Updated: Wednesday September 29, 2010/AlArbia'a Shawwal 21, 1431/Budhavara Asvina 07, 1932, at 11:23:27 PM
1. The Civil Procedure Code as amended upto date.
1. The Code of Civil Procedure, 1908 with commentary by Aamer Raza Ahmad Khan.
2. The Code of Civil Procedure with commentary by Muhammad Mazhar Hassan Nizami.
It is a procedure, which is used, in civil matters. It is in contrast of the Code of Criminal Procedure. All matters, which fall in civil cases, are the subjects of Code of Civil Procedure. Where there is violation of civil right there is remedy under Code of Civil Procedure. How the case is filed and proceeded till its finalization is dealt with Code of Civil Procedure. Neither permission nor notification is required for its application. It ipso facto (by the fact that) applies. It guides in civil cases.
Before the enactment of Banking Ordinance, the cases relating with banking were dealt in ordinary civil courts but after its enactment, special courts are constituted to deal with banking matters. Where special Court like banking, there Code of Civil Procedure is not applicable.
Code of Civil Procedure is used in execution, summoning, and divorce cases etc. If defendant goes abroad, the substitutive service of summons under Code of Civil Procedure applies.
Substituted service Order 5, Rule 20:
1. What is: Keeping out of way.
2. Circumstances: Following are the circumstances under which substituted service of summons is issued:
a) Concealing: Where the Court requires a person but he is concealing himself in the appearance in the Court of law.
b) Impossible service: Where ordinary service of summon becomes impossible due to any reason certain or uncertain.
3. Manner of service:
a) Affixation of summons: Copy is affixed at home.
b) Electronic devices: Telegram, phone, phonogram, telex, fax, radio, TV etc.
c) Urgent Mail Service: This is speedy postal service.
d) Beat of drum:
g) Any other mean:
4. Effects: Service of summons by these means is presumed completed.
Plaint should be simple and concise. Unnecessary details may make it ambiguous and may effect judgement. It should also not contain the names of witnesses. Non availability of them may cause inverse effect on case. Code of Civil Procedure was consisted on more than 500 sections before its present form. Now it contains 158 sections. All the rest are now Orders and Rules.
Since the company itself is person so it cannot be called in case through its agents like directors etc.
Pleadings are filed in Court but application is made after filing a suit. Where Judge works in the capacity of Rent Controller, in such case application is made for the redressal of grievance. Application may not involve any technicality. Rent Controller is not a Court. Application may contain argue but plaint does not. Application may also contain proofs but plaint does not. Application may not be divided into paragraphs and thus no need paragraph numbers.
Decree: A decree means an order by one in authority, a judicial decision, and an edict (decree, command, order) in law. All decrees are by definition conclusively determinative of maters adjudicated therein. It is a portion of judgement, which is actually enforceable after final decision. An order of a Court pronounced on the hearing of a suit. It is also result of judgement. How much relief is awarded is related to decree.
Order is also decision. Daily proceeding is order. Party can question on order. Final stage of the judgement is execution. Judgement determines the accrual of liability. It does not deal with the quantum of remedy. Appeal can also be made against decree. Judgement cannot be given without issuing decree. Where judge fails to issue decree, application can be made for its issuance. Following are the ingredients of the decree:
1. Portion of judgement: It is formal expression of judgement.
2. Actually enforceable: Judgement is not enforced whereas decree is enforceable.
3. Result of judgement: Where is judgement there is decree. Decree cannot be passed without judgement.
4. Contains relief: It contains the relief for which pleading is sought.
5. Appeal against decree: Where claim in plaint is not granted upto satisfaction, appeal is preferred against decree and not against judgement.
6. Pronounced actually: All the judgement is not pronounced actually but only decree, which is substantial part.
8. Shall agree with judgement:
9. Number of suit:
10. Name of parties:
11. Description of parties:
12. Particulars of claims:
Award: The finding or decision of an arbitrator upon the submission in arbitration. It must follow the submission, be certain, final, reasonable, legal, possible, and dispose of all the differences submitted to arbitration. Code of Civil Procedure is not applicable in arbitration cases.
Execution: The act of completing or carrying into effect, particularly of a judgement, effected by writs of execution, orders and notices, which compel the defendant to do or to pay what has been adjudged. Court issuing the decree is also responsible for its execution normally.
The execution of deeds is by the signing, sealing, and delivery of them by the parties as their own acts and deeds, in the presence of witnesses.
As far as criminal cases are concerned, when accused is sent in jail after conviction, it is execution of judgement. If the accused is acquitted, his handcuffs are removed. It is also execution whatever is adjudged.
Mesne (intermediate) profits: Persons wrongfully deprived of the corpus or usufruct of property are entitled to claim compensation for such deprivation. Such compensation, which is awarded against persons in wrongful possession of property, is known as mesne profit, and is claim-able only by a person, entitled to actual possession of such property.
Person having wrongful possession can only claim the costs incurred to improve the property during wrongful possession.
Judgement: The decision or sentence of a Court in a legal proceeding. Also the reasoning of the Judge which leads him to his decision, which may be reported and cited as an authority, if the matter is of importance, or can be treated as a precedent.
The Code of Civil Procedure can be divided into three major parts, i.e., pre trial portion, trial, and post trial portion. Code of Civil Procedure is a code, which is used right from beginning to end of civil suits. It includes substantive and procedural law as well.
Case remains at pre trial stage unless Court occupies it. Another notable thing in Code of Civil Procedure is that its sections must be connected with Rules and Orders. Order is just like chapter. Rules are sections of the Orders. Section is parent legislation. Sections and Rules must be agreed. Section is superior to Rule. Court cannot change section but interpret divergently. Section can be declared bad if it varies from constitution. Once a time Government of Punjab had enacted a law granting Supreme Court to hear appeal. It is also notable that no one authority can grant power to Supreme Court for try of cases. Only constitution can grant such power to Supreme Court.
Negligence of lawyer is the negligence of the party. It is not excusable at all in Court. Although amendment in pleadings is allowed at any stage of proceedings but substantive amendment is not allowed. Only correction of typographical is allowed.
Pre trial stage: This stage contains the following topics:
1. Name of the parties: There are always two parties in a civil suit. They must be proper and competent parties. Names of the parties must be entered in pleading. They must have right to file suit. Party must be aggrieved or sharer in case. It is not legal duty of lawyer to enquire about the exact name of party but it is his moral duty to tell party if she has no legal right to sue. Irrelevant party cannot file suit. Party who can file suit is termed proper or relevant and party incompetent is termed as improper or irrelevant party.
2. Infringement of right: Cause of action arises when legal right is violated. If there is no violation of right or injury caused then there is no cause of action. If you have no right to sue then case cannot be pleaded.
3. Jurisdiction: The Court where the case is
to be brought must be competent to hear the case. This is place where the cause
of action arises. If you are schoolteacher in
Territorial jurisdiction means where jurisdiction remains on a particular area of locality. District is divided into small areas and particular area is given to Judge, which is called territorial jurisdiction.
Original jurisdiction for the cases of intellectual property and negotiable instruments is District Court.
4. Name of Court: Pleading is started with the name of Court competent to hear the case. She must have original jurisdiction. Preliminary power of hearing of suit is called original jurisdiction. Pecuniary jurisdiction must be adhered.
5. Defendant: The party against whom suit is filed must be necessary or relevant. Irrelevancy put the case into end.
6. Title of suit: According to the subject matter title of suit is determined. Code of Civil Procedure has provided certain specimen of titles.
7. Principal amount: For the purpose of Court fee principal amount is provided in suit. Court fee is charged @ 7.50% with upper limit of Rs. 15,000/-. Court fee for the amount above Rs. 200,000/- remains Rs. 15,000/-. Court fee is not payable for the cases pecuniary value of which is upto Rs. 25,000/-.
8. Frame of the suit: It is the factual matter upon which suit is filed. It has not particular format but it should be based upon true facts so that the defendant can answer them.
9. Body of plaint: It also comes under the frame of suit. It includes cause of action arose.
10. Jurisdiction: It is a Court having power to entertain the suit institution in first instance.
11. Court fee: It is paid according to the value of subject matter.
12. Verification: It is integral part of the pleading without which pleading is not entertained.
Jurisdiction in case of immovable property: Jurisdiction of Court lies where property is situated, in case of immovable property. Residence of plaintiff or defendant becomes irrelevant. If property is scattered then all courts in that areas would have jurisdiction.
