Complete Case Laws On CPC With Sections&Orders And

Proposition
Civil Procedure Code
SECTION 9
Mere averments in plaint would not confer jurisdiction on civil court
where it inherently lacked jurisdiction.
PLD 1992 Pesh. 87 (D.B.)
SECTION 9
Final decision with regards to civil rights ,duty, obligation and
status of parties shall be that of civil court.
PLD 1995 SC 457
SECTION 9; O-7 R-11; BANKING ORDINANCE 1979 Sec 6(1) & (4)
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)
SECTION 10 & 151
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
SECTION 12(2)
Forum of –venue-court where in to make application
1983 CLC 1948 Lah
1986 Law Notes (Lah) 431
1986 CLC 1211 Lah
SECTION 12(2)
Courts which passed the final decree means judgment against
which no remedy is available and all remedies, appeals, revisions,
review has been exhausted and no remedy is left.
Adjudication means the decision on merits after proper appraisal.
PLD 1995 SC 564
ALSO SEE 1994 MLD 1441 for different view.
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.
SECTION 12(2) & 151 C.P.C.
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
SECTION 12(2)
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
SECTION 20—–O-XLI, R-1
Sect. 115
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
SECTION 24
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
Sect. 27, O.V, R.6, O.IX, Rs. 6 & 13.
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.
SECTIONS 35 & 35-A C.P.C.
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
SECTION 47
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)
Ss. 48, 151, O.IX, Rs. 8 & 9.
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.
SECTIONS 96 & 115
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
SECTION 115
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
Section 115
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)
CONVERSION OF WTITS, APPEALS REVISION
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 INTO REVISION
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
Constitution of Pakistan (1973)
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
DUTY OF COURT
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
SECTION 73
Exertion defective not giving particular as under O-21 R-11 but
good enough for -purposes of Sec.23.
SECTION 100
Concurrent finding of fact to be reversed when important points
ignored and evidence misread.
PLD 1994 SC 326
SECTION 115
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.
SECTION 115:
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.
SECTION 144 C.P.C.
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
SECTION 150 – O-39 R-2 (3).
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.
SECTION 151.
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.
SECTION 151 & 115.
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) 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
ORDERS
O-1 R-10
Misdescription of parties not fatal – can be corrected by court at any
time.
1986 CLC 2987
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
O-1 R-10
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.
O-3, R-2 & SEC.96.
Plea of minority not raised in written statement. It can be raised
and decided at appellate stage – it is duty of the court to apply such
law even through plea has not been raised.
1995 CLC 175 (Lah).
O-4, R-1.
Omission to comply with requirements of present action can be
cured if in good faith.
AIR 1931 All. 507.
O-6, R-1.
Pleadings of parties would not control or govern applications of
correct law to establish or prove facts.
1992 SCMR 417.
Deviation from pleadings – no application for amendment of plaint
as to correct the facts – plaintiff could not take advantage of legal
principle that admission contrary to record was not binding. No
evidence could be lead contrary to pleadings.
PLD 1995 Lah. 113.
O-6, R-2.
Where a claim never made in pleadings no amount of evidence
could be looked into in poof of such facts.
1995 CLC 1906
O-6, R-2 & 4.
Facts not stated in pleadings evidence lead to prove such facts will
be simply ignored.
1995 MLD 1714.
O-6, R-14 & 15; O-4, R-1.
Absence of signature, verification or presentation does not affect
jurisdiction of court.
AIR 1931 All. 507.
Want of verification – pleadings not void – irregularity – no affect on
merits.
AIR 1932 Lah. 28.
AIR (36) 1949 All. 499.
Can be amended even after limitation.
AIR 1961 Bomb. 292.
Omission to sign by one of joint plaintiffs.
PLD 1978 Q.45.
O-6, R-17.
If the case is fixed for arguments on application under O-6 R-17
and the suit is dismissed for default, only such application can be
dismissed for default and not the main suit.
PLD 1969 SC 270
CLC 1986 1441
CLC 1986 2153.
O-6, R-17.
Relief of possession being consequential to suit for declaration,
amending plaint to include possession allowed.
1995 SCMR 69.
O.VI R.14 & O.XXIX R.1
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 Or.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.
O. VII R.1(e)
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
O. VII R.11
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
O. VII R.11, SECTIONS 2(2)(9)11.
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
O-7, R-11 & S.149 – Art.185(3) of Constitution.
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.
O-7, R-10.
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 Quretta 54.
AIR 1934 Lah. 233.
O-7, R-11.
Duty of court to examine plaint at any time without application.
PLD 1977 Kar. 747.
O-7 R-11.
On basis of averments in plaint not on basis of defence.
PLD 1966 (W.P) lah. 1050.
O-7 R-11; BANKING ORD. 1979 SEC.7 & 13.
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).
O-7, R-11.
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
O-9, R-4; SEC.151, 115.
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.
O-9, R-8.
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)
O. XII R.11.
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.
O. XII R.16.
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
O.XIII, R.1.
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.
O-14, R-2.
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.
O.18 R.18 C.P.C.
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
O-19, SECT.30, O-18 AFFIDAVITS.
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.
O-20 R-14 (i) & O-23 R-3.
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.
O-21, R-1.
Mode of paying money in satisfaction of decree – decree holder
would certify such payment upon legal notice from executing court.
PLD 1995 Lah. 107.
O-21, R-2(i)
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
O-21, R-11
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
O-21, R-58, 59 & 62
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)
O-21, R- 94
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
O-22, R-3, 4 & 12
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
O-37, R-2
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.
PLD 1995 SC 362
O-37, R-3
Suit based on promissory notes for recovery of amount claimed
against defendant in summary manner, dispute could not be
referred to arbitrator in terms of the agreement.
1995 CLC 1024
O-37, R-3 – Art.185(3) 0f Constitution .
Defendant was allowed loan on furnishing Bank guarantee equal to
suit amount – Revision to the extent of bank guarantor remained
unsuccessful. Keeping in view defence raised in application for leave
and law laid down in Fine Textile Mills VS Haji Umar (PLD 1963 SC
163) appeal was accepted-order of H.C and trials court as to bank
guarantor set aside – defendant was prepared to offer any solvent
security to satisfaction of court-leave defend granted on furnishing
any solvent security to satisfaction of trial court . 1995 SCMR 925
ORDER 37
Object & spirit of O -37 – neither unislamic nor inequitable.
PLD 1993 LAH 224
Object to secure ends of justice-claim based on negotiable
instruments –no need to prove consideration if execution of notice
not denied.
PLD 1993 LAH 244 H.N (h)
ORDER 37 –RULE 1& 2
Suit shall be decreed where failure of appearance or omission to
apply for leave However, where leave is refused plaintiff has to prove
his case.
PLD 1987 LHO 101
ORDER 37 – RULE 1&2
Leave to defendant refused even when following pleas raised – on
confirmation slips defendant’s signature forged –suit barred from
last deposit beyond 3 years – mortgage deed relating to different
loan from different branch – penal interest wrongly claimed- blank
pronote fraud by bank.
