable or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.

13. Service on agent by whom defendant carries on business.- (l) In a suit relating to any business or work against a person who does not reside within; the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or works for such person within such limits, shall be deemed good service.

(2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or character.

14. Service on agent in charge in suits for immovable property.- Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property.

15. Where service may be on male member of defendant’s family.- Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him.

Explanation: A servant is not a member of the family within the meaning of this rule.

16. Persons served to sing acknowledgment.- Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons.

17. Procedure when defendant refuses to accept service, or cannot be found.- Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any), by whom the house was identified and in whose presence the copy was affixed.

18. Endorsement of time and manner of service.- The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons.

19. Examination of serving officer.- Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

20. Substituted service.- [308][(l) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of the summons by,---

(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or

(b) any electronic device of communication which may include telegram, phonogram, telex, fax, radio and television; or

(c) urgent mail service or public courier services; or

(d) beat of drum in the locality where the defendant resides; or

(e) publication in press; or

(f) any other manner or mode as it may think fit:---

Provided that the Court may order the use of all or any of the aforesaid manners and modes of service simultaneously].

(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require [309][which shall not ordinarily exceed fifteen days].

21. Service of summons where defendant resides within jurisdiction of another Court.- A summons may be sent by the Court by which it is issued, whether within or without the Province, either by one of its officers or by post to any Court (not being the High Court) having jurisdiction in the place where the defendant resides.

22. Service within Presidency-towns of summons issued by Courts outside.- Omitted by the A. 0., 1949.

23. Duty of Court to which summons is sent.- The Court to which a summons is sent under rule 21 [310]* * shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue, together with the record (if any) of its proceedings with regard thereto in a prison, the otherwise to the defendant.

25. Service where defendant resides out of Pakistan, and has no agent.- Where the defendant resides out of [Pakistan] and has no agent in [311][Pakistan] empowered to accept service, the summons shall [312][except in the cases mentioned in rule 26-A] be addressed to the defendant at the place where he is residing and sent to him by post, if it is postal communication between such place and the place where the Court is situate.

[313]26. Service in foreign territory through Political Agent or Court.- Where,---

(a) In the exercise of any foreign [314][or extra-provincial jurisdiction vested in the [315][Federal Government], a Political Agent has been appointed, or a Court has been established or continued, with power to serve a summons issued by a Court under this Code in any foreign territory in which the defendant resides, or

[316](b) [317][the Provincial Government] has, by notification in the [318][official Gazette], declared[319], in respect of any Court situate In any such territory and not established or con-wined in the exercise of any such jurisdiction as aforesaid that service by such Court of any summons [320][issued under this Code by a Court of the Province] shall be deemed to be valid service,] the summons may be sent to such Political Agent or Court, by post or otherwise, for the purpose of being served upon the defendant; and, if the Political Agent or Court returns the summons with an endorsement signed by such Political Agent or by the Judge or other officer of the Court that the summons has been served on the defendant in manner hereinbefore directed, such endorsement shall be deemed to be evidence of service.

[321][26-A. Service on civil public officer or on servant of railway company or Local authority, in India.- Where the defendant is a servant (not belonging to the military, naval or air forces) of any Government in India, or civil public a servant of a railway company or local authority in India, the officer or on summons together with a copy of it to be retained by the defendant shall be sent, with a request that it may be served on the defendant.

(a) In the case of a defendant serving in connection with the affairs of the Government of India or a servant of a Railway in India, to the Secretary to the Government of India in the Ministry of Home Affairs, and

(b) in the case of a defendant serving in connection with the affairs of any other Government in India, or in the case of a servant of a local authority in India, to the Home Secretary to that Government or, as the case may be to the Home Secretary to the Government in whose territories the local authority has its jurisdiction.

27. Service on civil public officer or on servant of railway company or local authority.- Where the defendant is a public officer (not belonging to [322][the armed forces of Pakistan] [323]* * * * * or is the servant of a railway company or local authority, the Court may, if it appears to it that the summons may be most conveniently so served, send if for service on the defendant to the head of the office in which he is employed, together with a copy to be retained by the defendant.

28. Service on soldiers, sailors or airmen.- Where the defendant is a soldier, [324][sailor] [[325]or airman] the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant.

29. Duty of person to whom summons is delivered or sent for service.- (1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it, if possible, and to return it under his signature with the written acknowledgement of the defendant, and such signature shall be deemed to be evidence of service.

(2) Were from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.

30. Substitution of letter of summons.- (1) The Court may, notwithstanding anything herein before contained, substitute for a summons a letter signed by the Judge or such officer as he may appoint in this behalf, where the defendant is, in the opinion of the Court, of a rank entitling him to such mark of consideration.

(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be stated in summons, and, subject to the provisions of sub-rule (3), shall be treated in all respects as a summons.

(3) A letter so substituted may be sent to the defendant by post or by a special messenger selected by the Court, or in any other manner which the Court thinks fit; and where the defendant has an agent empowered to accept service, the letter may be delivered or sent to such agent.

ORDER VI

PLEADINGS GENERALLY

1. Pleading.- “Pleading” shall mean plaint or written statement.

2. Pleading to state material facts and not evidence.- Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively-Dates, sums and numbers shall be expressed in figures.

3. Forms of pleading.- The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.

4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

5. Further and better statement, or particulars.- A further and better statement of nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms as to costs and otherwise, as may be just.

6. Condition precedent.- Any condition precedent the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.

7. Departure.- No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

8. Denial of contract.- Where a contract is alleged in any pleading, a bare denial of the same by the opposite-party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.

9. Effect of document to be stated.- Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

10. Malice, knowledge, etc.- Wherever it is material to allege, malice fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.

11. Notice.- Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice, or the circumstances from which such notice is to be inferred, are material.

12. Implied contract or  relation.- Whenever any contract or any relation between any persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.

13. Presumptions of law.- Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of claim).

14. Pleading to be signed.- Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

COMMENTS

Signing & Verification of pleadings of a company – Company Secretary Director or any principal officer can sign & verify pleadings – Board Resolution not necessary – just court has to be satisfied that an authorized person has signed/verified the pleadings.

Provisions of O.VI Rules 14 & 15 and provisions of O.XXIX Rule 1 are neither contradictory nor exclusive of each other rather complimentary to each other. Punjab Agri Development & Supplies Corp. Vs. U.B.L. PLD 2012 Lah. 61.

15. Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified [326][on oath or solemn affirmation] at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit.

17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

COMMENTS

Relief of possession being consequential to suit for declaration, amending plaint to include possession allowed. 1995 SCMR 69.

18. Failure to amend after order.- If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

ORDER VII

PLAINT

1. Particulars to be contained in plaint.- The plaint shall contain the following particulars:---

a) the name of the Court in which the suit is brought;

b) the name, description and place of residence of the plaintiff;

c) the name, description and place of residence of the defendant, so far as they can be ascertained;

d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

e) the facts constituting the cause of action and when it arose;

COMMENTS

Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause. Ch. Muhammad Siddiq  vs. Faiz Mai PLD 2012 S.C. 211

f) the facts showing that the Court has jurisdiction;

g) the relief which the plaintiff claims;

h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees so far as the case admits.

2. In money suits.- Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed;

But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, the plaint shall state approximately the amount sued for.

3. Where the subject­matter of the suit is immoveable  property.- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers.

4. When plaintiff sues as representative.- Where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps(if any) necessary to enable him to institute a suit concerning it.

5. Defendant’s interest and liability to be shown.- The plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.

6. Grounds of exemption from limitation law.- Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.

7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.

8. Relief founded on separate grounds.- Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds they shall be stated as far as may be separately and distinctly.

9. Procedure of admitting plaint.- [327](1) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if any) which he has produced along with it.

1-A. [The plaintiff shall present with his plaint,---

[(a) copies of the plaint and documents under rule 14 for each defendant and two extra copies;][328]

(b) Draft forms of summons and fees for service thereof.]

2. Where the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, such statements shall show in what capacity the plaintiff or defendant sues or is sued.

3. The plaintiff may, by leave of the Court, amend such statements so as to make them correspond with the plaint.

4. The chief ministerial officer of the Court shall sign such list and copies or statements if, on examination, he finds them to be correct.

10. Return of plaint.- (1) The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.

(2) Procedure on returning plaint.- On returning a plaint the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.

COMMENTS

Court lacking jurisdiction over subject matter of suit bound to return plaint instead of sending to Distt. Court for transfer to competent court.

Power of transfer flows out of valid institution of suit – where court to which plaint presented had no jurisdiction, pecuniary or territorial, suit cannot be deemed to be validly instituted. 1989 CLC 1405 (Lah) AIR 1938 Sindh 124 PLD 1973 Lah. 394.

Its scope wide to cover a case in which by legislation situation arises after filing of suit. AIR 1938 Oudh 224 PLD 1973 Note 83 (D.B)

Appellate Civil Court reaching conclusion that revenue court had no jurisdiction, it was bound to return plaint. PLD 1985 Quetta 54. AIR 1934 Lah. 233.

11. Rejection of plaint.- The plaint shall be rejected in the following cases:---

a) where it does not disclose a cause of action;

b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

[(d) where the suit appears, from the record available with the court, to be barred by any law.][329]

COMMENTS

Rejection of plaint & dismissal of suit – distinction.

Plaint not disclosing cause of action – proper way is to allow amendment – order rejecting plaint was set aside & case remanded. 1995 CLC 1982.

While applying provisions of O.VII, R.11 C.P.C., Court was not entitled to look into the grounds of defence, other documents and written statement. Only the contents of the plaint are to be perused. Ch. Nazir Ahmad  Vs.  Ali Ahmad PLD 2012 Lahore 18 (D.B)

Suit for damages by a welfare society/association claim of damages for mental torture, agony and distress – Plaint was rejected. PLD 2012 Sindh 29

The word “shall” means that it is mandatory and the court must reject plaint if court finds any of the four clauses applicable to the plaint. Only contents of plaint to be seen but court not bound to accept them – discretion to biased judiciously. Haji Abdul Karim Vs. Florida Builders. PLD 2012 S.C. 247

Rejection of plaint and dismissal of suit – distinction enumerated. Haji Abdul Karim V. M/S Florida Builders. PLD 2012 S.C. 247 See also PLD 2008 S.C. 371

Trial Court on the ratio of Siddiq Khan’s case (PLD 1984 SC 289) determined the exact amount of court fee and deficiency made interference declined. 1995 SCMR 911.

Duty of court to examine plaint at any time without application. PLD 1977 Kar. 747.

On basis of averments in plaint not on basis of defence. PLD 1966 (W.P) lah. 1050.

It is defect of presentation of plaint in first instance in a wrong court which attracts O-7 R-10. 1984 CLC 1401 Kar.

Rejection of plaint barred by any law – court to examine averments as in the plaint – not inquiry needed – assume averments to be correct. 1984 CLC Kar. 513.

Court can take into consideration material other than contents of plaint. 1992 MLD 225 (Lah).

[11-A.  Separate application barred.- A plea for rejection of plaint under rule 11 may be raised by the defendant in his written statement and not by a separate application.][330]

12. Procedure on rejecting plaint.- Where a plaint is rejected the Judge shall record an order to that effect with the reasons for such order.

13. [Where rejection of plaint does not preclude presentation of fresh plaint.- The rejection of the plaint, on any of the grounds mentioned in clause (a), clause (b) or clause (c) of rule 11, shall not, of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.][331]

Documents relied on in Plaint

14. Production   of  document   on   which plaintiff  sues.- (1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.

(2) List of other  documents. - Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint.

15. Statement in case of documents not in plaintiff’s possession or power.- Where any such document is not in the possession or power of the plaintiff, he shall, if possible, state in whose possession or power it is.

16. Suits on last negotiable instruments.- Where the suit is founded upon a negotiable instrument, and it is proved that the instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may pass such decree as it would have passed if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

17. Production of shop­book.- (1) Save in so far as is other wise provided by he Bankers’ Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop-book or other account in his possession or power, the plaintiff shall produce the book or account a the time of filing the plaint, together with a copy of the entry on which he relies.

(2) Original entry to be marked and returned.- The Court, or such officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and after examining and comparing the copy with the original, shall, if it is found correct, certify it to be so and return the book to the plaintiff and cause the copy to be filed.

18. Inadmissibility of document  not produced when plaint filed.- (1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the pliant, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(2) Nothing in this rule applies to documents produced for cross-examination of the defendant’s witnesses, or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory.

[332]19. Address to be filed with plaint.- (1) Every plaint or original petition shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner.

(2) Plaintiffs or petitioners subsequently added shall immediately on being so added file a proceeding of this nature.

(3) The address filed under this rule shall be entered in the Register of suits maintained under Order IV, rule 2.

20. Nature of address to be filed.- An address for service filed under the preceding rule shall be within the local limits of the District Court within which the suit or petition is filed, or of the District Court within which the party ordinarily resides.

[20-A.  Consequences of failure to annex copy etc. with the plaint.- When the plaintiff fails to annex a copy of plaint or concise statement or copies of documents mentioned in rule 2, the Court may make such order as it thinks just and fit.][333]

21. Consequences of failure to file address.- Where a plaintiff or petitioner fails to file an address for service, he shall be liable to have his suit dismissed or his petition rejected by the Court suo motto or any party may apply for an order to that effect and the Court may make such order as it thinks just.

22. Procedure when party not found at the place of address.- (1) Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice, summons or other process can be served is present, a copy of the notice, summons or other process shall be fixed to the outer door of the house.

(2) If, on the date fixed, such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the said address by registered post, and such service shall be deemed to be as effectual as if the notice, summons or other process had been personally served.

23. Service on pleader.- Where a party engages a pleader, notices summons or other processes for service on him shall be served in the manner prescribed by Order III, rule 5, unless the Court directs service at the address for service given by the party.

24. Change of address.- A party who desires to change the address for service given by him as aforesaid shall file a verified petition, and the Court may direct the amendment of the record accordingly. Notice of such petition shall be given to such other parties to the suit as the Court may deem it necessary to inform, and may be either served upon the pleaders for such parties or be sent to them by registered post, as the Court thinks fit.

25. Service by other modes.- Nothing in these rules shall prevent the Court from directing the service of a notice, summons or other process in any other manner, if for any reasons, it thinks fit to do so.

26 List of legal  representatives of Plaintiff.- (1) In every suit of the nature referred to in rule 3, Order XXII, the plaint shall be accompanied by a statement giving,---

(a) the names and addresses of the persons who, in the event of the death of the plaintiff, may be made a party as his legal representatives;

(b) the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the plaintiff and make an application for the legal representatives to be made a party.

(2) A plaintiff may at any time,---

(a) file in the Court an amended list, of his presumptive legal representatives;

(b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1), for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings a rising therefrom, including appeal, revision and review.

[(4) Failure of the plaintiff to file the list of legal representatives, as aforesaid, shall render the suit liable to be dismissed.][334]

ORDER VIII

WRITTEN STATEMENT AND SET-OFF

1. Written statement.- The defendant [335][*] may, and, if so required by the Court, shall at or before the first hearing or within such time as the Court may permit, permit, present a written statement of his defence:[336]---

[337][(1) and with such written statement, or if there is not written statement, at first hearing shall produce in Court all documents in his possession or power on which he basis his defence or any claim for set-off.

(2) Where he relies on any other documents as evidence in support of his defence or claim for set-off he shall enter such documents in a list to be added or annexed to the written statement, or where there is no written statement to be presented at first hearing. If no such list is so annexed or presented, the defendant shall be allowed a further period of ten days to this list of documents.

(3)  A document which ought to be entered in the list referred to in sub-cl. (2) which has not been so entered, shall not, without the leave of the Court, be received in evidence on the defendant’s behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents produced for cross-examination of plaintiff’s witnesses or handed to a witness merely to refresh his memory.]