Jurisdiction in case of moveable property: Convenience of defendant is taken into consideration while determining of the jurisdiction of Court. Residence or work place of defendant is kept in view. Convenience of plaintiff becomes immaterial in such a case.
Adjudication in the absence of lawyer: It is well established ruling of Supreme Court that lawyer may be engaged in different courts therefore Court cannot adjudicate case in early morning proceedings. Reasonable time must be given.
Doctrine of res judicata u/s 11: A thing adjudicated is received as the truth. A judicial decision is conclusive until reversed, and its verity (truth, quality of being true or in accordance with fact) cannot be contradicted. Res judicata presupposes that there are two opposing parties, that there is a definite issue between them, that there is a tribunal competent to decide the issue, and that within its competence, the tribunal has done so. Once a matter or issue between parties has been litigated and decided, it cannot be raised again between the same parties, but other parties are not so bound. It applies on the cases, which have been decided. Ex turpi causa non oritur action means no case against immorality is maintainable. An action does not arise from a base cause, e.g., an illegal contract is void.
Doctrine of res sub judice u/s 10: If a case is already pending in a Court or any legal forum, case instituted latter shall be stayed/stopped. First in time shall prevail. If the ex parte judgement is given after the case has already been instituted, ex parte judgement shall be set aside. The reason of the setting aside is that the case was already proceeding in the competent Court. There was no reason to try it again during its pendency with the same facts in issues. Trial Court stays the case in the following cases:
1. Same parties:
2. Same title:
3. Same relief:
4. Already instituted:
5. Pending in other Court:
6. Other Court has jurisdiction:
7. Competency to grant relief:
8. Institution in Supreme Court:
How it is helpful:
1. Prevention of multiplicity:
2. Speedy relief:
3. Assurance of justice:
4. Inexpensive justice:
5. Time saving:
6. Proper attention of parties:
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.
Legislation by adoption: Where an authority adopts the law prescribed for another case, it is called legislation by adoption and it is allowed.
Jurisdiction: With the passage of time, jurisdiction of Court decreases. There was a time when original jurisdiction was High Court, and when the High Court was overcrowded then original jurisdiction came down to District Court. Later on original jurisdiction came to Civil Judge – Grade I, then Civil Judge – Grade II, and at last Civil Judge – Grade III. It is mere administrative adjustment.
Now the law on the jurisdiction is that case should be instituted in lower most Court so that higher courts may not be overcrowded.
By jurisdiction is meant the authority, which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limit of this authority is imposed by the statute, charter, or commission under which the Court is constituted and may be extended or restricted by such like means imposes the limits of this authority. If no restriction or limit is imposed the jurisdiction is said to be unlimited.
Jurisdiction for immovable property: Where the matter under litigation is related with immovable property, original jurisdiction of litigation vests to Court where the immovable property actually situates.
Jurisdiction for scattered immovable property: Where property
situates in different zones and more than one litigation started at once,
latter litigation shall stop when the second litigation is brought into the notice
of the Court. Jurisdiction for scattered immovable property lies in different
courts of the local limits. All the simultaneous litigations shall be
transferred to the Court where case is instituted very first time. This
jurisdiction is applicable for the purpose of property situated in
Convenience of defendant: It is basic and fundamental principle that while instituting the lawsuit, convenience of the defendant is taken into consideration rather than plaintiff. Plaintiff may use option in different cases but the convenience shall remain vest to defendant either for immovable or moveable property cases.
Uncertain jurisdiction: Where ascertainment of original jurisdiction becomes impossible or uncertain regarding immovable property, Court must record statement of uncertainty.
Jurisdiction with regard to cause of action: Tort may be personal
such as defamation or with regard to property, e.g., trespassing, replevin,
detinue, or trover etc. Jurisdiction for the purpose of movable property or
torts may lie to the Court where cause of action arises. If defendant resides
Withdrawal of case does mean withdrawal of case by Court and then Court transfers the case to another Court at the convenience of defendant. Withdrawal is executive function while transfer is based upon withdrawal.
Jurisdiction for more than one defendants: Where there are more than one defendants in a similar case and reside in different places, case either can be instituted at their place of residence or in one Court with the consent of all defendants. Suit can be splited in different areas if they do not give unanimous decision or give varied consents.
Objection as to jurisdiction: Under normal circumstances any appellate or revisional Court cannot allow objection as to the jurisdiction of Court.
When objection can be allowed: It is well-established practice of law that objection as to jurisdiction should be raised very first time in proceedings. Earliest possible opportunity is the right period to object the jurisdiction of the Court.
How objection can be raised: There are three methods by which objection as to jurisdiction can be raised. They are stated as follows:
1. Verbal on appearance: Defendant may raise this objection at very first time in preliminary appearance. He may object by oral statement. Court may either order him to submit a separate application or may take suo motu action upon such statement. This objection may also put in written statement.
2. Filing of informal application: Defendant may file an application stating the objection on jurisdiction of the Court. This application does not require any special format to be fulfilled. Mere conveyance of the fact regarding non-jurisdiction on any appropriate cause is sufficient ground to reject the case.
3. Filing of formal application: Above application may also be filed under Order 7, Rule 11. Lacking cause of action and original or territorial or pecuniary jurisdictions, wrong suit valuation, wrong affixation of stamps, time barred case, are the sufficient grounds to get plaint rejected.
When the objection is allowed at later stage: As stated earlier that in normal circumstance once objection as to jurisdiction is omitted cannot be raised at any later stage. But it may be allowed upon the arising of question of fundamental or primary importance. Court of latter stage may ask certain questions to get satisfaction to ascertain the real need to admit the objection on jurisdiction, which has been omitted once. Cessation of chance of appeal is good ground to put objection on jurisdiction. Without prejudice is also good ground to get the order set aside.
Mistake of lawyer is also mistake of client. But if lawyer gives in writing that he had wrongly assessed the jurisdiction of the Court and there is no fault of his client, Court may entertain it but not necessarily.
Under decision of Supreme Court, order of the Court having no jurisdiction should be kicked out without entertaining it. Order of such Court is liable to set aside.
Trial stage: This stage includes joinder, non-joinder, misjoinder, proper party, and necessary party. It also includes parties in a suit, who may file suit, against whom suit may be filed, legal right of plaintiff, right to sue, pray for remedy, determination of legal right and its violation.
Locus standi: A place of standing. The right to be heard in Court or other proceeding. It is competency of the Court to proceed the suit.
Joinder of parties or plaintiffs: A cause of action may arise from violation of legal right for more than one parties. When more than one parties, join in a single suit, it is called joinder of parties. This situation arises when common right of persons is violated. They may sue severally or independently, but their joining in a single suit causes convenience not only to parties but to Court, as well. Where common right exists, it is advise-able to join in a single suit rather than separate suits.
All persons may join in one action as plaintiffs or defendants where the claim is in respect of the same transaction or series of transactions and common question of law or fact arises.
Necessary party in suit: Plaintiff and defendant are the necessary parties without whom case is not maintainable. If joinder is necessary and party has not joined, case shall remain non-maintainable. Her joining is necessary. Any party whose joining may cause effect the case either positively or negatively in favour or against of plaintiff or defendant is supposed necessary party. He must join the suit to give effect its conclusion. Case may be rejected if the necessary party has not joined the case. She effects the case. Court may order to join her if it is necessary. It is removal of irregularity.
Proper party under Order 3: This is the party joining of whose makes the case stronger and important. Where common cause of action arises, mere one plaintiff may file suit, which shall definitely give benefit to all of the parties concerned. Joining of remaining parties is not requirement of law but they may join, if they want. Their joining supports the case. They may file suit either jointly or severally. Severely filing of suit involves huge timings and finance whereas joining in a single suit saves not only time but also money. Joining of proper party is neither fatal nor beneficial. This party may or may not join the common cause of action.
