Notes On Civil Procedure Code

“NOTES ON”
CODE OF CIVIL PROCEDURE

Part-I (Code of Civil Procedure 1908)
Q -1: Enumerate the matters which the executing court is required to determine? Also
give the power of executing court.
A – 1: Introduction
As per section 47 “Any or all questions arising between the parties to the suit in
which the decree is passed or their representatives and relating to the execution,
discharge or satisfaction of the decree”, are to be determined by the executing court the
decree and not by a separate suit. The provision of order XXI of the code which also
relate to the execution of decree and provide for detailed procedure in that regard are to
be read with section 47 of CPC.
2. Relevant Provision.
a. Section 47 of CPC.
b. Order 21 of CPC and cross reference.
c. Sections 36 to 52 are relevant provisions.
3. Meaning of Executing Court.
It has been not defined in the code, so it may be defined in general sense:
“Executing court is a court which enforces the decree or order, in order to enable
the decree holder to derive benefit from the judgement”.
4. Court which can Execute Decree. A decree may be executed by the court;
a. Which passed decree or
b. To which decree is sent u/s 39 for execution or
c. To which proceedings are transferred u/s 24 or sec 150 of CPC.
5. Categories of Question. There are following two categories of questions in civil
cases:-
a. Pre-decretal Questions. All matters, before passing of decree has to be
settled by the decree and the executing court can not determine question relating
to pre-decreta matters.
b. Post-decretal Question. Executing court has an exclusive jurisdiction to
determine all questions arising after the passing of decree, and relating to the
execution, discharge or satisfaction of decree.
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6. Questions Determined by Executing Court. Following are post-decratal matters
hence determined by executing court and in such cases no separate suit shall lie, only an
application has to be made in the court who passed the decree: -
a. Deficient Remedy. If decree holder is dis-satisfied from the remedy, he may
file an application to the court that passed the decree for further remedy. Such
question will be determined by executing court.
b. Enforcement of Relief. Every decree holder can file an application for
enforcement of relief as granted by decree and it will be determine by executing
court whether it is enforced or not or to what extent enforce.
c. Adjustment of Decree. It is also post-decratal matter and determinable by
executing court for the proper and according to the intent of decree adjustment of
decree.
d. Refund of Excessive. A party whose property has been attached for the
execution of decree or who delivered his property for execution may make an
application for the refund of excessive, if any, after execution of decree. Such
question is also determined by executing court.
e. Other Questions. An executing court also determines all other questions, but
only relating to execution, satisfaction or discharge of decree.
7. Questions not determined by Executing Court. Following questions are not
determinable by executing court and hence no bar to the aggrieved party to file a
separate suit: -
a. Where the decree has been obtained by fraud
b. The validity of the legality of decree
c. Suit for damages incurred in the execution proceedings
d. Payment made prior to the decree cannot be given effect to by the executing
court
e. Where the decree is valid or set aside on proceeding under order 8 rule 13 or by
a separate suit
f. A suit for contribution between judgement debtors.
g. Obstruction to delivery of possession by judgement debtors after confirmation of
sale
h. Ascertainment of the manse profit awarded under a decree
i. A declaratory decree is incapable of being executed and separate suit will lie to
enforce the rights declared.
8. Objects of Section 47.
One of the object of sec 47 is to enable court to follow all legally possible
measures to implement and execute its own judgements, orders and decrees.
¾ Provision of part-II i.e. sec 36 to 74 and order XXI of the CPC are meant to
provide speedy relief to parties or representative to the suit to resolve all
questions pertaining to execution, discharge or satisfaction of decree by
executing court and not through cumbersome proceedings of a separate suit.
9. Nature of Section 47.
The nature of section 47 is mandatory in nature and the court is bound to comply
with the provision.
10. Nature of Order u/s 47.
The determination of question, regarding execution, discharge or satisfaction of
decree u/s 47 would be an order and not a decree.
Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Class: - LLB Part-III Year 2008-09 (RLC)
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11. Appeal.
Any order passed u/s 47 of CPC is made appealable u/s 104 of CPC.
12. Power of Executing Court u/s 47. The executing court have the following powers u/s
47 of CPC 1908: -
a. Power to Examine the Decree. The executing court is empowered to
examine the decree for determining, whether the question relates to the
execution, discharge or satisfaction of decree, or not.
b. Power to decide post-decratal questions. The executing court is empowered
to decide all post-decratal questions relating to the decree, arising between the
parties or their representatives, but has no power to decide pre-decratal matters,
which are decided with the decree.
c. Power to Construe (Interpret, Read, See). The executing court can construe or
interpret the decree to decide above mentioned question.
d. Power to Grant Relief. The executing court has power to grant relief
against forfeiture and penalty.
e. Power to Award Costs. The executing court has power to award and
interests on the execution proceedings to the successful party.
f. Power to Convert Execution Proceeding into Suit. The executing court
has power to convert execution proceedings into suit and suit into execution
proceedings.
¾ Provided that execution proceedings or suit is not time barred under
Limitation Act 1908 and also capable of being conversion.
¾ Note. The executing court has no power to check the validity of the
decree.
13. Limitation on Executing Court.
The executing court must take the decree according to its tenure and cannot
entertain any objection that the decree is incorrect in law or in fact. It cannot re-
determine the liabilities of parties. It cannot modify those terms or deviate from them in
exercise of its powers of execution. Executing court has only power to execute the
existing decree and if any error is found, on the fact of it or otherwise on it is void as
passed with out jurisdiction, appropriate remedies are available to the judgement debtor
to have the judgement modified.
14. Conclusion.
Executing court in exercise of its jurisdiction under section 47 of CPC can take
into consideration subsequent events even after passing of the decree. All questions
arising between parties to the suit, in which decree is passed, should be determined by
the court executing the decree and not by a separate suit.

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Q -2: Appellate Court has the same power and performs almost the same duties as are
conferred by CPC on the courts of original jurisdiction? Discuss
Section 107 CPC relates to general provision relating to appeals and provides
condition and limitation for an appellate court to be exercised while disposing of an
appeal. This section empowers the appellate court to determine a case finally, to remand a
case, or frame issue and refer it for the trial etc
2. Relevant Provision. Relevant provision is Sec 107 and Order 41 of CPC.
3. Power of Appellate Court S-107 (1). The powers of an appellate court are
regulated by the provision of order 41. According to section 107, CPC an appellate has
following powers: -
a. Determine the Case Finally (Order 41 rule 4, 20, 24 and 33). If the evidence
on the record is sufficient to enable it to pronounce judgement, the appellate court
is empowered to determine it finally.
b. Remand the Case. The appellate court is empower to remand the case, to the
court from whose decree the appeal is preferred, if that court has disposed of the
suit on a preliminary point and the appellate court holds that the decision of the
lower court on that point the trial on the other issues or such as the appellate court
may direct it to try and then determine the case.
c. Frame Issue and Refer them for Trail. The appellate court is also empower
to frame issue and refer them for trial to the court from whose decree the appeal is
preferred, if the court omitted to try any issues essential to the right decision of the
suit. The lower court should then proceed to try issue together with its findings
thereon and the reasons there for.
¾ Either party may then file in the appellate court a memorandum of objection to
any finding and that court will then proceed to determine the appeal.
d. To Take Additional Evidence. The appellate court has also power to take
evidence to determine the case finally.
e. To Require Additional Evidence to be Taken. The appellate court is also
empower to require to take additional evidence by the court from whose decree the
appeal is preferred, If
¾ That court has refused to admit evidence which ought to have been admitted or
¾ The appellate court required any document to be produced, or any witness to

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be examined to enable it to pronounce judgment or for any substantial cause.
¾ Where the appellate court directs that the lower court should take additional
evidence, it should send it when taken to the appellate court who will then
determine the appeal.
4. Power of Appellate Court u/s 107 (2).
Subject as mentioned in sub section (1) of section 107 of CPC, the appellate court
shall have the same powers and shall perform as nearly as may be the same duties as
conferred and imposed by the code on courts of original jurisdiction in respect of suits
instituted therein.
5. Power of Appellate Court & Power of Trail Court.
The power and duties referred to in section 107 (2) of the CPC are such as are
provided by the Code of Civil Procedure and not any other enactment. As an appeal is a
continuation of the original cause it is therefore, implied that an appellate court can pass
any order which the trial court could have passed, including incidental orders.
6. Scope of Powers of Appellate Court.
The scope of the powers of an appellate court in section 107 (1) of CPC in regard
are different from section 107 (2) , 151 and order 41 rule 23 of the CPC. However, its
powers are limited and confined in scope to the limits of the jurisdiction of the original
forum. In addition it has all the powers enumerated in section 107 (1) CPC.
7. Conclusion.
The function of the state is to redress the public. The trial courts as well as
appellate courts are functionaries of state and the distribution of jurisdiction is
administrative matter and in order to better dispose of justice. An appeal is a continuation
of suit; hence appellate court can exercise same powers as exercised by court of original
jurisdiction.

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Q -3: What is the Pecuniary Jurisdiction of a court? How is it relevant for filing of a suit?
Civil courts have jurisdiction to try all suits of civil nature, unless their jurisdiction
is either expressly or impliedly barred. One of the limitations upon the jurisdiction of the
court is imposed by the section 6 and 15 of CPC with reference to the values of the subject
matter of the suit.
a. Section 6 and 15 of CPC
b. Suits Valuation Act 1887 and
c. West Pakistan Civil Courts Ordinance II of 1962.
3. Meaning of Pecuniary Jurisdiction.
Pecuniary jurisdiction may be defined as under: -
“Pecuniary jurisdiction of the court is the jurisdiction with reference to the value of
the subject matter of the suit”.
4. Basis of Pecuniary Jurisdiction. Pecuniary jurisdiction is to be determined on the
basis of value of the relief claimed.
5. Kinds of Jurisdiction. Jurisdiction conferred upon the Civil courts are of the following
kinds: -
a. Pecuniary Jurisdiction
b. Territorial Jurisdiction
c. Personal Jurisdiction
d. Subject Matter Jurisdiction
e. Appellate Jurisdiction
6. Determination of Pecuniary Jurisdiction. Pecuniary Jurisdiction of Civil courts, shall
be determined in accordance with following: -
a. In accordance with the Suit Valuation Act 1887
b. West Pakistan Civil Courts Ordinance II of 1962
7. Pecuniary Jurisdiction of Civil Courts. Pecuniary jurisdiction of civil courts is
regulated by the West Pakistan Civil Court Ordinance II of 1962 which provides
following:-
a. Jurisdiction of Civil Judge 1st Class. He can exercise jurisdiction in
original suits or proceedings without limits as regards value.
b. Jurisdiction of Civil Judge 2nd Class. Jurisdiction of civil judge 2nd class is
limited upto Rs. 50,000/-.
c. Jurisdiction of Civil Judge 3rd Class. Jurisdiction of civil judge 3rd
class is limited upto Rs. 20,000/-.
8. Appellate Jurisdiction of High Court & District Court.
Where the value of subject matter of the suit exceeds Rs. 2, 00,000/- an appeal
shall lie to the High Court, And in other cases it may lie to the High Court or District
Court.
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9. Suit Against Government.
Suits against government, whether federal or provincial or any public officers can
only be entertained by court of unlimited pecuniary jurisdiction
10. Order Passed Without Jurisdiction. In this regard following general rule shall apply: -
a. General Rule. An order of the court, which has no pecuniary jurisdiction, is null
and void.
b. Exception u/s 11 of Suits Valuation Act. An order or decree of court not
possess pecuniary jurisdiction is not void, if the defendant does not object to the
pecuniary jurisdiction of court, at the earliest possible opportunity.
11. Court in which Suit is to be Instituted u/s 15. Every suit shall be instituted in the
court of the lowest grade competent to try it.
a. Sec 15 Enact a Rule of Procedure. Section 15 of CPC enacts a rule of procedure
which does not affect the jurisdiction of the court.
b. Object of Sec 15. The object of sec 15 is to prevent overcrowding in courts of
higher grades with suits that can be disposed of by courts of lower grade.
c. Sec 15 Not Barred the Jurisdiction of Higher Courts. Sec 15 does not affect
the jurisdiction of the higher court to entertain a suit of a nature cognizable by a
court of lower grade and the decree of higher courts in such situation will be valid
and binding.
d. Competency of Lower Courts. The lower courts in which the suit should be
instituted must be competent to try it that is; it must have subject matter,
pecuniary, territorial and personal jurisdiction to try the suit.
12. Subsequent Increase in Value of Subject Matter.
If during the pendency of the suit or proceeding, the value of the subject matter of
the suit increases, the court will not lose jurisdiction as it does not affect the jurisdiction of
the court.
13. Impossibility of Satisfactory Valuation.
Where satisfactory valuation is not possible, then the plaintiff has a right to put his
value on the plaint, which may be accepted by court.
14. Return of Plaint U/ Ord 7 Rule 10.
Where the court not has the jurisdiction, the plaint shall be returned to file in the
proper court.
15. Rejection of Plaint U/ Ord 7 Rule 11. The plaint shall be rejected: -
a. Where plaintiff’s valuation of suit is bases on fraud or misrepresentation or
b. Where the relief claimed is under or over valued.
16. Conclusion.
At the end, it can be said that the pecuniary jurisdiction restricts the unlimited
jurisdiction of civil courts. An order by a court not possessed of pecuniary jurisdiction has
no value in law, except where the defendant not raised an objection against it in the court
at the earliest possible opportunity. The valuation in the plaint normally determines the
jurisdiction of the court and where the valuation made was not correct, court may order
correction of its valuation under order 7 rule 11.