PLD 1990 LAH 99
Leave refused even on following pleas: signatures obtained on blank
documents, statement of A/C incorrect , letters of guarantee not
properly stamped, promotes contain exorbitant interest against
islam etc.
PLD 1989 KAR 371
ORDER 37- RULE 2
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
O. XXXVII R. 2 & 3
Limitation Act (IX of 1908) Sect. 5
Suit for recovery based on Promisory Note – delay in filing leave
application on the ground that trial court was on leave for nine days
due to Winter holidays – held – delay of every single day has to be
explained sufficiently, otherwise, the object of summary proceedings
will be defeated. Furthermore, only Presiding Officer happened to be
on leave while office remained open for filing/institution during this
period. Petition for leave is time barred as delay not sufficiently
explained.
Muhammad Naeem V. Muhammad Javed Iqbal
2012 CLC 175 (Peshawar).
ORDER 37- RULE 3
Guarantors claimed that they had claimed denial of liabilities by
several letters , and notice to bank –it was duty of bank to deny and
controvet same – no such step taken by bank-silence of bank would
seriously reflect adversely, leave granted.
1994 CLC 1404 KAR
ORDER 37- RULE 3
Leave was granted subject to depositing amount in question in
court or bank-challenged this order in writ –validity in condition –
no current valuation of mortgaged property available on record nor
plaintiffs claimed its depreciation –petition converted into appeal
and the same was allowed to the extent that defendant would
deposit cash of specified amount for defending suit within 20 days.
1994 SCMR 512
ORDER 37- RULE 3
Leave- according to bank’s own record value of pledged stock
Rs.800,000/- and mortgaged land about 400,000/- at the time
pledge/mortgage-value of land must have arisen manifold-claim
amount adequately secured- without additional security
unconditional leave to be granted.
1989 MLD 1090 LAH
ORDER 37- RULE 3
Imposing condition on leave discretionary must be exercised in
judicial and reasonable manner.
1983 CLC 2828 LAH
ORDER 37- RULE 3
Conditions for leave-depositing half money in cash or furnishing
bank guarantee harsh-may furnish security instead.
1992 CLC 1705 LAH (Malik Qayyum)
ORDER 37 – RULE 3
Leave. Court must , prime facie, find from application and affidavit ,
that there is reasonable –material making incumbent on plaintiff, to
prove consideration , or there exists a plausible defence , or some
specific question of fact or lae requiring investigation.
PLD 1963 SC 168
1975 SCMR 398
1973 SCMR 100
ORDER 37- RULE 3
“Case decided- does not mean decision of the entire suit it may
relate to the decision of interlocutory matter- old view has been
abounded vide AIR 1943 LAH 65.
1992 SCMR 718 at page 725(E)
ORDER 37- RULE-3
Suit decreed against principal debater while unconditional leave
granted to guarantor –suit to continue as bank had the legitimate
right against the guarantor.
1992 SCMR 718 at page 724 para (9)
PLD 1978 KAR 263
ORDER 37 –RULE 3
Leave for guarantor –guarantor not issued any negotiable
instrument to warrant summary proceedings-guarantee indemnity
bonds not negotiable instruments Summary procedure not
applicable.
1992 SCMR 718 HN (B) AT P 724 para 9
ORDER 37 –RULE 3
Court can grant or refuse leave but same must be sought within 10
days of services-in case of failure or refusal by court, court can
summarily decree suit and averment in plaint to be deemed
admitted by defendant where defendant failed to seek leave within
10 days court justified to pass decree – defendant estopped from
subsequently saying he had not been properly served and no copy
of plaint annexed with summons
PLD 1993 LAH 224 HN(C)
ORDER 37 –RULE 3&4
Leave granted on certain conditions –conditions not fulfilled leave
not operative- defendant not applying for leave court ampowed to
decree suit taking averments o plaint as admitted.
PLD 1984 KAR 127
EXPARTE SEETING ASIDE
O-37,R-4 &O-IX,R-13
Exparte decree under o-37 cannot be set aside under o-9 R-1. it has
to be within four corners of O-37 R -4.
PLD 1984 KAR 127
ORDER 37- RULE 4
There is wide power of court to set aside exparte decree u/o 38 R-4-
only embargo is special circumstances-circumstances beside being
good cause or sufficient cause have to be of special nature.
PLD 1984 KAR 127
PLD 1993 LAH 244
ORDER 37-RULE 4
Order sought to be set aside consent order –no special
circumstances made out –application dismissed.
PLD 1984 KAR 127
(SUIT FOR DAMEGES)
O-37 (scope)
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
O-38, R-5
Attachment before judgment, application as well as reply must be
supported by affidavit-reply not supported by affidavit –contents
application deemed not converted.
1995 MLD 1707 LAH
O-39, R-1
Plaintiff himself showing monetary compensation adequate relief-
not entitled to discretionary relief of specific performance.
PLD 1977 KAR 191
No attempt made to show balance of convenience on side of the
plaintiff- loss found to be assessable in money-injunction not
granted.
PLD 1979 KAR 668
O-39, R-1 & 2, R-2(2)
Court while granting temporary injunction can impose conditions-
these conditions are not to be either similar to security or the
conditions may be imposed u/s 151 or sec. 94 CPC and reference of
such provisions should be clearly made.
PLD 1995 LAH 117
O-39 R-1 &2 (3);O-41 R-5; Contempt of Court Act Sec 3
Stay order and injunction –distinction injunction is not effected
unless it is communicated –stay is operative the moment it is
issued.
PLD 1949 LAH 100 (F.B)
1974 SCMR 509
PLD 1978 KAR 152
O-39, R-1 & 2
Entitlement to grant interim injunction in the absence of any
determination of amount due as distinguished from amount
claimed –petitioner entitled to interim injunction.
1995 CLC 1877
O-39 R-2 (3)
Punishment for disobedience under O-39 R-2(3) can only be
determined and awarded by the court which had ordered the
issuance of the injunction and not by a court to which the suit has
been transferred.
AIR 1914 Calcutta 815
O-39 R-2 –SEC.150 OF CPC
Breach of injunction –business of the court granting the injunction
transferring to another court –later court can entertain petition.
Transfer-includes transfer of business under civil courts Act. The
word transfer in Sec 150 is not applicable to a case where the
District judge fixed the jurisdiction of court under the civil courts
act and transferred the whole of the business within a certain area
of it.
AIR 1923 Madras 92
O-39 R-2 (3)
Civil courts have no jurisdiction to take action against a person not
party to suit. However, high court has such jurisdiction.
1988 CLC 1370 LAH
PLD 1964 Daaca 276
PLD 1975 LAH 126
O-39 R-2(3)
No person is bound to obey a direction which is unlawful nor can
he be held liable for refusing to obey it
PLD 1975 LAH 126
O-39, R-2(3) read with
W.P Land Revenue act sec .81&
Constitution Art.204;187, contempt of court act 1976 sec.6.