Representation of plaintiff under Order 3, Rule 2: Where plaintiff remains unable to keep himself in Court, he may appoint any person in his place. Plaintiff may give power of attorney to his agent who may appear in Court in his place. Where plaintiff has not given the power to a certain person, his presentation in Court is not acceptable being authorized agent. Where a clerk had not authority to act upon as agent, his appearance in Court is held not acceptable.
Joinder of cause of action: A plaintiff may without the leave of the Court, join in one action under several causes of action, even if in the alternative, against the same defendant including other causes of action with a claim for the recovery of land subject to the power of the Court to order separate trials where joinder may embarrass or delay the trial or is otherwise inconvenient.
Misjoinder: Where persons are wrongly joined as plaintiffs or defendants in an action, i.e., where persons are made parties who ought not to be. No action can be defeated by a misjoinder (illegal joining) or non-joinder of such parties, and the Court may of its own motion, or on application, order a party to cease to be a party.
Non-joinder: Where a party does not join the case while its joining is necessary is called non-joinder of the suit. Her non-joining makes case defective. Effective decision cannot be given without her joining.
Power of Court: Court has power that at any stage of the pleading either beginning or before judgement, may pass an order for joining or non-joining of the parties. This may happen, either on application of the party or its own motion, i.e., suo motu. Application can be moved to Court stating please strike out the party being misjoinder.
Every suit must include all possible claims. Once you have waived off your right, you cannot claim it again except where permission of Court has been obtained.
Where due to certain reason claim cannot be prayed, all the reasons must be mentioned in plaint for not claiming them. Leave of Court permits its reopening. If plaintiff cannot afford Court fee for larger claim, he may confine his claim upto Rs. 24, 999/- with reasons so that he may claim it again whenever he will afford Court fee. Relinquish (extinction or abandon) of his right without permission of Court will lose his right permanently. He cannot lodge case again. Leave of Court enables person to reopen the case, whenever is required. Due care must be taken while filing the suit. It must contain due reservations for future claim.
Frame of suit: Suit should be framed in such a way so that future litigation may be eliminated. Where there are same parties and same causes of actions must be joined in a single litigation so that proceedings may be minimized for different parties on similar causes of action.
It should be kept in mind that relinquishes (extinction or abandon) the claim debars its subsequent claim. All relevant claims must be prayed in a single litigation. There is an exception to this rule. Where claims are extinguished with the permission of Court due to any justifiable reason, its subsequent litigation is permitted.
Test for joining: The sole test for joining of the parties and causes of actions is that whether the parties may institute independent suit for each cause of action. If so, it may be joined in a single litigation. Where party misses to join the similar litigation shall be debarred to claim subsequently. Convenience is also a test.
Where more causes of action are not joined which may be joined, it shall be presumed that party has relinquished the claim therefore it is advise-able that maximum possible causes of actions must be joined. If relinquishment is necessary, it is should be made with the leave of Court so that right of subsequent litigation may be reserved.
Non-joining of either party or causes of actions is presumed waiver off of their right thus future litigation extinguishes. Object of this is to minimization of multiplicity of litigation.
If party was required to claim certain rights but party fails to do so, it shall be presumed that party has given her right up.
It is open to party to withdraw his plaint as a whole or partly at any stage of proceedings.
Where rent of three years’ is due and petitioner prays only for the rent of one-year, it means that he has relinquished his claim of two years thus he is not competent to claim it subsequently, except where he has relinquished claim with the leave of Court. The word “claim” implies what is demanded while “relief” means what Court grants to plaintiff. Plaintiff cannot be given more than what he has asked for.
Presumption of truth: Courts proceed all matters before lawyers. Presence of party is not necessary where law allows. Party cannot deny the presumption of truth. An individual cannot argue against the proceedings of the Court. Why the plaint is instituted in the Court? It determines the right of individuals.
Statement passed in Court either by Judge or advocate is final in both of the cases, i.e., civil and criminal. Verbal statement is more important than written statement. Written statement comes later. Advocate whatever states at bar cannot be denied merely on the ground that plaintiff or appellant or petitioner was not present in Court and such statement was not passed in his presence. Statement of the party is as important as the statement of the Judge is important.
Suits by or against government: It is notable thing that where suit is brought by or against government or public officer, Chief Secretary or Chairman of the department or Collector is made party on government side in both cases either provincial or central.
Requirement of notice: Case against government requires notice prior to two months u/s 80. This notice is mandatory (compulsory).
This notice may be delivered personally or may be left at the office.
Where case is to be brought against central government, such notice is served to Secretary of that government.
Where case is to be brought against provincial government, such notice is served to Secretary of that government or the Collector of the District.
Where case is brought against Railway, such notice is given to General Manager of the Railway concerned. This is considered case relating to central government.
Where party is public officer, such notice is delivered to him in person or left at his office stating full particulars.
1. Statutory requirement:
b) Settlement out of Court:
c) Time saving:
d) Preparation for contest:
e) Cost effective:
f) Right to sue:
g) Right to get claim:
h) Reconciliation of claim:
Written statement: Court permits government to submit written statement within three months.
Proceedings upon notice: Some time such notice saves the time of government offices being liable to compare with actual position which can be traced out from the face of record available with the government office.
For instance, if a person institutes a suit against government that government has not paid to him salary for last six months, it can easily be checked out from the record. Upon such verification, suit is concluded. Notice brings convenience in such suits.
Exemptions available in suit against government: Law provides certain exemptions to government in personal appearance and arrest.
Arrest: Government officer cannot be arrested exception in the execution of decree.
Attachment: Property of government officer cannot be attached except in case of execution of decree.
Where it is obvious from the intention of defendant that defendant will keep himself absent by leaving the country, Court can either arrest him or order to provide sufficient security to ensure his presence within local jurisdiction of the Court.
S. 94 of Code of Civil Procedure is relevant for the provision of security to ensure presence of defendant. Before passing decree, property can be attached where there is suspect of escape of judgement debtor from local jurisdiction of the Court. Dowry (the money or goods that a woman brings to her groom) can be attached before the issuance of decree upon the suspect of its conveyance or transfer or sale.
In the suit of maintenance, immediate interim order can be granted. Arrest or attachment of property to prevent the disobedience of the orders of the Court can take place. Disobedience causes the frustration of civil suits thus attachment or arrest becomes imperative. As far as government officer is concerned, he cannot be arrested until or unless his department determines. Respect of party is also important as the respect of the Court is.
Where guidance of the law is not available, reasonability serves the purpose to fill the space in the best interest of justice.
Inter-pleader suit u/s 88: An inter-pleader suit is one in which the real dispute is between the defendants only and the defendants inter-plead, that is to say, plead against each other instead of pleading against the plaintiff as in an ordinary suit. In every inter-pleader suit there must be some debt or sum of money or other property in dispute between the defendants only. And the plaintiff must be a person who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to such of the defendants as may be declared by the Court to be entitled to it.
Object of the inter-pleader suit is to determine and convey property to right person. Person who conveys the property has right to receive cost of maintenance incurred during the course of occupation.
Order 35 is also related with procedure on inter-pleader suit. It deals whether how suit shall be instituted, who shall institute, how Court shall determine the claim in favour of defendants, on what grounds suit can be dismissed, and how the costs are determined.
When a person is in possession of property in which he claims no interest, but to which two or more other person may claim, and he, not knowing to whom he may safely give it up, is sued or expects to be sued by one or both, he can compel them to inter-plead, i.e., to take proceedings between themselves to determine who is entitled to it.
For example, A has a possession of certain property. B and C have claim in such property. A is required to invoke the door of Court to obtain order to declare whether who has better right of ownership. When claimants are left to decide their right, that is called inter-pleader suit. Court declares their right. Adverse claim can be prayed to avoid the conveyance of property.
Opinion of Court u/s 90: Where two or more persons jointly are agreed to refer their dispute to Court to get its opinion, Court is bound to determine their dispute. Court gives its opinion.
Opinion and decree are different. S. 96(2) applies. No appeal lies against the consent decree while appeal may lie against original decree. Suit can be re-opened against consent decree upon mutual agreement of the parties.
Consent decree and appeal u/s 96(3) and Order 23, Rule 3:
1. Generally no appeal:
2. Why: It determines rights.
3. Where appeal is allowed:
a) Want of jurisdiction:
b) No compromise:
c) By mistake:
d) Where one party admits:
g) Undue influence:
Public nuisance u/s 91: Violation of the use of public right is public nuisance. It is crime u/s 268 of Pakistan Penal Code.