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Q -4: Enumerate the Situation where revision is filed and not the appeal in the light of
latest amendment?
It is rule of natural justice that where errors of jurisdiction are committed, they should
be rectified at the earliest opportunity. Section 115 of CPC confers an exceptional and
necessary power to fulfill this aim. The scope of this revisional jurisdiction under sec 115
is confined to the extent of misreading or non-reading of evidence, jurisdictional error or
an illegality of the nature in judgement which may have material effect on the result of the
case or the conclusion drawn therein is perverse or contrary to the law (2006 SCJ 424).
2. Meaning of Revision.
According to Black’s Law Dictionary “A re-examination or careful reading
over for correction or improvement”.
a. Section 115 of CPC
b. Section 6 (2) and 18 of West Pakistan Civil Courts Ordinance II of 1962 and
c. Article 199 and 203 of Constitution of Pakistan are relevant provisions.
4. Mode of Instituting Revision. Proceedings may be instituted by either of the
following ways :-
a. By application of aggrieved person
b. Suo Muto by the court
5. Authorities So Empowered u/s 115. Following authorities are empower under sec 115: -
a. High Court. High court can entertain revision in all cases: -
(1) Where the value of the subject matter exceed Rs. 2,00,000/- or
(2) Where the value of the subject matter does not exceed two laks and which
is in competence of District Court by virtue of sub-section (3) of sec 115.
b. District Court. District court can entertain revision where the value of the
subject matter does not exceed its appellate jurisdiction which is Rs. 200,000/- u/s
18 of West Pakistan Civil Court Ordinance II of 1962.
c. Additional District Judge. Additional District Judge can also exercise
revisional powers by virtue of sec 6 (2) of West Pakistan Civil Court Ordinance II
of 1962, where District Judge entrust revision for the disposal to the Additional
District Judge.
6. Conditions for Revision. The court may interfere in revision if the following conditions
are fulfilled: -
a. For interference in revision the impugned order must be a case decided.
b. Such case must be decided by sub-ordinate court, to the court which exercised
revisional jurisdiction
c. Revision must entertain where no appeal lie.
7. Situation Where Revision Lie & Appeal Not Lie u/s 115 (1) of CPC. In the following
cases revision lie and appeal does not lie: -
a. Illegal Assumption of Jurisdiction. When a court has no legal authority to decide
the case at all. But nevertheless under an erroneous construction of the law or of a
misapprehension of facts proceeds to do so as if it had such authority, it exercises a
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jurisdiction not vested in it by law.
Example. Entertaining of an appeal against a non-appealable order.
b. Non-Exercise of Jurisdiction. A refusal by a court to exercise a jurisdiction
or failure to exercise properly jurisdiction vested in it is subject to correction in
revision.
Example. Refusal to pass an order when the court has jurisdiction to do so.
c. Illegal or irregular exercise of Jurisdiction. An exercise of jurisdiction,
illegally or with material irregularity by the subordinate court is subject to revision
u/s 135. If a court possessed of jurisdiction violates, disregards or over look any rule
of law or procedure prescribing the mode in which the jurisdiction is to exercised, it
acts illegally or with material irregularity in the exercise of its jurisdiction.
Example. An order of a court not based on any evidence.
d. Requirement of Revision Petition. According to its proviso where a person makes
an application under 115 (1), he shall in support of such application furnish copies of
the pleadings, documents and order of subordinate court and the high court shall
except for reason to be recorded dispose of such application without calling for the
record of the sub ordinate court.
8. Bar on Further Revision S-115 (3).
If any application under sub section (1) in respect of a case within the competence of
the District Court has been made either to the High Court or the District Court no further
such application shall be made to either of them.
9. Revision in the Light of Amendment. Following amendments are in law of revision: -
a. Second Proviso Added by CPC amendment Act VI 1992. Provided further
that such application shall be made within ninety days of the decision of the sub-
ordinate court.
b. Words added in 2nd Proviso by Civil Law Reforms Act XIV 1994.
Subordinate court shall provide a copy of such decision within three days
thereof and the High Court shall dispose of such application within six months.
c. Sub-section (2), (3) and (4) added by Civil Laws Reform Act XIV of 1994.
(1) Sub Sec (2). The district court may exercise the power conferred on the
High Court by sub sec (1) in respect of any case decided by a court sub-
ordinate to such district court in which no appeal lies and the amount or the
value of the subject matter whereof does not exceed the limits of the
appellate jurisdiction of the District Court.
(2) Sub-sec (3). If any application under sub section (1) in respect of a case
within the competence of the District Court has been made either to the High
Court or the District Court no further such application shall be made to either
of them.
(3) Sub-sec (4). No proceedings in revision shall be entertained by the High
Court against an order made under sub section (2) by the District Court.
10. Conclusion.
It can be said by the above discussion that the jurisdiction conferred by sec 115 of
CPC is discretionary in nature, but this does not imply that it is not a right and only a
privilege. Revision proceedings may either be taken by the High Court or the District Court
and where it is taken by District Court it bars the second revision to the High Court. The
remedy available to person aggrieved of such order of District Court made in revision is to
invoke the writ jurisdiction of High Court u/ Article 199 or 203 of constitution of Pakistan
as a supervisory jurisdiction.

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Q -5: Is every decree is appealable Discuss? OR
Can an appeal be filed against consent decree? If so, on what grounds?
A contract or an agreement is a matter inter parties, so when parties to suit
compromise in respect of any matter and decree is passed according to that compromise, it
barred the right of appeal by virtue of section 96 (3) of CPC. A consent decree operates as
an estoppel and it is binding on the parties unless set aside by means provided by law.
2. Meaning of Consent Decree.
It may be defined as under: -
“A consent decree is one passed with the agreement of the Parties”.
3. Relevant Provision. Following are relevant provision:-
a. Sec 96 (3) of CPC
b. Order 23 Rule 3 of CPC
c. Order 32 rule 7 of CPC.
4. When Consent Decree be Awarded u/o 23 Rule 3. A consent decree will be
awarded in the following situations:-
a. Parties to the Suit Compromise. Consent decree will be awarded when
parties to the suit compromises. In order that compromise be accepted
following conditions must be fulfilled: -
(1) Adjustment of the Suit. There must be an adjustment of the
suit. The adjustment may be whole or any part of the suit.
Example. An agreement to be bound by the decision of the
court is an adjustment.
(2)
Satisfaction of Court. The agreement must constitute
adjustment, where the court satisfies that the agreement does not
constitute an adjustment it has discretion to direct or refuse its
specific performance.
(3) Lawful Compromise. The term lawful refers to the legality
of the terms of an agreement. The agreement or adjustment between
the parties is a contract and subject to all the incident of a contract.
b. Defendant Satisfies Plaintiff. Court may award consent decree, when
defendant satisfies the plaintiff in respect of the whole or any part of the
suit.
5. Recording of Agreement.
After satisfying itself, that the agreement is lawful the court must order it to be
recorded and this is a matter of substance and not merely a matter of form.
6. Passing of Decree.
After recording the agreement the court shall pass decree. Court is bound under
order 23 rule 3 to decree suit on basis of compromise entered into between the parties.

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7. Appeal against Consent Decree S-96 (3).
A consent decree is not appealable and is binding on the parties.
8. Grounds where Appeal is Not Barred Against Consent Decree. A appeal against consent
decree is not barred on the following grounds: -
a. Appeal by a person not party in Compromise. A person can preferred appeal,
who did not give consent to the compromise and is not a party to the compromise
and comprise prejudicially affect him
b. Appeal against Nature of Decree. Appeal may be filed on the ground that the
decree is not a decree passed with the consent of the parties.
c. Appeal against Validity. Appeal may be filed on the plea of consent decree is to
be invalid, i.e. where the court did not have jurisdiction over the subject matter.
d. Dispute regarding nature of Compromise. An appeal may be filed where
there is dispute regarding the nature of the compromise.
e. Where there is No Compromise. An appeal may be filed on the ground that
there is no compromise at all.
f. Decree Not satisfied the Requirement of Order 23 Rue 3. An appeal may
lies, when the strict requirements of order XXIII rule 3 are not satisfied.
9. Other Remedies Against Consent Decree. Following other remedies are available to the
aggrieved person, against consent decree : -
a. Appeal against an Order Recording Compromise. An Appeal lies from an
order to record or refusing to record the compromise and the decree will
automatically falls if the order is set aside in appeal.
b. Application u/s 12 (2) CPC. Where it is alleged that the consent is vitiated by fraud
or is given under mistake of fact the remedy is to file an application u/s 12 (2).
c. Review U/S 114. A consent decree can be questioned by means of a review
application u/s 114 of CPC.
d. Revision u/s 115. Where no appeal is competent and illegality or marital
irregularity has been committed in the recording and approval of the compromise or
the decree being in disregard of the law is a nullity a revision would u/s 115 lies.
e. Remedy u/s 151. Where the decree is not in accordance with compromise it can
be corrected u/s 151.
10. Conclusion.
To conclude it can be said that where a consent decree is passed the parties have
nothing to appeal against. Where a partial compromise is arrived at the sub section (3) of
section 96 is not limited to consent decree u/ Ord 23 rule 3 but applies to all decrees in
adjustment by consent though appeal against decree is barred, there are also some cases
when appeal may be lie against consent decree.

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Q -6: State the Doctrine of ‘Res-Judicata’?
The doctrine of “Res-Judicata” requires that respect should be given to the judicial
decisions. The common law doctrine of Res-Judicata gives respect and finality to the
judicial decisions. This doctrine has been incorporated in sec 11 of CPC based on the
general rule, that a man shall not be twice vexed for same cause. The bar of Res-Judicata
continued in sec 11 would be fully attracted when matter involved in second suit was the
same as involved in previous litigation upto High Court.
2. Meaning of Res-Judicata.
“The term Res-Judicata signifies that the matter in dispute has considered and
finally settled and that the adjudication has a conclusive effect upon the rights
determined”.
a. Sec 11 of CPC
b. Sec 151 of CPC and
c. Sec 403 of Cr.PC are relevant provisions.
4. Common Law Principle of Res-Judicata. The common law principle of Res-
Judicata can be discussed as under: -
a. Leading Case of Duchess of King stone’s Case. It is observed that : -
(1) Judgement of a court of concurrent jurisdiction directly upon a point is
conclusive between the same parties upon the same matter directly in
question in another court.
(2) Judgement of a court of exclusive jurisdiction directly upon the point is
conclusive between the same parties upon the same matter coming
incidentally in question in another court.
b. Basis of Principle of Res-Judicata. It was observed in the case: -
BAHADUR VERSUS UMAR HAYAT (PLD 1993)
“Res-Judicata is based on the consideration that it would result in hardship to
individual if he was to be vexed twice for the same case and it is in the interest of
state that here should be an end to litigation.
c. Reason for Res-Judicata. Following are the reasons for the principle of Res-
Judicata:-
(1) Public Convenience. It is for the public convenience that having been
tired once all litigation about that cause should be concluded forever
between those parties.
(2) Maintenance of Society. The maintenance of public order and society
requires that what has been definitely determined by competent tribunals
shall be accepted as legal truth.
(3) Security of Rights. If the principle of Res-Judicata not applies then the
most important function of Govt. that of ascertaining and enforcing persons
right would go unfulfilled.
(4) Efficiency of Court. Efficiency of court requires that finality should be
given to judicial decisions and Res-Judicata works for this purpose.
d. Res-Judicata u/s 11 CPC. The principle of Res-Judicata is embodied in sec 11
of CPC by virtue of which subsequently court is barred to try a suit where the
matter, directly and substantially in issue is been decided by a court of competent
jurisdiction (2002 CLC Kar. 1620).
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e. Conditions for Applicability of Sec 11. To apply sec 11 following conditions
must be fulfilled: -
(1) Same Matter in Issue. All the matter in issue must be same
in both the suits. The term matter means necessary facts constituting the
claim or defence.
¾ Directly or Substantially. Matter in both suits must be directly
or substantially same.
¾ “A matter shall be directly in issue which has been alleged by one
party and either denied or admitted expressly or impliedly by the
other”.
¾ “A matter shall be substantially in issue if it is important and
valuable for the decision of the case”.
(2) Same Parties. Both the suits must be between the same parties or
their representatives.
(3) Same Title. The parties must be contesting in both the suits under the
same title.
(4) Former Suit must be decided. The matter in issue in a subsequent
suit must have been heard and finally decided by the court in the former
suit.
(5) Competency of Court. The court which decided the former suit,
means the suit which has been decided prior to the suit in question whether
or not it was instituted prior in time must be competent to try the previous
suit.
f. Bar to Try Subsequent Suit. Where conditions of sec 11 are fulfilled it
bars the jurisdiction of a court to try the subsequent suit.
5. Scope of Res-Judicata.
Social principle can be applied to proceedings other than suits viz constitutional
petitions, rent application and cases before the settlement authorities (2002 CLC Kar
1620).
6. Cases Where Bar of Res-Judicata May be Avoided. The bar of Res-Judicata may be
avoided in the following cases: -
a. Judgement Obtained by Fraud, Collusion or Without Jurisdiction. A party
can avoid the bar of Res-Judicata by proving that the judgement has been obtained
by fraud, collusion or without jurisdiction.
b. Recall of Order u/s 151. A court or tribunal may recall its orders if it is
without jurisdiction or is tainted with fraud or collusion.
7. On Whom Res-Judicata Applies. A decision will be Res-Judicata between following
parties:-
a. Parties on opposite sides
b. Parties on the same sides
8. Conclusion.
In the light above discussion it can be said that Res-Judicata as inserted u/s 11 of
CPC is of great importance because by applying this doctrine the security and
conclusiveness is given to the decision of the court and the law becomes more certain.
This doctrine is applicable only in Civil cases, while in criminal cases parallel to this
doctrine is double Jeopardy as provided in section 403 of Cr.PC.