Contempt against public servants who discharge their official duties
and pass order adversely affecting the right of one party was
disapproved and condemned by Supreme Court.
Stay/injunction must be clear leaving no room for ambiguity.
Govt. officials should not be summoned in contempt proceedings
when they are not the main party in the suit.
PLD 1995 SC 572
O-39, R-4-A
No successive stay orders can be issued.
1984 CLC 2048 KAR
Payment of govt. dues – stay orders – stay granted by high court till
disposal of petition-order to that extent would be read as
contemplating disposal of the petition with six months.
1989 CLC 1160
O-41, R-27
Addl. Evidence cannot be to fill up lacuna in the case –can be read
only when(i) requested by court (ii) for proper adjudication.
1995 CLC 1889
O.XIII, R.1 & 2.
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)

Case Laws On Principle Of Natural Justice

Natural Justice
2012 PLD 292 SC
Scope Right of due process, inter alia, envisages the right to have a
fair and proper trial and right to have impartial court or
tribunal”Right of access to justice ” and “due process” are
2011 PLD 671 SC
Natural justice , principles of applicability a scope Where there was
likelihood of any adverse decision/action against anyone (General
(Rtd.) Parvez Musharraf in the present case), principles of
2011 SCMR 1429
Appellant himself was not available for personal hearing as he was
out of Pakistan as per his own request for extension of leave No rule
of Natural justice or requirement of law regarding notice or
2010 SCMR 1933
Applicability Scope Principles of Natural justice must be observed in
all judicial, quasi-judicial and administrative proceedings affecting
person, property or other rights of parties concerned
2010 SCMR 970
Principles of Natural justice applicability a appeals filed by
respondents were allowed by Service Tribunal and they were
promoted retrospectively Grievance of appellants was that they were
not
2010 SCMR 755
Condemning of accused without affording an opportunity of hearing
is also contrary to the principles of Natural justice.
2009 SCMR 808
S. 5(4)Constitution of Pakistan (1973), Arts.9 & 10(i)Trial in
absentia Effect Proceedings in absentia without giving an
opportunity of hearing to the accused lose their efficacy being
2008 SCMR 529
-Petitioner, in that manner, was seriously prejudiced and the
principles of Natural justice appeared to have been offended.
2008 PLD 412
Natural justice , principles of Opportunity of hearing Scope Order
adverse to interest of a person cannot be passed without providing
him an opportunity of hearing Departure from such rule may
2007 SCMR 525
Arts. 203-F & 185—Appellate jurisdiction of Supreme Court scope
Supreme Court is not a clearing house or a corrective forum to
revise sentences passed by competent courts in criminal cases
2007 SCMR 330
Principles of Natural justice , unless prohibited by wording of
statute, must be read in each and every statute.
2007 SCMR 307
Natural justice , principles of Condemning a person Principle When
Judge decides to condemn a man whether a party or witness, the
facts on which condemnation is intended to be based must be put
2006 SCMR 1023
Principles of Natural justice must be read in each and every statute
unless and until was prohibited by the wording of the Statute itself.
Sir Edward Snelson’s case PLD 1961 Sc 237; Fazlur Rehman’s
2006 SCMR 1876
Nonparticipation in inquiry proceeding Violation of principles of
Natural justice Effect Mere non-participation of a person in inquiry
proceedings cannot, under all circumstances, be declared
2004 PSC 992
Natural justice principles of Applicability Action of employer
violating such principles would be without lawful authority and of
no legal effect.
2003 SCMR 207
Civil Services Natural justice , principles of Applicability
Opportunity of defence to civil servant Scope Proper inquiry is to be
conducted wherein Government servant is to be provided an
2002 PLD 408 SC
Natural justice Principles of No person could be condemned
unheard as regards any matter in which he had any interest—
Principle of Natural justice of hearing a person before condemning
him
1998 SCMR 1942
Educational Institutions Malfunction of the examination centres on
account of large cale mischief Individual show-cause notices to the
examinees before passing the orders cancelling the whole
1997 SCMR 1543
Natural justice Principles of Right of personal hearing New trends in
the concept of application of principles of Natural justice with
special emphasis on right of personal hearing highlighted
1996 PLD 324 SC
Islamic Jurisprudence Administration of justice ??? Foundation of
Islam is on justice which is different from the concept of the
remedial justice of the Greeks, the Natural justice of the Romans.
1993 SCMR 122
Natural justice Principles of Rule of Natural justice is to be read into
provisions of law authorizing a statutory functionary to pass orders
in relation to rights of citizen.

9 Most Important Case Laws on Islamic Jurisprudence

2002 PLD 1048 SC
Islamic jurisprudence —-Crime and punishment—Rule of benefit of
doubt occupies a pivotal place in the Islamic Law and enforced
rigorously.
2001 SCMR 1135
Islamic jurisprudence -Administration of justice-Review of
judgment-Applicability of Islamic precepts-Conditions.
2000 PLD 225 SC
Islamic jurisprudence Riba-Kinds-Any amount, big or small, over
the principal, in a contract of loan or debt is Riba prohibited by
Holy Qur’an, regardless of whether the loan is taken for the
1999 SCMR 2918
Islamic jurisprudence Association of persons (Anjuman)-Juristic
person-Islam does not prohibit an association of persons from
forming themselves into a society under the ‘law of the land to
attain
1996 PLD 1 SC
Islamic jurisprudence Crime and punishment -Murder — Hadd –
Oral provocation whatsoever of nature is not relevant in respect of
offence of murder which is subject to Hadd.
1994 SCMR 932
Islamic jurisprudence -Crime punishment—“Offence punishable
with Hadd or Qisas” and an “offence which entails Ta’zir”-
Distinction qua admissibility of testimony of approver or
accomplice.
2011 YLR 2279
Divine wisdom was present behind the notion of forgiveness in the
Islamic jurisprudence –.
2010 YLR 1632
Under Islamic Law a Muslim husband enjoys unfettered power to
pronounce Talaq to his wife;
it was also established principle of Islamic jurisprudence that
husband could delegate his power to his wife
2010 PLD 1 FSC
Notwithstanding general equality among human beings, the rule of
classification is an established principle of Islamic jurisprudence.

PARTITION SUITS AND ITS METHODOLOGY

In Courts of Pakistan huge number of partition suits are pending
adjudication. As there is no proper mechanism with revenue
hierarchy/revenue department or other law enforcing institutions to
make partitions of properties without constraining the owners to
approach the Courts of law. The difference of opinion and ill-
unionship is a natural thing in a society and normally the people
cannot survive in joint venture and to live an independent life or to
utilize the property in his own manner, they are constrained to get
divide their properties but through the course of law.
In partition suits there is no loser and both the parties are to be
called winner but if the possession of the property is in the hands of
tress-passer, then he can be loser of partition suit.
Partition is recognized by the legal maxim"Nemo in Communione
potest invitus detineri",no one can be kept in co-proprietorship
against his will. Partition is merely an arrangement whereby co-
sharers having undivided interest in joint properties take by
arrangements specific properties in lieu of their shares.