Example of public nuisance: A person keeps his horses and wagons standing for an unreasonable time on the high way.
If some particular or special damage is proved then it becomes actionable and gives rise civil action. A man falls down in a trench dug left open and unfenced. No light was placed as security measures. His wrist and other portion of body received injury. Held negligence on the part of defendant and liable to pay damages. Appeal in High Court dismissed and upheld the decision of the trial Court.
Consents of the Advocate General are necessary to bring suit against public nuisance. Where special damage is caused to party, consents of Advocate General become unimportant. Government appoints Advocate General in province and Attorney General in centre.
1. Types of nuisances:
2. Effect of two or more persons:
3. Permission of Advocate General from province:
4. Written consents:
5. Where damage is caused: No need to get permission of Advocate General. It extinguishes the need of written permission of Advocate General.
6. Where damage is not caused: Permission from Advocate General is required.
9. Other relief:
Supplemental proceedings u/s 94: Court can do everything to ensure
the justice in compliance of law. Orders 38 and 39 are relevant to this
1. Issuance of warrant: Where it becomes into the knowledge of Court the defendant may leave the jurisdiction of Court, Court may issue warrant of his arrest to ensure his presence in Court for the end of justice.
2. Demand of security: Where it reveals from facts that defendant may defeat or frustrate the call of Court, Court may demand security from defendant to get assurance of his presence in Court at due time.
3. Civil prison: Where defendant fails to furnish security being surety of his presence in Court, Court may order for his civil prison until defendant furnishes sufficient security.
4. Temporary injunction: Court may issue temporary injunctions to keep him in the jurisdiction of Court for appearance as and when required.
5. Attachment of property: Where defendant fails to comply with the orders of Court for the provision of security and defeat the purpose of temporary injunction, Court may attach his property and may sale.
6. Appointment of receiver: In order to keep the property of defendant in the custody of Court, Court may appoint receiver for maintenance and subsequently its sale.
7. Interlocutory order: Where Court thinks fit and proper may issue interlocutory orders.
8. Any other order, which is reasonable: Court may pass any order, which thinks fit for the end of justice.
First appeal u/s 96: First appeal lies in the Court competent to hear the appeal. Grounds of objection must be such as arise from the pleadings and evidence, and are necessary for the decision of the suit. The grounds must be stated briefly and concisely and no legal arguments must be set out therein. Grounds of appeal can be described as under:
1. The judgement or decree of lower Court is contrary to law.
2. The judgement or decree of lower Court is against fact.
3. The judgement or decree of lower Court is contravened to law and fact.
4. The Court below has omitted to determine any material points.
Second appeal u/s 100: Second appeal lies in High Court. High Court only determines the question of law and not the question of fact. It is instituted against the decree passed in appeal. Grounds of appeal can be described as under:
1. The decision is against either the law or usage of the country for time being in force.
2. The decision has omitted some material facts of law having the force of law.
3. The substantial error or defect in the procedure produced error or defect in the decision of the suit upon the merits.
Powers of the appellate Court u/s 107: Appellate courts have certain power for the end of justice such as:
1. Decision or the judgement is upheld finally.
2. To reverse the judgement/decree of the lower Court. Appeal is accepted and decree or judgement is set aside.
3. To frame additional issue in case and refer it to the Court below for trial.
4. To direct the lower courts to take additional evidence in the case. The case is remanded to lower Court for retrial.
5. Modification is partially admitted and the rest is dismissed.
6. Remand of case:
7. Powers of original court:
8. Uphold judgement:
9. When jurisdiction then original:
10. Reduce penalty:
11. Enhance penalty:
12. Annul penalty:
Time limit for appeal: Time limit for appeal is three months from the date of the judgement.
Third appeal u/s 109: Third appeal lies in Supreme Court. Grounds of third appeal can be summarized as under:
1. Where the value of the suit is Rs. 50,000/- or upward.
2. Where the amount of decree and claim is varied.
3. Where High Court certifies that as to the constitution substantial question of law is involved.
Contents of the final judgement Order 41, Rule 31: Appellate Court gives its judgement in writing including:
1. All the points for determination.
2. Decision on the points.
3. Reasons of the decision.
4. Relief for which appellant is entitled.
Provisions of copies of final judgement: In civil suits copies of judgement are provided on cost whereas the copies of the judgement are provided free of cost in criminal cases. They are also sent to lower Court of judgement.
Grounds of additional evidence or appeal Order 41, Rule 27:
1. Generally: It is not permitted in general.
a) Refusal to admit evidence: Original court has omitted to refuse the evidence.
b) Appellate Court desires witness:
c) Appellate Court desires document:
d) Permission of Court:
e) Recording of reasons:
f) Any other substantial cause:
g) Subsequent event:
Reference u/s 113: The decision of a question by a referee. Any lower Court may refer points for determination to its superior Court. Although this is duty of the every Court to decide the case after getting through the depth of the case, but some times assistance of the higher Court is sought. And higher Court may also put an important question to High Court to get its opinion.
Review u/s 114: It means the reconsideration of the judgement on the application of a party dissatisfied. Review is made by the Court, which passes the decree or makes the order. Aggrieved person may institute appeal for review:
1. Where appeal is not preferred: Where decree or order from which an appeal is allowed but the party aggrieved has not preferred the appeal.
2. Where appeal is not allowed: Where the Code of Civil Procedure does not allow appeal for such decree or order passed by the Court.
3. On the decision of
4. Only aggrieved party:
5. Objection on decree:
6. Objection on Order:
7. Where appeal is allowed:
Revision u/s 115: The jurisdiction exercised by the High Court under this section is called Revisional Jurisdiction. Conditions for the application of revision are as follows:
1. Subordinate Court appears to have exercised a jurisdiction not vested in it by law.
2. Subordinate Court has failed to exercise a jurisdiction vested in it by law.
3. Such Court has acted in the exercise of its jurisdiction illegally or with material irregularity.
Above are the cases in which High Court can interfere. High Court cannot interfere in all other cases. Revision lies in the following cases:
1. Jurisdiction without law:
2. Where jurisdiction fails to exercise:
3. Illegally exercise:
4. Material irregularity:
5. Case decided:
6. Decision of subordinate court:
7. Extinction of appeal right:
8. Code of Civil Procedure violation:
9. Substantial error:
Exemption of certain woman from personal appearance u/s 132: Where parda observing lady cannot appear in Court due to customs of the country, she cannot be compelled to appear personally in the Court. Accused also can apply for the exemption from appearance on certain reasons such as bodily infirmity, old age factor, or imprisonment. She has to prove that upto what extent she is parda observing. Where she is ultra modern lady, who wears skirt and visits Liberty Market etc., cannot keep away herself from appearance in Court. Generally law leans in favour of women.
U/s 133 also Provincial Government may exempt any person from the personal appearance in Court keeping in view of the rank of the employee. Government prepares the list of such exempted persons with residential addresses and provides to High Court and such subordinate Court in whose jurisdiction they reside.
U/s 135 Judges and Magistrates are also exempted to arrest in civil suits while returning from courts or while presiding in Court.
1. Personal appearance and consequence Order 9, Rule 1 to 12:
a) Where party applies for summoning:
b) Where law requires:
c) Where important question is involved:
d) Where remedy requires:
e) Where justice requires:
e) Special cost:
f) Second summon:
Language of subordinate Court: English is the language of subordinate courts but upon request and payment of cost, translation may be provided to the party. Some time litigation is started in English, continuous in Urdu, and ends in Punjabi. It is against the decorum of the Court. To maintain the discipline of the Court is the duty of Judge concerned. It increases the respect of Court.
Judges regulate the proceedings of the courts. It is the duty of the Court to streamline the proceedings.
Inherent powers of courts: S. 151 of Code of Civil Procedure provides the inherent powers to civil courts to exercise such powers which are necessary to ensure justice and which are necessary to prevent abuse of the process of the Court. This power is not available in criminal side. Only civil courts enjoy this power. Since Code of Civil Procedure is not fully exhaustive, therefore, Court in many cases, where the circumstances require it, acts upon the assumption of the possessions of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists.