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Q -7: Can an objection to territorial jurisdiction be taken for the 1st time at the appellate
or revisional stage?
The issue of jurisdiction is the ever expanding question of jurisprudence. The
concept of jurisdiction is very important in law, because the courts get the power and
authority to inquire into facts, apply the law and decide judgments only if it has
jurisdiction. One of the bar upon the jurisdiction of the court is bar of territorial
jurisdiction and the decision of the court which has no territorial jurisdiction are void as a
general rule. But section 21 of CPC is an exception to this general rule which tells the
stage and time where a party should take an objection to the territorial jurisdiction.
2. Meaning of Territorial Jurisdiction.
Black’s Law Dictionary. “Territory over which a government or a sub-
division thereof or court has jurisdiction”.
3. Relevant Provisions. Following are relevant provisions: -
a. Sec 21 of CPC
b. Sec 11 of Suit Valuation Act 1887.
4. Importance of Territorial Jurisdiction. Territorial jurisdiction of court is important
for the following reasons: -
a. To collect evidence
b. To execute decree against judgement debtor
c. To know the circumstances of the case
e. Convenience to the parties
5. Effect of Territorial Jurisdiction. Following is the effect of territorial jurisdiction:-
a. General Rule. The general rule of law is that an order passed by a court not
having jurisdiction is a nullity in the eye of law.
b. Exception. Following are the exceptions to the general rule: -
(1) Exception u/s 11 of Suit Valuation Act 1887
(2) Exception u/s 21 of CPC 1908.
6. Objections to Jurisdiction u/s 21. Following the rules as to taking of objection
regarding territorial jurisdiction of court:-
a. Time for Raising Objections. The objection to the territorial jurisdiction of
the court must be taken at the earliest possible opportunity and a decree passed by
a court not having territorial jurisdiction over the subject matter of the suit will not
be set aside if objection to the jurisdiction of the court had not been raised at the
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earliest possible opportunity (2002 CLC 159).
b. Raising of Objection at Revisional or Appellate Stage. Following general rule
shall apply in this connection.
(1) General Rule. According to section 21 of CPC objection as to the
territorial jurisdiction of the court cannot be raised at the appellate or
revisional stage.
(2) Exceptions. Objections to the territorial jurisdiction can be allowed to be
raised in appeal or revision proceedings in the following circumstance: -
(a) Where objection has been raised by the party in the court of first
instance at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement (2003 SCMR 686).
(b) This raising of objection before the court of first instance which
was in time gives the party a right to re-asserted the same objection
before the superior court.
(c) But where party raise an objection to the territorial jurisdiction
before the court of first instance at a late stage which is rejected by
the court then it bars the remedy against such rejection.
(d) Where there is a consequence of wrongful assumption of
jurisdiction by the court and this can be determine by the court by
assessing the merits of the case.
7. Failure of Raising Objection on Time.
Where the party fails to raise an objection to the territorial jurisdiction on time
then it will deemed to have been waived such a right and the decision of the court will be
res-judicata by virtue of section 11 of CPC.
8. Who can Raise an Objection.
Either party to the suit can raise an objection to the territorial jurisdiction of the
court.
9. Scope of Section 21.
Section 21 of CPC talks about the territorial jurisdiction of the court and it does
not apply to the cases of want of pecuniary jurisdiction.
10. Conclusion.
To conclude it can be said that territorial jurisdiction is a limitation upon the
jurisdiction of the court and the decision of the court without territorial jurisdiction is void
as a general rule but for this there must be an objection by the party to the jurisdiction of
the court at the earliest possible opportunity and the objection at the appellate stage of
revisional stage is barred except in certain circumstances.
Where party fails to raise such an objection at the earliest possible opportunity
then the decision of the court will not be void. The sec 21 of CPC is bases on the principle
of equity and the object is that the objections be raised in the form of preliminary
objection so that the time and efforts of the court my not be wasted in passing orders
which may ultimate without jurisdiction.
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Q -8: Define “Inherent Powers” of the court? Enumerate the Situation where it can be
invoked?
Laws are general rules and there will always be cases and circumstances which are
not covered by those rules. So, every court whether civil or criminal possesses inherent
powers in its very constitution to do justice and to undo the wrong, in the course of
administration of justice.
2. Meaning of Inherent Power.
Black’s Law Dictionary. “An authority possessed without its being derived
from another”.
3. Relevant Provisions.
a. Sec 151 of CPC
b. Sec 561-A of CPC
c. Sec 16 of General Clauses Act and
d. Article 183 and 199 of Constitution of Pakistan 1973 are relevant provision.
4. Sec 151 CPC. Here, I discus section 151 of CPC 1908 in prospectus of inherent powers of
court: -
a. Inherent Power of Court U/S 151. Sec 151 does not confer any new power upon
a court but only save its inherent powers to do right and undo wrong.
b. Nature of Inherent Powers. Jurisdiction of court u/s 151 is not additional or
alternate and when alternate remedy is available the inherent jurisdiction can not
be entertained.
c. Basis of Inherent Power. The inherent powers of court are based on the
following principle: -
“UBI JUS IBI REMEDIUM”
There is no wrong without remedy.
d. When Inherent Powers May be Used u/s 151. Courts can exercise inherent
powers u/s 151 in the following circumstances: -
(1) In the Absence of Express Provision of Law. Inherent powers can be
exercised by the court where there is no express provision in the code
(NLR 1998 Civil Pesh. 12)
(2) To Give Effect to Any Order under CPC. Inherent powers may be
exercised by the court to give effect to any order under CPC.
(3) To Prevent Abuse of Process of Any Court. Court may exercise
powers u/s 115 to prevent abuse of process of any court.
¾ Meaning of Abuse of Process. The term abuse of process of
any court has not been defined by the code. It may be defined as: -
“Misuse and colourable use of the powers and procedure or
usurpation of jurisdiction not vested in the court”.
(4) Who may Commit Abuse of Process of Court. Abuse of process of
court may be committed either;
(a) By the court or
(b) By the party
(a) Abuse of process by Court. Where the court by employing the
procedure does something that it never intended and there is
miscarriage of justice the court is said to commit abuse of the process
of court.
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Example. Passing of a decree on compromise that has not been
signed.
(b) Abuse of Process by Party. A party may abuse the process of the
court by utilizing the procedure to vex the opposite party.
Example. Fraud and Collusion between the parties.
(5) To Secure End of Justice. Inherent powers may be exercised by the court
to secure the end of justice and it necessarily means, justice administered by
the court and not justice in abstract sense.
e. Examples of End of Justice. Following are the examples of end of justice: -
(1) It is in the ends of justice that an injury should be remedied.
(2) Any needless expenses or inconvenience to parties should be avoided.
(3) Necessary step should be taken to avoid long litigation.
f. Restrictions against the Arbitrary Exercise of Inherent Powers. Following are
the restriction on the inherent powers of the court: -
(1) Inherent powers can’t be extended to make new law on the subject.
(2) It can’t be exercised against the express intention of the legislation.
(3) It can’t override the express provision of law.
(4) It can’t be used where there is remedy provided in law.
(5) Inherent powers should not affect the substantive rights of the parties.
(6) It should not be exercised to assist a party guilty of laches or delay.
g. Instances of Inherent Powers. Following are some of the instances of
inherent powers of court under section 151 CPC: -
(1) Correction of Error. Court can correct error in the judgement or decree or
even correct its own orders or to recall an erroneous order in an appropriate
case.
(2) Issuance of Injunction. Court may issue injunction in certain cases.
(3) Determining of Jurisdiction. Courts have inherent powers to
determine question of their own jurisdiction and it may also set aside an
order passed without jurisdiction.
(4) Production of Additional Evidence. Court in exercise of its inherent
jurisdiction under section 151 may allow production of additional evidence
for doing justice between the parties (NLR 2004 Civil Lah 630).
h. Appeal. Orders passed u/s 151 of CPC are not appealable unless they fall
within the definition of decree or an appealable order.
i. Revision. Generally revision will not be competent against order u/s 151, but in
appropriate cases revision may lie.
j. Limitation Period. The law of limitation will not bar the exercise of inherent
powers.
5. Conclusion.
By the above discussion it can be said that the courts have inherent powers to take
all steps to execute its own orders as this power flows from the jurisdiction itself. The power
u/s 151 is discretionary in nature though this discretion has to be exercised only to secure
end of justice. Sec 151 is exercisable only with respect to procedural matters and an
application may be filed u/s 151, but in a proper case a second application can be barred by
Res-Judicata.

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Q -9: State the Doctrine of “Res-Sub Judice”?
OR
Under what circumstances the trail court shall stay the proceedings in a pending
suit? Give the detail with special reference to section 10 of CPC?
The common law principle of Res- Sub Judice is incorporated in sec 10 of CPC. It
applies when a 2nd suit is instituted by the same parties contesting under the same title, in
the court of competent jurisdiction with regard to the same matter directly or substantially
in issue in a previous suit which is pending and thus by applying sec 10 the court orders
for the stay of the 2nd suit.
2. Principle of Res- Sub Judice.
The doctrine, prohibits the trail of two parallel litigation in respect of the same
cause of action and the same subject matter between the same parties.
a. Sec 10 of CPC
b. Sec 34 of Arbitration Act 1940 and
c. Article 203 of Constitution of Pakistan
4. Sec 10 CPC. Here, I will only discuss Sec 10 of CPC in respect of Res- Sub Judice:-
a. Stay of Proceedings of Subsequent Suit S-10. When a principle of Res- Sub
Judice applies proceedings of subsequent suit shall be stayed.
b. Condition for Applicability of Sec 10. For the application of sec 10,
following conditions must be fulfilled: -
(1) Same Matter in Issue. All the matters in issue must be directly and
subsequently same in suits. A matter is substantially in issue if it is
important and valuable for the decision of the case.
(2) Same Parties. Both the suits must be between the same parties or
their representative.
(3) Same Tile. The parties must be contesting in both suits under the same
title.
(4) Previous Suit Must be Pending. The previous suit must be pending in
a court, when later suit is instituted.
(5) Competency of Court. Sec 10 applies only when a previous suit is
pending in the same court or any other court in or outside Pakistan
established or continued by the central Govt or in the supreme court and is

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competent to try the suit, that is to say it must have jurisdiction to grant the
relief claimed by the parties.
c. When Conditions are Fulfilled. When conditions of sec 10 are fulfilled it is
mandatory upon the court trying the subsequent suit to stay the proceedings in that
suit.
d. When condition of Sec 10 are not Fulfilled. When condition of sec 10 are
not strictly fulfilled the suit may for the ends of justice be stayed u/s 151 of CPC
(PLJ 1999 Kar. 419)
e. Scope and Application of Sec 10. The doctrine of Res- Sub Judice and sec 10
are limited to the civil matters. Sec 10 applies only to the suits and appeals and
proceedings of original nature by virtue of sec 141 of CPC e.g. a suit may be
stayed u/s 34 of Arbitration Act.
f. Object of Sec 10. The objects of Sec 10 are observed in the following cases: -
SYED ALLAUDAIN AHMED
VERSUS
M.D MUSTAFA (PLD 1971)
The object of sec 10 are:-
(1) To prevent court of parallel jurisdiction to proceed with the trail.
(2) To confine parties to one suit
(3) Limit the proceedings and evidence
g. Sec 10 is a Rule of Procedure. Sec 10 is a rule of procedure it could be
waived by the parties and the decree passed contrary to the provision of sec 10 is
not a nullity.
h. Sec 10 As a Bar. Where sec 10 applies it bar the jurisdiction of the
subsequent court to try the suit till the former is pending before the court of
competent jurisdiction.
i. Sec 10 Not Apply to Foreign Court. Doctrine of Res- Sub Judice will not
apply to foreign court because they are not the Pakistani Court, neither established
by central Govt. so the pendency of suit in a foreign court does not preclude the
courts in Pakistan from trying the suit founded on the same cause of action
5. Conclusion.
To conclude, it may be said that the principle of Res- Sub Judice is incorporated in
sec 10 of CPC to meet the ends of justice. Sec 10 does not bar the institution of
subsequent suit but only the trail of such suits and when decision in a previous suit is
made it shall operate as Res- Judicata by virtue of sec 11 of CPC. There is no impediment
under sec 10 for court to entertain any interlocutory application such as application for
temporary injunction and court can proceeds in matter relating to interlocutory orders
(2006 AC 949).
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Q -10: What is reference? Give the significant in Details?
A –10: Introduction
It is a rule of natural justice that justice should be done beyond all doubts. The rule
of reference provided in CPC is based on this principle and in all cases where there is no
right of appeal is provided, the rule of reference has been granted to the courts to obtain
the opinion of the High Court in advance on the question of law and on question related to
the jurisdiction of courts on matters of a nature cognizable by court of small causes.
2. Meaning of Reference.
a. Pocket Oxford Dictionary. Reference Means “Referring of a matter for
decision or settlement or consideration to some authority”.
3. Relevant Provision. Sec 113 of CPC, Order 46 Rule 1 to 7 and Section 432 of Cr.PC.
Here I will only discuss the provisions which are relating to CPC.
4. Reference to High Court u/s 113.
Under section 113 of CPC reference shall lie to the High Court for its opinion
which shall be subject to such conditions and limitation as may be prescribed.
5. Reference of Question of Law to High Court.
a. Reference u/ Ord 46 Rule 1. Following points are mentioned in this connection : -
(1) Court which may Refer. Any court of Civil jurisdiction which is
governed by CPC may refer the case to the High Court for its opinion.
(2) Mode of Reference. The court may refer the case to the High Court either
on its own motion or on the application of any of the parties to the suit.
(3) Conditions for the Reference. Following are the conditions for
making the reference: -
(a) A reference can only be made in a pending suit or appeal against a
decree or in proceedings for the execution of decree.
(b) The suit, appeal or the execution must not subject to the appeal.
(c) There must be reasonable doubt on any question of law or usage
having the force of law. Only that court may refer the case in which
the doubt as to question of law or the usage having the force of law
arises.
(4) Procedure. In making the reference the court should draw up a
statement of facts of the case and the point on which the doubt arise and it
seeks the opinion of the case and refer the same to the High Court with it
own opinion regarding such point or question.
b. Reference U/ Ord 46 Rule. 2. The court which may refer the case to the
High Court can either stay the proceedings or proceed in the case and pass a decree
or make an order contingent upon the decision of High Court on the point referred.
When such court obtains the copy of the judgement of the High Court under rule 3
of order 46, then it shall proceed to dispose of the case in conformity with the
decision of the High Court.
¾ Bar on Execution. No decree or order shall be executed in any case in
which reference is made until the receipt of a copy of judgement of High Court
upon the reference.
c. Power of High Court U/ Order 46 Rule 3 & 5. High Court has the following
powers under order 46 Rule 3 and 5:-
(1) The High Court shall decide the point so referred and in doing so it may
hear the parties if they appear and desire to be heard. The judgement of the
High Court shall be send to the court by which the reference was made
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under the signature of the Registrar who will proceed in accordance with
that judgement.
(2) The High Court may return the case for amendment.
(3) The High Court may alter, cancel or set aside any decree or order of the
court making the reference in such a case out of which the reference arose.
(4) The High court may make any order as it thinks fit.
6. Reference of Question As to Jurisdiction.
a. Reference u/ Ord 46 Rule 6. Where the court in which the suit is instituted
doubts whether the suit is cognizable by a court of small causes or is not so
cognizable, it may submit the record to the High Court with the statement of its
reasons for such a doubt.
(1) Time for Reference. Such reference under rule 6 shall be made at any
time before judgment is pronounced.
(2) Which Court May Refer. Only that Court may refer under rule 6 in
which the suit has been instituted.
(3) Order of High Court. When High Court will receive record and the
statement of reasons under rule (1), then it may order the court either to :-
(a) Proceed with the suit or
(b) Return the plaint for presentation to such other court as it may in its
order declare to be competent to take cognizance of the suit.
b. Reference U/ Ord 46 Rule 7. District court may refer the record to the
High Court, where it is of opinion that the court sub-ordinate thereto has exercised
a jurisdiction which is not vested in it or failed to exercise jurisdiction vested in it
by law, by reason of erroneously holding a suit.
¾ To be cognizable by a court of small causes or
¾ Not cognizable by a court of small causes.
(1) Court Which May Refer. Under rule 7 only district court may refer the
suit with respect of erroneous jurisdiction of subordinate courts.
(2) Discretionary & Mandatory Power. It is discretionary with the
District Court to refer the matter to the High Court where it is of opinion
about the erroneously assuming of or not assuming of jurisdiction of the
sub-ordinate court, but it is mandatory upon the court to refer the case
where it is required by a party.
(3) Submission of Record to High Court. The district court submits the
record to the High Court with the statement of its reasons for considering
the opinion of the sub-ordinate court with respect to the nature of the suit to
be erroneous.
(4) Powers of High Court. When a reference is before High Court, it has
full powers to deal with the merits of the case or to set aside the decree on
the point of jurisdiction.
7. Conclusion.
To conclude, I can say that the reference power granted to the subordinate courts
to the High Court is necessary for the proper administration of justice, especially where
there is no right of appeal provided to the party reference can be made only on question of
law or to determine the jurisdiction of the courts. High Court in reference can determine
the question referred and make such order as it is necessary to make sure that there should
be no failure of justice at least on question of law or on question of jurisdiction.