[338][Provided that the period allowed for filing the written statement shall not ordinarily exceed [339][thirty] days]

[1-A.    Presumption of admission of contents of plaint.- When the defendant fails to present written statement of his defence before the day fixed for his hearing, the Court shall presume that he admits the contents of the plaint as true:---

Provided that nothing shall preclude the Court from permitting the defendant to present written statement, upon showing a just and sufficient cause in an application in writing supported by an affidavit;

Provided further that the permission to present written statement shall not extend beyond the period fixed in rule 1.

1-B.     Additional copies of written statement and documents.- The defendant shall furnish additional copies of written statement and of the documents annexed therewith for their supply to the plaintiff.][340]

2. New facts must be specially pleaded.- The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.

3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

4. Evasive denial.- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any pay thereof, or else set but how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5. Specific denial.- Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:---

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

6. Particular  of set­off to  be  given written statement.- (1) Where in suit for the recovery of money the defendant claims to set-off against the plaintiff’s demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff’s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be se-off.

(2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not effect the lien, upon he amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

Illustrations

(a) A bequeaths Rs.2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administrations to B’s effects. C pays Rs.1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs.1,000 against the legacy, for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs.1,000.

(b) A dies intestate and in debt to B, C takes out administration to A’s effects and B buys parts of the effects from C. In a suit for the purchase money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B, and the other as representative to A.

(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B’s goods and is liable to him in compensation which he claims to set-off. The amount not being ascertained cannot be set-off.

(d) A sues B on a bill of exchange for Rs. 500.  B holds a judgment against A for Rs. 1,000. The two claims being both definite pecuniary demands may be set-off.

(e) A sues B for compensation on account of trespass. B holds a promissory note for Rs.1,000 from A and claims to set-off that amount against any sum that A may recover in the suit. B may do so for as soon as A recovers both sums as definite pecuniary demands.

(f) A and B sue C for Rs. 1,000 . C cannot set-off a debt due to him by A alone.

(g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.

(h) A with the partnership firm of B and C Rs.1000. B dies leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000.

7. Defence or set­off founded on separate grounds.- Where the defendant relies upon several distinct grounds of defence or set-off founded upon separate and distinct facts, they shall be stated, as far as may be separately and distinctly.

8. New ground of defence.- Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off may be raised by the defendant or plaintiff, as the case may be in his written statement.

9. Subsequent Pleadings.- No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

10. Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

[341][11. Address for service.- (1) Every party, whether original, added or substituted, who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.

(2) Such address shall be entered in the Register of suits to be maintained under Order, IV rule 2.

(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.

12. Consequences  of  failure  to file address.- (1) Where a party fails to file address for service as provided in the preceding rule, he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended.

(2) The Court may pass an order under sub-rule (1) suo moto or on the application of any party.

13 List of legal  representatives of defendant.- (1) In every suit of the nature referred to in rule 4, Order XXII, the written statement shall be accompanied by a statement giving,---

a) the names and addresses of the persons who, in the event of the death of the defendant, may be made a party as his legal representatives;

b) the name and address of the person, who in the event of the death of the defendant, shall intimate such fact to the Court, furnish the Court with the names, particulars and addresses of the legal representatives of the defendant and make an application for the legal representatives to be made a party.

(2) A defendant may at any time,---

a) file in the Court an amended list of his presumptive representatives;

b) nominate another person, in the place of the person nominated under clause (b) of sub-rule (1) for the purposes of that clause.

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and any proceedings arising therefrom, including appeal, revision of review.]

[(4)      Failure of the defendant to file the list of legal representatives, as aforesaid, shall render his defence liable to be struck out.

(5)        The Court may, on an application made by the defendant when accompanied with the list of legal representatives and disclosing a sufficient cause for non-filing of the list, recall the order passed under sub-rule (4) and allow him to continue with his defence of the suit.][342]

ORDER IX

APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

1. Parties to appear on day fixed in summons for defendant to appear and answer.- On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court.

2. Dismissal of suit where summons not served in consequence of plaintiff’s failure  to  pay costs.- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed:---

Provided that no such order shall be made although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent.

3. Where neither party appears, suit to be  dismissed.- Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

4. Plaintiff may  bring fresh suit or  Court may  restore suit to file.- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit.

COMMENTS

Restoration of revision dismissed for non prosecution petitioner has to explain the absence of all concerned including his own as well as his counsel. PLD 1995 Lah. 31.

Case should not be dismissed for default in early hours of the day. PLD 1966 Lah. 356.

While dismissing for non-appearance exigency of lawyers has to be seen. PLD 1966 SC 461,467.

Taking harsh view while dismissing in default. PLD 1955 F.C. 178.

Decision should be on merits. PLD 1965 SC 651 at P.655.

5. Dismissal of suit where plaintiff, after summons returned unserved, fails for three months to apply for fresh summons.- [343][(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned unserved, the plaintiff fails, for a period of three months from the date of the return made to the Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the said period satisfied the Court that,---

a) he has failed after using his best endeavours to discover the residence of the defendant who has not been served, or

b) such defendant is avoiding service of process, or

c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for making such application for such period as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

6. Procedure  when  only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then,---

(a) When summons duly served.- if it is proved that the summons was duly served, the Court may proceed ex parte [344][and pass decree without recording evidence].

(b) When summons not duly served.- If it is not proved that the summons was duly served the Court shall direct a second summons to be issued and served on the defendant;

(c) When summons served, but not in due time.- If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff’s default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

7. Procedure where defendant appears on day of adjourned hearing  and assigns good cause  for previous non­appearance.- Where the Court has adjourned the hearing of the suit ex parte and the defendant at or before such hearing, appears and assigns good cause for his previous non-appearance, he may upon such terms as the Court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

COMMENTS

Dismissal of suit for non appearance of plaintiff – plea of misconception of actual date – plaintiff’s counsel did not appear as witness hence dairy or brief not produced – plaintiff did not stand to gain anything by being negligent – carelessness of a counsel in failing to appear in the absence of his client has often been condoned – immovable property of considerable value involved – case was remanded for decision on merits. 1993 CLC 1313 (Lah)

9. Decree  against  plaintiff  by  default  bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8 the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

[345][(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908), shall apply to applications under sub-rule (1).]

10. Procedure in case of non­attendance of one or more of several plaintiffs.- Where there are more plaintiffs than one and, one or more of them appear, and the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

11. Procedure in case of non­attendance of one or more of several defendants.- Where there are more defendants than one and one or more of them appear and the others do not appear the suit shall proceed, and the Court shall a the time of pronouncing judgment make such order as it thinks fit with respect to the defendants who do not appear.

12. Consequence of non­ attendance, without sufficient cause shown, of party ordered to appear in person.- Where a plaintiff or defendant who has been ordered to appear in person does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to appear he shall be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively, who do not appear.

Setting aside Decree Ex parte

13. Setting aside decree ex­parte against defendant.- [346][(1)] In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:---

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also[:][347]---

[348][Provided further that no decree passed ex parte shall be set aside merely on the ground of any irregularity in the service of summons, if the Court is satisfied for reason to be accorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim].

[349][(2) The provisions of section 5 of the Limitation Act 1908 (X of 1908), shall apply to applications under sub-rule (1)].

14. No decree to be set aside without notice to opposite party.- No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite party.

[ORDER IX-A

1.         Fixation of intermediate date.- (1) After the close of the pleadings, the Court shall fix,---

(a)        a day for examination of parties under Order X;

(b)        a day for discovery and inspection under Order XI; and

(c)        a day for its proceedings under Order XII.

(2)        The Court may grant a maximum adjournment of three days for completion of each proceedings mentioned in sub-rule (1) and shall keep a full and complete record of these proceedings in Form 13 in Appendix C.

(3)        It shall be the duty of the Court to take proceedings under Order X, XI and XII and to satisfy itself that the parties go to trial for precise and exact issues of law and facts they are at variance with each other.

(4)        While taking proceedings under Order X, XI and XII, the Court, having regard to the facts and circumstances of the case, shall carefully determine the possibility of the alternate dispute resolution method and when so warranted adopt such a method in accordance with section 89-A.

(5)        The Court shall stay the proceedings of the suit for a period which is not more than thirty days when it requires the parties to adopt any of the alternate dispute resolution method.

2.         Case management questionnaire.- (1) The plaintiff shall file along with the plaint a duly filled in case management questionnaire in Form 14 in Appendix C.

(2)        The defendant shall, at the time of presenting his written statement, file a duly filled in case management questionnaire in Form 15 in Appendix C.][350]

[ORDER IX-B

ALTERNATE DISPUTE RESOLUTION

1.         Reference to mediation.- (1) Expect where the Court is satisfied that there is no possibility of mediation or an intricate question of law or facts is involved, the Court shall refer the case for mediation.

            (2)        While referring the matter for mediation, the Court may indicate the material issues for determination through mediation.

2.         Appearance of parties.- Where a case is referred for mediation, the Court shall stay the proceedings for a period not exceeding thirty days and direct the parties to appear before the Medication Centre, set up by Lahore High Court, on such date and time as the Court may specify.

3.         Settlement.- (1) Where the medication proceedings are successful and the parties have arrived at an agreement, the Mediator shall cause the same to be recorded in writing, signed by the parties or their recognized agents or their pleaders and attested by two independent witnesses.

(2)        The agreement shall be certified by the Mediator and transmitted forthwith, through the Administrator of the Mediation Centre, to the Court.

(3)        The Court shall, on receipt of the agreement, pass a decree in terms thereof unless the Court, for reasons to be recorded in writing, finds that the agreement between the parties is not enforceable at law.

(4)        Where the settlement relates only to a part of the dispute, the Court shall pass decree or an order in terms of such settlement and proceed to adjudicate the remaining issued.

4.         Failure to mediation.- Where the medication fails and no settlement is made between the parties, the Mediator shall submit a report to the Court and the Court shall proceed with the case from the stage it was referred to Mediation.][351]

ORDER X

EXAMINATIONS OF PARTIES BY THE COURT

1. Ascertainment whether allegations in pleadings are admitted or denied.- At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

[352][“1A The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to,---

            (i) conduct preliminary proceedings and issue orders for expediting processing of the case;

            (ii) issue, with the consent of parties, commission to examine witnesses, admit documents and take other steps for the purposes of trial;

            (iii) adopt, with the consent of parties, any alternative method of dispute resolution including mediation, conciliation or any such other means.]

2. Oral examination of party or companion of party.- At the first hearing of the suit or at any subsequent hearing, any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied [353][shall] be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.

3. Substance of examination to be written.- The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.

4. Consequence  of  refusal  or  inability  of  pleader to answer.- (1) Where the pleader of any party who appears by a pleader or any such person accompanying a pleader as is referred to in rule 2, refuses or is unable to answer any material question relating to the suit which the Court is of opinion that the party whom he represents ought to answer, and is likely to be able to answer if interrogated in person, the Court may postpone the hearing of the suit to a future day and direct that such party shall appear in person on such day.

(2) If such party fails without lawful excuse to appear in person on the day so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

ORDER XI

DISCOVERY AND INSPECTION

[1.        Discoveries by interrogatories.- The Court shall direct the parties to deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties stating clearly which of such interrogatories each of such person is required to answer, provided that the Court may reject an interrogatory or part thereof which, in its opinion, is not relevant to the case.

2.         Communication of interrogatories.- On receipt of the interrogatories under rule 1, the Court shall deliver for the interrogatories to the concerned person for submitting the answer within such time as the Court may specify.][354]

3. Costs of interrogatories.- In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

4. Forms of interrogatories.- Interrogatories shall be in Form No.2 in Appendix C with such variations as circumstances may require.

5. Corporations.- Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite-party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.

6. Objections to interrogatories by answer.- Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

7. Setting aside and striking out interrogatories.- Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.

8. [Affidavit.- The interrogatories shall be answered by an affidavit to be filed within the time specified by the Court.][355]

9. Forms of affidavit in answer.- An affidavit in answer to interrogatories shall be in Form No.3 in Appendix C, with such variations as circumstances may require.

10. No exception to be taken.- No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.

11. [Order to answer or answer further.- Where any person interrogated submits an insufficient or an evasive answer, the Court may require him to submit the proper answer within the time specified by the Court.][356]

12. [Application for discovery of documents.- (1) Any party may apply to the Court for an order directing any other party to a suit to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in issue in the suit.

(2)        On hearing such application, the Court may either refuse or adjourn the same, if it is satisfied that such discovery is not necessary or not necessary at that stage of the suit, or may, after being satisfied as to the validity of the prayer made, direct the other party to make the discovery:---

Provided that the discovery shall not be ordered when and so far as the Court is of opinion that it is not necessary either for disposing the suit or for saving costs.][357]

13. Affidavit of documents.- The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C with such variations as circumstances may require.

14. Production of documents.- It shall be lawful for the Court at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Inspection of documents referred to in pleadings or affidavits.- Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to produce.- Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No.7 in Appendix C, with such variations as circumstances may require.

17. Time for inspection when notices given.- The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof a which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No.8 in Appendix C, with such variations as circumstances may require.

18. Order for  inspection.- (1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it make an order for inspection in such place and in such manner as it may think fit:---

Provided that the order shall not be made when and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

19. Verified copies.- (1) Where inspection of any business books is applied for the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations:---

Provided that, notwithstanding that such copy has been supplied the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power, and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stated that in the belief of the deponent the party against whom the application is made has, or has at sometime had, in his possession or power the document or documents specified I the application, and that they relate to the matters in question in the suit, or to some of them.

20. Premature discovery.- Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

21. Non­compliance with order for discovery.- Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defend, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly.

22. Using answers to interrogatories at trial.- Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite-party to interrogatories without putting in the others or the whole of such answer:---

Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.

23. Order to apply to minors.- This order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of persons under disability.

ORDER XII

ADMISSIONS

1. [Admission of case.- The Court shall enquire from a party whether or not it admits the truth of the whole or part of the case set up by the other party in the pleadings.][358]

COMMENTS

Incompetent suit should be buried as soon as possible if incompetence is based on any express or implied embargo under any law – Sometimes, suit may not be specifically barred by law in express terms – Trial court should reject suit under “Inherent Powers”, The condition of only reading the averment of the plaint and nothing else is applicable when O. VII Rule-11 is to be applied and not under inherent powers. Ilyas Ahmad Vs. Muhammad Munir etc. PLD 2012 Sindh 92.

2. [Admission of documents.- (1) The Court shall also require the parties to admit or deny the documents annexed with the plaint or, as the case may be, the written statement.

(2)        If a party fails to comply with the direction under sub-rule (2), the Court may proceed against such other party under rule 21 of Order XI.

(3)        If a party denies a document which is proved at the trial, the Court shall burden such party with such heavy costs as it may deem fit.][359]

3. Form of notice.- A notice to admit documents shall be in Form No.9 in Appendix C, with such variations as circumstances may require.

4. Notice to admit facts.- Any party may, by notice in writing, at any time not later than nine days before the day fixed for the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the Court, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the suit may be unless the Court otherwise directs:---

Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular suit, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice:---

Provided also that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

[360][4-A. Power of Court to record admission of documents and facts.- Notwithstanding that no notice to admit documents or facts has been given under Rules 2 and 4 respectively, the Court may,  at any stage of the proceedings before it, of its own motion, call upon any party to admit any document or fact and shall in such a case, record whether the party admits or refuses or neglects to admit such document or fact”.]

5. Forms of admission.- A notice to admit facts shall be in Form No. 10 in Appendix C and admissions of facts shall be in Form No.11 in Appendix C, with such variations as circumstances may require.

6. Judgment on admissions.- Any party may, at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties: and the Court may upon such application make such order, or give such judgment as the Court may think just.