Circumstances in which Court may exercise its inherent powers: Following are the circumstances in which Court may exercise its inherent powers:
1. Abuse of process: Where the Court by employing a procedure does something that it never intended and there is miscarriage of justice, the Court possesses inherent powers to rectify such mistake, as an act of Court should not prejudice any person.
2. Lack of provisions: Codified law is never fully exhaustive in nature at all. It always lacks sufficient provisions. Where law lacks, inherent powers of Court fill this space.
3. Non-Islamic provisions: Where law provides provisions in contravention to Islamic Injunction, Court can exercise its inherent power to avoid its un-Islamic application.
4. Where substantial justice is unavailable: The inherent powers can only be exercised where there is no express provision of law is applicable to the case, and as such where an express provision of law is applicable, the Court will not invoke its inherent jurisdiction.
5. Consolidation of suits: Court may pass order for the consolidation of suits where more than one suits of the same nature are pending at different forums so that they may be discharged at once.
6. Abuse of power:
7. End of justice:
8. To prevent abuse of power:
9. Re-hearing and ex-parte decree:
10. Refund of fee excess paid:
11. Making good of deficient court fee:
12. Rectification of error in Order:
It must also be noted that Court has no inherent power to do, which is prohibited by this code. Thus, a Court has no power after the judgement is signed to alter or add to it as to do so would be in direct contravention of the provisions of Order 20, Rule 3.
Amendment of judgements, decrees, or orders u/s 152: Court is not free from error and may commit error or omission while making judgement, decree, or order. There are only two cases in which Court can amend or vary a decree or order after it is drawn up and signed, namely:
1. Inherent power: Under its inherent powers, when the decree or order does not correctly state what the Court actually decided and intended.
2. Clerical error: Under this section, where there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission.
3. Arithmetical error:
5. Suo Motu:
6. On application:
7. Application u/s 100:
8. Review u/s 114:
How the amendment in judgement is made: U/s 152 Court can use its powers to amend or alter the judgement where it discloses any mistake or error. There are two ways under which deficiency can be made good:
1. At own motion: Where Court find any error on the face of record can modify it without effecting the substantive part of the judgement at own motion.
2. On application: Where party applies for the rectification of error, Court may entertain it under its powers and may rectify it.
Inherent power to amend decrees and orders: Every Court has an inherent power to vary or amend its own decree or order so as to carry out its own meaning. In so doing, it does nothing but exercise a power to correct a mistake of its ministerial officer by whom the decree or order was drawn up, it only insists that the decree drawn up in the office of the Court should correctly express the judgement given by the Court. It would be perfectly shocking if the Court could not rectify an error, which is really the error of its own minister. When an error has been committed, if is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce.
Illustration: A sues B for Rs. 5,000/- and interest. The judgement is for Rs. 4,000/- without more. The decree is drawn up in accordance with the judgement. A then applies to amend the decree by adding an order for payment of interest. The application must be refused, for the decree does not add variance with the judgement. If A is aggrieved by the decree, the proper Court for him is to apply for a review of judgement or to appeal from the decree.
A and B enter into an agreement for partition of certain properties. B fails to convey to A the properties of A’s share. A sues B for specific performance of the agreement and a decree is passed declaring only that “A is entitled to specific performance of the agreement”. The usual form is to declare that “agreement ought to be specifically performed, and the Court both order and decree that the same be specifically performed (i.e., both by A and B)”. The decree may be amended so as to put it in the usual form; (In the above case, the amendment was necessary, for the decree as drawn up did not contain any direction to A to convey to B the properties of B’s share, but declared only that A was entitled to specific performance.)
A sues B and C for Rs. 5,000/-. The judgement awards Rs. 5,000/- to A “as prayed” (i.e., as against B and C). B draws up the decree so as to render amount payable alone. The decree may be amended and brought into conformity with judgement.
Failure in filing written statement under Order 8, Rule 10: When Court fixes the date for filing the written statement and party responsible fails to do so within time stipulated, is liable to either strike off or passing of new order, as Court thinks fit. Court attains the right to pronounce the judgement against defendant. It is to keep in mind that this right of Court is not available in all cases. This provision of law is applicable in certain cases.
Some time Court imposes cost to parties in order to prevent the abuse of process. Process in Court is not to be taken lightly and non-seriously. It is a forum of judgement. Wrong use of this forum may cause failure in declaration of rights and pronouncement of fair judgement. Court is duty bound to ensure the decorum of Court by every possible mean. Courts ensure the end of justice and prevention of abuse by this power. Court may do anything whatever she wants to perform its functions.
Institution of suits u/s 26 and Order 4: Section 26 and Order 4 are identical so far as institution of suits is concerned. Every suit is instituted by presentation of the plaint in manners prescribed. Order 5 and 6 prescribes the procedure to present plaint for the institution of suit.
Pleading is a mother of every case and every pleading contains:
1. Plaint (Ó§f¿ ÔÌ§e Øyj§): It is complaint against defendant and its originator is called plaintiff.
2. Written statement (îÎ¼§ B§f¿ çAkA ÔÌ§e LAÌU): It is reply of plaint. Its maker is termed as defendant.
3. Issues (PBÈÎ´ÄM): Varied points of plaint and written statement are called facts in issues.
4. Evidence (PeBÈq): Support of facts in issues produced by both plaintiff and defendant is called evidence to prove or disprove their claims.
5. Arguments (SZI): It is a stage of suit or case after evidence and before judgement. Both parties discuss their claims.
6. Judgement (î¼vÎ¯): It is a conclusion of the suit or case.
First appeal lies in the Court of District Judge. Second appeal lies to High Court whereas final appeal lies to Supreme Court.
1. Plea (±³Û¿): It is a charge or answer of charge.
2. Plead (BÃj· sÎ‚): To plead means to address the Court on behalf of either the plaintiff or the defendant.
3. Pleader (i•Î¼‚): He is advocate who appears in the Court of law.
4. Pleading (BÃj· sÎ‚ ±³Û¿): Pleading therefore would mean statement-making acquisition of allegation and replies thereto made in a legal action.
Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.
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.
Written or printed statements delivered alternately by the parties to one another, until the questions of fact and law to be decided in an action have been ascertained, i.e., until issue is joined.
First Appeal (District Judge)
Second Appeal (High Court)
Third and Final Appeal (Supreme Court)
Above chart shows the proceedings and at any stage Court may (discretionary) permit either party to alter or amend the plaint or written statement. Application is made to the Judge concerned for alteration, which must be bona-fide and not scandalous, mala-fide, or prejudice.
Plaint under Order 7, Rule 1: The plaint contains the following particulars:
1. Name of Court: Every plaint must contain the name of Court in which plaint is to be brought.
2. Particulars of plaintiff: Name and place of residence of the plaintiff is described.
3. Particulars of defendant: Name and address of the defendant whichever is provided.
4. Particular of second defendant: In the suits against government, minor, or inter-pleader suits, always two defendants are entertained.
5. Statement of next friend: Where plaintiff or defendant is minor, statement of his next friend is included in the plaint.
6. Facts of the issue: The plaintiff must give such particulars as will enable the defendant and the Court to ascertain from the plaint whether in fact and in law the cause of action did arise as alleged or not. The plaintiff’s mere statement that it did arise or that he has a good cause of action is useless for this purpose.
7. Jurisdiction of Court: In which Court plaint is filed must have power to proceed the suit. Normally the place of residence of defendant is taken into consideration for filing the suit.
8. Relief clause: Plaint without pray for relief is useless. Where plaint lacks pray no remedy is granted.
9. Set off clause: Where plaintiff wants to set off or relinquish claim, must state in plaint otherwise plaintiff shall lose the remedy.
10. Court fee: 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.
Rejection of plaint under Order 7, Rule 11: Following are the grounds in which plaints are rejected:
1. Where plaint does not disclose a cause of action: It is obligatory upon the Court to reject a plaint if it did not disclose a cause of action, and its existence is to be discovered from plaint only.
2. Where the relief claimed is undervalued: If the relief claimed is undervalued and the valuation is not corrected within the time fixed by the Court the plaint must be rejected and such rejection is a dismissal of the suit, though the plaintiff may present a fresh plaint under Order 7, Rule 13.