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Q -11: Can a suit filed for cancellation of a decree obtained through fraud or
misrepresentation? If not what remedy is available to aggrieved party?
Courts have inherent powers to set aside their own judgment, decree or final order
which are obtained fraudulently or collusively. If any person is aggrieved against any
order or decree of court on the plea of fraud or misrepresentation or want of jurisdiction,
remedy open to him is to file an application to the same court.
2. Meaning of Judgement Debtor.
“Judgement debtor means any person against whom a decree has been passed or an
order capable of execution has been made”.
3. Relevant Provisions. Section 12 (2) of CPC, Section 151 of CPC and Section 17 and 18
of Contract Act 1872.
4. Remedy Available to Judgement Debtor.
Where a judgement debtor wants to set aside the decree or order on plea of fraud,
misrepresentation or want of jurisdiction the remedy open to him is to file an application
to the court which passed final order or decree.
5. Procedure for Filing An Application. Following is the procedure for filing an
application under section 12 (2) of CPC: -
a. Person who May Apply. Following persons may apply under sec 12 (2) of CPC: -
(1) A judgement debtor or his successor
(2) Any person affected who was aggrieved by decree though not party to the
proceedings (2003 CLC 607).
b. Court Which can Entertain Application. An application is to be made to the
court which passed the final order or decree against which remedy is sought.
c. Presentation of Evidence. Where an application is presented, evidence in
support of it has to be presented as well.
6. Grounds for Filling An Application. An application u/s 12 (2) may be made on
either of the following grounds: -
a. Fraud. An application u/s 12 (2) may be made on the ground / plea of fraud. The
term includes active concealment of facts and untrue statements by one who does
not believe it to be true.
¾ Establishment of Fraud. Where a party levels allegation of fraud then
it must specify and mention the details of the fraud and further same was
required to be proved beyond reasonable doubt and not on the basis of
surmises (guess) conjecture and suspicion (Doubt) (2002 CLC Kar. 166)
Allegations of fraud can only be established by an elaborate inquiry and the
fraud alleged to be committed must be in connection with the proceedings and
to prior to their initiation.
b. Misrepresentation. Decree or order may be called in question by judgement on
the ground of misrepresentation made by other party in proceedings :-
(1) Misrepresentation refers to innocent misstatement of fact.
(2) Distinguish between fraud and misrepresentation is one of knowledge and
intention. Whereas fraud involves intention or knowledge the
misrepresentation may lack both intention and knowledge (NLR 2004
Civil Pesh. 255).

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c. Want of Jurisdiction. It is the general principle of law that if the court does
not have jurisdiction its order will be a nullity. An application may be made u/ s 12
(2) to challenge the validity of decree or order on the ground that the court passing
it have no jurisdiction and by virtue of sec 12 (2) question as to determination of
jurisdiction shall be considered by the same court.
d. Collusion. Decree obtained by the plaintiff in collusion with trial court can
neither be approved on any legal plea nor can such type of decree be allowed to
remain on record having been passed in a short circuit manner. Such type of
decrees can be set aside by the additional district judge in exercise of his revisional
jurisdiction. (2006 CLJ 182)
7. Exceptions to the Rule of Want of Jurisdiction. There are two exceptions to the rule
of want of jurisdiction: -
a. Exception u/s 21 of CPC. A decree passed by a court not having territorial
jurisdiction over the subject matter of the suit will not be set aside if objection to
the jurisdiction of the court had not been raised at the earliest possible opportunity.
b. Exception u/s 15 of Suit Valuation Act 1887. A decree made by a court not
having pecuniary jurisdiction is not void if the objections to the jurisdiction of the
court had not been raised at the earliest possible opportunity.
8. Scope of Section 12 (2).
Scope of section 12 (2) can not be extended beyond fraud, misrepresentation and
defect of jurisdiction.
9. Remedy That can be Awarded. The following remedy may be awarded by the court:
-
a. Set aside the decree or order or
b. Grant any other appropriate relief.
10. Limitation Period.
An application under section 12 (2) of CPC must be filed within 3 year under
Limitation Act 1908. Unless section 18 and 95 of the Limitation Act are attracted and that
period may be condoned under section 5 of said Act. The period of Limitation time would
start from the date of the knowledge of fraudulent etc judgment / decree (2006 CLJ 293).
11. Appeal.
Generally an order made on application 12 (2) is not applicable but when decree or
order varied or set aside, presumably appeal will lie.
12. Revision.
In appropriate cases, revision will be competent under section 115 CPC.
13. Bar to Separate Suit.
Sec 12 (2) providing remedy to aggrieved person by filing application in same
court instead of filing separate suit which is barred (CLC 2003 Kar. 607)
14. Conclusion.
In the light of above discussion, I can say that the remedy provided under sec 12
(2) of CPC to the person aggrieved is an application which is different from the review
u/sec 114 of CPC, application under sec 12 (2) has to be tried as a suit as section 12 (2)
provides an alternate remedy to a person who intended to challenge the validity of a
judgement / decree or order on plea of fraud, misrepresentation or want of jurisdiction
(NLR 2006 Civil Lah. 105) where the application under section 12 (2) is improper
malafide or made to delay litigation, it can be rejected by court.

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C.P.C
Q -12: Is the procedure for execution of decree against government differ from ordinary
execution? If so, describe the procedure with particular reference to provision
contained in CPC?
The jurisdiction of court is barred in respect of sovereign acts of state. But if the
sovereign acts of state are not regulated by law, then by virtue of Article 4 of Constitution
of Pakistan 1973, a suit will lie to ensure that act is exercised in the manner prescribed by
law. Sec 80 of CPC lays down a procedural pre-conditions to the filing of suit against
Govt or public officer in respect of an act done by him in his official capacity.
2. Relevant Provision. Sec 79 to 82 of CPC, Order 27 of CPC and Article 174 of
Constitution of Pakistan
3. Filing of Suit Against Government or Public Officer.
a. A suit against Govt is to be filed
(1) If against Federal Govt by the name of Pakistan
(2) If against Provisional Govt by the name of the province.
b. A public officer is to be sued personally and not in his public name unless he is a
corporation sole.
4. Procedure for Filing Suit.
According to section 80 there are following two modes of instituting a suit against
Govt or public officer in respect of any act done by such officer in his official capacity: -
a. Institution of suit with notice u/s 80 (1).
b. Institution of suit without notice u/s 80 (2).
5. Institution of Suit with Notice.
A suit against Govt or public officer may be instituted in respect of any act,
purporting to be done by such officer in his official capacity after delivering a notice in
writing to such officer as sec 80 directs and after the expiration of the month from the date
of delivering such notice.
a. Object of Notice. The object is to give the Govt. or the public officer,
sufficient notice of the case which is proposed to be brought against it or him so
that it or he may consider the position and decide whether the claim of the plaintiff
should be accepted or defend.
b. Form of Notice. A notice to be delivered must be in writing.
c. Notice in Suits Against Govt. Notice is to be given to the Govt in respect of
all types of action against the government whatever the character of the suit may
be.
d. Notice in Suit Against Public Officer. A notice is to be given to the public
officer only if the following conditions are fulfilled: -
(1) Act Done by Public Officer. The cause of action must be an act
done by public officer.
Illustration. In a suit against minor the collector is impleaded as a
guardian of the minor so though the public officer is a defendant yet the
notice is not required to be given because the cause of action is not an act
done by public officer.
(2) Act done in Official Capacity. All acts of public officer are not
within the scope of sec 80 “Act must be done in official capacity i.e. acts
done within the sphere of official duties”.
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e. Contents of Notice. A notice must bear the following contents: -
(1) Cause of Action. A notice must bear the cause of action. The
expression cause of action refers to the grounds on the basis of which
plaintiff seeks remedy.
(2) Name and Description of Plaintiff. A notice should state names,
description and places of residence of all the plaintiff’s.
(3) Relief Claimed by Plaintiff. A relief claimed by the plaintiff or plaintiffs
must be mentioned in the notice.
f. Service of Notice. A notice shall be in the following manner: -
(1) In Suits Against Govt. A notice has to be delivered or left at the office of:-
(a) In case of suit against Federal Govt. Secretary to that Govt.
(b) In case of suit against the provincial govt. other than a suit relating
to the affairs of railway a secretary to that Govt or to the collector
of the District.
(c) In case of suit against the federal Govt. relating to the affairs of the
railway the General Manager of the Railway concerned.
(2) In Suits against the Public Officer. A notice has to be delivered to that
officer personally or left at his office.
g. Filing of Suit. After the issuance of notice there must be compulsorily two
months wait and suit may only be instituted after the expiration of the two months.
If claim as mentioned in notice had not admit and satisfied.
h. Statement of Notice Must Contain in Plaint. According to sec 80 the plaint
shall contain statement that notice has been delivered as required by sec 80 (1).
6. Institution of Suit Without Notice.
A suit against Govt or public officer may be instituted without issuing prior notice
or where notice is issued u/s 80 (1), before the expiration of two months or may be
without mentioning the plaint that notice u/s 80 (1) is delivered but in that case following
consequence fall:-
a. Allowances of Time. If case falls u/s 80 (2) the court shall allow time to Govt and
the public officer which may be extended by the court in its discretion and the time
allowed to Govt shall not be less than 3 months.
b. Plaintiff Not Entitled to Cost. Plaintiff shall not be entitled to cost in:-
(1) If the statement as regards to the subject matter of the suit is reached within
the period of two months from the date of the institution of the suit.
(2) If the Govt or the public officer concedes the plaintiff claim within two
month from the date of the institution of the suit.
7. Suit against Govt is Different from Ordinary Suits.
In the light of above mentioned law derived from CPC it can be said that filing of
suits against Govt or against public officer in his official capacity is different from
ordinary suits. In ordinary suits no such prior service of notice is necessary, simply on
accrual of cause of action aggrieved can file or bring suit against the guilty party.
8. Conclusion.
At the end it can be said that sec 80 in its present form was enacted by the CPC
Ordinance 1962 and before it was mandatory to give notice prior to instituting a suit and
where notice was not given the plaint would be rejected. However the bar to the institution
of suit has now been removed a suit may be instituted even without prior notice. But in
that case Govt and public officer shall allow time and plaintiff would bear some
consequences.
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Q -13: Discuss and Distinguish B/W S-35 and S-35-A of CPC 1908?
It is the rule of natural justice that parties to proceedings or suits ought not to bear
the expenses in the assertion of their rights before the court. Sec 35 and 35-A of CPC deal
with law relating to costs in suits, in order to secure the expenses incurred by a successful
party in the litigation and discourage false or vexatious litigation. Costs awarded by court
may either be actual or compensatory cost.
2. Meaning of Cost.
“Cost means pecuniary allowances made to the successful party and recoverable
from the losing party for his expenses in proceedings or defending an action or distinct
proceedings within an action”.
a. Sec 35 and 35-A of CPC
b. Order 9 rule 3, Order 13 Rule 2 and 4, Order 19 Rule 3 (2), Order 21 Rule 72 (3),
Order 23 rule 3, order 24 rule 4, order 32 rules 4 (4) & 5 (2), Order 33 rule 10, 11,
16 order 34 rule 2, order 35 rule 3 of CPC.
c. Article 199 of constitution of Pakistan.
4. Kinds of Costs. Costs may be classified into following kinds: -
a. Actual costs u/s 35. Actual costs are awarded by a court to a litigant in order to
secure to him the expenses incurred by him in its litigation.
(1) Costs Are incident to All Suits. The word incident to all suits is wider
enough to cover costs incurred by party before the filing of the suit so a
party may also claim the costs incurred by him before filing of the suit.
(2) Discretion of Court Regarding Costs. Costs u/s 35 are in the
discretion of court, but the discretion must be judicial discretion and is to
be exercised keeping in view the particular circumstances of each case. The
awarding of compensatory costs is discretionary with the courts. But the
discretion should be exercised judicially and in accordance with the spirit
of law. Where impositions of special costs are against the spirit of law it
cannot be allowed to remain intact.
(3) By Whom Costs are to be Paid.
(a) General Rule. It is the general rule that it is the unsuccessful
party to the litigation that will have to bear the costs and stranger to
proceedings can’t bear it.
(b) Exception. Following are the exceptions to the above said
General Rule: -
¾ In some cases stranger to the proceedings after due notice called
upon to pay the costs i.e. real owner in a suit filed by
benamidar.
¾ In some cases even a successful party may be ordered to bear
the costs of the unsuccessful party.
Example. Shiek Sahib owes Rs. 100/- to Saira and is willing to
pay him that sum without suit. Saira claim Rs. 150/- and sues Shiek
for that amount, on that plaint being failed, Shiek pays Rs. 100/-
into the court and denies the remainder part of claim. Saira accepts
Rs. 100/- in full satisfaction of his claim, Saira should be ordered to
bear Shiek Costs.
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(4) Interest on Costs. Court has power to fix interest on costs not
exceeding 6% per annum and such interest is too added in the costs.
(5) Extent of Costs. The court has full power to determine to what extent
the costs in a suit or proceedings are to be paid.
(6) Where costs not Paid u/s 35. where costs are not awarded by the
court it shall record its reasons for doing so.
(7) Jurisdiction of Court no Bar to Costs. The court may allow costs u/s
35 and the fact that the court has no jurisdiction to try the suit is no bar the
exercise of power u/s 35.
(8) Appeal. Direction as to costs are contained either in an appealable
order, non-appealable order or in a decree so an appeal may be filed as
regards to that party of order of costs which contained in appealable order
or a decree.
b. Compensatory Costs u/s 35-A. Where the actual costs awarded u/s 35 are
not sufficient the court can in addition award costs by way of compensation to the
successful party.
(1) Conditions. Following conditions must be fulfilled for awarding
compensatory costs u/s 35-A: -
(a) The claim or defence must be false or vexatious of the party who is
been ordered to pay costs (2003 CLC 1428).
(b) Objections must be taken that the claim or defence is false or
vexatious to the knowledge of the party arising it.
(c) Such claim or defence must have been disallowed or withdrawn or
abandoned in whole or in part.
(2) Maximum Compensatory Costs. According to sec 35 – A (2) no court
shall make any order for the payment of an amount as compensatory costs,
exceeding Rs. 25000/- or limits of its pecuniary jurisdiction whichever
amount is less.
(3) Discretion of Court. The awarding of compensatory costs is discretionary
with the court but the discretion should be exercised judicially.
(4) Recording of Reasons. When court awarded compensatory cost u/s
35-A it should give reasons.
(5) Power of High Court. The High Court has following powers u/s 35-A
(2): -
(a) High Court may empower court of small causes to award as costs
any amount exceeding Rs.250/- but not exceeding the limit of their
pecuniary jurisdiction by more than Rs. 100/-.
(b) High Court may limit the amount which any court or class of courts
is empowered to award as costs under this section.
(6) 35-A Not Affect Criminal Liability. An order of compensatory
costs, do not bring any exemption from criminal liability of the person
making false or vexatious claim or defence.
(7) Appeal. An order u/s 35-A is appealable u/s 104 of CPC 1908.
5. Difference Between Secs 35 & 35-A. Following are difference between section 35
and 35-A of CPC:-
SEC 35 SEC 35-A
a. Nature.
S-35 relates to actual cost S-35-A relates to compensatory costs.
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SEC 35 SEC 35-A
b. Discretion of Court.
In S-35 court has discretion to In S-35-A High Court has the power to limit the
award cost. cost to be awarded
c. Awarding.
S-35 can be awarded only in S-35-A can be awarded in suits and other
suits. proceedings.
d. Jurisdiction.
Under S-35 court can award Under S-35-A a court cannot go behind
cost even if it has no jurisdiction pecuniary limits.
to try the suit.
e. Record of Reasons.
Under S-35 court will record its Under S-35-A court will record its reasons if it
reasons for not awarding the awarded compensatory costs.
actual costs.
f. As to Interest.
Under S-35 interest may be Under S-35-A no such provision is present for
given on actual costs. compensatory costs.
g. Scope.
S-35 has limited scope S-35-A has a wider scope than S-35.
h. Extent of Costs.
There is no such limit for actual The maximum compensatory costs that can be
costs u/s 35. award are Rs. 25000/-.
i. Claim or Defence.
Under S-35 claim or defence Under S-35-A claim or defence must be false or
need not to be false or vexatious.
vexatious.
j. By Whom Paid.
Actual costs under S-35 may Compensatory costs under S-35-A are always
also be apportioned between the paid by the party who made the false or
two opposite parties. vexatious claim or defence
k. Appeal.
Under S-35 where directions to Orders under S-35-A are appealable orders and
costs are a part of a non- an appeal is competent against such an order.
appealable order no appeal lies
against it.
6. Conclusion.
By the above discussion it can be said that costs awarded by the court are incident
to the suit generally successful party is entitled to costs, unless guilty of misconduct or
there is some other good causes for depriving him. Costs are not by nature a penalty to the
losing party or a profit or gain to the successful part, it is only the expenses incurred by a
party in the suit and if suit is false or vexatious compensatory cost may also be awarded in
addition to the actual costs.