COMMENTS

Judgment on Admission – plaintiff upon application can move for judgment on admission whether relating to who suit or partially, likewise, defendant can also move for dismissal of suit wholly or partially – However, if admission is only by one of the defendants only it will have no bearing on the others’ case. Tanvir Ahmad Vs. Malir Development Authority PLD 2012 Sindh 66

7. Affidavit of signature.- An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents of facts, shall be sufficient evidence of such admissions, if evidence thereof is required.

8. Notice to produce documents.- Notice to produce documents shall be in Form No.12 in Appendix C with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served

9. Costs.- If a notice to admit or produce specifies documents which are not necessary, the costs occasioned thereby shall be borne by the party giving such notice.

ORDER XIII

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

1. Documentary  evidence  to  be  produced  at first hearing.- (1) The parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.

(2) The Court shall receive the documents so produced:---

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

[361][(3) On production of documents under this rule, the Court may call upon the parties to admit or deny the documents produced in the Court and record their admission or, as the case may be denial].

COMMENTS

It is mandatory for the parties to file all documents at the first date of hearing. Discretion in Rule 2 is subject to condition of “good cause”, Muhammad Musa Vs. Hamid Ali 2012 CLC 254 (Baluchistan)

Plaintiffs after closing of oral evidence seeking permission to produce documents not appended due to inadvertence - documents sought to be produced were not even relied upon under O.XIII R.1. The situation does not fall under inadvertence – no good cause has been shown. Nasrullah Khan Vs. Mst. Bashiran Bibi 2012 CLC 234 Lah.

2. Effect of non­production of documents.- No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof; and the Court receiving any such evidence shall record the reasons for so doing.

3. Rejection of irrelevant or inadmissible documents.- The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the ground of such rejection.

4. Endorsement  on documents admitted in evidence.- (1) Subject to the provisions of the next following sub-rule there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars namely:---

a) the number and title of the suit,

b) the name of the person producing the document,

c) the date on which it was produced, and

d) a statement of its having been so admitted; and the endorsement shall be signed or initialed by the judge.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge.

5. Endorsements on copies of admitted entries in books, accounts and records.- (1) Save in so far as is otherwise provided by the Banker’s Books Evidence Act, 1891, where a document admitted in evidence in the suit is an entry in a letter-book or a shop-book or other account in current use, the party on whose behalf the book or account is produced may furnish a copy of the entry.

(2) Where such a document is an entry in a public record produced from a public office, or by a public officer, or an entry in a book or account belonging to a person other than a party on whose behalf the book or account is produced, the Court may require a copy of the entry to be furnished,---

(a) where the record, book or account is produced on behalf of a party, then by that party, or

(b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion, then by either or any party.

(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after causing the copy to be examined, compared and certified in manner mentioned in rule 17 of Order VII, mark the entry and cause he book, account or record in which it occurs to be returned to the person producing it.

6. Endorsements on documents rejected as inadmissible in evidence.- Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of rule 4, sub-rule (1) together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.

7. Recording  of admitted  and  return  of rejected documents.- (1) Every document which has been admitted in evidence or a copy thereof where a copy has been substituted for the original under rule 5, shall form part of the record of the suit.

(2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.

8. Court may order any document to be impounded.- Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an officer of the Court for such period and subject to such conditions as the Court thinks fit.

9. Return  of admitted documents.- (1) Any person, whether a party to the suit or not, desirous of receiving back any document produced by him in the suit and placed on the record shall, unless the document is impounded under rule 8, be entitled to receive back the same,-

(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed when the Court is satisfied that the time for preferring an appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal has been disposed of:---

Provided that a document may be returned at any time earlier than that prescribed by this rule if the person applying therefore delivers to the proper officer a certified copy to the substituted for the original and undertakes to produce the original if required to do so:---

Provided also that no document shall be returned which, by force of the decree, has become wholly void or useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.

10. Court may send for papers from its own records or from other Courts.- (1) The Court may of its own motion, and may in its discretion upon the application of any of the parties to a suit, send for, either from its own records or from any other Court, the record of any other suit or proceeding, and inspect the same.

(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit showing how the record is material to the suit in which the application is made, and that the applicant cannot without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which under the law of evidence would be inadmissible in the suit.

11. Provisions as to documents applied to material objects.- The provisions herein contained, as to documents shall, so far as may be, apply to all other material objects producible as evidence.

ORDER XIV

SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON

1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

(4) Issues are of two kinds: (a) issues of fact, (b) issues of law.

(5) [At the first hearing of the suit after the proceedings under Order X, XI and XII, the Court shall, after reading the plaint, the written statement and such examination of the parties as may be necessary, determine the material propositions of facts or law in dispute between the parties and shall proceed to frame and record the issues on which the decision is likely to depend.][362]

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.

2. Issue  of law and fact.- Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.

COMMENTS

Issue of limitation being mixed question of law and fact, in case of suit for dissolution of partnership and rendition of accounts – suit cannot be dismissed on preliminary issue – case was rightly remanded by High Court. PLD 1995 SC 629.

3. Materials from which issues may be framed.- The Court may frame the issues from all or any of the following materials,---

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by the either party.

4. Court may examine witnesses or documents before framing issues.- Where the Court is of opinion that the issues cannot be correctly framed without the examination of some person not before the Court or without the inspection of some document not produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the time being in force) compel the attendance of any person or the production of any document by the person in whose possession or power it is by summons or other process.

5. Power  to  amend,  and  strike out, issues.- (1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit,. And all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

6. Questions of fact or law may by agreement be stated in form of issues.- Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter, into an agreement in writing that, upon the finding of the Court in the affirmative or the negative of such issue,---

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.

7. Court, if satisfied that  agreement  was  executed  in  good  faith, may  pronounce  judgment.- Where the Court is satisfied, after making such inquiry as it deems proper,---

(a) that the agreement was duly executed by the parties;

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the issue had been framed by the Court;

and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment so pronounced, a decree shall follow.

ORDER XV

DISPOSAL OF THE SUIT AT THE FIRST HEARING

1. Parties not at issue.-Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.

2. One of several a defendants not at issue.- Where there are more defendants than one, and any one of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment for or against such defendant and the suit shall proceed only against the other defendants.

3. Parties at issue.- (1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:---

Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.

(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.

4. Failure to provide evidence.- Where the summons has been issued for the final disposal of the suit and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at once pronounce judgment or may, if it thinks fit, after framing and recording issues adjourn the suit for the production of such evidence as may be necessary for its decision upon such issues.

ORDER XVI

SUMMONING AND ATTENDANCE OF WITNESSES

1. Summons to attend to give evidence or produce documents.- (1) [The Court shall, immediately after framing of the issues, require the parties to file a list of witnesses in the Court within such period, not later than seven days, as the Court may fix.][363]

(2) [A party shall not be permitted to call witnesses other than those contained in the list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and Court shall record reasons for granting permission.][364]

(3) On application to the Court or such officer as it appoints in this behalf, the parties may obtain summons for persons whose attendance is required in Court:---

Provided that no summons shall be issued for service on a person under rule 8 unless an application in that behalf is made not later than fourteen days prior to the date fixed for the hearing of the suit and the necessary expenses for the summoning of such person are deposited].

2. Expenses of witness to be  paid into Court on applying for summons.- (1) The party applying for a summons shall, before the summons is granted and within a period to be fixed, pay into Court such a sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance.

(2) In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case.

(3)Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf.

3. Tender of expenses to witness.- The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons, if it can be served personally.

4. Procedure  where  insufficient  sum paid in.- (1) Where it appears to the Court or to such officer as it appoints in this behalf that the sum paid into Court is not sufficient to cover such expenses or reasonable remuneration, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account, and in case of default in payment, may order such sum to be levied by attachment and sale of the movable property of the party obtaining the summons; or the Court may discharge the person summoned, without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

(2) Expenses of witness detained more than one day.- Where it is necessary to detain the person summoned for a longer period than one day, the Court may, from time to time, order the party at whose instance he was summoned to pay into Court such sum as is sufficient to defray the expenses of his detention for such further period, and in default of such deposit being made, may order such sum to be levied by attachment and sale of the movable property of such party; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

5. Time, place and purpose of attendance to be specified in summons.- Every summons for the attendance of a person to give evidence or to produce a document shall specify the time and place at which he is required to attend, and also whether his attendance is required for the purpose of giving evidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.

6. Summons to produce document.- Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.

7. Power to require persons present in Court to give evidence or produce document.- Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.

[365][7-A. Service of summons by parties.- (1) Except where it appears to the Court that a summons under this Order should be served by the Court in the same manner as a summons to a defendant, the Court shall make over for service all summons under this Order to the party applying therefore.

(2) The service shall be effected by or on behalf of such party by delivering or tendering to the witness in person a copy thereof signed by the Judge or such officer as he appoints in this behalf and sealed with the seal of the Court.

(3) Rules 16 and 18 of Order V shall apply to summons personally served under this rule, as though the person effecting service were a serving officer].

[366][8. Service of summons by Court.- Every summons under this Order, not being a summons made over to a party for service under rule 7-A of this Order, shall be served as nearly as may be in the same manner as a summons to a defendant, and the rules in Order V as to proof of service shall apply thereto].

9. Time for serving summons.- Service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

10. Procedure  where  witness fails to  comply with summons.- (1) Where a person to whom a summons has been issued either to attend to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the Court shall, if the certificate of the serving-officer has not been verified by affidavit, and may, if it has been so verified, examine the serving-officer on oath, or cause him to be so examined by another Court, touching the service or non-service of the summons.

(2) Where the Court sees reason to believe that such evidence or production is material and that such person has without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation or at any time afterwards,. The Court may, in its discretion, issue a warrant either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:---

Provided that no Court of Small Causes shall make an order for the attachment of immovable property.

11. If witness appears attachment may be withdrawn.- Where, at any time after the attachment of his property, such person appears and satisfies the Court,-

(a) that he did not, without lawful excuse, fail to comply with the summons or intentionally avoid service, and

(b) where he has failed to attend at the time and place named in a proclamation issued under the last preceding rule, that he had no notice of such proclamation in time to attend, the Court shall direct that the property be released from attachment and shall make such order as to the costs of the attachment as it thinks fit.

12. Procedure if witness fails to appear.- The Court may, where such person does not appear, or appears but fails so to satisfy the Court, impose upon him such fine not exceeding [367][two thousand] rupees as it thinks fit, having regard to his condition in life and all the circumstances of the case, and may order his property, or any part thereof, to be attached and sold or, if already attached under rule 10, to be sold for the purpose of satisfying all costs of such attachment, together with the amount of the said fine, if any:---

Provided that, if the person whose attendance is required pays into Court the costs and fine aforesaid, the Court shall order the property to be released from attachment.

13. Mode of attachment.- The provisions with regard to the attachment and sale of property in the execution of a decree shall, so far as they are applicable be deemed to apply to any attachment and sale under this Order as if the person whose property is so attached were a judgment-debtor.

14. Court may of its accord summon as witnesses strangers to suit.- Subject to the provisions of this Court as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it is necessary to examine any person other than a party to the suit and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed and may examine him as a witness or require him to produce such document.

15. Duty of persons summoned to give evidence or produce documents.- Subject as last aforesaid whoever is summoned to appear and give evidence in a suit shall attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place.

16. When  they may depart.- (1) A person so summoned and attending shall unless the Court otherwise directs attend at each hearing until the suit has been disposed of.

(2) On the application of either party and the payment through the Court of all necessary expenses (if any), the Court may require any person so summoned and attending to furnish security to attend at the next or any other hearing or until the suit is disposed of and, in default of his furnishing such security, may order him to be detained in the civil prison.

17. Application of rules 10 to 13.- The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to apply to any person who having attended in compliance with a summons departs, without lawful excuse, in contravention of rule 16.

18. Procedure where witness apprehended cannot give evidence or produce document.- Where any person arrested under a warrant is brought before the Court in custody and cannot, owing to the absence of the parties or any of them, give the evidence or produce the document which he has been summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and, on such bail or security being given, may release him, and, in default of his giving such bail or security, may order him to be detained in the civil prison.

[368][19. No witness to be ordered to attend in person unless resident within certain limits.- A person shall not be asked by a Court to attend in person to give evidence unless he resides at any place in Pakistan].

20. Consequence of refusal of party to give evidence when called on  by  Court.- Where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and therein his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.

21. Rules as to witnesses to apply to parties summoned.- Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable.

ORDER XVII

ADJOURNMENTS

1. Court may  grant time  and adjourn hearing.- (1) The Court may, if sufficient cause is shown at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

(2) Costs of adjournment.- In every such case the Court shall fix a day for the further hearing of the suit, and may make such order as it thinks fit with respect to the costs occasioned by the adjournment:---

Provided that, when the hearing of evidence has once begun, the hearing of the suit shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the hearing beyond the following day to be necessary for reasons to be recorded.

2. Procedure if parties fails to appear on day fixed.- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

3. Court may proceed not withstanding either party fails to produce evidence, etc.- Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith.

[369][4. Appearance of parties on the day next after holiday.- Where a suit or proceeding is set down for a day which is a holiday, the parties thereto shall appear in the Court on the day next following that day, or, when two or more successive days are holidays, on the day next following the last of such successive days, and the Court may then either proceed with the suit on such day, or fix some other day thereafter.]

[5. Appearance of parties on the day when the presiding officer is absent.- When on day the presiding officer of the Court is absent by reason of illness or any other cause, the parties to the suit or proceeding set down for that day(notwithstanding the knowledge that the presiding officer would be absent) shall appear in the Court in the |Courthouse on that day and the ministerial officer of the Court authorized in that behalf shall hand over to the parties slips of paper specifying the other date fixed for proceeding with the suit or proceeding and signed by him].

ORDER XVIII

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

1. Right to begin.- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

2. Statement  and production of evidence.- (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

(3)The party beginning may then reply generally on the whole case.

3. Evidence where several issues.- Where there are several issues, the burden of proving some of which lies on the other party the party beginning may, at his option, either produce his evidence on those issues or reserve it by way of answer to the evidence produced by the other party; and in the latter case, the party beginning may produce evidence on those issues after the other party has produced all his evidence, and the other party may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case.

4. Witnesses to be examined in open Court.- The evidence of the witnesses in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge.

5. How evidence shall be taken in appealable cases.- In cases in which an appeal is allowed the evidence of each witness shall be taken down in writing, in the language of the Court, by or in the presence and under the personal direction and superintendence of the Judge, not ordinarily in the form of question and answer, but in that of a narrative, and, when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it.

6. When deposition to be interpreted.- Where the evidence is taken down in a language different from that in which it is given, and the witness does not understand the language in which it is taken down, the evidence as taken down in writing shall be interpreted to him in the language in which it is given.

7. Evidence under section 138.- Evidence taken down under section 138 shall be in the form prescribed by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it were evidence taken down under that rule.

8. Memorandum when evidence not taken down by judge.- Where the evidence is not taken down in writing by the Judge, he shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.

9. When evidence may be taken in English.- Where English is not the language of the Court, but all the parties to the suit who appear in person, and the pleaders of such as appear by pleaders, do not object to have such evidence as is given in English taken down in English, the Judge may so take it down.

10. Any particular question and answer may be taken down.- The Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer, or any objection to any question, if there appears to be any special reason for so doing.

11. Questions objected to and allowed by Court.- Where any question put to a witness is objected to by a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question the answer, the objection and the name of the person making it, together with the decision of the Court thereon.

12. Remarks on demeanour of witnesses.- The Court may record such remarks as it thinks material respecting the demeanor of any witness while under examination.

13. Memorandum of evidence in un­appealable cases.- In cases in which an appeal is not allowed, it shall not be necessary to take down the evidence of the witnesses in writing at length; but the Judge, as the examination of each witness proceeds, shall make a memorandum of the substance of what he deposes, and such memorandum shall be written and signed by the Judge and shall form part of the record.