For partition suits the property can be divided in three types:
(i) Pure Agricultural Properties,
(ii) Agricultural and Constructed mixed properties, and
(iii) Pure Constructed Properties (in the shape of houses, shops,
markets and etc).
Undoubtedly relief for partition in respect of agricultural properties
can be sought from Revenue Officer under Chapter XI Section 135
and other relevant sections of this chapter.
Similarly if the property subject of partition is partly agricultural
and partly constructed, then as per law laid down by the Superior
Courts, it will be analyzed that whether which type of property has
a major portion, if agricultural then Revenue Courts will be
approached, otherwise relief for partition will be obtained from
Ordinary Civil Courts of Law.
So far as pure constructed properties are concerned, they can be
got divided from ordinary civil Courts through a suit for partition
under the Partition Act, 1893.
PRE-CAUTIONS IN PARTITION SUITS:
(i) (JURISDICTION):
Case must be filed in the appropriate Court of jurisdiction. While
assessing the question of jurisdiction, first of all territorial
jurisdiction should be ascertained and the suit for partition in
respect of immovable property must be filed having regard to
Sections 16, 17 and 18 of the Civil Procedure Code, and ordinarily it
is to be filed in that Court within the local limits of whose
jurisdiction, the immovable property is situated.
Secondly, subject matter jurisdiction must be assessed as
highlighted above, suits in respect of pure agricultural property or
major portion of agricultural property is to be filed in Revenue
Courts, and regarding constructed property or major portion of
constructed property is to be filed in Civil Courts. In case titled:
Qamar Sultan Vs Mst. Bibi Sufaidan,reported in 2012 SCMR 695, it
was held that, "Jurisdiction in respect of partition of agricultural
property and to grant relief would lay with the revenue Court".
While dealing with the matter of jurisdiction the Court should have
to take great care for deciding that whether the suit property is an
agricultural one or constructed/commercial. In case titled: Sher
Ahmad Khan Vs Sardar Khan, reported in 2008 PLD 97 Peshawar,
it was held that, "if the land was agricultural, then the partition of
the same was exclusively amenable to the jurisdiction of the
Revenue Court and the jurisdiction of the Civil Court in view of S.
172, West Pakistan Land Revenue Act, 1967 was barred which
proposition, however, was subject to one exception that if the
agricultural land would lose its character and would become
building site or commercial area, then the civil Court would have
jurisdiction to entertain the suit with respect to its partition.
Whether the land or its major portion was covered by abadi or the
same was exclusively agricultural land, was a spot related question,
which could be determined by the Trial Court after the appointment
of a local commission who, after visiting the spot, would be in a
position to determine the nature of the property".
In case titled: Jamal ud Din Vs Haji Gul Khan, reported in 2012
CLC 1353 Quetta, the august superior Courts provided a procedure
for preferring the matter of partition to a Revenue Court and held
that, "Party interested in partition of his share in suit property, had
to make an application for partition of the land to a Revenue Officer
as per provision of S. 135 of West Pakistan Land Revenue Act,
1967".
The Revenue Officer while dealing with the partition of the property
could decide only question of title in property to be partitioned while
acting as a civil Court of competent jurisdiction, but could not
decide all other questions falling within jurisdiction of Civil Court.
In case titled: Mst. Farzana Vs Mst. Sehti, reported in 2012 PLD
241 Karachi, it was held that, "Revenue Officer while deciding
questions as to property to be partitioned or mode of its partition
would act only as Revenue Officer, but not as a revenue Court or
civil Court".
Revenue Officer can decide matter of title in the immovable property
and if he thinks fit, then he can sent the same matter to the Civil
Court for deciding matter of title to the immovable property. In case
titled:Muhammad Yousaf Khan Vs Board of Revenue,reported in
2002 CLC 739 Supreme Court Azad Kashmir, it is held that, "Where
question of title would arise in property to be partitioned, Revenue
Officer could himself determine question of title or refer matter to
Civil Court for its determination".
(ii) (PARTIES).
All Co-sharers in the joint properties are to be arrayed as a party to
the partition case and no name should be left from impleadment, in
order to save the suit from the plea of non-joinder.
In case titled: Syed Ain Ullah vs Dilber and others, reported in 2013
MLD 708 Baluchistan, it was held that, "dismissal of suit on the
basis of non-joinder of a necessary party was an erroneous decision
as under Order I Rule 9, CPC, no suit shall be defeated by the
reason of mis-joinder or non-joinder of parties and the trial Court
was empowered to implead a person to the proceedings who it
deemed to be necessary for determination of matter in issue".
In case titled: Muhammad Younas Sheikh Vs Corex enterprises and
another, reported in 2007 MLD 508 Karachi, it was held that, "Suit
would not be defeated by reason of mis-joinder or non-joinder of
parties and the Court could deal with the matter in controversy so
far as regarded the rights and interests of the parties actually before
it".
Similar guideline is also provided in the below mentioned rulings of
superior Courts that mis-joinder or non-joinder is not fatal to the
suit, those judgments are as under:
a. 2011 YLR 1999 Quetta, b. 2011 SCMR 1460,
c. 2010 MLD 1596 Quetta, d. 2007 SCMR 729 Citation (n).
Keeping in mind the afore-referred verdicts of the august superior
Courts, though mis-joinder or non-joinder of parties is not fatal to
the civil litigation and the trial Court is supposed to determine the
issue even in those suits in which this defect is present. But at the
same time the law advises that all parties having an interest in the
subject matter of the suit should be arrayed as a party either in the
panel of plaintiffs or defendants. So great care should be made that
in suit for possession through partition all the co-sharers/Khata
shareek are joined as a party.
(iii) (FULL PARTITION SUIT IS TO BE BROUGHT AND NOT FOR
PARTIAL PARTITION).
All properties which are in joint venture of the parties are to be
included in the partition suit, in order to save the suit from the
question of Partial Partition.
In case titled: Noor Muhammad and others Vs Allah Ditta and
others, reported in PLD 2009 Supreme Court 198 citation (C), the
august Apex Court held that, "Co-owner in a joint property was not
entitled without assent or acquisance of the other co-sharers, to
exclude portion of joint property or to select a particular portion for
the purpose of partition. Co-sharer was required to seek the
partition of the landed property as a whole".
In case titled: Ghulam Rasool and another Vs Muhammad Khalid
and others, reported in 2006 YLR 2289 Lahore, the august Court
held that, "party opting to come for partition was not permitted to
pick and choose and to have share in valuable parts of the joint
holdings by leaving out its parties with lesser value, suit found to be
for partial partition was not maintainable".
In case titled: Chaudhary Ghulam Abbas Vs Barkat Ali and
another, reported in 1999 YLR 2190 Lahore citation (b), the Hon'ble
Court held that, "partition of holding could not be affected without
including the entire land of property, partial partition was bad in
law".