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C.P.C
Q -14: If all decrees are appealable, state whether a second appeal lies against all decrees of
trail courts. If so, on what grounds?
The remedy of appeal is a creation of statue and it is not a natural or inherent right
attaching to a litigation. It does not exist and cannot be assumed unless expressly given by
statute or by rules having the force of statute. Appeal may be filed against original decree
or decree passed in appeal.
Civil appeals are dealt within section 96 to 111 and order 41 to 45 of the CPC 1908.
3. Legal Meaning of Appeal.
Appeal is the taking of a cause from an inferior to a superior court for the purpose
of testing the soundness of the decision of the superior court.
4. Definition.
The word “appeal” which includes “Second appeal” is not defined in the CPC.
However it may be defined as under: -
“Judicial examination of the decision by a higher court of the decision of the
inferior court”.
An application for leave to appeal is not an appeal.
5. Right of Appeal.
Appeal lies against a decree and not against a judgement. It is not to be assumed
that there is a right of appeal in every matter which comes under consideration of a court,
such right must be given by statute or by some authority equivalent to a statute.
No right of appeal can be given except by express words. Section 96 CPC in
express words gives a right of appeal from every decree passed by any court exercising
original jurisdiction to the court authorized to hear appeals from the decision of such
court.
6. Nature of Right of Appeal.
Right of appeal is substantive right and this is not mere matter of procedure. Right
of appeal is governed by the law prevailing at the date of the suit and not by law that
prevails at the date of the decision or at the date of filing of the appeal.
7. Appeal from Order.
An appeal lies under sec 96 only from a decree and not from a mere finding.
However, sec 104 deals with appeal from order.
8. Appeal from Ex-Parte Decree.
An appeal may lie under sec 96 CPC from an original decree passed ex-parte.
9. Appeals from Consent Decree.
According to section 96 no appeal lies from a consent decree.
10. Appeals from a Decree.
An appeal lies under section 96 only from a decree because the decree marks the
state at which the jurisdiction of the court which has tried the matter ends and the
jurisdiction of the court to which the appeal is made beings. As such unless a decree is
drawn up, no appeal lies from a mere finding. But if the finding amounts to a decree an
appeal would lie.
11. Forum of Appeal.
The value of a suit determines the forum of suit and it’s also determines the forum
of appeal.
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12. Who may Prefer an Appeal. An appeal under section 96 may be preferred by any of the
following persons: -
a. Any party to the suit adversely affected by the decree or if such party is dead by
his legal representative.
b. Any transferee of the interest of such party who so far as such interest is concerned
is bound by the decree provided his name is entered on the record of the suit.
c. An auction purchaser may appeal from an order in execution setting aside the sale
on the ground of fraud.
No person unless he is party to the suit is entitled to appeal under section 96 of
CPC.
13. Consent Decree Not Appealable.
Sec 96 (3) declares that no decree passed by consent of parties shall be appealable
under CPC; a consent decree may be passed under order 23 rule 3. But the decree passed
without jurisdiction is appealable as revision.
Where the decree is not in accordance with the compromise of the parties an
appeal is competent against such decree.
14. Text for Consent Decree.
The real test for determining whether or not a decree should be regarded as a
consent decree lies in ascertaining the real intention of the parties.
15. Procedure for Setting-aside Consent Decree.
Sec 93 (3) CPC is so far as it bars an appeal from consent decree, gives effect to
the principle that judgement by consent acts an estoppel. A consent decree can be set-
aside on any ground which would invalidate an agreement such as misrepresentation,
fraud or mistake. This can only be done by a suit and a consent decree cannot be set-aside
by an appeal or a review or by a rule obtained on a motion.
16. Second Appeal.
The provisions regarding second appeal are contained in section 100, 101 and 102
of CPC.
17. Section 100 CPC 1908.
It deals with second / special appeal to the High Court. A court of first appeal is
competent to enter into questions of fact and decide whether the findings of fact by the
lower court are or are not erroneous. But a court of second appeal is not competent to
entertain questions as to the soundness of a findings of fact by the court below. A second
appeal can only lie on one or other of the grounds specified in section 100 of CPC.
a. Cases of Second Appeal.
(1) A second appeal may lie under section 100 from an appellate decree passed
ex-parte.
(2) A second appeal will be where the decision of the lower appellate court is
contrary to law or usage having force of law.
(3) When the question is one of a right construction of a document title, or of a
legal inference from a documents, the question is one of law and a second
appeal will lie.
(4) When the finding of fact is based partly on conjecture and partly on
misunderstanding of the evidence a second appeal lies.
(5) The decision having failed to determine some material issue of law or
usage having fore of law.
(6) A second appeal will lie when a substantial error or defect in the procedure
provided by this code or by any other law for the time being enforce.
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b. Cases When no Second Appeal Lies. In the following cases no second
appeal lies:-
(1) No second appeal shall lie, except on the grounds mentioned in section 100
CPC.
(2) No second appeal shall lie in any suit of the nature cognizable by court of
small causes when the amount or value of the subject matter of the original
suit does not exceed five hundred rupees.
(3) There is no jurisdiction to entertain a second appeal on the ground of
erroneous findings of facts. However, gross error may seem to be.
(4) A second appeal will not lie because some portion of the evidence might be
contained in a document or documents and the first appellate court has
made mistake as to its meanings.
18. Conclusion.
By the above discussion it can be said that appeal is a substantive right and it is a
matter inter parties. The question as to whether the appeal is competent or not can only be
decided by court hearing the appeal. Appeal may be filed against original appellate decree
passed by a court subordinate to High Court.

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C.P.C
Q -15: Write a detailed Note on Section 16 and Section 20 of CPC. OR
If the defendant is at Multan and cause of action arise at Lahore, which court has the
jurisdiction to Try the suit? OR
What are the effects of cause of action and permanent and temporary residence of
defendants in determining territorial jurisdiction of courts?
At common law actions can either be real or personal. Real actions are with regard
to immovable property while the personal actions includes action for tort to person are
movable property are suits on contract. An action may also be mined i.e. partly real and
partly personal. Territorial jurisdiction of court with regard to personal action i.e. suits
relating to person or moveable property are regulated by sec 19 and 20 of CPC. While
suits with regard to real action are regulated by sec 16 and 17 of CPC 1908.
2. Meaning of Territorial Jurisdiction.
Black’s Law Dictionary. “Territory is over which a government or a sub-
division thereof or court has jurisdiction”.
3. Relevant Provision. Section 16 to 21 of CPC 1908 are relevant provisions in this regard.
4. Importance of Territorial Jurisdiction.
Territorial jurisdiction of court is important for the following reasons: -
a. To collect evidence
b. To execute decree against judgement debtor
c. To know the circumstances of the case
d. Convenience to the parties.
5. Territorial Jurisdiction Regarding Immovable Property U/Sec 16. Following
points are in the connection very important: -
a. Suits for Recovery of Immovable Property u/sec 16 (a). A suit for recovery of
immovable property situate in Pakistan shall be instituted in a court with the local
limit of whose jurisdiction the property is situated.
b. Suit for Partition of Immovable Property u/ sec 16 (b). A suit for partition of
immovable property situate in Pakistan shall be instituted in a court within the
local limit of whose jurisdiction the property is situate.
c. Suit for Foreclosure, Sale, Redemption or Charge upon Immovable property
u/sec 16 (c). A suit for foreclosure, sale or redemption in the case of a mortgage
of or charge upon immovable property may be filed either: -
(1) In the court in whose jurisdiction the property is situate or
(2) In the court within local limit of whose jurisdiction the cause of action
wholly or partly arises or
(3) In the court within the local limit of whose jurisdiction the defendant
resides, carries on business or personally works for gain.
d. Suit for Determination of Any other Right u/ sec 16 (d). All types of suits
involving the determination of any right to or interest in immovable property shall
be filed in the court within the local limits of whose jurisdiction the property is
situate (1993 CLC 448) e.g. suit to release feature rent etc
e. Suit for Compensation u/se 16 (e). This clause covers cases of tort effecting
immovable property. Such suits will have to be filed in the court within the local
limit of whose local jurisdiction the property is situate e.g. suit for compensation
for Nuisance etc.
f. Proviso to Section 16. The proviso to sec 16 provides that where the
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proviso is applicable the suit can be filed at the plaintiff’s option in the court
within the local limits of whose jurisdiction;
(1) The property is situate or the defendant resides, carries on business or
personally works for gain,
(2) In relation to cases covered by such clause (c) where the cause of action
wholly or partly arises.
g. Applicability of Proviso. The proviso applies to suits in personam and to other
suits if following conditions are fulfilled: -
(1) The suits should be to obtain relief respecting or compensation for wrong to
immovable property situated in Pakistan,
(2) The property must be held by or on behalf of the defendant at the time of
institution of suit and
(3) The relief can be obtained entirely through the personal obedience of the
defendant.
6. Suit for Immovable Property Situate within Jurisdiction of District Judge U/S 17.
Where the immovable property is situate within the local limits of the jurisdiction of two
or more courts a suit may be filed in any court where the portion of the property is situate.
7. Territorial Jurisdiction with Regard to Person or Movable Property u/s 19. In this
regard following two classes of cases fall:-
a. Suit for Compensation u/s 19. Where a wrong is done to the person or
movable property of a person, than a suit may be brought against where the wrong
is committed or where the defendant resides.
Illustration. Muhib residing in Rwp publishes a defamatory statement of Nisar Ahmad
in Kashmir. Nisar may sue Muhib in Rawalpindi or in Kashmir as he desire or think so.
b. Other Suit for Wrong Done u/s 20. All other suits shall be instituted in a court
within the local limits of whose jurisdiction;
(1) Place where defendant resides. A suit may be instituted at a place
where defendant or each of the defendant where there are more than one
defendants actually and voluntarily resides, carries on business or
personally works for gain.
(2) Several Defendants Residing at Different Places. Where there are
several defendants a suit may be instituted at the place where any one of
whose defendants resides, arise on business or personally works for gain.
(3) Where cause of action Arises. A suit can be instituted in a court,
within the local limits of whose jurisdiction the cause of action arises
whole or in partly.
8. Decision Without Jurisdiction.
A decision of a court which has no territorial jurisdiction is void.
9. Exception u/s 21 of CPC.
A decision will not be void if the objection to the jurisdiction of the court had not
been raised at the earliest possible opportunity. A decision will be void where has been a
consequent failure of justice as territorial jurisdiction by wrong court (2002 CLC 154).
10. Conclusion. It can be sum up by this discussion by saying that territorial jurisdiction is a
limitation upon the jurisdiction of the court conferred by section 9 of CPC. Territorial
jurisdiction is to be determined on the basis of things, existing at the time of institution of
the suit and no subsequent change can affect it. Section 19 and 20 regulate the forum for
instituting a suit regarding personal actions and are subject to the pecuniary and other
limitations of law.