14. Judge  unable  to  make  such memorandum to  record reasons of his inability.- (1) Where the Judge is unable to make a memorandum as required by this Order, he shall cause the reason of such inability to be recorded, and shall cause the memorandum to be made in writing from his dictation in open Court.

(2) Every memorandum so made shall form part of the record.

15. Power  to deal  with evidence  taken before another Judge.- (1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 24.

16. Power   to   examine witness  immediately.- (1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner hereinbefore provided.

(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.

(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any hearing of the suit.

17. Court may recall and examine witness.- The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit.

18. Power of Court to inspect.- The Court may at any stage of a suit inspect any property or thing concerning which any question may arise.

COMMENTS

Report of local inspector on the basis of which judgment and decree was reversed not challenged at any stage – Leave to appeal refused. Islam Din  v. Sarfraz Hussain 2001 SCMR 1225

ORDER XIX

AFFIDAVITS

1. Power to order any point to be proved by affidavit.- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:---

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

2. Power  to  order  attendance  of deponent  for cross examination.- (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.

3. Matters to  which affidavit  shall be confined.- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2) The cost of every affidavit which shall unnecessarily set forth matter of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.

COMMENTS

Affidavit can only be considered when filed on direction of court.

In affidavit information obtained from others “I am informed” and add “and verily believe it to be true”. PLD 1995 Lah. 98.

ORDER XX

JUDGMENT AND DECREE

[1.        Judgment when pronounced.- (1) On completion of evidence, the Court shall fix a date not exceeding fifteen days, for submission of the precise written arguments along with the relevant case-law by the parties.

(2) The Court, after submission of the written arguments under sub-rule (1) and after hearing the oral submissions, if so required, pronounce judgment in open court either at once or on some future date, not exceeding fifteen days, for which due notice shall be given to the parties or their advocates.][370]

2. Power to pronounce judgment written by judge’s predecessor.- A Judge may pronounce a judgment written but not pronounced by his predecessor.

3. Judgment to be signed.- The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to save as provided by section 152 or on review,

4. Judgment  of Small Cause Courts. - (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.

(2) Judgments of other Courts.- Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.

5. Court to state its decision on each issue.- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.

6. Contents of decree.- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.

7. Date of decree.- The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.

8. Procedure where Judge has vacated office before signing decree.- Where a Judge has vacated office after pronouncing judgment but without signing the decree a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate.

9. Decree for recovery of immovable property.- Where the subject-matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers.

10. Decree for delivery of movable property.- Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be had.

11. Decree may direct payment by installments.- (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

(2) After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holders, order that payment of the amount decreed shall be postponed or shall be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit.

12. Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree,---

a) for the possession of the property;

b) for the rent or mesne profits, which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;

c) directing an inquiry as to rent or mesne profits from the institution of the suit until-

i. the delivery of possession to the decree-holder;

ii. the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court; or

iii. the expiration of three years from the date of the decree whichever event first occurs.

(2) Where an inquiry is directed under clause(b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.

13. Decree  in administration suit.- (1) Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit.

(2) In the administration by the Court of the property of any deceased person, if such property proves to be insufficient for the payment in full of his debts and liabilities, the same rules shall be observed as to the respective rights of secured and unsecured creditors and as to debts and liabilities provable and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being, within the local limits of the Court in which the administration suit is pending with respect to the estates of persons adjudged or declared insolvent; and all persons who in any such case would be entitled to be paid out of such property, may come in under the preliminary decree, and make such claims against the same as they may respectively be entitled to by virtue of this Code.

14. Decree  in pre­emption suit.- (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court the decree shall,---

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs(if any) decreed against the plaintiff, on or before the day referred to in clause(a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid the suit shall be dismissed with costs.

(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,-

(a) If and in so far as the claims decreed are equal in decree that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and

(b) If and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.

COMMENTS

Suit for preemption decreed by consent – in application for compromise no time fixed for payment of preemption money – trial court fixed for payment of preemption money – trial court fixed one month’s time – Held court while passing preemption decree under O-20, R-14 was required to specify date for deposit of money. Failure to deposit by preemptor suit was rightly dismissed. 1995 SCMR 1426.

15. Decree in suit for dissolution of partnership.- ere a suit is for the dissolution of a partnership or the taking of partnership accounts the Court, before passing a final, decree, may pass as preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit.

16. Decree in suits for account between principal and agent.- In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not herein-before provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit.

17. Special directions as to accounts.- The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken or vouched and in particular may direct that in taking the account the books of account in which the accounts in question have been kept shall be taken as prima facie evidence of the truth of the matters therein contained with liberty to the parties interested to take such objection thereto as they may be advised.

18. Decree in suit for partition of property or separate  possession of a share  therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-

1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;

2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.

19. Decree when set­off is allowed.- (1) Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party.

(2) Any decree passed in a suit in which a set-off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject if no set-off had been claimed.

(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or otherwise.

20. [Certified copies of the judgment and decree.- The Court shall, at the time of pronouncement of the judgment, provide to the parties, at their expense, certified copies of the judgment and the decree.][371]

ORDER XXI

EXECUTION OF DECREES AND ORDERS

Payment under Decrees

1. Modes of paying money under decree.- (1) All money payable under a decree shall be paid as follows, namely:---

a) into the Court whose duty it is to execute the decree; or

b) out of Court to the decree-holder [372][through a bank or by postal money order or evidence by writing signed by the decree- holder or his authorized agent]; or

c) otherwise as the Court which made the decree directs.

(2) Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decree-holder.

COMMENTS

Mode of paying money in satisfaction of decree – decree holder would certify such payment upon legal notice from executing court. PLD 1995 Lah. 107.

2. Payment  out  of Court  to decree holder.- (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

COMMENTS

Adjustment/satisfaction of decree in whole or in part outside court – judgment debtor is required to certify such adjustment to court within 90 days from time of adjustment. PLD 1995 SC AJ&K 83

[373][(3) Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.]

Courts executing Decrees

3. Lands situate in more than one jurisdiction.- Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.

4. [Transfer to Court of Small Causes.] Omitted by the A.O., 1949.

5. Mode of transfer.- Where the Court to which a decree is to be sent for execution is situate within the same district as the Court which passed such decree, such Court shall send the same directly to the former Courts. But, where the Court to which the decree is to be sent for execution is situate in a different district, the Court which passed it shall send it to the District Court of the district in which the decree is to be executed.

6. Procedure where Court desires that its own decree shall  be  executed by  another  Court.- The Court sending a decree for execution shall send,---

a) a copy of the decree;

b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and

c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate to that effect.

7. Court receiving copies of decree, etc., to file same without proof.- The Court to which a decree is so sent shall cause such copies and certificates to be filed, without any further proof of the decree or order for execution, or of the copies thereof unless the Court for any special reasons to be recorded under the hand of the Judge, requires such proof.

8. Execution of decree or order by Court to which it is sent.- Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction.

9. Execution by High Court of decree transferred by other Court.- Where the Court to which the decree is sent for execution is a High Court, the decree shall be executed by such Court in the same manner as if it had been passed by such Court in the exercise of its ordinary original civil jurisdiction.

Application for Execution

10. [Execution of decree.- On passing of an executable decree by a Court, the suit shall stand converted into execution proceedings and no separate application for the purpose and no fresh notice to the judgment-debtor shall be necessary.][374]

[11. Attachment.- At the time of the initiation of execution proceedings, the Court shall order the attachment of the property of the judgment debtor, if it has not already been attached under order XXXVIII.][375]

COMMENTS

Defect or non verification of execution petition not fatal, application not void merely irregularity not affecting merits of case. PLD 1984 AJ&K 57.

Date of previous execution petition not mentioned - defect not material AIR 19924 CAI 398

12. Application for attachment of moveable property not in judgment­debtor’s possession.- Where an application is made for the attachment of any movable property belonging to a judgment-debtor but not in his possession, the decree- holder shall annex to the application an inventory of the property to be attached, containing a reasonably accurate description of the same.

13. Application for attachment of immoveable property to contain particulars.- Where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot,---

a) a description of such property sufficient to identify the same and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, a specification of such boundaries or numbers; and

b) a specification of the judgment-debtor’s share or interest in such property to the best of the belief of the applicant, and so far as he has been able to ascertain the same.

14. Power to require certified extract from Collector’s register in certain cases.- Where an application is made for the attachment of any land which is registered in the office of the Collector, the Court may require the applicant to produce a certified extract from the register of such office, specifying the persons registered as proprietors of, or as possessing any transferable interest in the land or its revenue, or as liable to pay revenue for the land, and the shares of the registered proprietors.

15. Application  for  execution  by  joint decree  holder.- (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for the benefit of them all, or, where any of them has dies, for the benefit of the survivors and the legal representatives of the deceased.

(2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.

16. Application for execution by transferee of decree.- Where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it; and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder:---

Provided that, where the decree, or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution:---

Provided also that, where a decree for the payment of money against two or more persons has been transferred to one of them, it shall not be executed against the others.

17. Procedure on receiving application for execution of decree.­ **************[376]

18. Execution  in  case of cross­decrees.- (1) Where applications are made to a Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and capable of execution at the same time such Court, then -

a) if the two sums are equal, satisfaction shall be entered upon both decrees; and
b) if the two sums are unequal, execution may be taken out only by the holder of the decree for the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered on the decree for the larger sum as well as satisfaction of the decree for the smaller sum.

(2) This rule shall be deemed to apply where either party is an assignee of one of the decrees and as well in respect of judgment-debts due by the original assignor as in respect of judgment-debts due by the assignee himself.

(3) This rule shall not be deemed to apply unless,---

a) the decree-holder in one of the suits in which the decrees have been made is the judgment-debtor in the other and each party fills the same character in both suits; and

b) the sums due under the decree are definite.

(4) The holder of a decree passed against several persons jointly and severally may treat it as a cross-decree in relation to a decree passed against him singly in favour of one or more of such persons.

Illustrations

(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment of Rs.1000 in case A fails to deliver certain goods at a future day. B cannot treat his decree as a cross-decree under this rule.

(b) A and B, co-plaintiffs, obtain a decree for Rs.1,000 against C, and C obtains a decree for kRs.1,000 against B. C cannot treat his decree as a cross-decree under this rule.

(c) A, obtains a decree against B for Rs.1,000. C who is a trustee for B, obtains a decree on behalf of B against A for Rs.1,000. B cannot treat C’s decree as a cross-decree under this rule.

(d) A, B, C, D and E are jointly and severely liable for Rs.1,000 under a decree obtained by F. A obtains a decree for Rs.100 against F singly and applies for execution to the Court in which the joint-decree is being executed. F may treat his joint-decree as a cross-decree under this rule.

19. Execution in case of cross­claims under same  decree.- Where application is made to a Court for the execution of a decree under which two parties are entitled to recover sums of money from each other, then,---

a) if the two sums are equal, satisfaction for both shall be entered upon the decree; and

b) if the two sums are unequal, execution may be taken out only by the party entitled to the larger sum and for so much only as remains after deducting the smaller sum, and satisfaction for the smaller sum shall be entered upon the decree.

20. Cross­decrees and cross­claims in mortgage suits.- The provisions contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a mortgage or charge.

21. Simultaneous execution.- The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor.

22. Notice to show cause against execution in certain cases.- (1) Where an application for execution is made,---

a) more than one year after the date of the decree, or

b) against the legal representative of a party to the decree, [377][or where an application is made for execution of a decree filed under the provisions of section 44-A] the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him:---

Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him;

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice.

23. Procedure after issue of notice.- **************[378]

[379][Objection to Execution

[23-A. Deposit of decree amount, etc.- An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless,---

(a) in case of a decree for the payment of money, he either deposits the decretal amount in Court or furnishes security to the satisfaction of the Court for its payment; and

(b) in the case of any other decree, he furnishes security to the satisfaction of the Court for the due performance of the decree.][380]

Process for Execution

24. Process of execution.- (1) When the preliminary measures (if any) required by the foregoing rule have been taken, the Court shall, unless it sees cause to the contrary, issue its process for the execution of the decree.

(2) Every such process shall bear date the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

(3) In every such process a day shall be specified on or before which it shall be executed.

25. Endorsement on process.- (1) The officer entrusted with the execution of the process shall endorse thereon the day on, and the manner in, which it was executed, and, if the latest day specified in the process for the return thereof has been exceeded, the reason of the delay, or, if it was not executed, the reason why it was not executed, and shall return the process with such endorsement to the Court.

(2) Where the endorsement is to the effect that such officer is unable to execute the process, the Court shall examine him touching his alleged inability, and, if it thinks fit, summon and examine witnesses as to such inability, and shall record the result.

Stay of Execution

26. When   Court   may stay  execution.- (1) The Court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time, to enable the judgment-debtor to apply to the Court by which the decree was passed, or to any Court having appellate jurisdiction in respect of the decree or, the execution thereof, for an order to stay execution, or for any other order relating to the decree or execution which might have been made by such Court of first instance or appellate Court if execution had been issued thereby, or if application for execution had been made thereto.

(2) Where the property or person of the judgment-debtor has been seized under an execution the Court which issued the execution may order the restitution of such property or the discharge of such person pending the result of the application.

[381][(3) - Omitted].

27. Liability of judgment debtor  or  discharged.- No order of restitution or discharge under rule 26 shall prevent the property or person of a judgment-debtor from being retaken in execution of the decree sent for execution.

28. Order of Court which passed decree or of appellate Court to be binding upon Court applied to.- Any order of the Court by which the decree was passed, or of such Court of appeal as aforesaid, in relation to the execution of such decree, shall be binding upon the Court to which the decree was sent for execution.

29. Stay of execution pending suit between decree­holder and judgment­debtor.- **************[382]

Mode of Execution

30. Decree for payment of money.- Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in [383][…] prison of the judgment-debtor, or by the attachment and sale of his property, or by the both.

31. Decree  for  specific moveable property.- (1) Where the decree is for any specific movable, or for any share in a specific movable, it may be executed by the seizure, if practicable, of the movable or share, and by the delivery thereof to the party to whom it has been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the detention in [….] prison of the judgment-debtor, or by the attachment of his property, or by both.

(2) Where any attachment under sub-rule (1) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold, and out of the proceeds the Court may award to the decree-holder, in cases where any amount has been fixed by the decree to be paid as an alternative to delivery of movable property, such amount, and, in other cases, such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of the attachment, no application to have the property sold has been made, or if made, has been refused, the attachment shall cease.

32. Decree for specific performance for restitution of conjugal rights, or for an injuction.- (1) Where the party against whom a decree for the specific performance of a contract, [………….][384] or for an injunction, has been passed, has had an opportunity of obeying the decree and has willfully failed to obey it the decree may be enforced [………….] [385] in the case of a decree for the specific performance of a contract or for an injunction] by his detention in [….]prison, or by the attachment of his property, or by both.

(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation, or with the leave of the Court, by the detention in [….] prison of the directors or other principal officers thereof or by both attachment and detention.

(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for one year if the judgment debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance (if any), to the judgment-debtor on his application.

(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of one year from the date of the attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.

(5) Where decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court,. At the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.

Illustrations

A, a person of little substance, erects a building which renders uninhabitable a family mansion belonging to B. A in spite of his detention in prison and the attachment of his property, declines to obey a decree obtained against him by B and directing him to remove the building. The Court is of opinion that no sum realizable by the sale of A’s property would adequately compensate B for the depreciation in the value of his mansion. B may apply to the Court to remove the building and may recover the cost of such removal from A in the execution-proceedings.

33. Discretion   of  Court   in   executing   decrees   for  restitution   of conjugal  rights.- **************[386]

34. Decree  for  execution of document, or  endorsement of negotiable instruments.- (1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.

(2) The Court shall thereupon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.

(3) Where the judgment-debtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.

(4) The decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in force; and the judge or such officer as may be appointed in this behalf shall execute the document so delivered.