(iv) (NO PRIOR PARTITION OR PRIVATE SETTLEMENT/KHANGI
TAQSEEM).
The suit must be in respect of those joint properties in respect of
which neither any regular partition was made priorly nor the
properties should have been divided through private
settlement/Khangi Taqseem.
To prove private partition, party should have to produce/exhibit
order of partition or copy of Roznamcha Waqiati showing delivery of
possession or Tatimma made in favour of co-sharer/party.
The fact of Private partition is always considered in the course of
litigation, as such sanctity is available to the same. In a case titled:
Irshad alieas Abdul Rahim Vs Ashiq Hussain, reported in 2007 PLD
421 Karachi, the Hon'ble Court held that, "Private arrangement and
partition deserves the same sanctity which a lawful contract
deserves and should not be interfered within any legal proceedings
unless the private arrangement or partition is otherwise not legally
permissible".
If a dispute between the co-sharers arises in a situation when
private partition has been arrived between them, but they have no
formal partition deed in their hands or it has been lost, then in
such like circumstances, the possession of respective party would
be of great importance in determining the real issue of private
partition. In case titled: Naveed Ahmad Vs Iqbal Begum, reported in
2006 YLR 2341 Lahore, it is held that, "Private Partition between
the parties--
—Absence of formal partition deed—Question of possession would
assume critical significance".
Private partition should be proved independently.
(v) (CO-SHARERSHIP).
It is to be established that the claimant is co-sharer in the property
subject of partition.
In case titled: Gulzar Begum Vs Mehboob Hussain alias Mehboob
Khan, reported in 2012 YLR 809 High Court AJK, the Hon'ble Court
held that, "Possession on the said land could not be distributed till
partition of the same in accordance with law was not made".
In another case titled: Muhammad Ismail Vs Ghulam Sarwar,
reported in 2008 YLR 420 Lahore, the remedy was given to a co-
sharer who desired to get possession of his share in an undivided
property and it is held that, ''only manner in which the plaintiffs
could get possession was by filing a suit for partition and separate
possession".
Sometimes a question arises that whether a co-sharer can sell his
share in the joint khata or not. This question is resolved by the
august Lahore High Court in case titled: Abdul Ghaffar Vs Waqas
Hafeez, reported in 2010 CLC 285 Lahore, it was held by the august
Court that, "Co-sharer in possession in a khata has a right to
alienate a specific piece of land in his possession and the transferee
acquires the same rights as the transferor".
It is the basic right of each and every co-sharer that he can claim
partition of the joint property at any time and there is no limitation
against such claim. This preposition has been set by worthy
Supreme Court of Pakistan in case of Muhammad Rafiq, reported in
2004 SCMR 1036 Supreme Court, wherein it is held that, "Partition
could be claimed by any of the joint owners during currency of joint
ownership without limitation of any period in that behalf, so long as
his right was not denied".
In case titled: Ashiq Hussain Vs Prof. Muhammad Aslam, reported
in 2004 MLD 1844Lahore, it is held that, "suit for permanent
injunction against the other co-sharers was not maintainable
except by bringing a suit for partition of joint property".
TRIAL OF PARTITION BY CIVIL COURT:
In partition suits ordinarily the civil Courtsbifurcate the claim into
two rounds/stages:
(a) First round/stage is finalized on preliminary decree of the
partition suits or if some flaws highlighted here-in-above are
involved, then it is dismissed.
In the preliminary round of litigation of partition suits, the trial
Court mainly checked the question of jurisdiction, the
entitlement/co-sharership of the parties, and other merits of the
case and if the case is made out by the claimant, then in this round
of litigation the Court determines the shares of the parties in joint
property.
(b) Second round/stage is called final decree proceedings. In this
round application for the grant of final decree is filed by the decree
holder, on the basis of which issues notice to the respondents, and
if they contest the same, they file reply. The Court after hearing the
parties appoints a local commission under Section 75 read with
order 26 of CPC for determination of mode of partition. The
commission as per directions of the Court visits the property
subject of partition and examines it, whether it is partitionable or
not. If it is not partitionable then the localcommissioner evaluate
the market value of the decretal property and thereafter he submits
his report. The Court passes order of sale of decretal property and
then passes order of division of proceeds of sale between the parties
in accordance with their determine shares.
The report of local commissioner in determining the actual position
of the property sought to be partitioned is of much importance, as
the same can help the Court for determining the fact that whether
the property is partitionable or not and if partitionable then what
should be the criteria for its partition.
If the property is partitionable then the local commission in the
presence of the parties and record keeper of the property, if any,
suggests the mode of partition. He prepares a sketch/map of the
spot. Legally speaking the local commission keeping in mind the
possession of each party, their shares, the valuable and priceless
portions of the property, the construction if any, suggests the mode
of partition keeping in mind this notion that every co-sharer must
received the constructed portion, valuable and priceless portion as
that all them are equally accommodated. Thereafter, the local
commission submits its report, the Court invites the objections if
any, of the parties, examine the local commission, if necessary and
either confirmed or set aside the commission report. If it is set
aside, then the Court appoints another commission with the same
directions and work, otherwise in case of confirmation of the
commission report, the Court passes final decree.
Thereafter, the decree holder brings an execution application for
getting possession on the spot in accordance with the final decree.
It also pertinent to mention that the outcome of first round of
partition suit i.e. preliminary decree is always subject to appeal,
then revision or second appeal, and finally it is also challengeable
before the Supreme Court in its appellate jurisdiction envisaged
under Article 185 of the Constitution. Similarly the final decree if
the parties so desires,can be challenged through the same process,
appeal, revision/second appeal and appeal under Article 185 of the
Constitution, and the last stage is the execution as mentioned
above.
TO GET REMEDY IN CASES OF PARTITION IS TIME CONSUMING
PROCESS:
A huge number of suits for partition are pending before different
Civil Courts of Pakistan and a great number of civil appeals, civil
revision and CPLA are pending before District Courts, High Courts
and Supreme Court of Pakistan. As observed above, that as there is
no direct/automatic mechanism for partition/division of immovable
properties except the litigation, a large number of people are
making visits of different Courts for getting relief. It is also observed
that even a suit for partition take great time in civil Court, if we
roughly calculate it takes:
(i) Six years in civil/Trial Court;
(ii) Two years in Appellate/District Court;
(iii) Six years in Revisional/High Court; and
(iv) Six years in Supreme Court of Pakistan.
Meaning thereby a partition suit takes minimum Twenty years. It
must be kept in mind that in partition suits there is no concept of
looser, both the parties if found co-owners, get relief and except the
tress-passer both the parties are accommodated by the Court. But
what happened practically, a partition suit is brought and the same
is decided but at the end of the day it is defeated due to the below
mentioned flaws:
i. (Jurisdiction).
ii. (Non-joinder).
iii. (Partial partition).
iv. (Prior partition or private settlement/Khangi Taqseem).
v. (No Co-sharership).