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C.P.C
Q -16: If a suit with deficient court fee is filed how the court will deal the situation? Explain
It is necessary to give a statement of the value of the subject matter of the suit for
the purpose of jurisdiction and of court-fees so far as the case admits and before the plaint
is entertained by the court. It must bear the requisite court fees as required under the Court
Fee Act. If the suit is not properly or sufficiently valued court would require plaintiff to
suitably amend the plaint on his failure the plaint may be rejected.
2. Determination of Court Fee.
To determine court fee, plaint should be read as a whole and substance of plaint
and not its outside from to be referred. Where relief flows from declaration itself the suit
falls under sec 7(4) (c) of the Court Fee Act read with schedule II, Article 17 (3) of the
said act.
3. Duty of Court.
It is now the duty of the concerned court, first to determine the exact amount of
court fee payable on a List then to afford the suitor an opportunity to make good its
deficiency and if he still does not pay the court fee only then the court can reject the plaint
under order VII rule 11 of CPC.
4. Extension of Time.
The process sometimes involves the extension of time and the court u/s 149 of the
CPC has ample authority to extend time.
5. Forfeiture of Right.
A suitor however, forfeits his right to the indulgence of the court where he displays
a conduct of positive mala-fides, collusion or bad faith to avoid the payment of court fee
due from him
6. Conditions for Rejection of Plaint. In order to entail rejection of plaint under order VII
rule 11 (c) of the CPC, two conditions must be fulfilled or satisfied: -
a. Firstly, the court should positively and specifically determine the amount of deficit
court fee which plaintiff is required to pay or affix on the plaint.
b. Secondly, a reasonable time must be allowed to the plaintiff to make up the
deficiency in the amount of court fee.
7. Compliance of Court’s Order.
If the plaintiff complies with the order of the court within the specified time, the
defect in the court fee or plaint is deemed to have been removed from the date it has been

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originally filed in court. On compliance it shall have the same force and effect as if such
fee had been paid in the first instance.
In case of non-compliance the plaint is liable to be rejected.
8. Sec 149 CPC and Deficiency in Court Fee.
Sec 149 CPC empowers the curt to allow a party to make up the deficiency of the
court fee payable on plaints etc, even after the expiration of the period of the limitation
prescribed for the filing of these documents.
9. Power of Court u/s 149 CPC.
The power of the court under sec 149 of CPC is discretionary and a party cannot
claim it is a matter of right. This provision is also an enabling one,
a. It empowers the court to allow a party to make the deficiency of court fee payable
on plaints, memoranda of appeal, application for review of judgement and even
after the expiration of period of limitation prescribed for filing of these documents.
b. If mitigates the rigours of section 4 of Court Fee Act 1870.
c. It is for the court to harmonize these provisions of both the acts and allow the
deficit to be made good within a period of time fixed by it.
e. If the deficit is made good then no possible objection can be raised on the ground
of bar of limitation as the sec 149 CPC enables a defective document to be
respectively validated.
10. Conclusion.
At the end we come to the precise conclusion that court fee is a necessary element
in entertaining of a plaint. Where plaintiff puts the judicial machinery in motion against
defendant by the help of filing suit, there are some other legal requirement of the plaint
which the plaintiff shall cover which includes court fee as well. It is mandatory that plaint
must be accompanied by the court fee as prescribed under Court Fee Act, but if the party
fails to do so his suit will be dismissed by the court unless court uses its discretionary
powers to grant a chance to plaintiffs to submit the court fee in given time. Here if the
plaintiff submits the fee the suit gets valid if not the court may not entertain his suit for
further action.

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C.P.C
Q -17: Which is the court competent to transfer / withdrawal a civil suit from one court to
another in the same district? Also state the ground for such transfer?
Provision of sec 24 without specifying any grounds empowers the High Court to
transfer, withdraw and retransfer at any state any pending suit, appeal or other proceedings
from one subordinate court to another court either suo motu or upon the application of
aggrieved party.
2. General Power of Transfer and withdrawal Sec 24.
Following are the powers of court in this regard: -
a. On the application to any of the parties and after notice to the other parties and
after heading such of then as desire to be heard or of its own motion without such
notice the High Court or the District Court may at any stage;
(1) Transfer any suit appeal or other proceeding pending before it for trial or
disposal to any court subordinate to it and competent to try or dispose of
the same or
(2) withdraw any suit, appeal or other proceedings pending in any court
subordinate to it and
(3) Try or dispose of the same or
(4) Transfer the same for trail or disposal to any court subordinate to it and
competent to try or dispose of the same or
(5) Retransfer the same from trial or disposal to the court from which it was
withdraw.
b. Where any suit or proceeding has been transferred or withdrawn u/sub sec (1) the
court which thereafter tries suit may, subject to any special directions in the case of
any order of transfer, either retry it or proceed from the point at which it was
transferred or withdrawn
c. For the purpose of this section courts of additional and assistant judge shall be
deemed to be subordinate to the District Court.
3. Duty of Court.
When transfer is made on an application court must accent judicially guided by its
sense of justice on objective consideration and not subjectively.
4. Exercise of jurisdiction u/sec 24.
The basic criteria for exercising of jurisdiction u/sec 24, of CPC in the natter of
transfer of a suit is the existence of a reasonable apprehension in the mind of a party that it
will not get justice at the hands of the presiding officer.
5. Conditions for Transfer of a Case. Before a valid order for transfer can passed: -
a. The suit or other proceedings must have been pending in a court competent to try it
b. The transferee court must be subordinate to the court making transfer order
c. The transferee court should be competent to try or dispose of the suit which
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C.P.C
competency does not only include pecuniary but also territorial competency.
¾ To consider transfer application the court must be satisfied that there are
reasonable grounds to suppose that the applicant will not receive a fair and
impartial trial and would not get justice from particular court.
6. Reasonable Apprehension.
What is reasonable apprehension must be decided in each case with reference to
the incidents and surrounding circumstances.
7. Power of High Court u/se 24.
Power of High Court u/sec 24 of CPC is equivalent to power under Article 203 of
Constitution of Pakistan 1973. For administrative reasons and in the interest of justice,
High Court has wide powers to transfer a case even outside the territorial limits of the
district for administrative reasons in the interest of justice and fair play.
8. High Court General Power of Transfer.
High Court general power to transfer, withdraw and retransfer at any stage a
pending suit, appeal or other proceedings:
a. Suo motu u/sec 24 of CPC.
b. U/Sec 151 of CPC and
c. U/ Art 203 of Constitution of Pakistan 1973.
The High Court can retransfer an appeal pending even it stands transferred by
operation of law. The same power is available to High Court u/sec 25-A West Pakistan
Family Court Act 1964.
9. Condition.
The court in which the suit, appeal or any other proceeding is pending must be a
court of competent jurisdiction. The court to which the suit etc is to be transferred should
be competent to try or depose of the controversy.
10. Power of District Judge u/se 24.
District Judge u/sec24 of CPC has to decide the case of transfer or withdrawal
after notice to other party. Decision taken in the absence of opposite party would be a
mere irregularity especially when on Pre-Judice is proved.
11. Effect of Order of Transfer.
Order of transfer becomes effective as soon as made, its effectiveness would not
depend upon its conveyance to subordinate court.
12. Other Provision. CPC 1908 provides alike provision in the following: -
a. Sec 22 empowers to transfer suits which may be instituted in more then one court
b. Sec 39 and 42 read with order 21 rule 4 to 99 empowers transfer of decree
c. Sec 56 empowers issuance of precepts
d. Sec 150 empowers transfer of summons of any court
13. Conclusion.
In the light of above discussion, I can say that a suit, appeal or any other
proceeding pending before any court of law, subordinate to District Court or High Court
as a case may be, may transfer to another court of law subject to competency prescribed
by CPC or by any other law for the time being enforced. The transfer or withdrawal of any
proceeding from one court to another can taken place suo motu or on the application of
aggrieved party. The order of transfer can be made on any ground as the transferring court
thinks fit.

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C.P.C
Q -18: Can a judgement decree or order be amended after pronouncement? If so, under
what provision of law?
All the general law relating to civil matter is provided in CPC. The courts of law
announces judgment, decree or order to redress the aggrieved parties, but sometimes such
judgment, decree or order are announced wrongly due to clerical and arithmetical mistake.
Such mistakes are corrected by the same court. The courts are empowered to correct such
mistakes under sec 151, 152 and 153 of CPC.
2. Important Definitions.
Following are the important definition : -
a. Judgement. “Judgment” under sec 2 (9) of CPC means “The statement given
by the judge on the ground of a decree or order”.
b. Decree. “Decree” under sec 2 (2) of the CPC means “The formal
expression of an adjudication which conclusively determine the right of the
parties with regard to all or any of the matters in the suit and may be either
preliminary or final”.
c. Order. “Order” under sec 2 (14) of the CPC means, “The formal expression of
any decision of a civil court which is not a decree”.
a. Sec 151, 152 and sec 153 of the CPC.
b. Order 6 rule 16 and 17.
c. Order 14 rule 5 of CPC are relevant provision
4. Amendment of Judgement, Decree or Order u/s 152. There are only two cases in
which court can amend or vary a decree or order after it is drawn up and signed, namely:-
a. Under Sec 151 CPC i.e. its inherent powers when the decree or order does not
correctly state what the court actually decided and intended and
b. Under Sec 152 CPC where there has been a clerical or arithmetical mistake or an
error arising from an accidental slip or omission.
5. Scope & Nature of Section 152 CPC.
This section allows clerical or arithmetical mistakes in judgements to be corrected.
Sec 152 CPC enables and empowers the court to correct;
a. Errors arising from an accidental omission and
b. Accidental slips
6. Inherent Power to Amendment u/s 151.
Every court has an inherent power to vary or amend its own decree, order or
judgement 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;
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a. It only insists that the decree drawn up in the office of the court should correctly
express the judgment given by the court.
b. When an error has been committed, it 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.
7. Illustrations.
a. Wajahat sues Zohair for Rs. 5000/- and interest. The judgement is for Rs. 4000/-
without more. The decree is drawn up in accordance with the judgment, Wajahat
applies to amend the decree by adding an order for payment of interest. The
application must be refused, for the decree is not variance with the judgement. If
Wajahat is aggrieved by the decree, the proper course for him is to apply for a
review of judgement or to appeal from the decree.
b. Irum sues Zahid and Arsalan for Rs. 5000/-. The judgement awards Rs. 5000/- to
Irum “as prayed” i.e. as against Zahid and Arsalan the decree is drawn up so as to
render the amount payable by Zahid alone. The decree may be amended and
brought into conformity with the judgement.
8. General Power to Amend u/s 153.
The present section i.e. 153 of CPC confers a general power on the court to amend
defects and errors in “any proceeding in a suit” and to make “all necessary amendments”
for the purpose of determining the real question at issue between the parties to the suit.
9. Nature of Section 153.
Like the provisions of order XIV rule 5 and order VI rule 17, the 1st party of
section 153 CPC is discretionary, therefore amendment of proceeding under it cannot be
claimed as a matter of right by the parties. Whereas the later part of section 153 is
mandatory in nature.
10. Explanation.
Section 153 CPC grants general powers to the court in its discretion to amend by
defect or error in any proceedings in a suit at any time and on such terms as to costs or
otherwise as the court may think fit. The question before the court is defect or error which
is to be corrected. Whether it causes prejudice to one or other party is no concern to the
court.
11. Scope of Section 153.
Section 153 CPC reserves the powers to the court to amend, inter alia, any
proceeding in a suit at any time and this power in the express terms can be exercised at
any time during the pendency of such proceedings and even after the passage of the decree
at the appellate stage.
12. Conclusion.
To conclude, I can say that section 152 CPC relates to the correction of errors etc
in judgement, decree or orders. Order 6 rule 16 and 17 relates to amendment of pleadings
suo motu or on application of parties respectively. Sec 153, empowers a court to amend
any defect or error in any proceeding in a suit.

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Q -19: Civil Courts have jurisdiction to try all suits of civil nature, unless their jurisdiction
is barred. Comments?
The issue of jurisdiction is the ever expanding question of jurisprudence. The
concept of jurisdiction is very important in law, because the courts get the power and
authority to inquire into facts, apply the law and decide judgement only if it has
jurisdiction. Section 9 of CPC provides generally the maximum extent of the jurisdiction
of the civil court.
2. Meaning of Jurisdiction.
“Jurisdiction refers to the legal authority to administer justice in accordance with
means provided by law and subject to the limitations imposed by law”.
a. Sec 9 of CPC 1908.
b. Sec 6, 2 (2) and 15 to 25 of CPC
c. Sec 151 of CPC
d. Order 7 rule 10 and 11 of CPC
Here this topic is concerned with section 9 CPC.
4. Kinds of Jurisdictions. There are following kinds of jurisdiction: -
a. Subject Matter Jurisdiction
b. Pecuniary Jurisdiction
c. Territorial Jurisdiction
d. Personal Jurisdiction
5. Jurisdiction Conferred upon Civil Court u/s 9.
Civil courts have jurisdiction to try all suits of civil nature i.e. suits which involves
the assertion or enforcement of a civil right.
6. Explanation.
According to explanation of section 9 all suits involving rights to property or
office or suits of property or offices are suits of civil nature, except those which only
involves a decision on question as to religious rites or ceremonies.
7. Rational Basis of Sec 9.
Section 9 is bases on:
“UBI JUS IBI REMEDIUM”
“Where there is a right there is a remedy”.

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8. Scope of Jurisdiction.
A decision will be Res Judicata between the parties on the opposite side i.e. plaintiff
and defendant, when there is more then one plaintiff involved in a suit and that suits is
properly decided by the court then the principle of Res Judicata will be applied on all the
plaintiffs and the defendant or the defendants as a case may be. But the dismissal of the suit
under order XVII rule 3 of CPC for non-production of evidence by some of plaintiff of the
case could not be made basis of Res – Judicata for the other plaintiffs (2006 CLJ 633).
9. Determination of Jurisdiction.
Under sec 151 CPC civil courts have inherent powers to decide question of their
own jurisdiction.
10. Bar upon Jurisdiction of Civil Courts Under CPC. Under CPC following bars are
created upon the jurisdiction of civil courts: -
a. Absolute Bars
b. Conditional Bars
c. Special Bars
11. Absolute Bars. Following are the absolute bars as mentioned in CPC: -
a. Res-Sub Judice u/s 10. Sec 10 prevents a subsequent court to try a suit in
which the matter directly and substantially in issue in a former suit between the same
parties under the same title and such suit is pending.
b. Res-Judicata u/s 11. Where there is a judgement inter parties or in other word
where a suit after all its proceedings has been finally decided on merits in favour of
one of the parties to the suit. It will prevent a fresh suit between the same parties in
respect of the same matters.
c. Question to be Determined by Executing Court u/s 47. All questions arising
between the parties to the suit in which the decree was passed shall be determined by
the court executing decree and not by a separate suit.
d. Restitution u/s 144. No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application.
e. Bar u/ Ord II Rule 2. Every suit shall include the whole of claim but where a
plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his
claim he shall not after words sue in respect of the portion so omitted.
f. Decree against Plaintiff by Default u/ Ord 9 Rule 9. Where a suit is
dismissed due to the default of the plaintiff then the plaintiff is precluded from
bringing a fresh suit in respect of the same cause of action.
g. An insolvent person u/Ord 22 Rule 9. An insolvent person is barred from
filing a suit.
h. Withdraw of suit u/Ord 23 Rule 1. At any time after the institution of a suit the
plaintiff may withdraw his suit or abandon any part of his claim as against all or any
of the defendants. No fresh suit can be instituted on the same subject matter or claim
as has been withdrawn or abandoned.