3. Where a plaint is written upon paper insufficient stamped: The following points are to be noted in connection with this clause:
(1) Where a plaint is written upon paper insufficiently stamped the Court is bound to give the plaintiff time to make good the deficiency. Reasonable time must be allowed after the Court has decided that the Court fee paid is insufficient and within the time allowed, if the plaintiff cannot pay, he may apply to continue the suit as a pauper.
(2) If the plaintiff fails to supply the requisite stamp paper within the period fixed by the Court, the plaint may be rejected under this rule, even after it has been numbered and registered as a suit. The reason is that the power to reject a plaint under this rule is not exhausted when the plaint has been admitted and registered.
(3) A plaint is presented on the last day allowed by the law of limitation. It is written upon paper insufficiently stamped. The plaintiff is ordered to supply the requisite stamp paper within a week. The order is complied with on the fourth day after the date of presentation of the plaint. This would necessarily be after the expiration of the period of limitation prescribed for the institution of the suit. Can the plaint be admitted under these circumstances? Under the code it can be.
4. Suit barred by any law: Where a suit appears from statements in the plaint to be barred by the law of limitation but the plaint is not rejected when presented, the Court may in proper case allow the plaint to be amended at the hearing. Where a suit is brought against the Secretary of State without giving the notice required by S. 80, the plaint should be rejected under this code.
5. Where no appeal lies:
7. Wrong addition of plaintiff Order 21:
8. No resjudicata:
9. Claim undervalue:
10. Failure in correction:
Dismissal of plaint:
1. When case is not proved:
2. Conclusion on merit:
3. Appeal lies:
Misjoinder, non-joinder – explanation and its complications Order 1, Rule 9 and 13:
1. Mis-joinder: He is irrelevant person whose joining is illegal.
2. Power of court to cease party:
3. Non-joining: Where no one joins and effective decision cannot be given. It is non-joining of the necessary party.
4. Power of court: Court may include or exclude any party at any stage of pleadings.
5. Way to use power:
b) Suo motu:
a) No decision:
b) No rights:
c) No justice:
d) Dismissal of suit:
Examination of parties by the Court under Order 10: There are always two parties in civil cases. They may either be plaintiff and defendant; appellant and respondent; or petitioner and respondent. Both parties allege against each other.
For example, A advances loan to B for Rs. 10,000/- on a certain date by an properly executed promissory note, signed and witnessed. B neither pays back the loan nor responses to A. A institutes a case against B to which B denies.
Court ascertains certain facts such as whether A has advanced loan to B, promissory note is original or forged, on which date it was executed etc. These objections are put by the examination in chief. He ascertains about the loan, date of loan, promissory note, and witnesses. He uses oath to do this. An advocate of plaintiff plays role as examination in chief.
Advocate of defendant makes cross-questions. He ascertains about the time of advance the loan, place where loan was advanced, medium of loan whether what was the denomination of the currency notes, relationship of witnesses with plaintiff, payment before witnesses or not, in what position whether sitting or standing position at the time of handing over currency, if sitting, what was the sitting mode whether chair or cot was used etc. Statement of witnesses may vary or match. Witnesses take oath before making any statement.
Muslim shall be required to repeat the, “I swear by Allah, the Almighty that I will give true evidence; and if I give false evidence, I would thereby invoke wrath and curse of Allah on me.”
Hindu shall be required to repeat the, “I solemnly affirm in the presence of Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth.”
Production, impounding (confine), and return of documents under Order 13: This Order deals with the procedure about the production of document, their retention and return. Original documents are preferred as compare to photocopies. Where photocopy is allowed it must be get copied from original one and not from copy to copy. Documents, which are not made part of record, are returned subsequently.
Disposal of the suit at the first hearing under Order 15: There are certain grounds on which Court may pronounce judgement on first hearing, for example:
1. Where parties are not concerned with any question of law or fact.
2. Where there is irrelevant defendant, Court may pronounce judgement against the irrelevant defendant and case remains in proceeding against other defendants who are at issue of either question of law or fact.
3. Where Court comes to conclusion that further arguments or evidence is not required, and immediate judgement shall not affect the essence of justice, Court may pronounce judgement at very first hearing.
4. Where parties are present in Court and have no objection in settlement, Court pronounces the judgement.
5. Where parties fail to produce evidence after issuing the summons.
Summons and attendance of witnesses under Order 16: All parties in suit present a list of witnesses in Court, whom they propose to call, not later than seven days after the settlement of issue.
The parties can be permitted by the Court to call witnesses other than those mentioned in the list so provided by the parties only on showing good cause, and if the Court grants such permission, it shall record the reasons.
Where party applies for summoning the witnesses on any reason, Court may impose cost or may demand expenses for the production of witnesses. This cost remains reasonable. These expenses are payable to person who is called to appear in Court. Court pays this amount to person. Expenses are paid to defray (to meet cost) the expenses of the detention of witnesses.
Court issues summons to call witness in Court where he is required to testify the statement. Where he commits default after commitment, cost is imposed to him to ensure his presence in Court. Salary may also be attached if he is employee. Salary may be deposited into government treasury if he continuously commits default in presence to Court. His property may also be attached, retained, sold if he commits default in presence in Court upon summons. Arrest and civil prison are also methods to compel for presence in Court. Civil prison is confined upto maximum thirty days. Court may issue summons either normal or coercive.
Powers of court to summon witnesses u/s 32 and Order 16, Rule 10:
2. Proclamation: It is issued to attend the court.
3. Production of document:
9. Dismissal of suit:
Adjournment under Order 17: Where Court thinks fit and where there are sufficient reason with prejudice or defeat of justice, Court may allow time to parties. There may be certain reasons such as absence of counsel, witnesses, or Judge. Where party makes request for next date, Court may impose cost reasonably. Engagement of lawyer in other Court is also a reason of being his absence. Court may close the evidence of defaulted party for the pronouncement of judgement. Person once defaulted may be debarred to give evidence in subsequent cases.
Judgement and decree under Order 20: S. 33 of Code of Civil Procedure is corresponding to Order 20. Where case has been heard and all the formalities have been completed, Court pronounces the judgement. Where evidence has been completed, Court fixes the time for maximum fifteen days for the arguments.
Where case has been completed, Court pronounces judgement within thirty days from the completion of such proceedings. Judgement is written and signed by the Judge making it. It remains invalid until it is signed. Judgement contains details on each issue in facts.
Withdrawal and adjustment of suits under Order 23: After institution of suit any party either plaintiff or defendant may withdraw suit. Defect in suit and any other reason which Court thinks fit, may cause adjudge the suit. Parties may institute fresh suit after removal of defects.
Where suit is withdrawn without permission of Court, withdrawing party has to pay costs to other party amount of which Court sets.
Time limitation for fresh suit Order 23, Rule 2: Extra time limit is not provided where party institutes fresh suit with the permission of Court. Court treats it first suit.
Compromise of suit Order 23, Rule 3: Where parties make lawful agreement for the withdrawal of suit and satisfy Court, Court adjudges the suit and passes a decree according to the nature of suit.
The agreement, compromise, or satisfaction contemplated by this rule may, relate to the whole suit, it may relate only to a part thereof, or it may also compromise matters that do not relate to the suit.
When the agreement relates to the whole suit, the Court must, on being invited by the parties, record the agreement, and passes a decree in accordance with the agreement, and the suit, stops there.
Where the agreement relates to a part only of the suit, the Court must, on the application of the parties, passes a decree in accordance with the agreement and the suit may be proceeded with as to the rest. But the Court is not obliged to pass a decree as soon as the compromise is recorded. In the case of a compromise of part of a suit, which did not include a party whose interest could not be separated, the Court was held to be justified in postponing passing a decree until the termination of the suit.
Commissions to examine witnesses under Order 26: In any suit in which party cannot appear before Court due to any reason permissible, i.e., pardanasheen lady, sickness, or infirmity of the party, Court may constitute a commission for examination on interrogatories on spot. Commission goes to party physically and examine his statement. Commission is constituted for the following purposes namely:
1. To examine any person in suit.
2. For local investigation.
3. To inspect and jam the accounts.
4. For the purpose of partitioning of the property.
Suits by or against minor and persons of unsound mind Order 32: Where a person is minor, in civil suit, suit shall be instituted in his own name through his next friend.