(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely:---

“C.D., Judge of the Court of (or as the case may be), for A. B., in a suit by E.F. against A.B.” and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.

(6) The Court, or such officer as it may appoint in this behalf, shall cause the document to be registered if its registration is required by law for the time being in force or the decree-holder desires to have it registered, and may make such order as it thinks fit as to the payment of the expenses of the registration.

35. Decree  for immoveable property.- (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree.

(3) Where possession of any building or enclosure is to be delivered and the person in possession, being bound by the decree, does no afford free access, the Court, through its officers, may after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.

36. Decree for delivery of immoveable  property when in occupancy of tenant.- Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property[,---

            Provided that no such right of a tenant or other person shall be protected in a case where the tenant or the other person entered into possession of the immovable property during the pendency of the suit wherein the decree has been passed.][387]

Arrest and Detention in [….] Prison

[37. Discretionary power to allow judgment-debtor an opportunity to show good cause against detention in prison.- (1) Notwithstanding anything in the rules, where a decree for the payment of money is sought to be executed through arrest and detention in prison of the judgment-debtor, the Court may, before issuing a warrant of arrest, provide one opportunity to the judgment-debtor to show good cause as to why he should not be detained in prison:---

Provided that such opportunity shall not be necessary if the Court is satisfied, by affidavit or otherwise, that, with the object of delaying the execution of the decree, the judgment-debtor is likely to abscond of leave the local limits of the jurisdiction of the Court.

(2) Where the judgment-debtor fails to avail himself the opportunity or is unable to show a good cause, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment-debtor.][388]

38. Warrant for arrest to direct judgment­debtor to be brought up.- Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the amount which he has been ordered to pay, together with the interest thereon and the cost (if any) to which he is liable, be sooner paid.

[389]* * * * * * * * * * * * * * * * * * * * * * * *

39. [Omitted by Civil Laws (Reforms) Act (XIV of 1994), S.11(7) (vi)].

40. Proceedings   on   appearance   of   judgment­debtor   in   obedience   to   notice   or after arrest.- (1) [Where a judgment-debtor avails himself the opportunity provided under rule 37 or is brought before the Court after being arrested in execution of the decree for the payment of money, the Court shall give the judgment-debtor an opportunity of showing good cause why he should not be detained in prison.][390]

(2) **************[391]

[(3) Where the judgment-debtor fails to show any good cause under sub-rule (1), the Court may, subject to provisions of section 51 and to the other provisions of the Code, make an order for the detention of the judgment-debtor in prison and shall, in that event, cause him to be arrested if he is not already under arrest.][392]

(4) A judgment-debtor released under this rule may be re-arrested.

(5) When the Court does not make an order of detention under sub-rule (3), it shall disallow the application and, if the judgment-debtor is under arrest, direct his release.]

Attachment of Property

41. Examination of judgment­debtor as to his property.- Where a decree is for the payment of money the decree-holder may apply to the Court for an order that,---

a) the judgment-debtor, or

b) in the case of a corporation, any officer thereof, or

c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor and whether the judgment-debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor or officer or other person, and for the production of any books or documents.

42. Attachment in case of decree for rent or mesne  profits or other matter,  amount  of which  to be subsequently determined.- Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.

43. Attachment of moveable property other than agricultural produce, in possession of judgment­debtor.- Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor the attachment shall be made by acutal seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof:---

Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping in custody is likely to exceed its value, the attaching officer may sell it at once.

44. Attachment of agricultural produce.- Where the property to be attached is agricultural produce, the attachment shall be made affixing a copy of the warrant of attachment,---

a) where such produce is a growing crop, on the land on which such crop has grown or

b) where such produce has been cut or gathered, on the threshing-floor or place for treading out grain or the like or fodder-stack on or in which it is deposited, and another copy on the outer door or on some other conspicuous part of the house in which the judgment-debtor ordinarily resides or, with the leave of the Court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain; and the produce shall thereupon be deemed to have passed into the possession of the Court.

45. Provisions as to agricultural  produce under attachment.- (1) Where agricultural produce is attached, the Court shall make such arrangements for the custody thereof as it may deem sufficient and, for the purpose of enabling the Court to make such arrangements every application for the attachment of a growing crop shall specify the time at which it is likely to be fit to be cut or gathered.

(2) Subject to such conditions as may be imposed by the Court in this behalf either in the order of attachment or in any subsequent order, the judgment-debtor may tend, cut, gather and store the produce and do any other act necessary for maturing or preserving it; and if the judgment-debtor fails to do all or any of such acts, the decree-holder may, with the permission of the Court and subject to the like conditions, do all or any of them either by himself or by any person appointed by him in this behalf, and the costs incurred by the decree-holder shall be recoverable from the judgment-debtor as if they were included in, or formed part of, the decree.

(3) Agricultural produce attached as a growing crop shall not be deemed to have ceased to be under attachment or to require re-attachment merely because it has been severed from the soil.

(4) Where an order for the attachment of a growing crop has been made a considerable time before the crop is likely to be fit to be cut or gathered, the Court may suspend the execution of the order for such time as it thinks fit, and may, in its discretion, make a further order prohibiting the removal of the crop pending the execution of the order of attachment.

(5) A growing crop which from its nature does not admit of being stored shall not be attached under this rule at any time less than twenty days before the time at which it is likely to be fit to be cut or gathered.

46. Attachment of debt, share and other property not in possession of judgment debtor.- (1) In the case of,---

a) a debt not secured by a negotiable instrument,

b) a share in the capital of a corporation,

c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,---

i) in the case of debt the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court;

ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;

iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.

(2) A copy of such order shall be affixed on some conspicuous part of the Court-house and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.

(3) A debtor prohibited under clause (I) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same.

47. Attachment of share in moveables.- Where the property to be attached consists of the share or interest of the judgment-debtor in movable property belonging to him and another as co-owners, the attachment shall be made by a notice to the judgment-debtor prohibiting him from transferring the share or interest or charging it in any way.

48. Attachment of salary or allowances of public officer or servant of railway company or local authority.- (1) Where the property to be attached is the salary or allowance of a [393][servant of the [State] ] or a servant of a railway company or local authority, the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as Court may direct; and upon notice of the order to such officer as [394][the appropriate Government may by notification in the official Gazette] appoint [395][in this behalf,---

a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty I is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly instalments, as the case may be;

b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time be disbursed by the aggregate of the amounts from time to time remitted to the Court].

(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by [396][the appropriate Government] in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind [397][the appropriate Government] or the railway company or local authority, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond hose limits if he is in receipt of any salary or allowances payable out of [398][the revenues of the [399][Federal Government] or a Provincial Government] or the funds of a railway company carrying on business in any part of [400][Pakistan or local authority in [401][Pakistan]; and [402][the appropriate Government] or the railway company or local authority, as the case may be, shall be liable for any sum paid in contravention of this rule.

[403][Explanation.- In this rule “appropriate Government” means,---

(i) as respects any [404][person] in the service of the [405][Federal Government, or any servant [406]* * * * * * of a “railway or of a cantonment authority or of the port authority of a major port, the [407][Federal Government];

[408]* * * * * *

iii. as respects any other [409][servant of the [State] or a servant of any [410]* * * railway or local authority the Provincial Government]

49. Attachment  of partnership property.- (1) Save as otherwise provided by this rule, property belonging to a partnership shall not be attached or sold in execution of a decree other than a decree passed against the firm or against the partners in the firm as such.

(2) The Court may, on the application of the holder of a decree against a partner, make an order charging the interest of such partner in the partnership property and profits with payment of the amount due under the decree, and may, by the same or a subsequent order, appoint a receiver of the share of such partner in the profits (whether already declared or accruing) and of any other money which may be coming to him in respect of the partnership, and direct accounts and inquiries and make an order for the sale of such interest or other orders as might have been directed or made if a charge had been made in favour of the decree-holder by such partner, or as the circumstances of the case may require.

(3) The other partner or partners shall be at liberty at any time to redeem the interest charged or, in the case of a sale being directed, to purchase the same.

(4) Every application for an order under sub-rule (2) shall be served on the judgment-debtor and on his partners or such of them as are within [411][Pakistan].

(5) Every application made by any partner of the judgment-debtor under sub-rule (3) shall be served on the decree-holder and on the judgment-debtor and on such of the other partners as do not join in the application and as are within [412][Pakistan].

(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all the partners and all orders made on such applications shall be similarly served.

50. Execution of decree against firm.- (1) Where a decree has been passed against a firm execution may be granted -

a) against any property of the partnership;

b) against any person who has appeared in his own name under rule 6 or rule 7 of Order XXX or who has admitted on the pleadings that he is, or who has been adjudged to be, a partner;

c) against any person who has been individually served as a partner with a summons and has failed to appear:---

Provided that nothing in this sub-rule shall be deemed to limit or otherwise affect the provisions of section 247 of the Contract Act. 1972.

(2) Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sun-rule (1), clauses (b) and (c), as being a partner in the firm he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or where such liability, is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined.

(3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.

51. Attachment of negotiable instruments.- Where the property is a negotiable instrument not deposited in a Court, nor in the custody of a public officer, the attachment shall be made by actual seizure, and the instrument shall be brought into Court and held subject to further orders of the Court.

52. Attachment  of property  in custody  of Court  or public officer.- Where the property to be attached is in the custody of any Court or public officer, the attachment shall be made by a notice to such court or officer, requesting that such property and any interest or dividend becoming payable thereon, may be held subject to the further orders of the Court from which the notice is issued:---

Provided that, where such property is in the custody of a Court any question of title or priority arising between the decree-holder and any other person, not being the judgment-debtor, claiming to be interested in such property by virtue of any assignment, attachment or otherwise, shall be determined by such Court.

53. Attachment of decrees.- (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made,---

a) if the decrees were passed by the same Court, then by order of such Court, and

b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed requesting such other Court to stay the execution of its decree unless and until -

i. the Court which passed the decree sought to be executed cancels the notice, or

ii. the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree.

(2) Where a Court makes an order under clause (a) of sub-rule (1) or receives an application under sub-head (ii) of clause (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed.

(3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

(4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and where such decree has been passed by any other Court, also by sending to such other Court also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent.

(5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required.

(6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

[54. Attachment of immovable property.- (1) Where the property is immovable property, the attachment shall be made by an order prohibiting the judgment-debtor from transferring of charging the property in any way, and all other persons from taking any benefit from such transfer or charge and any such transfer, charge, alienation, encumbrance or other disposition in violation of this rule shall be void and of no legal effect.

(2) A copy of the order under sub-rule (1) shall be conveyed to the concerned authority maintaining the record of the property under attachment, in addition to a proclamation of the order at some place adjacent to such property by beat of drum or any other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and the Court-house, and also, where the property is subject to land revenue to the Government, in the office of the Collector of the district in which the land is situate.][413]

55. Removal of attachment after satisfaction of decree.- Where,---

a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court or,

b) satisfaction of the decree is otherwise made through the Court or certified to the Court or

c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.

56. Order for payment of coin or currency notes to party entitled under decree.- Where the property attached is current coin or currency notes, the court may at any time during the continuance of the attachment, direct that such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over to the party entitled under the decree to receive the same.

57. Determination of attachment.- Where any property has been attached in execution of a decree but by reason of the decree-holder’s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.

Investigation of Claims and Objections

58. Investigation of claims to,  and objections to  attachment  of, attached property.- (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects, as if he was a party to the suit:---

[Provided that no such investigation shall be made where it appears to the Court that the claim or objection (whether made before or after the sale) has been designedly or unnecessarily delayed, or was not made within a reasonable time or within [thirty days][414] of the date of the first attachment of the said property in the execution of the said decree, whichever is earlier, unless the claimant or objector,---

a) proves title acquired in good faith and for consideration subsequent to the date of the first attachment;

b) proves that his predecessors-in-interest, whether their interest existed at the time of such attachment or was acquired thereafter, fraudulently omitted to make a claim or objection; and

c) impleads all such predecessors-in-interest, as parties]

(2) Where the property to which the claim or objection applies has been advertised for sale, the Court ordering the sale may postpone it pending the investigation of the claim or objection.

COMMENTS

In case of objection petition to attachment, investigation to claims must be conducted by the court, No separate suit for same. PLD 1990 LAH 4 (DB)

[415][59. Evidence to be adduced by claimant.- The claimant or objector must adduce evidence to show that at the date of the attachment he had a title to, or right or interest in, the property attached.

60. Release of property from attachment.- Where upon the said investigation the Court is satisfied that the claimant or objector had a title to, or right or interest in, the said property and the said property was not, by reason of such title, right or interest, wholly or partly liable to attachment, the Court shall make an order releasing the property, wholly, or as the case may be, to such extent as it is not so liable, from attachment.

61. Continuance of attachment subject to claim of encumbrancer.- Where the Court is satisfied that the property is subject to mortgage or charge in favour of some person and thinks fit to continue the attachment, it may do so subject to such mortgage or charge.

62. Questions relating to rights, etc., of claimant in attached property to  be  decided  by  Court.- All questions relating to the right title or interest of the claimant or objector in the attached property shall be adjudicated upon and determined by the Court and no separate sit shall lie to establish such title, right or interest.]

63. [Saving of suits to establish right to attached property.] Omitted by the Law Reforms Ordinance, 1972 (XII of 1972), s.2 and Sch].

Sale Generally

64. Power to order property attached to be sold and proceeds to be paid to person entitled.- Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.

65. Sales by whom conducted and how made.- Sale as otherwise prescribed, every sale in execution of a decree shall be conducted by an officer of the Court or by such other person as the Court may appoint in this behalf, and shall be made by public auction in manner prescribed.

66. Proclamation  of sales  by public auction.- (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court.

[(2)      (i) Such proclamation shall be drawn up by the Court Auctioneer and shall state the time and place of sale and specify as fairly and accurately as possible,---

(a) the property to be sold;

(b) the revenue assessed upon the estate, or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

(c) any encumbrance to which the property is liable;

(d) the amount for the recovery of which the sale is ordered; and

(e) every other thing which the Court Auctioneer considers material for a purchaser to know in order to judge of the nature and value of the property.

(ii) The Court Auctioneer shall submit the proclamation drawn up by him to the Court for its approval which shall add to it the reserve price of the property under sale, based upon the evaluation report, submitted by any evaluator appointed by the Court from amongst the evaluators approved by the Pakistan Bankers’ Association.][416]

(3) **************[417]

Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation.

(4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto.

67. Mode  of making  proclamation.- (1) Every proclamation shall be made and published, as nearly as may be, in the manner prescribed by rule 54, sub-rule (2).

[(2)      (i) Where the reserve price determined by the Court exceeds rupees two million, the proclamation shall also be published in at least one widely circulated national daily newspaper and the cost of such publication shall be deemed to be costs of the sale; and

(ii)        The Court Auctioneer shall cause video recording of the auction proceedings while ensuring transparent and fair bidding process of the public auction and the costs of such video shall be deemed to be costs of the sale.][418]

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to make a separate proclamation for each lot unless proper notice of the sale cannot, in the opinion of the Court, otherwise be given.

68. Time of sale.- Save in the case of property of the kind described in the proviso to rule 34, no sale hereunder shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least thirty days in the case of immovable property, and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed on the Court-house of the Judge ordering the sale.

69. Adjournment  or  stoppage of sale.- (1) The Court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his discretion adjourn the sale, recording his reasons for such adjournment:---

Provided hat, where the sale is made in, or within the precincts of, the Court-house, no such adjournment shall be made without the leave of the Court.

(2) Where a sale is adjourned under sub-rule(1) for a longer period than seven days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it.

(3) Every sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or proof is given to his satisfaction that the amount of such debt and costs has been paid into the Court which ordered the same.