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12. Conditional Bars. Following are conditioned bars upon the jurisdiction of the court:-
a. Suit by Alien u/s 83. Alien residing in Pakistan can only sue in the court of
Pakistan when they get permission from the Federal Govt. u/s 83 of CPC.
b. Suit by Foreign State u/s 84. A foreign state may sue in any court in
Pakistan if it has been recognized by the Federal Govt.
13. Special Bar u/s 92.
In case of any breach of an express or constructive trust, created for the public
purposes of a charitable or religious nature, a suit can be filed by the Advocate General or
two or more person having an interest in the trust and having obtained the consent in writing
of the Advocate General.
14. Suits of Which Cognizance is Barred.
Besides, the bars contained in CPC’s provisions the cognizance of some suits are
barred either expressly or impliedly under other laws.
a. Express Bars. Express bars means bars under express enactment of statue.
Following are the express bars upon the jurisdiction of civil courts: -
(1) Criminal Matters. Jurisdiction of Civil Courts is barred in respect of
matter pending before criminal courts or already adjudicated upon by such
courts. But it will not be barred when the proceedings before the criminal
courts are without jurisdiction.
(2) Revenue Matters. Revenue matters are within exclusive jurisdiction of
revenue courts. The jurisdiction of civil courts is barred only upto the extent
specifically provided for in the revenue law.
(3) Family Matters. Family matters are within the jurisdiction of family
courts and jurisdiction of civil courts is barred in respect of such matters.
b. Implied Bars. Sec 9 of CPC recognizes the doctrine of implied bar of
jurisdiction. Following are the implied bars on jurisdiction of Civil Courts: -
(1) Act of State. An act of state is an act done or adopted by a state in its
sovereign capacity. The jurisdiction of civil courts is impliedly barred when
the subject matter of the suit is an act of state.
(2) Public Policy. The jurisdiction of Civil Courts is impliedly barred on
the ground of public policy.
(3) Special tribunals. If a statute creates a right or liability not existing in
common law and also establishes a special tribunal for the enforcement of
such a right then jurisdiction of civil court is barred.
15. Effect of Exclusion of Jurisdiction u/ s 9.
The exclusion of jurisdiction of civil courts not to be readily inferred but must be
explicitly expressed or clearly implied. Where jurisdiction was excluded even then civil
court would have jurisdiction to examine cases where provision of the Act had not been
complied with or statutory tribunal had not acted in conformity with fundamental principles
of judicial procedure (2003 CLC 1922).
16 Conclusion.
At the end it can be said that by virtue of sec 9 CPC civil courts have jurisdiction to
determine all suits of civil nature. The jurisdiction of civil courts cannot be ultimate,
because the provisions of CPC bar jurisdiction of certain cases itself and there are other bars
also under other laws and they curtail the jurisdiction of the courts. The term jurisdiction
itself means the limits under which courts get the power and authority to administer the
justice.

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Part-II (Orders)
Q -1: Describe the law relating to ex-parte proceedings and ex-parte decree? Also differ
them with each other?
It is the general principle of law that parties should be heard before pronouncing
any judgement against them. An ex-parte determination is an exception to this general
rule. Court may proceed ex-parte under order 9 rule 6, when the defendant fails to appear
on a first date of hearing after due service of summons or under order 17 rule 2 when
defendant fails to appear on adjourned date of hearing.
2. Meaning of Ex-Parte. The term ex-parte means in the absence of other party
Order 9 Rule 6, 7, 13, 14 And
Order 17 Rule 2 of CPC are relevant provisions with ex-parte proceedings or decree.
4. Ex-Parte Proceedings u/o 9 Rule 6.
When the suit is called for hearing and plaintiff appears before the court, but
defendant does not, despite the due service of summons. Then the court may proceed ex-
parte against him.
5. Meaning of ex-parte Proceedings.
Ex-Parte proceedings are those which are taken in the absence of the defendant.
6. Essential to Proceed Ex-Parte. Following essentials are require to proceed ex-parte
against defendant:-
a. Plaintiff must appear before the court on the day of hearing of the suit. Where
neither party appear the suit will be dismissed.
¾ Appearance means to represent by virtue of order 3 Rule 1, appearance can be
either by the party in person, by recognized agent or by pleader.
b. There must be a failure on the part of the defendant to appear before the court.
c. The ex-parte proceedings will only taken place where the suit is called for hearing.
d. Summons must be duly served upon defendant, it must be served in sufficient time
to enable the defendant to appear in person or by pleader.
¾ The onus of proving the due service of summon is on the plaintiff.
7. Setting Aside Ex-Parte u/o 9 Rule-7. Defendant may apply for setting aside ex-
parte proceedings after fulfilling following requirement:-
a. It is necessary that the defendant must appear before the curt, before the
conclusion of the hearing of the suit.
b. Defendant must appear and join the proceedings before passing of an ex-parte

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decree.
c. Defendant must assign good cause.
¾ The term good cause is wider than a term sufficient cause and a good cause
may not be a sufficient cause.
8. Applicability of Rule 7.
This rule is applicable not only to absence on the first date of hearing but also to
adjourned date of hearing.
9. Appeal.
No appeal shall lie from an order refusing an application under order 9 rule 7.
10. Passing of Ex-Parte Decree u/o 9 Rule 6.
The court is authorized u/o 9 rule 6 to pass an ex-parte decree where defendant not
appear, in furtherance of an ex-parte proceeding against defendant.
11. Meaning of Ex-Parte Decree.
A final decree passed in the absence of the defendant is an ex-parte decree.
12. In furtherance of Ex-Parte Proceedings.
Ex-parte decree must be passed by the court in furtherance of ex-parte proceedings
before setting aside of an ex-parte proceeding u/o 9 rule 7.
13. Production of Evidence by the Plaintiff.
The court may pass an ex-parte decree without recording of evidence, yet it should
require the plaintiff to produce evidence to prove his case. An ex-parte decree obtained
without recording of evidence is of less value.
14. Setting Aside ex-parte Decree u/o 9 Rule 13. Following is the procedure to set
aside ex-parte decree: -
a. Application. It is necessary for setting aside the ex-parte decree that defendant
should make an application for that purpose.
b. Court to which Apply. An application ought to be made to the court which
passed an ex-parte decree and to no other court.
c. Grounds for setting aside decree. An ex-parte decree may be set aside on the
following grounds: -
(1) The defendant may take plea of summons not duly served for setting aside
an ex-parte decree. However, if it come to the notice that defendant has the
knowledge of hearing irregularity of the service of summon is immaterial.
¾ The onus of proving that the summon has not duly served is upon the
defendant/ applicant.

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(2) An ex-parte decree may be set aside by the court where defendant shows
sufficient cause for his previous non-appearance “Sufficient Cause” refer to
the cause which is beyond the control of the party.
15. Effect of Setting Aside Decree.
When an ex-parte decree is set aside, it restores the parties to the position they
previously occupied and the court shall proceed to decide the case as it stood before the
decree.
16. Notice to Other Party u/o 9 rule 14.
A notice to the opposite party has to be served before setting aside an ex-parte decree.
17. Limitation.
According to article 164 of limitation act, an application for setting aside of ex-
parte decree must be filled within 30 days from the date of passing of decree or otherwise
from the date of knowledge of such decree.
18. Appeal.
The order 9 rule 13 contemplates three classes of orders:-
a. Orders setting aside an ex-parte decree which are non-appealable.
b. Orders setting aside an ex-parte decree on certain terms which are appeal able.
c. Orders rejecting an application to set aside an ex-parte decree which are appeal able.
19. Other Remedies. In addition to remedy provided by order 9 rule 13 of CPC following
remedies are available to the defendant against whom an ex-parte decree is passed u/o 9
rule 6 of CPC: -
a. U/S 12 (2) of CPC defendant may file an application for setting aside decree when
such decree is obtained with fraud, misrepresentation or without jurisdiction.
b. He may file an appeal u/s 96 of CPC to the appellant court.
c. He may file review petition u/s 114 of CPC in the same court which passed an ex-
parte decree.
d. He may file revision petition u/s 115 of CPC in the appellant court where appeal
not lies.
e. Some time inherent power of court u/s 151 of CPC may be attracted for setting
aside such decree.
f. The writ jurisdiction of High Court u/Art 199 of constitution of Pakistan may be
attracted by the defendant for setting aside such decree.
20. Point of Difference B/W Ex-Pare Proceedings and Ex-Parte Proceedings: -
Page 87 True Type
21. Conclusion.
At the end, it can be said that I is the duty of both the parties to appear before
court when the suit is called for hearing and where defendant fails to appear, after due
service of summons the court may proceed ex-parte against him but before that court must
record its due service under order 5 rule 18 of CPC. Ex-parte proceeding or decree may be
sought to be set aside by filing an application by the defendant.

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Q -2: Describe the Law in which a suit against Minor can be instituted Discuss the law in
detail?
According to law, minor is a person under legal disability, he cannot sue and be
sued in his own name. It is the duty of the court to safeguard the interests of the minor and
in suit against him court shall appoint a proper person as guardian for the suit. The
purpose of this is to ensure due and proper representation on behalf of a minor defendant
through guardian appointed for the suit.
2. Definition of Minor u/s 3 of Pak Majority Act.
A person who has not attained age of majority as defined in Majority Act i.e. 18
years.
3. Relevant Provision. Order 32 Rule 3, 4 of CPC are relevant provisions regarding
manner in which suit against minor can be instituted.
EXPLANATION
4. Manner of Instituting Suit U/O 32 Rule 3.
A suit against minor can be instituted through his guardian appointed by the court
i.e. guardian adlisten.
5. Mode of Making Appointment.
The appointment of a guardian is made by court either;
a. On application of plaintiff or
b. On application of defendant.
6. Application by Plaintiff. It is the duty of the plaintiff to apply for the appointment of
a minor (defendants) guardian.
a. List Furnished by Plaintiff. The plaintiff shall file with his plaint a list of
relatives of minor and other persons who can appointed as a guardian and such list
shall constitute an application by the plaintiff.
b. Rejection of Plaint. A plaint may be rejected by the court if the plaintiff fails to
furnish such list when called upon.
7. Application By Defendant. A guardian may be appointed by the court where the
defendant pleads minority. Where the fact of the minority is disputed it is the court who
shall determine it.
8. Verification by Affidavit. An application whether it is made by plaintiff or by
defendant or a list furnished by plaintiff must be supported by an affidavit, verifying the
fact that proposed guardian has not interest in the suit adverse to that of a minor and that
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he is a fit person to be appointed as a guardian.
9. Notice to the Guardian. Before appointing a guardian court must serve a notice to
the minor as well as to the natural guardian of the minor or father or guardian appointed
by competent authority or person in whose care the minor is as a case may be.
10. Capacity to Act As Guardian. For acting as guardian for the suit of a minor a
person must possess the following qualifications: -
a. A person must be of sound mind, capable of understating the things as they are.
b. For acting as guardian he must be of 18 years or above.
11. Persons who Can be Appointed As Guardian.
a. Any Person. Generally any person of sound mind who has been of 18 years or
above may be appointed as a guardian
Exception. Following are the Exceptions to this rule: -
i. A plaintiff of a minor can not be appointed as a guardian of the minor.
ii. A person whose interest is adverse to that of minor can not be appointed as
guardian.
b. Guardian Appointed by Competent Authority. Where minor has guardian
appointed or declared by competent authority than such person shall act as
guardian for the suit.
Exception. Court may appoint any other person for reasons to be recorded if it
considers that it is in the interest and welfare of minor.
c. Relative of Minor. Where no guardian is appointed by competent authority then
in such case the court may appoint a relative of the minor as his guardian for the
suit.
d. Co-Defendant. Where minor has also co-defendant court shall appoint any
of the co-defendants as his guardian if no nearest relative of the minor is found.
e. Pleader of the Court. Any person or pleader of the court may be appointed
as a guardian for the suit. But he will be appointed only, where there is no other
person who is fit and willing to act as such guardian.
12. Consent of the Guardian Appointed.
Court cannot appoint any person as guardian without his consent and such consent
may be presumed by the court unless it expressly refused.
13. Mandatory (2003) CLC (1147).
It was mandatory under order 32 rule 3 of CPC that guardian ad-litem of the minor
should have been appointed. If minor defendant were not represented properly by the
guardian adlitem, a decree obtained against them would be nullity in the eye of law.
14. Conclusion.
By the above discussion it can be said, that a suit against minor can only be filed
through his guardian appointed by the court, which is mandatory upon the court. A minor
defendant is not considered to the suit, unless he is represented by guardian party ad-litem
and any decree obtained against minor defendant guardian is null and void. It is
immaterial whether minor has been prejudiced by that decree or not.
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Q -3: Write a note on “Necessary” and “Proper” party in a suit? OR
Explain the term Mis-Joinder and non-Joinder of parties in a suit?
The term “Joinder” means “Joining” and Joinder may be of the parties or cause of
action. All the persons who are necessary or proper party in a suit has a right to join the
suit during the pendency of the suit as plaintiff or defendant. But if, a person has
improperly join the suit or has omitted to join the suit as party when he ought to have so
joined, then this mis-joinder or no-joinder would not affect or defeat the suit on this
reason.
2. Meaning of Mis-Joinder.
The joining of any person as a party to a suit contrary to the provisions of CPC is
mis-joinder of parties.
3. Meaning of Non-Joinder.
It may be defined as “The failure to join any person as a party to a suit, whose
joining is necessary or proper as a party is non-joinder of parties”.
4. Relevant Provision. Following are the relevant provision of CPC regarding mis-joinder
and non-joinder of parties: -
a. Order 1 Rule 9, 10 and 13
b. Order 2 Rule 3.
5. Suit not to be Defeated by Reason of Mis-Joinder or Non-Joinder u/o 1 Rule 9.
The mis-joinder or non-joinder of parties will not itself defeat a suit and the court
shall deal with the matter in so far as regards the parties actually before it and shall
dispose of the suit. Provided that it can be effectively disposed of between the parties on
record. Non-joinder of any party would be inconsequential when it has caused no
prejudice to any of the parties to suit.
Exception. This rule cannot be invoked in a case where the proper constitution of the
suit requires a person to be impleaded and without his presence relief cannot be granted in
the suit.
6. Classification of Parties. For the purpose of this rule the parties may be classified as
necessary or proper party: -
a. Necessary Party. A necessary party is one whose presence on record is
enjoined by law or in whose absence no effective decision can be given. A suit
cannot be proceed in the absence of a necessary party.
b. Proper Party. A proper party is one who is in some way interested or
connected with the relief sought against other. His absence is not fatal to the suit.
7. Remedy to Cure Defect u/o 1 rule 10.
To remedy the defect of mis-joinder or non-joinder of parties the court may
proceed u/o 1 rule 10 of CPC in the following ways: -
a. Substitution of Plaintiff. Where the suit is instituted in the name of wrong
plaintiff the court may add co-plaintiff or substitute the plaintiff.