Who is minor: Every Pakistani who has not completed the age of 18 years is considered minor. In cases where Court appoints guardian for the person or property or where Court is in superintendence of the property and person, the person attains the age of majority at 21 years according to Majority Act, XI of 1875, u/s. 3. In either case whether minor is plaintiff or defendant, case is filed either through his next friend or guardian. Where guardian is not available, Court first decides his guardian and then allows the filing of suit. This step is taken to protect the interest of minor.
Who is next friend: Any person who is nearer to minor is supposed his next friend. In case of death of father of minor, mother has best title being best friend. Where mother also dies then maternal grandmother, paternal grand mother, maternal uncle, paternal uncle etc. have best rights to be next friend. Step relatives have not right being the next friend.
Agreement of compromise by next friend or guardian for the suit Order 32, Rule 7: In normal circumstance any party in suit may compromise on suit out of the Court and may inform Court to close the case. Court has no objection if parties decide the case at their own level. But as far as minor is concerned, Court has to satisfaction whether the compromise which next friend of the minor has made is in the best interest of minor. Where Court satisfies, allows next friend of minor to make compromise.
1. Suit by next friend:
2. In his own name:
3. Suit without next friend: Please pay cost.
4. Receipt of property/money with the leave of court:
5. Proceedings stayed on retirement:
Compromise without leave of Court: Where next friend compromises without the leave of Court, shall be voidable on the option of minor.
Compromise on the behalf of minor Order 32, Rule 7:
1. In bad-faith:
2. Against the interest:
4. Unlawful agreement:
5. Without leave of court:
6. After retirement:
7. After removal:
Retirement of guardian Order 32, Rule 11: Guardian may retire at any time. There are three grounds for the retirement or removal of guardian, i.e., having no interest in the matters relating to minor, death, or incapacity to act as guardian. Where guardian dies, removes, or retires during the pendency of case in Court, Court appoints new guardian in his place.
Suits by paupers (destitute, beggar, insolvent) Order 33: Any person who is pauper may institute suit with the leave of Court. He is exempted from the payment of Court fee.
Who is pauper: A person who does not possess of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one thousand rupees other than his necessary wearing apparel and the subject matter of the suit.
A person in receipt of relief under, formerly, the poor laws is pauper. A person suing or defending an action in forma pauperis.
Summary procedure in negotiable instruments Order 37: Courts do not
indulge in lengthy process where negotiable instrument is under consideration.
Normally Court issues summons to defendants and hear their viewpoint. But as
far as cases of negotiable instruments are concerned, courts do not call
defendants to defend the case. It is because noting on Bill of Exchange is
considered conclusive proof of the refusal of payment of negotiable instrument.
If defendant wants to defend the case, he has to get leave of Court. High Court
or District Judge has jurisdiction over the matter or any other
Arrest and attachment before judgement Order 38: Order for arrest of attachment of property can be passed in following circumstances:
1. Secret departs from jurisdiction: Court
has no jurisdiction outside its territorial limits. Where a case is being
2. Likely secret depart from jurisdiction: Where defendant has not departed form local jurisdiction but may depart secretly keeping in view of the expected judgement of the Court, security can be ordered to ensure his remaining within local limits of jurisdiction.
3. Disposal or removal of property from jurisdiction: Property, which is under litigation and determination of Court, cannot be disposed of or removed until the execution of decree. To ensure its remaining within local jurisdiction, security is ordered. Its sale or alienation becomes prohibited.
4. Likely to leave
5. Removal of property:
6. Damage to property:
7. Causing delay in execution:
8. Failure in show cause:
9. Failure to furnish security:
10. Delayed compliance:
Particulars not liable to attach u/s 60: Following particulars shall neither be attached nor sold:
1. Necessary wearing apparels.
2. Cooking vessels.
3. Beds and bedding of the judgement debtor.
4. Wife and children.
5. Personal ornaments as in accordance with religious usage.
6. Tools of artisans.
7. Tools of agricultural.
9. Seed grain.
10. Food grain exempted.
11. Houses and buildings belonging to agriculturist.
12. Books of accounts.
13. Right of personal service.
14. Stipends and gratuity of pensioners.
15. The wages of laborers and some others.
Property liable to sale in execution is also described u/s 60 of the Code of Civil Procedure. It contains long list.
Temporary injunctions and interlocutory orders Order 39: Injunctions are of two kinds, temporary and perpetual. Temporary injunctions are regulated by Rules 1 and 2 of the Order 39. Perpetual injunctions are regulated by Ss. 55 to 57 of the Specific Relief Act, 1877. A party against whom a perpetual injunction is granted is thereby restrained forever from doing the act complained of. A perpetual injunction can only be granted by a final decree made at the hearing and upon the merits of a suit. A temporary or interim injunction, on the other hand, may be granted on an interlocutory application at any stage of a suit whiteout considering the merits. The injunction is called temporary, for it endures (supports) only until the suit is disposed of or until the further order of the Court.
Duration of temporary injunction: A temporary injunction may be granted until the suit is disposed of or until the further order of the Court. When a temporary injunction is granted “until the further order of the Court” and the injunction is not dissolved pending the suit, it comes to an end when the suit is disposed of. After the decree is passed, the Court that passed the decree has not powers to grant a further temporary injunction. But if an appeal is preferred from the decree, the appellate Court, if would seem, may grant a temporary injunction under this Rule. In an appeal from an order refusing a temporary injunction, the appellate Court, granted a temporary injunction “pending final decision of the suit”, and this was held to terminate with the decree of the lower Court.
Factors, which Court to see before granting temporary injunction Order 39: Court has to take into account three factors before granting temporary injunction such as:
1. Prima facie case of plaintiff: Before issuing the temporary injunction Court has to account for whether plaintiff has a prima facie case against defendant.
2. Balance of convenience (O»ÌÈm ÆkAÌM): It is another factor, which Court has to consider. It aims that defendant may not construct building. It should be demanded before the completion of building. Building which has been constructed completely causes inconvenience. Injunctions should be prayed before the completion of the task.
3. Irreparable loss: It should appear on the part of plaintiff that his case is argue-able and right and if stay is not granted, it shall cause irreparable loss to plaintiff.
When the Court may vary, set aside, and discharge the injunction:
1. When is fraud:
2. Where is not right:
3. Where is not infringement:
4. Where no loss is caused:
5. Where nothing happens upon no injunction:
6. Where convenience does not require:
7. Time compulsion:
8. Object has been achieved:
Before granting the temporary injunction, Court has to satisfy herself on three factors above. When Court satisfy on the above three factors, then grants stay order.
Breach of injunction: Where defendant intentionally and willfully breaches the compliance of injunction, Court has power to take punitive measures to ensure the compliance of injunction. They are as follows:
1. Attachment: Court can attach property of the party in breach for a maximum period of one year.
2. Detention: Person in breach can be detained for a maximum period of six months.
3. Imprisonment under
4. Further injunction: Plaintiff may seek for further injunction for the maintenance of status quo (current situation) where defendant causes breach of injunction. Status quo means remaining the status as such. Status is not changed until the decision of the Court. As soon as temporary injunction is granted work stops at once.
First appeal: While first appeal following orders can be passed:
1. Uphold judgement: Court may uphold previous judgement.
2. Set aside judgement: Court also may set aside previous judgement.
3. Remand: It may be either partly or full. In remand the whole suit is reopened and the questions on which the trial Court may have recorded its findings may be re-agitated, so the remand should not be arbitrary.
Execution of decrees and orders Order 21: Person in whose favour decree is issued is termed as “decree holder”, against whom decree is issued is called “judgement debtor”, and “decree” itself is judgement of Court. Only the Court which issues decree is obliged to get it executed, even it is upheld either in High Court or Supreme Court while appeal. It should be kept in mind that original jurisdiction for negotiable instruments and intellectual property is District Court. This is an exception in such cases. Only District Judge executes the decrees passed in his Court. There are two methods for getting the decree executed, i.e., oral and written application to the Court maker of it. Detail of both is as under:
Oral application Order 21, Rule 11: Where decree is passed to pay amount, Court may order to pay amount on spot. If judgement debtor refuses to pay the amount, Court may order for his arrest. As well as judgement debtor pays the decretal amount, decree or order for payment of amount is executed.