70. Saving of certain sales.- **************[419]

71. Defaulting purchaser answerable for loss on re­sale.- Any deficiency of price which may happen on a re-sale by reason of the purchaser’s default and all expenses attending such re-sale, shall be certified to the Court or to the Collector or subordinate of the Collector, as the case may be, by the officer or other person holding the sale, and shall at the instance of either the decree-holder or the judgment-debtor, be recoverable from the defaulting purchaser under the provisions relating to the execution of a decree for the payment of money.

72. [Decree  holder  not  to  bid  for  or  buy  property without permission.- (1) The holder of a decree in execution of which property is sold may participate in the auction of the property and for that purpose make a bid for the purchase of the property.

(2) Where a decree-holder purchases the property, the purchase-money and the amount due on the decree may, subject to the provisions of section 73, be set-off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.][420]

(3) **************[421]

73. Restriction on bidding or  purchase  by officers.- No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

Sale of Movable Property

74. Sale of agricultural produce.- (1) Where the property to be sold is agricultural produce the sale shall be held,---

a) if such produce is a growing crop, on or near the land on which such crop has grown, or

b) if such produce has been cut or gathered, at or near the threshing-floor or place for treading out grain or the like or fodder-stack on or in which it is deposited:---

Provided that the Court may direct the sale to be held at the nearest place of public resort, if it is of opinion that the produce is thereby likely to sell to greater advantage.

(2) Where on the produce being put up for sale,---

a) a fair price, in the estimation of the person holding the sale, is not offered for it, and
b) the owner of the produce or a person authorized to act in his behalf applies to have the sale postponed till the next day or, if a market is held at the place of sale, the next market-day, the sale shall be postponed accordingly and shall be then completed, whatever price maybe offered for the produce.

75. Special  provisions  relating  to  growing  crops.- (1) Where the property to be sold is a growing crop and the crop from its nature admits of being stored but has not yet been stored, the day of the sale shall be so fixed as to admit of its being made ready for storing before the arrival of such day, and the sale shall not be held until the crop has been cut or gathered and is ready for storing.

(2) Where the crop from its nature does not admit of being stored, it may be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the land, and to do all that is necessary for the purpose of tending and cutting and or gathering it.

76. Negotiable instruments and shares in corporations.- Where the property to be sold is a negotiable instrument or a share in a corporation, the Court may, instead of directing the sale to be made by public auction, authorise the sale of such instrument or share through a broker.

77. Sale  by public auction.- (1) Where movable property is sold by public auction the price of each lot shall be paid at the time of sale or as soon after as the officer or other person holding the sale directs, and in default of payment the property shall forthwith be re-sold.

(2) On payment of the purchase-money the officer or other person holding the sale shall grant a receipt for the same, and the sale shall become absolute.

(3) Where the movable property to be sold is a share in goods belonging to the judgment-debtor and a co-owner, and two or more persons, of whom one is such co-owner, respectively bid the same sum for such property or for any lot, the bidding shall be deemed to be the bidding of the co-owner.

78. Irregularity not to vitiate sale, but any person injured may  sue.- **************[422]

79. Delivery of moveable  property, debts and shares.- (1) Where the property sold is movable property of which actual seizure has been made, it shall be delivered to the purchaser.

(2) Where the property sold is movable property in the possession of some person other than the judgment-debtor, the delivery thereof to the purchaser shall be made by giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser.

(3) Where the property sold is a debt not secured by a negotiable instrument, or is a share in a corporation, the delivery thereof shall be made by a written order of the Court prohibiting the creditor from receiving the debt or any interest thereon, and the debtor from making payment thereof to any person except the purchaser, or prohibiting the person in whose name the share may be standing from making any transfer of the share to any person except the purchaser, or receiving payment of any dividend or interest thereon, and the manager, secretary or other proper officer of the corporation from permitting any such transfer or making any such payment to any person except the purchaser.

80. Transfer  of negotiable  instruments and shares.- (1) Where the execution of a document or the endorsement of the party in whose name a negotiable instrument or a share in a corporation is standing is required to transfer such negotiable instrument or share, the Judge or such officer as he may appoint in this behalf may execute such document or make such endorsement as may be necessary, and such execution or endorsement shall have the same effect as an execution or endorsement by the party.

(2) Such execution or endorsement may be in the following form namely:-
AB by CD Judge of the Court of (or as the case may be) in a suit by EF against AB.

(3) Until the transfer of such negotiable instrument or share, the Court may by order appoint some person to receive any interest or divided due thereon and to sign a receipt for the same; and any receipt so signed shall be as valid and effectual for all purposes as if the same had been signed by the party himself.

81. Vesting order in case of other property.- In case of any movable property not hereinbefore provided for, the Court may make an order vesting such property in the purchaser or as he may direct; and such property shall vest accordingly.

Sale of Immovable Property

82. What Courts may order sales.- Sales of immovable property in execution of decrees may be ordered by any Court other than a Court of Small Causes.

83. Postponement of sale to enable judgment  debtor to raise  amount  of decree.- (1) Where an order for the sale of immovable property has been made, if the judgment-debtor can satisfy the Court that there is reason to believe that the amount of the decree may be raised by the mortgage or lease or private sale of such property, or some part thereof, or of any other immovable property of the judgment-debtor the Court may on his application postpone the sale of the property comprised in the order for sale on such terms and for such period as it thinks proper, to enable him to raise the amount.

(2) In such case the Court shall grant a certificate to the judgment-debtor authorizing him within a period to be mentioned therein, and notwithstanding anything contained in section 64 to make the proposed mortgage lease or sale:---

Provided that all monies payable under such mortgage, lease or sale shall be paid not to the judgment-debtor, but save in so far as a decree-holder is entitled to set-off such money under the provisions of rule 72 into Court:---

Provided also that no mortgage leases or sale under this rule shall become absolute until it has been confirmed by the Court.

(3) Nothing in this rule shall be deemed to apply to a sale of property directed to be sold in execution of a decree for sale in enforcement of a mortgage of or charge on such property.

[(4) A notice of the sale of the property shall be given to the judgment-debtor with an option to match the highest bid within fifteen days of the auction of the property and the judgment-debtor, in that case, shall have the first right of refusal to purchase the property at the highest bid offered by a bidder.][423]

84. [Deposit by purchaser and re­sale  on default.- (1) On every sale of immovable property, the person declared to be the purchaser shall pay to the officer or other person conducting the sale the amount equal to the reserve price of the property through pay order of bank draft or banker’s cheque immediately after such declaration and in case such payment is not so made, the property shall forthwith be resold in the manner provided under this Order.][424]

(2) Where the decree holder is the purchaser and is entitled to set off the purchase-money under rule 12, the Court may dispense with the requirements of this rule.

85. Time for payment in full of purchase money.- The full amount of purchase-money payable shall be paid by the purchaser into Court before the Court closes on the fifteenth day from the sale of the property:---

Provided that in calculating the amount to be so paid into Court, the purchaser shall have the advantage of any set-off to which he may be entitled under rule 72.

86. Procedure in default of payment.- In default of payment within the period mentioned in the last preceding rule the deposit may if the court thinks fit after defraying the expenses of the sale, be forfeited to the Government and the property shall be re-sold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may subsequently be sold.

87. Notification on re­sale.- Every re-sale of immovable property in default of payment of the purchase-money within the period allowed for such payment shall be made after the issue of a fresh proclamation in the manner and for the period hereinbefore prescribed for the sale.

88. Bid of co­sharer to have preference.- Where the property sold is a share of undivided immovable property and two or more persons of whom one is a co-sharer, respectively bid the same sum for such property or for any lot the bid shall be deemed to be the bid of the co-sharer.

89. Application to set aside sale on deposit.- (1) Where immovable property has been sold in execution of a decree, any person either owning such property or holding an interest therein by virtue of a title acquired before such sale may apply to have the sale set aside on his depositing in Court,---

a) for payment to the purchaser a sum equal to five per cent of the purchase money; and

b) for payment to the decree holder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may since the date of such proclamation of sale have been received by the decree holder.

(2) Where a person applied under rule 90 to set aside the sale of his immovable property he shall not unless he withdraws his application be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale[,---

Provided that no application under this rule shall be entertained unless the applicant deposits in the Court the amount specified in the proclamation of sale along with a sum equal to five per cent of the purchase money.

(4) The Court shall decide the application under this rule within thirty days of the filing of the application.][425]

90. Application   to   set   aside   sale   on   ground   of  irregulairity or  fraud.- Where any immovable property has been sold in execution of a decree the decree-holder or any person entitled to share in a rateable distribution of assets or whose interests are affected by the sale may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it:---

Provided that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud [426][and]:---

[427][Provided also that no such application shall be entertained unless the applicant deposits such amount not exceeding [fifty][428] per cent of the sum realized at the sale or furnishes such security as the Court may direct]:---

[Provided further that no such application shall be entertained unless the applicant deposits such amount not exceeding twenty per cent of the sum realized at the sale or furnishes such security as the Court may direct.]

91. Application by purchaser to set aside sale on ground of judgment debtor having no  saleable interest.- The purchaser at any such sale in execution of a decree may apply to the Court to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold.

92. Sale when to become absolute or be set aside.- (1) Where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed the Court shall make an order confirming the sale and thereupon the sale shall become absolute.

(2) Where such application is made and allowed and where in the case of an application under rule 89 the deposit required by that rule is made within thirty days from the date of sale the Court shall make an order setting aside the sale:---

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.

93. Return of purchase­money in certain cases.- Where a sale of immovable property is set aside under rule 92 the purchaser shall be entitled to an order for repayment of his purchase money with or without interest as the Court may direct against any person to whom it has been paid.

94. Certificate to purchaser.- Where a sale of immovable property has become absolute the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute.

COMMENTS

No stamp duty on sale certificate issued by court under O-21 R- 94 CPC in favour successful auction purchaser –sale certificate only to be registered with the sub- registrar. 1995 CLC 1922 KAR

95. Delivery of property in occupancy of judgment-debtor.- Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94 the Court shall on the application of the purchaser order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property and if need be by removing any person who refuses to vacate the same.

96. Delivery of property in occupancy of tenant.- Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place that the interest of judgment debtor has been transferred to the purchaser.

Resistance to Delivery of Possession to Decree-holder or Purchaser

97. Resistance  or  obstruction to  possession of immoveable property.- (1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property he may make an application to the Court complaining of such resistance or obstruction.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

98. Resistance or obstruction by judgment debtor.- Where the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation it shall direct that the applicant be put into possession of the property and where the applicant is still resisted or obstructed in obtaining possession the Court may also at the instance of the applicant order the judgment-debtor or any person acting at his instigation to be detained in [429][…..] prison for a term which may extend to thirty days.

99. Resistance or obstruction by bona fide claimant.- Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than the judgment-debtor) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor the Court shall make an order dismissing the application.

100. Dispossession   by   decree-holder or  purchaser.- (1) Where any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or where such property has been sold in execution of a decree by the purchaser thereof he may make an application to the Court complaining of such dispossession.

(2) The Court shall fix a day for investigating the matter and shall summon the party against whom the application is made to appear and answer the same.

101. Bona fide claimant to be restored to possession.- Where the Court is satisfied that the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor it shall direct that the applicant be put into possession of the property.

102. Rules not applicable to transferee lite bendente.- Nothing in rules 99 and 101 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

[430][103. Certain orders conclusive and suit barred.- All questions arising as to title, right or interest in or possession of immovable property between an applicant under rule 97 and the opposite-party or between an applicant under rule 100 and the opposite party shall be adjudicated upon and determined by the Court and no separate suit shall lie for the determination of any such matter.]

ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by party’s death, if right to sue survives.- The death of plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

2. Procedure  where  one  of  several  plaintiffs  or  defendants  dies  and  right  to  sue  survives.- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiffs or plaintiffs alone or against the surviving defendant or defendants alone the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone; [431][or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order VII or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

[432][(2) Where within the time allowed by law no application is made or intimation is given under sub-rule (I), the Court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such plaintiff have the same force and effect as if it had been made or pronounced before the death took place.]

COMMENTS

Execution petition – failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4. Execution will not abate. PLD A.Z.J.&K. 57

4. Procedure  in case  of death of one  of several  defendants  or  of sole defendant.- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone [or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII] or a sole defendant or sole surviving defendant dies and the right to sue survives the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

[433][(3) When within the time limited by law no application is made or intimation is given under sub-rule (1) the Court may proceed with the suit and any order made or judgment pronounced in such suit shall notwithstanding the death of such defendant have the same force and effect as if it had been pronounced before the death took place.]

[434][(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death and such judgment shall have the same force and effect as if had been pronounced before his death took place.]

5. Determination of question as to legal representative.- Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant such question shall be determined by the Court.

6. No abatement by reason of death after hearing.- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding death and shall have the same force and effect as if it had been pronounced before the death took place.

7. Suit  not  abated  by  marriage  of female  party.- (1) The marriage of a female plaintiff or defendant shall not cause the suit to abate but the suit may notwithstanding be proceeded with to judgment and where the decree is against a female defendant it may be executed against her alone.

(2) Where the husband is by law liable for the debts of his wife the decree may with the permission of the |court be executed against the husband also; and in case of judgment for the wife execution of the decree may with such permission, be issued upon the application of the husband where the husband is by law entitled to the subject-matter of the decree.

8. When  plaintiff’s  insolvency bars suit.- (1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered the defendant may apply for the dismissal of the suit on the ground of the plaintiff’s insolvency and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has incurred in defending the same to be proved as a debt against the plaintiff’s estate.

[435][9. Effect of dismissal.- (1) When a suit is dismissed under rule 8 no fresh suit shall be brought on the same cause of action.

(2) Any person claiming to be the legal representative of a deceased plaintiff or defendant or the assignee or the receiver in the case of an insolvent [plaintiff may apply to the Court for setting aside any order made or judgment pronounced by it in his absence; and if it is proved that he was prevented by any sufficient cause from continuing the suit or defending the suit as the case may be the Court shall set aside the order or the judgment upon such terms as to costs or otherwise as it thinks fit.]

[436][(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule (2).]

10. Procedure  in  case  of  assignment  before  final  order  in suit.- (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit the suit may, by leave of the Court be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

11. Application of Order to appeals.- In the application of this Order to appeals so far as may be the word “Plaintiff” shall be held to include an appellant the word “defendant” a respondent and the word “suit” an appeal.

12. Application of Order to proceedings.- Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.

COMMENTS

Execution petition – failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4. Execution will not abate. PLD A.Z.J.&K. 57

ORDER XXIII

WITHDRAWAL AND ADJUSTMENT OF SUITS

1. Withdrawal  of suit or  abandonment  of part of claim.- (1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim.

(2) Where the Court is satisfied [after recoding reasons][437],---

a) that a suit must fail by reason of some formal defect, or

b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit or abandons part of a claim without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.

2. Limitation law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit the Court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit.

4. Proceedings in execution of decrees not affected.- Nothing in this Order shall apply to any proceedings in execution of a decree or order.

ORDER XXIV

PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim.- The defendant in any suit to recover a debt or damages may at any stage of the suit deposit in Court such sum of money as he considers a satisfaction in full of the claim.

2. Notice of deposit.- Notice of the deposit shall be given through the Court by the defendant to the plaintiff and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on his application.

3. Interest on deposit not allowed to plaintiff after notice.- No interest shall be allowed to the plaintiff on any sum deposited by the defendant from the date of the receipt of such notice whether the sum deposited is in full of the claim or falls short thereof.

4. Procedure  where  plaintiff accepts  deposit  as  satisfaction in part.- (1) Where the plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit for the balance; and if the court decides that the deposit by the defendant was a full satisfaction of the plaintiff’s claim the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred previous thereto so far as they were caused by excess in the plaintiff’s claim.

(2) Where the plaintiff accepts such amount as satisfaction in full of his claim he shall present to the Court a statement to that effect and such statement shall be filed and the Court shall pronounce judgment accordingly and in directing by whom the costs of each party are to be paid the Court shall consider which of the parties is most to blame for the litigation.