It is need of hour that the august Supreme Court of Pakistan like
guidelines provided for rent cases, in case titled: Barkat Ali Vs
Muhammad Ihsan, etc, reported in 2000 SCMR 556, also provides
guidelines for partition suits and to declare it necessary that some
proforma's prepared by the Supreme Court of Pakistan are to be
made available with the partition suit at the time of its institution
and these proforma must be filled by the counsel of the plaintiffs,
signed by him and also by the plaintiffs. These proforma must
relate to the issues mentioned below:
(i) The Court has got the jurisdiction,
(ii) All the co-sharers and necessary parties are impleaded,
(iii) The suit is regarding whole property and not for a particular
portion,
(iv) There is no prior regular or private partition and
(v) The plaintiffs are co-sharers in the property subject of partition
and there due share, if determined and known should be
highlighted.
This effort will surely minimize the agonies of poor litigants who are
visiting Courts for their suits regarding partition.
If both the parties claiming possession over the suit property, then
such phenomena deals with the factual controversy and the same
could only be resolved after calling of evidence from both sides. In
case titled: Abdul Qadir Vs Sher Muhammad,reported in 2010 MLD
1596 Quetta, it was held that, "Section 54 and O.XX, R. 18, C.P.C.
were to be observed while deciding the issues of partition".
PROCEDURE IN RESPECT OF PARTITION OF AGRICULTURAL
PROPERTIES IN REVENUE COURTS:
As explained in case of Noor Muhammad and others Vs Allah Ditta
and others, reported in PLD 2009 Supreme Court 198 by the
august Supreme Court that proceedings of partition of agricultural
land before the Revenue Officers were not governed by the Civil
Procedure Code, 1908, particularly when the question of title was
not involved, such proceedings being summary in nature do not
partake the character of a civil suit necessitating the framing of
issues or recording of evidence of the parties.
According to Section 142 of Land Revenue Act, 1967 the Revenue
Officer was to decide the question by holding an inquiry as he
deemed necessary.
Application for partition of agricultural property is to be filed under
Section 135 of Land Revenue Act, 1967 by impleading all co-sharers
as a party by joining complete property which is in joint venture of
the parties. The Revenue Court after noticing the respondents and
after getting replies, if any, from them will summons the patwari
halqa and will direct him to prepare Naqsha "Alif', "Bay" and
"Jeem".
(i) Naqsha Alif will show Shares/Hissas of parties in the property in
question.
(ii) Naqsha Bay will show proposed Khasrawise shares of parties
and basically in this document the mode of partition is determined
and proposed Tatimaas are curved out. Basically this document
denotes the division of shares and in Urdu it is known as ( ‫نقشہ‬
‫بٹوار‬،‫)ب‬.
(iii) Naqsha Jeem will show the proposal regarding the partition
mutation and in urdu it is known as ( ‫)نقشہ ج جدائی‬.
At the end the revenue officer will examine the record and will hear
the arguments, if any, of the counsels of the parties and if there is
no question of earlier private/regular partition or non-joinder or
partial partition or jurisdiction or title dispute will allow the
application and passed the order and issue "Sanad-Sultani" in
favour of the applicants as per the above referred Naqshajaat.
Thereafter, for practical possession, the applicant may apply to
anthrough an execution application and finally possession is
handed over to him on the spot.
Similarly as per decision, the revenue officer will enter and attest
partition mutation and will curved-out the "Tattimaas" by dividing
the available Khasra numbers in Bye-numbers.
In case titled: Khawaja Muhammad Arif Vs Mrs. Tahira Asif,
reported in 2005 PLD 972 Supreme Court, it is held by the worthy
Supreme Court of Pakistan that, "Decree of partition is an
"instrument of Partition" and as such has to be engrossed on stamp
paper and in case it is not done the decree can neither be executed
nor could be acted upon". "Real test of "instrument of partition" is
whether there was any property of which the parties were co-owners
and the property was being divided by the deed in scverality,
entitling the parties to the separate enjoyment of that property".
LEGAL AFFECT OF PRIVATE PARTITION OF AGRICULTURAL
PROPERTY:
Private partition of agricultural properties between the co-sharers
will have no legal affect until the same is affirmed by the Revenue
Officer U/S 147 of Land Revenue Act, 1967, which provides that "In
any case in which a partition has been made without the
intervention of a Revenue Officer, any party thereto may apply to a
Revenue Officer for an order affirming the partition. On receiving
the application, the Revenue Officer shall enquire into the case, and
if he finds that the partition has in fact been made, he may make
an order affirming it and proceed under Sections 143, 144, 145 and
146, or any of those sections, as circumstances may require, in the
same manner as if the partition had been made on at application to
himself under this chapter.
In case titled: Noor Muhammad and others Vs Allah Ditta and
others, reported in PLD 2009 Supreme Court 198 citation (C), the
august Apex Court held that, "Private partition does not determine
the legal rights but simply indicates the mode of division of property
among them".
In case titled: Syed Musarrat Shah Vs Syed Ahmed Shah alias Lal
Bacha reported in 2012 PLD 151Peshawar, the august Court held
that, "Mere entry of partition mutation, could not be declared to be
sufficient enough to have the protection of law". If other steps have
not been taken in respect of the affirmation of the private partition,
i.e. inquiry about private partition, passing of order of affirmation of
private partition, administration of property excluded from
partition, distribution of revenue and rent amongst the co-owners
after partition, instrument of partition and delivery of possession to
all the concerned co-sharers according to the partition so reached
between the parties.
OTHER ISSUES REGARDING PARTITION
UN-DIVISIBLE NATURE OF PROPERTY:
One another problem which is now a day very common and which
the masses faces in the urban area is that sometimes the property
is of un-divisible nature, so in such a situation if any one of the co-
sharers files a suit for partition of the such property, then the Court
should have to take great care in such like cases and should take
assistance from law by applying S.2 of Partition Act, 1893. In case
titled: Iqbal Ahmad Vs Mst. Aziz Bano, reported in 2010 MLD 784
Karachi, it is held that, "Provisions of S.2 of Partition Act, 1893,
made it generally permissible that in a suit of such nature, a
property if found incapable of being partitioned by metes and
bounds, the same might be sold out and proceeds thereof might be
distributed among the share-holders/co-owners to resolve the
controversy between them in respect thereof as once for all".
RIGHT OF CO-SHARER TO BUY WHOLE UNDIVIDED PROPERTY
WHICH IS OF INDIVISIBLE NATURE:
Once a preliminary decree is passed by a Court of law then the
Court has left with no other option by to proceed under S. 3 of the
Partition Act, 1893. This fact has further been confirmed by the
verdict of the Lahore High Court, in case tilled: Firdous Begum Vs
Mst. Salamat Bibi reported in 2008 CLC 248 Lahore, in which it is
held that, "Once preliminary decree was passed, then provisions of
S. 2 of Partition Act, 1893 would not apply and Court would have to
pass final decree and resort to provision of S. 3 thereof and in case
of failure of any share-holder to apply for leave to buy share, then
property would be liable to be auctioned. Once property was found
to be indivisible, then Court for effecting partition would have to
follow procedure laid down in Partition Act, 1893 after providing
opportunity to shareholders to apply for leave to buy property".