Written application: In general written application is made to get the decree executed. It must be duly signed and verified by applicant or another person about whom Court is satisfied that he know the facts of the case. Application should also accompany the certified copy of decree. Also following information is furnished:
1. The number of the suit.
2. The names of the parties.
3. The date of the decree.
4. Whether any appeal has been preferred from the decree.
5. Whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree.
6. Whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.
7. The amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars for any cross-decree, whether passed before or after the date of the decree sought to be executed.
8. The amount of the cost (if any) awarded.
9. The name of the person against whom execution of the decree is sought.
10. The mode in which the assistance of the Court is required whether:
a) By the delivery of any property specifically decreed.
b) By the attachment and sale, or by the sale without attachment, of any property.
c) By the arrest and detention in prison of any person.
d) By the appointment of a receiver.
e) Otherwise, as the nature of the relief granted may require.
Objection on attachment Order 21, Rule 58: There may be a situation where property is wrongly attached. Such property holder may raise objection for the removal of attachment. All questions relating to the right, title, or interest of such outsider claimant or objector in the attached property are to be adjudicated upon and determined by the executing Court and not by a separate suit.
Claims and objections to the attached property may be raised either by party to the suit or by a stranger. Where a claim or objection is made by a party to the suit or representative of a party, it shall be determined in proceedings u/s 47 of the Code of Civil Procedure and not in any other proceeding.
Rule 58 provides remedy to a person who is not bound by the decree and who claims any right, title, or interest in the attached property.
Resistance or obstruction to possession of immovable property Order 21, Rule 97: S. 74, Rules 97, 98, and 99 are to be read together. The provisions of Rule 97 are meant to enable determination of genuine third party interests of an independent character. Possession includes both actual and constructive possession. This rule applies where resistance is offered to the decree holder or auction purchaser entitled to the possession of such property, and it is only who can apply under this rule.
Before Rule 97 can be availed
of, the applicant must show some overt act of resistance. The locking up of the
door of the house amounts obstruction. As soon as the obstruction is made, the
decree holder or the auction purchaser can move an application under Rule 97.
It may even be an oral application.
Where the decree holder is obstructed by the judgement debtor or any person claiming under him he may either proceed under Rule 97 ante (speculation), or apply again under Rule 35 or 36 ante, and thereafter present a fresh application under Rule 97 ante.
Where strangers obstruct a decree holder, he may either proceed under Rule 97 ante or apply again under Rule 35 or 36 ante.
Where the judgement debtor or some one else claiming under it obstructs the auction purchaser, he may either apply under Rule 97 ante, or apply again under Rules 95 and 96 ante.
Where a stranger obstructs auction purchase, he may proceed under Rule 97 ante.
The purchaser first makes an application to the Court by way of execution under Rule 97. That application should not mention that any particular person is likely to resist. If the process of execution under these rules is resisted, it is then that an application under this rule should be made.
Resistance or obstruction by judgement debtor Order 21, Rule 98: This Rule deals with two cases, namely, where obstruction is occasioned without just cause, i.e., by the judgement debtor, or by some other person at his instigation.
No order can be made under this Rule if a person other than the judgement debtor causes the obstruction unless the Court is satisfied that the person was acting at the instigation of the judgement debtor. Thirty days’ imprisonment is awarded to who causes obstruction.
Remedies against ex-parte Order 9, Rule 13:
1. Application under Order 9, Rule 13:
2. Review application u/s 114 and Order 47, Rule 1:
3. Appeal u/s 96 – first appeal:
4. Set aside u/s 12(2) – on fraud:
5. Application for re-hearing: Principles of natural justice are applicable.
6. Revision shall lie u/s 115:
7. Where service of summons was defective:
8. Satisfaction of Court:
9. Presence of sufficient cause:
10. Writ under inherent powers u/s 151:
Where defendant fails to appear Order 9, Rule 11:
1. Continue hearing where one appears:
4. Failure of three months:
5. Continue proceeding where are more defendants:
Amendment of pleading – when and what Order 6, Rule 17: Following are grounds:
a) New information:
b) New document:
c) New evidence:
d) Omission of necessary fact:
e) Clerical error:
f) Joining of new party:
2. Where not allowed:
a) Where nature of suit changes:
b) Where relief is added:
c) New cause of action:
e) Where Court thinks unnecessary:
3. When is allowed: At any stage of the pleading.
4. Stages of pleading: From plaint to third appeal is called pleading.
Civil Courts have ultimate jurisdiction u/s 9:
1. What is civil suit:
2. Expressly barred suits:
3. What is not civil suit:
4. Kinds of civil suits:
d) Restitution of rights:
e) Where Code of Civil Procedure is applicable:
5. Other cases:
a) Criminal cases:
Power of execution Court u/ss 47, 51, and 94:
2. No additional fee:
3. Delivery of decretal property:
8. Appointment of receiver:
9. Any other relief:
10. Issue of warrant u/s 94 :
a) Where may leave country:
b) Where may leave jurisdiction:
c) Likely to leave
11. Demand of security:
12. Civil prison:
13. Temporary injunctions:
14. Matters of execution by separate suit:
a) Delivery of property:
i) Violation of Code of Civil Procedure:
j) Substantial error:
k) Any matter:
Matters before framing of issues:
2. Written statement:
4. Court fee:
5. Admission of suit:
6. Joinder of necessary parties:
7. Removal of mis-joining:
10. Cause of action:
12. Amount of claim:
What issues are and how they are framed Order 14, Rules 1 to 4:
1. What is issue: Varied points of plaint and written statement are called issues.
2. How framed: They are framed in the very first hearing after the submission of plaint and written statement.
b) Denial of claim:
c) Claim and defense:
d) Allegation on oath:
e) Allegation in answers:
3. Kinds of issues:
a) Issues of fact:
b) Issues of law:
c) Mixed issues:
a) Shows disputes:
b) To determine rights:
c) To adduce evidence:
d) Base of judgement:
e) Rejection of plaint:
f) Party is not surprised:
Judgement or Order obtained on base of fraud – remedies u/s 12(2) and Order 12, Rule 2:
1. Set aside judgement: Judgment can set aside where it is proved that it was so obtained on the grounds of fraud.
2. Set aside sale: Where sale has taken place in consequence of judgment on base of fraud, court may set aside such sale.
3. Arrest: Person defrauding the court may be arrested.
4. Attachment: Property of the decree holder can be attached if it is obtained on fraud basis.
5. Civil prison: Person obtaining judgment on base of fraud can be detained in civil prison.
13. Limitation extension:
Costs u/ss 35 and 35 – A:
1. Limitation prescribed by law:
2. Discretion of court:
3. Court determines the party:
4. Court determines the property:
5. Extent of cost:
6. Want of jurisdiction is no bar:
7. Reasons where cost without event:
8. Interest on costs: 6% pa.
Note on Order 2, Rule 2:
1. Frame of suit:
2. Whole claim: Where more than one claims are arising out from one transaction, they must be joined in a suit. Its failure may deprive the clamant in future.
3. Joinder of cause of action: More than one causes of actions can be joined in a single suit.
4. Separate trial:
5. Objection of misjoinder: Otherwise it is considered waived off.
6. Entitled claim only:
7. Right of relinquish of portion:
8. Object of relinquish: Jurisdiction.
9. Omission to sue: Right to sue ceases subsequently.
10. No sue against relinquish claim:
11. Subsequent sue where leave is granted:
12. Splitting of claim with the leave of Court:
Action of Court where party is in danger:
1. Issue status quo: Issuance of stay order can control the situation.
7. Delivery of possession:
8. Issue of warrant:
9. Demand of security:
Objection on territorial jurisdiction at appellate or revisional level: Following are the grounds:
1. Question of fundamental importance:
2. Where pleader gives in writing:
3. Right of appeal diminishes:
4. Substantial error:
5. Relief maybe changed:
6. Fundamental right’s question:
7. Incompetence of court:
1. What is restitution: It is reversal/variance of the opinion/decision.
a) Refund of costs:
b) Refund of interest:
e) Mesne profit:
3. How restitution:
a) By application:
b) Also inherent power: It is not appeal-able.