Illustrations

a) A owes B Rs.100 . B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part.

b) B sues A under the circumstances mentioned in Illustration (a). On the plaint being filed A disputes the claim. Afterwards A pays the money into Court. B accepts it in full satisfaction of his claim. The Court should also give B his costs of suit, A’s conduct having shown that the litigation was necessary.

c) A owes B Rs 100, and is willing to pay him that sum without suit. B claims Rs.150 and sues A for that amount. On the plain being filed A pays Rs.100 into Court and disputes only his liability to pay the remaining Rs.50. B accepts the Rs.100 in full satisfaction of his claim. The Court should order him to pay A’s costs.

ORDER XXV

SECURITY FOR COSTS

1. When security for costs may be required from plaintiff.- (1) Where at any stage of a suit it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are residing out of [Pakistan] and that such plaintiff does not or that no one of such plaintiffs does possess any sufficient immovable property within [Pakistan] other than the property in suit the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant.

(2) Whoever leaves [Pakistan] under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing out of [Pakistan] within the meaning of sub-rule (1).

(3) On the application of any defendant in a suit for the payment of money, in which the plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such plaintiff does not possess any sufficient immovable property within [Pakistan].

2. Effect  of  failure  to furnish security.- (1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and,. If it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as is thinks fit, and shall appoint a day for proceeding with the suit.

(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.

ORDER XXVI

COMMISSIONS

Commissions to Examine Witnesses

1. Cases in which Court may issue commission to examine witness.- Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.

2. Order for commission.- An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.

3. Where witness resides within Court’s jurisdiction.- A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.

4. Persons for whose examination commission may  issue.- (1) Any Court may in any suit issue a commission for the examination of -

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and

[438](c) [any person in the service of the [439][State] ] who cannot, in the opinion of the Court, attend without detriment to the public service.

(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.

(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.

5. Commission or request to examine witness not within Pakistan.- Where any Court to which application is made for the issue of commission for the examination of a person residing at any place not within[Pakistan] is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.

6. Court to examine witness pursuant to commission.- Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.

7. Return of commission with depositions of witnesses.- Where a commission has been duly executed it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall (subject to the provisions of the next following rule) form part of the record of the suit.

8. When depositions may be read in evidence.- Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered unless-

a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a [person in the service of the [State]] who cannot, in the opinion of the Court attend without detriment to the public service, or

b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.

Commissions for Local Investigations

9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:---

Provided that, where the [440][Provincial Government] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

10. Procedure of Commissioner.- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.

(2) Report and depositions to be.- The report of the Commissioner and the evidence taken by him (but ot the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Commission to examine Accounts

11. Commission to examiner adjust accounts.- In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.

12. Courts  to   give   Commissioner necessary  instructions.- (1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.

(2) Proceedings and report to be evidence. Court may direct further inquiry.- The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.

Commissions to make Partitions

13. Commission to make partition of immoveable property.- Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.

14. Procedure  of  Commissioner.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.

(2) The Commissioner shall then prepare and sign a report or the Commissioners(where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.

(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.

General Provisions

15. Expenses of Commission to be paid into Court.- Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed paid into Court by the party at whose instance or for whose benefit the commission is issued.

16. Powers of Commissioners.- Any commissioner appointed under this Order may, unless otherwise directed by the order of appointment,---

a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

b) call for and examine documents and other things relevant to the subject of inquiry;

c) at any reasonable time enter upon or into any land or building mentioned in the order.

17. Attendance  and examination of witnesses  before Commissioner.- (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of [Pakistan] and for the purpose of this rule the Commissioner shall be deemed to be a civil Court.

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process a sit considers reasonable and proper.

18. Parties  to   appear before  Commissioner.- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.

(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.

[Commissions issued at the instance of Foreign Tribunals.][441]

19. Cases in which High Court may issue commission to examine witness.- (1) If a High Court is satisfied,---

a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,

b) that the proceeding is of a civil nature, and

c) that the witness is residing within the limits of the High Court’s appellate jurisdiction.

It may, subject to the provisions of rule 20, issue a commission for the examination of such witness.

(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1):---

(a) by a certificate signed by the consular officer of the foreign country of the highest rank in [442][Pakistan] and transmitted to the High Court through the [443][Federal Government], or

(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the [444][Federal Government] or

(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.

20. Application for commission.- The High Court may issue a commission under rule 19 -

a) upon application by a party to the proceeding before the foreign Court or

b) upon an application by a law officer of the [445][Provincial Government] acting under instructions from the [446][Provincial Government].

21. To whom commissions may be issued.- A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or, where [447]*** the witness resides within the local limits of [448][the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.

22. Issue, execution and return of commissions and transmission of evidence to foreign Court.- The provisions of rules 6, 15, 16, 17 and 18 of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the [449][Federal Government] along with the letter or request for transmission to the foreign Court].

ORDER XXVII

SUITS BY OR AGAINST [THE [GOVERNMENT]] OR PUBLIC OFFICERS IN THEIR OFFICIAL CAPACITY

1. Suits by or against Government.- In any suit by or against [450][the [Government]], the plaint or written statement shall be signed by such person as [451][the [Government]] may, by general or special order, appoint in this behalf, and shall be verified by any person whom [452][the [Government]] may so appoint and who is acquainted with the facts of the case.

[453]2. Persons authorised to act for  Government.- Persons being ex officio or other wise authorised to act for [454][the [Government]] in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code maybe made or done on behalf of [455][the[Government]].

3. Plaints in suits by or against Government.- In suits by or [456][against the [Government]] instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert [457][the appropriate name as provided in section 79, [458]***].

[459][4. Agent for Government to receive process.- The [460][Government] pleader in any Court shall be the agent of the [461][Government] for the purpose of receiving processes against the [462][Government] issued by such |Court.]

5. Fixing of day for appearance on behalf of Government.- The Court, in fixing the day for [463][the [Government]] to answer to the plaint, shall allow a reasonable time for the necessary communication [464][with the [Government]] through the proper channel, and for the issue of instructions to the [465][Government] pleader] to appear and answer on behalf of [466][the [Government]] [467]*** and may extend the time at its discretion.

6. Attendance of person able to answer questions relating to suit against Government.- The Court may also, in any case in which the [468][ Government] pleader] is not accompanied by any person on the part of [469][the [Government]] who may be able to answer any material questions relating to the suit, direct the attendance of such a person.

7. Extension of time  to  enable  public  officer  to  make  reference to Government.- (1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to [470][the [Government]] before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.

(2) Upon such application the court shall extend the time for so long as appears to it to be necessary.

[471]8. Procedure  in  suits  against public officer.- (1) Where [472][the [government]] undertakes the defence of a suit against a public officer [473][the Government] pleader], upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by [474][the [Government] pleader] on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:---

Provided that the defendant shall not be liable to arrest, nor his property to attachment otherwise than in execution of a decree.

[475]8-A. No security to be required from Government or a public  officer  in certain cases.- No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the [476][Government] or where the [477][Government] has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.

8-B. Definitions of “Government” and “Government pleader.- In this Order “[478][Government]” and “[479][Government] pleader” means respectively-

(a) in relation to any suit by or against [480]*** the [481][Federal Government], or against a public officer in the service of that Government, the [482][Federal Government] and such pleader as that Government may appoint whether generally or specially for the purposes of this Order:

[483](b) * * * * * * * * * *

(c) in relation to any suit by or against a Provincial Government or against a public officer in the service of a Province, the Provincial Government and the Government pleader, or such other pleader as the Provincial Government may appoint, whether generally or specially for the purposes of this Order.]

[484][ORDER XXVIIA

SUITS INVOLVING [485][ANY SUBSTANTIAL QUESTION AS TO THE INTERPRETATION OF CONSTITUTIONAL LAW]

1. Notice to the Advocate General.- In any suit in which it appears to the Court that [any substantial question as to the interpretation of constitutional law] is involved, the Court shall not proceed to determine the question until after notice has been given to the [486][Attorney-General for Pakistan] if the question of law concerns the [487][Federal Government] and to the Advocate-General of the Province if the question of law concerns a Provincial Government.

2. Court may add Government as party.- The Court may at any stage of the proceedings order that the [488][Federal Government] or a provincial Government shall be added as a defendant in any suit involving [489][any substantial question as to the interpretation of constitutional law] if the [490][Attorney-General for Pakistan] or the Advocate-General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

3. Costs when Government added as party.- Where under rule 2 Government is added as a defendant in a suit [491][the Attorney-General] the Advocate General or the Government shall not be entitled to or liable for costs in the Court which ordered the addition unless the Court having regard to all the circumstances of the case for any special reason otherwise orders .

4. Application of Order to appeals.- In the application of this Order to appeals the word “defendant” shall be held to include a respondent and the word “suit” an appeal.

ORDER XXVIII

SUITS BY OR AGAINST MILITARY [492][OR NAVAL]MEN [493][OR AIRMEN]

1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person to sue or defend for them.- (1) Where any officer, [494][soldier, sailor or airman] actually [495][in the service of the State] in [496][such] capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stead.

(2) The authority shall be in writing and shall be signed by the officer, [497][soldier, sailor or airman] in the presence of (a) his commanding officer, or he next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, [498][soldier, sailor or airman] is serving in military [499][naval] [500][or air force] staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall counter sign the authority which shall be filed in Court.

(3) When so filed the countersignature shall be sufficient proof that he authority was duly executed, and that the officer, [soldier, sailor or airman] by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the suit in person.

Explanation.- In this Order the expression “commanding officer” means the officer in actual command for the time being of any regiment, corps, [501][ship] detachment or depot to which the officer, [soldier, sailor or airman] belongs.

2. Person so auhtorised may act personally or appoint pleader.- Any person authorised by an officer, [502][soldier, sailor or airman] to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer, [soldier, sailor or airman] could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, [503][soldier, sailor or airman].

3. Service on person so authorised, or on his pleader to be good service.- Processes served upon any person authorised by an officer, [504][soldier, sailor or airman] under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.

ORDER XXIX

SUITS BY OR AGAINST CORPORATIONS

1. Subscription and verification of pleading.- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

2. Service on corporation.- Subject to any statutory provision regulating service of process, where the suit is against a corporation the summons may be served -

a) on the secretary, or on any director, or other principal officer of the corporation , or

b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

3. Power to require personal attendance of officer of corporation.- The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

ORDER XXX

SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN

1. Suing  of partners in name  of firm.- (1) Any two or more persons claiming or being liable as partners and carrying on business in [Pakistan] may sue or be sued in the name of firm (if any) of which such persons were partners at the time of the accruing of the cause of action and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were at the time of the accruing of the cause of action partners in such firm, to be furnished and verified in such manner as the Court may direct.

(2) Where persons sue on sued as partners in the name of their firm under sub-rule (1) it shall in the case of any pleading or other document required by or under this Code to be signed verified or certified by the plaintiff or the defendant suffice if such pleading or other document is signed, verified or certified by any one of such persons.

2. Disclosure  of partner’s names.- (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting a firm on whose behalf the suit is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may upon an application for that purpose, be stayed upon such terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:---

Provided that all the proceedings shall nevertheless continue in the name of the firm.

3. Service.- Where persons are sued as partners in the name of their firm, the summons shall be served either,---

a) upon any one or more of the partners, or

b) at the principal place at which the partnership business is carried on within [Pakistan] upon any person having, at the time of service, the control or management of the partnership business there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without [Pakistan]:---

Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within [Pakistan] whom it is sought to make liable.

4. Right of suit on death of partner.- (1) Notwithstanding anything contained in section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.

(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have,---

a) to apply to be made a party to the suit, or

b) to enforce any claim against the survivor or survivors.

5. Notice in what capacity served.- Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and in default of such notice, the person served shall be deemed to be served as a partner.

6. Appearance of partners.- Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless continue in the names of the firm.

7. No appearance except by partners.- Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business no appearance by him shall be necessary unless he is a partner of the firm sued.

8. Appearance under protest.- Any person served with summons as a partner under rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm in default of appearance where no partner has appeared.

9. Suits between co­partners.- This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court and on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

10. Suit against person carrying on business in name other than his own.- Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and so far as the nature of the case will permit, all rules under this Order shall apply.

ORDER XXXI

SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

1. Representation of beneficiaries in suits concerning property vested in trustees etc..- In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the person so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties.

2. Joinder of trustees, executors and administrators.- Where there are several trustees, executors or administrators they shall all be made parties to a suit against one or more of them:---

Provided that the executors who have not proved their testator’s will, and trustees executors and administrators outside [Pakistan] need not be made parties.

3. Husband of married executrix not to join.- Unless the Court directs otherwise the husband of a married trustee, administrator or executrix shall not as such be a party to a suit by or against her.

ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

1. Minor to sue by next friend.- Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.

[2. Where suit is instituted without next friend.- (1) Where a suit is instituted by or on behalf of a minor without a next friend, the Court may on such fact coming to its notice allow an opportunity to remedy the defect.

(2) Where the defect is not removed, the Court may, on an application of the defendant, or of its own motion, order that the plaint should be taken off the file with costs to be paid by the pleader or other person by whom it was presented.

(3) Notice of the application submitted under sub-rule (2) shall be given to the pleader or such other person, and the Court may, after hearing his objections, if any, make appropriate order.][505]

3. Guardian  for  the  suit  to  be  appointed  by  Court  for  minor  defendant.- (1) Where the defendant is a minor, the Court on being satisfied of the fact of his minority shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose case the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under the sub-rule.

[506][(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.]

4. Who  may  act as next friend or  be  appointed guardian for the suit.- (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:---

Provided that the interest of such person is not adverse to that of the minor and that of the minor and that he is not, in the case of a next friend, a defendant or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor’s welfare that another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.

5. Representation of minor  by  next  friend or  guardian for the suit.- (1) Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2) shall be made by his next friend or by his guardian for the suit.

(2) Every order made in a suit or on any application before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.

6. Receipt by next friend or guardian for the suit of property under decree for minor.- (1) A next friend or guardian for the suit shall not, without the leave of the Court receive any money or other movable property on behalf of a minor either,---

a) by way of compromise before decree or order or

b) under a decree or order in favour of the minor.

(2)Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property the |Court shall if it grants him leave to receive the property require such security and give such directions as will in its opinion, sufficiently protect the property from waste and ensure its proper application.

7. Agreement  or  compromise  by  next  friend  or  guardian  for  the  suit.- (1) No next friend or guardian for the suit shall without the leave of the Court expressly recorded in the proceedings enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.

8. Retirement of next friend.- (1) Unless otherwise ordered by the Court a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.

9. Removal of next friend.- (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor’s interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within [ Pakistan] or for any other sufficient cause application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned may order the next friend to be removed accordingly and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers for reasons to be recorded by it that the guardian ought not to be appointed the next friend of the minor and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.

10. Stay  of proceedings  on  removal,  etc.,  of next friend.- (1) On the retirement removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits within a reasonable time to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

11. Retirement, removal  or  death of guardian for the suit.- (1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit the Court shall appoint a new guardian in his place.

12. Course  to be  followed by minor  plaintiff or  applicant on attaining majority.- (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application be shall apply for an order discharging the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth:---

“A. B., late a minor, by C.D., his next friend, but now having attained majority.”

(4) Where he elects to abandon the suit or application, he shall if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or apposite-party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte: but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without any notice to the next friend.

13. Where  minor  co­plaintiff attainig  majority  desires to repudiate suit.- (1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.

(2) Notice of the application shall be served on the next friend on any co-plaintiff and on the defendant.

(3) The costs of all parties of such application and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs.

(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.

14. Unreasonable  or imporper suit.- (1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the Court upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.

15. Application of rules to persons of unsound mind.- The provisions contained in rules 1 to 14 so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged are found by the Court in inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued.