REMEDIES WITH THE PERSON/CO-SHARER WHO IS
DISPOSSESSED:
In case titled: Contractor Haji Muhammad Alam Vs Shaukat
Sultan, reported in 2009 SCMR 688, the Hon'ble Apex Court held
that, "where a co-sharer in possession is dispossessed by another
co-sharer, then he has two remedies to avail, he can either file suit
for partition or a suit under S.9, Specific Relief Act, 1877".
In another case titled: Shoukat Sultan Vs Haji Muhammad Alam,
reported in 2008 YLR 1698 Lahore, it is held the by the august High
Court that, "where co-sharer in possession was dispossessed by
another co-sharer, then he had two options, namely he could either
wait and file suit for partition or he could file a suit under S. 9 of
the Specific Relief Act, 1877".
In another case titled: Niaz War Jan Vs Gul Nawaz, reported in
2007 YLR 1723 Peshawar, it is held by the august High Court that,
"A co-sharer in possession of a joint property was not liable to be
ousted therefrom, except on a partition by metes and bounds taking
place between the co-sharers".
In case titled: Muhammad Riaz Vs Mumtaz Ali through Legal Heirs,
reported in 2006 YLR 1071, it is held that, "where both the parties
were co-sharers in the joint un-partition Khata and their remedy
was to seek partition in accordance with law by impleading all other
co-sharers in khata—If a co-sharer was dispossessed by another co-
sharer his remedy was for partition of joint property or a suit under
Section 9 of Specific Relief Act, 1877, for possession but a regular
suit under section 8 of Specific Relief Act, 1877, was not
maintainable—Suit filed by the petitioner could not be treated to be
one under Section 9 of Specific Relief Act, 1877, as there was no
specific averment that they were illegally or forcibly dispossessed
from the land in dispute".
Remedies provided to the co-sharer who has been dispossessed has
also been given by august Lahore High Court in case titled: Nazar
Hussain Vs Additional District Judge, Chakwal reported in 2004
YLR 322, wherein it is held that, "Co-sharer in possession, if
dispossessed had two remedies; one a suit for separate possession
by partition; and the second a suit in accordance with terms of S. 9
of Specific Relief Act, 1877".
MESNE PROFIT:
Any person in possession of the property enjoying benefit therefrom
to the exclusion of rightful owner, he would be liable to pay rent or
mesne profit to the person who has been dispossessed or deprived
of his property. In a case titled: Muhammad Anwar Vs Dr. Gohar
Ali, reported in 2007 CLC 621 Karachi, it is held that, "Co-owner in
possession to the exclusion of other co-owner in such case, could
be held liable to the extent of his unauthorized or hostile
occupation, possession or enjoyment thereof. Once a person
established and Court came to a conclusion that person was
entitled to any right or share in the property; and he was being
deprived of use of such right or share in property by the other
person, then the owner who was out of possession or enjoyment
would become entitled to claim those profits actually received by
person in unlawful possession or enjoyment of such part thereof, as
the case could be".
QUESTION OF JURISDICTION IN CASE OF SHAMILAT PROPERTY:
In case titled: Barkat Ali Vs Sultan Mehmood,reported in 2009 CLC
899 Supreme Court Azad Kashmir, it is held that, "Suit land was
shamilat Deh, about which the civil Court had limited jurisdiction
and could not grant permanent injunction against all the Share-
holders who possessed the land in the estate as well. Unless the
shamilat Deh land partitioned by metes and bounds by the Revenue
Authorities, no specific share could be declared to be in possession
of any land-owner".
QUESTION OF POSSESSION OF CO-SHARER IN UNDIVIDED
PROPERTY:
In case titled: Syed Shabir Hussain Shah and others Vs Asghar
Hussain Shah, reported in 2007 SCMR 1884 Supreme Court, it is
held by the Apex Court that, "Every Co-owner/Co-sharer would be
considered to be in possession of each inch of un-partitioned land
according to his share".
In case titled: Munawar Hussain Vs Amanat Ali,reported in 2007
YLR 1756 Lahore, it is held that, "any transfer out of joint khata
even with regard to specific khasra number is always subject to
final adjustment of partition. No person can claim his exclusive
ownership with regard to a specific khasra number on the ground of
having been purchased by him to the exclusion of other co-sharer".
Actual possession of a joint owner in an undivided property in of no
value and it would not affect the rights of other co-sharers. As it is
discussed by the august Lahore High Court in case titled:
Muhammad Arif Vs Muhammad Hafeez,reported in 2007 MLD
1983, that, "Actual possession of a co-owner/co-sharer in case of
joint land would be of no relevance. Such possession to all purposes
would inure to benefit of remaining co-owners/co-sharers as well
till such time partition was affected".
Sometimes it happens that a co-sharer started raising construction
over an undivided property, without consulting and associating
other co-sharers or without taking their prior approval. In such an
eventualities, a co-sharer who is dis-agreed with the act of another
co-sharer who is raising construction can come to the Court and
stop him from such an act. In a case of Ghulam Rasool Vs Umar
Hayat, reported in 2004 YLR 1136 Lahore, it is held by august
Lahore High Court that, "Each co-share was owner in every part of
the joint holdings to the extent of his entitlement—No co-sharer
could be permitted to change character of the land to the exclusion
of other co-sharers, without resorting to some lawful partition
proceedings".
Possession of a co-sharer on a specific part of an undivided
property carries little weight when the property comes to the
partition proceedings. In a case of Muhammad Younas Vs Member
(Judicial), Board of Revenue, Punjab, reported in 2004 YLR 793
Lahore, it is held while deciding the revision petition that, "Each
and every co-sharer would be deemed to be owner and also in
possession of every inch of joint land till such time, same is
partitioned by metes and bounds—Actual possession over joint land
would matter little, when land comes to partition".
In a case titled: Mst. Ghulam Fatima Vs Muhammad Munir,
reported in 2004 CLC 995Lahore, it is held that, "Dispute among
co-sharers with respect to possession of their property could be
settled through partition of the same from a competent Court".
In case titled: Khurshid Anwar Jalil Vs Muhammad Hafeez Mirza,
reported in 2003 CLC 1695 Lahore, it is held that, "every joint
owner shall be deemed to be in possession of each and every inch of
joint property—If strong co-sharer after taking possession of more
valuable part of joint property either alienates same or changes its
character, then it cannot be said that weak/poor co-sharer may file
suit for partition and till its decision, strong co-sharer may alienate
same or change its character and throw his adversary into ditches
or barren land by taking commercially valuable land abutting on
road side or more fertile land—Such course cannot be allowed
under principle of equity and justice".