[507][16. Certain laws not to be affected.- Nothing in this Order shall be construed to affect or in any way derogate from the provisions of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind.]

ORDER XXXIII

SUITS BY PAUPERS

Omitted **************[508]

ORDER XXXIV

SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

1. Parties to suits for foreclosure, sale  and redemption.- Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage.

Explanation: - A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage.

[509][2. Preliminary decree in foreclosure suit.- In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree -

a) Ordering that an account be taken of what was due to the plaintiff at the date of such decree for,---

i. principal and interest on the mortgage,

ii. the costs of suit, if any, awarded to him and

iii. other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security together with interest thereon; or

b) declaring the amount so due at that date; and

c) directing,---

i. that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared in Court under clause (b) as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11 the plaintiff shall deliver up to the defendant or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the defendant at his cost free from the mortgage and from all encumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title by those under whom he claims, and shall also if necessary put the defendant in possession of the property; and

ii. that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest the plaintiff shall be entitled to apply for a final decree debarring the defendant from all right to redeem the property.

(2) The Court may on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges expenses and interest.

(3) Where in a suit for foreclosure, subsequent mortgagees or persons deriving title from or subrogated to the rights of any such mortgagees are joined as parties the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No.9 or Form No.10, as the case may be of Appendix D with such variations as the circumstances of the case may require.]

3. Final  decree  in foreclosure suit.- (1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall on application made by the defendant in this behalf, pass a final decree -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree,

and if necessary,---

b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree, and also if necessary

c) ordering him to put the defendant in possession of the property.

(2) where payment in accordance with sub-rule (1) has not been made the Court shall on application made by the plaintiff in this behalf, pass a final declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.

(3) On the passing of a final decree under sub-rule (2) all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.

4. Preliminary  decree  in suit for sale.- (1) In a suit for sale if the plaintiff succeeds the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (I) of sub rule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same.

(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.

(3) In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds the Court may at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4)Where in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgages or persons deriving title from or subrogated to the rights of any such mortgagees are joined as parties the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No.9, form No.,10 or Form No.11 as the case may be of Appendix D with such variations as the circumstances of the case may require.

5. Final decree in suit for sale.- Where on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall on application made by the defendant in this behalf pass a final decree or if such decree has been passed an order -

a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and if necessary,---

b) ordering him to transfer the mortgaged property as directed in the said decree, and also if necessary,---

c) ordering him to put the defendant in possession of the property.

(2) where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule the Court shall not pass an order under sub-rule (1) of this rule unless the defendant in addition to the amount mentioned in sub-rule (1) deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into Court by the purchaser.
Where such deposit has been made the purchaser shall be entitled to an order for re-payment of the amount of the purchase-money paid into Court by him, together with a sum equal to five percent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall on application made by the plaintiff in this behalf pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4.

6. Recovery of balance due on mortgage in suit for sale.- Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

7. Preliminary decree in redemption suit.- (1) In a suit for redemption if the plaintiff succeeds the Court shall pass a preliminary decree-

a) Ordering that an account be taken of what was due to the defendant at the date of such decree for,---

i) principal and interest on the mortgage,

ii) the costs of suit if any awarded to him and

iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage security together with interest thereon; or

b) declaring the amount so due at that date; and

c) directing,---

i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared in Court under clause (b) as the case may be and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up the plaintiff or to such person as the plaintiff appoints all documents in his possession or power relating to the mortgaged property and shall if so required re-transfer the property to the plaintiff at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming under him, or where the defendant claims by derived title, by those under whom he claims, and shall also if necessary put the plaintiff in possession of the property; and

ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed or the plaintiff fails to pay within such time as the Court may fix the amount adjudged due in respect of subsequent costs charges expenses and interest the defendant shall be entitled to apply for a final decree-

a) in the case of a mortgage other than a usufructuary mortgage a mortgage by conditional sale or an anomalous mortgage the terms of which provide for foreclosure only and not for sale that the mortgaged property be sold or

b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all rights to redeem the property.

(2) The Court may on good cause shown and upon terms to be fixed by the Court from time to time at any time before the passing of a final decree for foreclosure or sale as the case may be extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs charges, expenses and interest.

8. Final decree in redemption suit.- (1) Where before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under sub-rule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order -

a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and if necessary,---

b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and also if necessary,-

c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff in addition to the amount mentioned is sub-rule (1) deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase money paid into Court by the purchaser.

Where such deposit has been made the purchaser shall be entitled to an order for re-payment of the amount of the purchase money paid into Court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with sub-rule (1) has not been made the Court shall on application made by the defendant in this behalf,---

(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and also if necessary ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same]

[510][8.-A Recovery of balance due on mortgage in suit for redemption.- Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the defendant, the Court on application by him may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance]

9. Decree   where   nothing   is   found  due   or    where    mortgagee    has    been    over   paid.- Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property.

[511][10. Costs of mortgagee subsequent to decree.- In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the Court shall unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure sale or redemption up to the time of actual payment.

11. Payment of interest.- In any decree passed in a suit for foreclosure sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:-

a) interest up the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage,---

i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or where no such rage is fixed, at such rate as the Court deems reasonable,

ii) on the amount of the costs of the suit awarded to the mortgagee, at such rate as the Court deems reasonable from the date of the preliminary decree, and

iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgage-security up to the date of the preliminary decree and added to the mortgage money, at the rate agreed between the parties, or failing such rate, a the same rate as is payable on the principle, or failing both such rates at nine per cent per annum; and

(b) subsequent interest up to the ate of realization or actual payment at such rate as the Court deems reasonable,---

i) on the aggregate of the principal sums specified in clause (a) and of the interest thereon as calculated in accordance with that clause; and

ii) on the amount adjudged due to the mortgagee in respect of such further costs charges and expenses as may be payable under rule 10.]

12. Sale of property subject to prior mortgage.- Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

13. Suit for sale  necessary fo Application of proceeds.- (1) Such proceeds shall be brought into Court and applied as follows:---

first in payment of all expenses incident to the sale or properly incurred in any attempted sale;

secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage and of cost properly incurred in connection therewith.

Thirdly in payment of all interest due on account of the mortgage in consequence whereof the sale was directed and of the cost of the suit in which the decree directing the sale was made;

Fourthly in payment of the principal money due on account of that mortgage; and

Lastly the residue (if any) shall be paid to the person proving himself to the interested in the property sold, of if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt.

(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882.

14. Suit for sale  necessary for  bringing mortgaged property to sale.- (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2.

(2) Nothing in sub-rule (1) shall apply to ny territories to which the Transfer of Property Act, 1882 has not been extended.

[512][15. Mortgages by the deposit of title­deeds and charges.- All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act 1882]

ORDER XXXV

INTERPLEADER

1. Plaint in interpleader­suits.- In every suit of interpleader the plaint shall, in addition to other statements necessary for plaints, state,---

a) that the plaintiff claims no interest in the subject matter in dispute other than for charges or costs;

b) the claims made by the defendants severally; and

c) that there is no collusion between the plaintiff and any of the defendants.

2. Payment of thing claimed into Court.- Where the thing claimed is capable of being paid into Court or placed in the custody of the Court the Plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

3. Procedure where defendant issuing plaintiff.- Where any of the defendants in an interpleader-suit is actually suing the plaintiff in respect of the subject-matter of such suit, the Court in which the suit against the plaintiff is pending shall on being informed by the Court in which the interpleader suit has been instituted stay the proceedings as against him; and his costs in the suit so stayed may be provided for in such suit; but if and in so far as they are not provided for in that suit they may be added to his costs incurred in the interpleader suit.

4. Procedure  at first hearing.- (1) At the first hearing the Court may,---

a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs and dismiss him from the suit; or
b) if it thinks that justice or convenience so require retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.

(3) Where the admission of the parties do not enable the Court so to adjudicate it may direct,---

a) that an issue or issues between the parties be framed and tried and
b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff,
and shall proceed to try the suit in the ordinary manner.

5. Agents and tenants may not institute interpleader suits.- Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue then landlords for the purpose of compelling them to interplead with any persons other than persons making claim through such principals or the landlords.

Illustrations

a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A and claims them from B. B cannot institute an interpleader-suit against A and C.

b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader-suit against A and C.

6. Charge for plaintiff’s costs.-Where the suit is properly instituted the Court may provide for the costs of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way.

ORDER XXXVI

SPECIAL CASE

1. Power to state case for Court opinion.- (1) Parties claiming to be interested in the decision of any question of fact or law may enter into an agreement in writing stating such question in the form of a case for the opinion of the Court and providing that, upon the finding of the Court with respect to such question,---

a) a sum of money fixed by the parties or to be determined by the Court shall be paid by one of the parties to the other of them; or

b) some property, movable or immovable, specified in the agreement, shall be delivered by one of the parties to the other of them; or

c) one or more of the parties shall do, or refrain from doing, some other particular act specified in the agreement.

(2) Every case stated under this rule shall be divided into consecutively numbered paragraphs and shall concisely state such facts and specify such documents as may be necessary to enable the Court to decide the question raised thereby.

2. Where value of subject­matter must be stated.- Where the agreement is for the delivery of any property, or for the doing, or the refraining from doing, any particular act, the estimated value of the property to be delivered or to which the act specified has reference shall be stated in the agreement.

3. Agreement to be filed and regietered as suit.- (1) The agreement if framed in accordance with the rules hereinbefore contained, may be filed in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

(2) The agreement when so filed shall be numbered and registered as a suit between one or more of the parties claiming to be interested as plaintiff or plaintiffs, and the other or the others of them as defendant or defendants; and notice shall be given to all the parties to the agreement other than the party or parties by whom it was presented.

4. Parties to be subject to Court’s jurisdiction.- Where the agreement has been filed the parties to it shall be subject to the jurisdiction of the Court and shall be bound by the statements contained therein.

5. Hearing and disposal of case.- (1) The case shall be set down for hearing as a suit instituted in the ordinary manner, and the provisions of this Code shall apply to such suits so far as the same are applicable.

(2) Where the Court is satisfied, after examination of the parties or after taking such evidence as it thinks fit,---

a) that the agreement was duly executed by them,---

b) that they have a bona fide interest in the question stated therein and

c) that the same is fit to be decided,

it shall proceed to pronounce judgment thereon in the same way as in an ordinary suit and upon the judgment so pronounced a decree shall follow.

ORDER XXXVII

SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS

[513]1. Application of Order - This order shall apply only to the High Court [514][to the District Court and to any other Civil Court notified in this behalf by the High Court.]

Court Decisions

Suit for damages outside the purview of order 37 CPC. 1992 CLC 1913 KAR at 1915-A

Directors hold fiduciary relationship qua the company. PLD 1992 SC 276

Suit on Negotiable instrument. A suit based upon negotiable instrument in which summons have been issued in Form No. 4 Append 9B of Civil Procedure Code defendant was not entitled to appear or defend suit as a matter of course unless he obtains leave from Court to appear and defend suit. In default of obtaining such leave for appearance and defence, allegations in plaint shall be deemed to be admitted and plaintiffs shall be entitled to decree prayed for. Advantage in adopting procedure prescribed by  O.37, Civil Procedure Code was that defendant is not as a matter of right entitled to appear or to defend, but if he deserves to be heard he must apply to Court for permission to appear and defend within 10 days of service of summons as envisaged by Art. 159 of Limitation Act, 1908. Till such time as leave to defend granted defendant cannot even file interlocutory application in order to agitate point of jurisdiction or to ‘question transactions between parties or to challenge validity and legal effect of promissory note and crossed cheque issued by them in favour of plaintiff. PLJ  1997 Kar. 674 = 1997 MLD 1835.

For purpose of jurisdiction a court is required to accept contents of plaint as correct and legally speaking pleas raised by defendants in rebuttal or otherwise cannot be considered for declining to assume jurisdiction. From averments of case, Court had jurisdiction to proceed with suit for recovery of amount and objection to jurisdiction of Court was without merit.    PLJ 1997 Kar. 674 = 1997 MLD 1835.

 Suit for recovery of money. Defendant being served in Jail. applied for leave to appear and defend within 10 days of service effected. Petition filed before Addl ; Distt: Judge as Distt: Judge was on leave. Distt : Judge dismissed application as not filed within specified time and before proper forum. Distt : Judge forgot that under his own orders passed with reference to section 21 and 22 of Civil Courts Ordinance, 1962. he had already delegated his powers to Additional District Judge who was fully authorised and empowered to receive all such documetns in his behalf. Powers exercised by such delegatee are not confined to any normal or summary powers exercised by District Judge but are related to powers exercised by District Judge simpliciter. All powers exercised under Order 37 CPC are powers of District Judge and do fall under C.P.C. and thus can with all convenience be delegated with reference to section 21 and 22 of Civil Courts Ordinance. Orders of District Judge are patently wrong and he has failed to exercise jurisdiction vested in him. PLJ 1996 Pesh. 305 = 1996 MLD 2167

Banking Companies (Recovery of Loans) Ordinance, Appellant had claimed damages on account of challenged breach of agreement on part of respondents (Bank) in not advancing a loan. which amount appellant intended to recover through summary procedure. High Court, havingjurisdiction as a Special Court under S. 6(1) of Banking Companies (Recovery of Loans) Ordinance, 1979 in respect of a claim filed by Banking Company against a borrower or by a borrower against a Banking Company, in respect of or arising out of a loan. could not have passed a decree straightaway as the claim for damages could not be equated with a suit founded on a negotiable instrument. Plaintiffs/applicants claim for damages could be said to have arisen out of a loan. Supreme Court, further, observed that if it set aside the order of the High Court acting as Special Court on the ground urged in petition for leave to appeal that would - perpetuate injustice as the appellants might get a decree for huge amount of damages without proving the quantum of damages allegedly suffered by them on account of failure on part of respondents to advance a loan.  PLJ 2000 SC 803.

Plaintiff neither was a borrower or a customer nor he had obtained loan or finance from Bank. Plaint showed that certain sum of money was placed with Defendant-Bank by plaintiff as an investment for which Defendant-Bank issued cheques drawn on Bank’s account which were endorsed good for payment, but subsequently were dishonoured. Plaintiff, in circumstances, could not be said to have borrowed money from defendant-Bank. Mere issuance of cheques drawn on account-holder’s account and endorsed good for payment by Bank. would not amount to a transaction as contemplated by Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Suit filed by plaintiff, in circumstances, would proceed as an ordinary suit before original Civil side of High Court based on sunmary chapter of Civil Procedure Code as negotiable instrument as provided under O.37. R. 2, C.P.C. PLJ 1999 Kar. 703 = 1999 CLC 1294.

2. Institution  of  summary  suits   upon  bills   of exchange,  etc..- (1) All suits upon bills of exchange hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to time prescribed.

(2) In any case in which the plaint and summons are in such forms respectively the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter provided so to appear and defend; and in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree,---

[515][a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80 as the case may be of the Negotiable Instruments Act 1881 up to the date of the institution of the suit or for the sum mentioned in the summons whichever is less and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit; and

b) for such subsequent interest if any as the Court may order under section 34 of this Code; and

d) for such sum for costs as may be prescribed:---

Provided that if the plaintiff claims more than such fixed sum for costs the costs shall be ascertained in the ordinary way.

(3) A decree passed under this rule may be executed forthwith.

Court Decisions

Even if suit not based on negotiable instruments i.e. bill of exchange, hundi, promissory note, Special court obliged to follow summary procedure of O-37 CPC on all suits before it including suits based on mortgages of all kinds on statement of accounts. sPLD 1995 SC 362

Suit in summary jurisdiction for refund of security from defendant leave not sought within 10 days –application dismissed-suit decreed –defendant’s claim that plaintiff had embezzled large sum of money and had filed suit for recovery of same of no avail to defendant because he has still to established that plaintiff  embezzled money refund of security till defendant’s suit is decided. 1995 SCMR 45

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