CONSTRUCTION BENEFICIAL FOR OTHER CO-SHARERS:
Plea that the construction raised by one co-sharer would be
beneficial to other co-sharers, as the same will increase the value of
the property is disregarded by worthy Supreme Court of Pakistan in
case of Fazal Vs Ghulam Muhammad, reported in 2003 SCMR 999
Supreme Court, wherein it is held that, "Defendants instead of
raising construction on the property which was admittedly owned
by the plaintiffs, should have first of all got the same partitioned
and then might have constructed the portion of land falling in their
share".
Suit for possession of specific khasra number is not maintainable
against a co-sharer unless the whole khata is not partitioned. In a
case of Dilmeer Vs Rajab Ali reported in 2003 MLD 484 Lahore, it is
held that, "Trial Court could to pass a decree for specific khasra
number from joint khata, unless joint khata was partitioned—Suit
for possession against a co-sharer was not maintainable—Every co-
sharer, however, would have a right to seek partition in accordance
with law".
No co-sharer can be dispossessed from an immovable property
which is of an undivided nature, except in accordance with law. In a
case titled: Khawaja Masood Ahmad Vs Sajad Sarwarreported in
2002 MLD 434 Lahore, it is held that, "Person acquiring possession
of immovable property at the very inception as co-owner could not
be dispossessed from the same without proper partition and a
decree/order of a competent Court in that regard".
WHEN ENTITLEMENT OF PARTY ESTABLISHED IN PROPERTY,
PARTITION CANNOT BE DENIED:
It is prime duty of the party who wants the Court to issue an order
of partition in his favour in respect of some immovable property
that he should have first established that he is owner in the suit
property or that he has some rights attached to the immovable
property, along with other essential conditions of Jurisdiction, non-
joinder or mis-joinder of parties, case for full partition. No private
partition and if he succeeded in proving all essential requirements
of partition, then it became his right that a decree or order for
partition should be passed in his favour, if any other legal question
not arises in his way. In case titled: Muhammad Anwar Vs Dr.
Gohar Ali, reported in 2007 CLC 621 Karachi, it is held that, "Once
entitlement of the plaintiff to the suit property was established,
partition and division of property could not be denied, unless, of
course, it was shown that such property was incapable of division
and partition.
IMPLEADMENT OF PARTY/CO-SHARER AFTER PASSING OF
PRELIMINARY DECREE:
As it is the established principle of law, set down by the superior
Courts of Pakistan that no one should be condemned unheard and
keeping in view the said principle, the Court always try to decide
the disputes between the parties on merits and after hearing them
and after affording them ample opportunity to safeguard their
rights. Even a co-sharer can come to the Courts of law and defend
his rights after passing of preliminary decree, in which he did not
joined the proceedings. In a case titled: Mst. Maqsooda Vs
Muhammad Azeem,reported in 2004 YLR 1019 Lahore, it is held
that "So long land in dispute remained joint and final decree was
not drawn up, any necessary party being vested with title or interest
therein, could be impleaded".
ALIENATION OF PROPERTY/POSSESSION OF CO-SHARER IN
JOINT KHATA:
In case titled: Muhammad Bashir Vs Noor Rehman, reported in
2011 MLD 1518 Lahore, the august Court held that, "Co-sharer in
possession of specific property not beyond his share could protect
his possession till taking place of partition in accordance with law".
In another case titled: Abdur Rehman VS Muhammad Siddique
through L.Rs, reported in 2006 MLD 442 Lahore, it is held that,
"Co-sharer in possession could, while alienating his share, transfer
possession of his holding to another person which would be subject
to partition. Co-sharer would be entitled to retain possession of
land in joint khata till it was partitioned by metes and bounds".
A Co-sharer can alienate his share in an undivided property and
there is no embargo upon him for doing so. In case titled: Mst. Bibi
Jan VS Mir Zaman, reported in 2003 CLC 909 Peshawar, it is held
that, "Co-owners in possession of specific area can alienate same
subject to final adjustment at time of actual partition".
If a co-sharer sells in portion of property in an undivided khata, and
deliver the possession of some specific area to the vendee, then the
vendee can retain the possession of such land which was delivering
to him by the vendor till final partition. In case titled Muhammad
Aslam Vs Amir Muhammad Khan, reported in 2003 YLR 1870
Lahore, it is held that, "Co-sharer was entitled to transfer a specific
khasra number under his exclusive possession to the vendee and
the he (vendee) would continue in possession til the partition of the
joint khata because the vendee stepped into the shoes of the vendor
as co-sharer".
A Co-sharer can alienate a property in favour of other person but he
cannot alienate a property with a specific description of boundaries
unless the property is being properly partitioned. In a case titled:
Muhammad Anwar Vs Mst. Nawab Bibi,reported in 2003 MLD 742
Lahore, it is held that, "Vendors although co-sharers, yet were not
in possession of specific khasra numbers and, therefore, they were
not entitled to transfer and lawfully alienate the plot with
boundaries in favour of vendee".
CONCEPT OF OWELTY OF PARTITION:
Owelty is an equalization charge. It is the amount that one co-
owner must pay to another after a suit of partition, so that each co-
owner receives equal value from the property. This is done to
achieve equality after exchange of parcels of land having different
values or after an unequal partition of real property, or Owelty of
partition is a sum of money paid by one of two caparceners or co-
tenants to the other, when a partition has been effected between
them, but the land not being susceptible of division into exactly
equal shares, such payment is required to make the portions
respectively assigned to them of equal value.
In case titled: Mrs. Saadia Muzaffar through her attorney Vs Mrs.
Khadija Manzur, reported in 2006 CLC 401 Karachi, it is held that,
"Co-owners would have equal right in every part of property until a
regular partition was affected. Merely because defendant was in
occupation of front portion of property purporting to be of higher
value would not give him right to more benefit than what was
possessed by plaintiff. Concept of owelty was not applicable to such
case".
CONCLUSION
From above details we can assess that in civil suits the claims of
partition of property is highly technical and complicated job. In
order to accommodate the people it is need of hour that the Govt.
should take serious steps for computerizing the revenue record or
other property record. Further settlements in all districts of
Pakistan are to be made regularly and at the time of settlement, if
the revenue officers found any joint property as impliedly divided by
co-sharers through an implied/silent private partition, to give it
effect in the record without constraining them to have a recourse of
litigation. Secondly it is also inevitable that the Hon'ble Supreme
Court of Pakistan like laid downing the procedure in rent cases, as
evident from Barkat Ali case 2000 SCMR 556, also considered the
question of partitions for facilitating the people of Pakistan
LOCAL COMMISSION:
Report of Local Commission is to be treated as evidence (2017 CLC
119) but it is not binding on the court to consider it ( 2007 CLC
1661) and it could not be form the basis for the grant of a relief
(PLD 2004 SC 633).
Any party can file application under Order 26 and rule 10 of Civil
procedure code for summoning the local Commissioner to appear as
witness, thereby the party calling the Commissioner as a witness
can also cross examine (1996 CLC 585), but this right to cross
examine would be available to the party only with the permission of
the court under Order 26 Rule 10 sub rule 2 of Civil procedure code
( PLD 1998 Lahore 338).