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CONDITIONS. For above purpose, following conditions must be fulfilled: -
i. The action was commenced in the name of original plaintiff by a bona fide
mistake or where it is doubtful whether it has been instituted in name of the
right plaintiff.
ii. The substitution or addition of the plaintiff should be necessary for
determining the real matter in dispute.
b. Adding or Striking Out Parties. Under sub rule 2 of rule 10 of this order court
may add or strike out parties at any stage of the proceedings.
i. Addition of Parties. The court may order for addition of a person as a
necessary or proper party for determination of a matter in dispute.
ii. Modes of Addition. Court may add a party
- Suo Motu
- Upon application of such person or
- By a party of suit
iii. Parties who May be Added. Any number of persons may be added
as co-plaintiff or co-defendant in a suit in whom or against whom the right
to relief arises out of the same act or transaction and any common question of
law or fact would arise if separate suits were instituted by or against them.
iv. Striking Out Parties. Parties who have no connection whatsoever,
with the relief sought may be struck off from the record as parties.
v. Modes of Striking Out. Court may struck out the party;
- Suo Motu
- Upon an application made by a party to the suit.
8. Amendment of Plaint.
The plaint shall be amended after adding defendant and such amendment only
restrict to that which is necessitated by the addition of defendant and by it the nature of the
suit must not be changed.
9. Limitation.
Sec 22 of limitation act 1908 provides that where a new plaintiff or defendant was
added or substituted the suit shall as regards him be deemed to have been instituted when he
was so made a party.
10. Objections u/o 1 Rule 13. Rule 13 refers two kinds of objection;
a. One for mis-joinder and
b. Other for non-joinder
11. Objections Taken At Early Stage 2002 CLC 566.
An objection to mis-joinder or non-joinder of parties should be taken at the earliest
possible opportunity, otherwise it shall deem to have been waived.
12. Ground for Subsequent Objection.
A party cannot be deemed to have been waived the objection, when he had no
opportunity of taking the objection. The rule provides to those grounds which actually arise
after settlement of issues.
13. Conclusion. To conclude it can be said that any number of person can be joined together
as co-plaintiff or co-defendant if it is in accordance with rule 1 and 3 of order 1 and any
objection as to mis-joinder or non-joinder of parties should be taken at the earliest possible
opportunity. A suit not to be dismissed on account of mis-joinder or non-joinder, but court
should allow amendment u/o 1 rule 10 and shall dismiss the suit if necessary parties have
not been added as non-joinder of necessary parties can be fatal.

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Q -4: Can a plaintiff file a fresh suit on the same cause of action after the rejection of
plaint?
It is the duty of court before which a suit is instituted to properly examine the plait
for the purpose of determining whether it should be returned or rejected and in order to
determine the question of rejection the court may take into consideration other materials
too. Order 7, rule 11 of CPC narrate cases where plaint should be rejected.
2. Relevant Provisions. Following are relevant provisions;
a. Order 7 rule 11 of CPC 1908.
b. Order 41 rule 3 of CPC 1908.
c. Section 148, 149 of CPC 1908.
d. Section 11 of suit valuation act 1877.
3. Rejection of Plaint Order 7 Rule 11 CPC.
Order 7 rule 11 of CPC mentions some instances where plaint shall be rejected by
the court. The provision of this rule are mandatory and can be brought at any stage of the
proceedings of suit. Plaint may be rejected either before issuing summons to the defendant
or at any time thereafter.
4. Modes of Rejection. Suit may be rejected either by :-
a. On application of defendant or
b. Suo motu by court (if it is liable to be rejected by court under rule 11 [2004
CLJ 172])
5. Grounds of Rejection. Following grounds are mentioned under order 7 rule 11 of
CPC to reject the plaint: -
a. Plaint not disclosing cause of action. “The court readily exercise the power
to reject a plaint, if it does not disclose any cause of action”. (2004 CLJ 214)
¾ “For purpose of determining the question, whether plaint disclose a cause of
action or not court has to presume that every averment made in the plaint is
true power of court to reject a plaint under rule 11 must be exercised only if the
court come to conclusion that even if all the allegations made in the plaint are
proved, plaintiff would not be entitled to any relief whatsoever” (2006 CLJ
590).
b. Claimed Relief is Undervalued. If the court is of opinion that the plaintiff’s
valuation of suit is fictitious, it can require him to make a correct valuation and
shall allow time for correction and can reject the plaint on the failure of plaintiff to
do so.
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C.P.C
¾ Court should determine the correct valuation before making an order of
rejection
c. Plaint is Insufficiently Stamped. One of the requirement for the proper
instituting of the suit is that the plaint must be properly stamped for the purpose of
the court fee under the Court Fee Act 1870. the initial duty of affixing proper court
fee is that of the plaintiff and then of the court to check it, where the court is of the
opinion that the court fee stamps are insufficient it should determine the correct fee
payable and instead of rejecting the plaint. It must allow time for making up the
shortfall and in case of failure of plaintiff to do so it should reject the plaint under
order 7 rule 11 of CPC.
6. Order 7 Rule 11 is Not Exhaustive (comprehensive or complete).
Order 7 rule 11 is not exhaustive in nature and court may reject a plaint on any
other gourd too.
7. Object of Order 7 Rule 11 (2004 CLJ 172).
“It is not only the requirement of law but also it is in the interest of litigants that
incompetent suits should not be allowed to further encumber legal proceedings. Stillborn
suit must be buried at its inception without formal funeral ceremony.
8. Procedure on Rejection Order 7 Rule 12. Following procedure shall be followed on
rejecting plaint under order 7 rule 12: -
a. Judge shall record an order to that effect.
b. Judge shall record the reasons for such order.
9. Rejection of Plaint Amounts to Decree.
By virtue of section 2 (2) of CPC an order rejecting a plaint, whether under this
order or not is a decree.
10. Appeal (2004 CLJ 234).
An order rejecting a plaint is a decree and hence appealable.
11. Filling of Fresh Suit on Same Cause of Action Order 7 Rule 13.
According to rule 13 of order 7, the rejection of the plaint does not preclude the
plaintiff from instituting a fresh plaint on the same cause of action unless the earlier suit
was disposed of by an order which was in substance one of dismissal. The rule of res-
judicata is also not applied to the rejection of plaint as the order or rejection does not
amount to adjudication.
12. Conclusion.
To conclude it can be said that it is the responsibility of the court to properly
examine the plaint before further proceed, that whether it is able to proceed or return or
rejection. Order 7 rule 11 of CPC only mentions some grounds of rejecting plaint but
court reject a plaint even on grounds not mentioned in it and the court may also instead of
rejecting a plaint allow an opportunity to the plaintiff to correct the defect in the plaint by
amending it under order 6 rule 17 of CPC 1908.
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Q -5: Discuss the requirement of a written statement, in the light of order VIII of CPC
1908?
A written statement is a statement filed by defendant in answer to the plaint and
constitutes his defense and it should be filed by defendant personally or on his behalf by
his duly authorized agent or his pleader. Order VIII of CPC deals with the requirements of
written statements.
2. Definition of W. Statement.
“A written statement is a concise statement in writing, filed by the defendant in
answer to the averment in the plaint and it constitutes defense”.
3. Requirements of Written Statement u/o VIII. Following are the requirements f
written statement under order VIII of CPC 1908:-
a. Filling W. Statement Rule 1. The defendant shall at or before the first
hearing or within such time as the court may permit, present a written statement of
his defense.
¾ Filling of written statement shall not ordinarily exceed 30 days and
¾ More than two adjournment shall not allowed
b. Facts must be Specifically pleaded Rule 2. The defendant must raise by
his pleading all matters which shows the suit not to be maintainable or that the
transaction is either void or voidable in point of law and all such grounds of
defense as if not raised would be likely to take the opposite party by surprise or
would raise issue of facts not arising out of plaint, as for instance fraud, limitation,
release, payment, performance or facts showing illegality.
c. Denial must be Specific Rule 3. It shall not be sufficient for the defendant in
his written statement to deny generally the grounds alleged by the plaintiff, but the
defendant must deal specifically with each allegation of acts of which he does not
admit the truth, except damages.
d. Denial must not be evasive, Rule 4. Where the defendant denies an
allegation of fact in the plaint, he must not do so evasively, but answer the point of
substance. Thus if it is alleged that he received a certain sum of money, it shall not
be sufficient to deny that he received that particular amount but he must deny that
he received that sum or any party thereof, or else set out how much he received.
e. Particular of Set-off to be given Rule 6. Where in a suit for the recovery of
money the defendant claims to set-off against plaintiff’s demands any ascertained
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sum of money legally recoverable by him from the plaintiff not exceeding the
pecuniary jurisdiction of the court and both parties fill the same character as they
fill in the plaintiff’s suit, the defendant may at the first hearing of the suit but not
afterwards unless permitted by the court, present a written statement containing the
particulars of the debt sought to be set-off.
f. Defense or Set-Off founded on Separate Grounds Rule 7. Where the
defendant relies upon several distinct grounds of defense or set-off grounded upon
separate and distinct facts, they shall be stated as far as may be separately and
distinctly.
g. New Grounds of Defense Rule 8. Any ground of defense which has arisen after
the institution of the suit or the presentation of written statement claiming a set-off
may be raised by the defendant or plaintiff as a case may be in his written
statement.
h. Subsequent Pleadings Rule 9. No pleading subsequent to the written
statement of a defendant other than by way of defense to a set-off shall be
presented except;
¾ By the leave of the court and upon such terms as the court thinks fit, but the
court at any time require a written statement or additional written statement
from any of the parties may fixed a time for presenting the same.
¾ Failure of Presenting W. Statement. Where any party from whom a
written statement is so required fails to present the same within the time
fixed by the court the court may pronounce judgment against him or make
such order in relation to the suit as thinks fit.
j. Address for service Rule 11. Every party whether original, added or
substituted who appears in any suit or other proceeding shall on or before the date
fixed in the summons, notice or other process served on him, file in court a
proceeding stating his address for service.
k. Consequence of Failure Rule 12. Where a party fails to file an address for
service as provided in the preceding rule, he shall be liable to have his defence, if
any struck out and to be placed in the same position as if he had not defendant.
l. List of Legal Representatives Rule 13. In every suit of the nature referred in
the rule 4 of order XXII of CPC the written statement shall be accompanied by s
statement giving a list of legal representatives of defendant or defendants with full
names and address.
4. Conclusion.
The document which contains the pleadings of the defendant or defence is called
the written statement. By means of a written statement the facts alleged in the
plaint and also raised all points of law or facts which shows that the suit is not
maintainable as well as specify the grounds of defence.

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Q -6: Draw a distinction between rule 2 and 3 of Order XVII of CPC 1908?
The law pertaining to procedure as to civil matter is provided in CPC 1908. For the
smooth running of litigation both the parties must be present on hearing. If the plaintiff
will not appear court may dismiss the suit and if the defendant does not appear it will
proceed against him ex-parte. Rule 2 and 3 of order XVII deals with such situation, court
may also adjourn the case for next date.
2. Rule 2 Order XVII CPC.
The effect of this rule is to assimilate (incorporate or take in) the procedure in
cases where there is default of appearance at an adjourned hearing with that in cases
where there is such default at the first hearing. The result is that though a party may have
appeared at the first hearing but fails to appear at the adjourned hearing the procedure laid
down in order 9 will apply.
3. If the Plaintiff Fails to Appear.
If the plaintiff fails to appear at an adjourned hearing the court may make an order
dismissing the suit under rule 2 Order XVII CPC and order 9 rule 8 CPC. The plaintiff
may if so advised than apply under rule 2 order XVII and order 9 rule 9 of CPC for an
order to set the dismissal aside and no appeal lies in such a case.
4. If the defendant fails to Appear.
If the defendant fails to appear at an adjourned hearing the court may make an
order for ex-parte proceedings and then ex-parte decree under rule 2 order XVII and order
9, rule 6 of CPC. The defendant may if so advised then apply under rule 2 order XVII and
order 9 rule 13 of CPC for an order to set it aside.
5. If Both Parties Fails to Appear.
If both parties fails t appear at the hearing the court may make an order dismissing
the suit under rule 2 order XVII and order 9 rule 13 and the plaintiff may than if so
advised either bring a fresh suit or apply for an order to set the dismissed aside under this
rule and order 9 rule 4 CPC.
¾ Order 9 rule 8 CPC applies to first hearing and order XVII applies to
subsequent hearings.
6. Plaintiff Appear and Defendant Not Appear.
Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing. Then if it is proved that summons was duly served the court may

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proceed ex-parte proceeding and then pass ex-parte decree with or without recording of
evidence.
7. Explanation.
If the defendant does not appear and it is proved that the summons were duly
served upon him the court may proceed ex-parte. If the plaintiff makes out a prima facie
case the court may pass a decree for the plaintiff. If the plaintiff fails to make a prima
facie case the court may dismiss the plaintiff suit. Recording of evidence of the plaintiff
by the court is under discretion.
8. Application of Rule 3 Order XVII.
Rule 3 order XVII applies to a case where time has been granted to a party at his
instance to produce evidence or to cause the attendance of witness or to perform any other
act necessary for the progress of the suit and will not apply unless default had been
committed by such party in doing the act for which the time was granted.
9. Conditions for Application Rule 3 Order XVII. The provision of this rule do not
apply unless: -
a. The hearing is adjourned on the application of a party to the suit as distinguished
from an adjournment by the court of its own motion.
b. The hearing is adjourned on the application of the party who subsequently makes
the default.
c. The adjournment is granted;
(1) To enable the party to produce his evidence or
(2) To cause the attendance of his witness or
(3) To perform any other act necessary to the further progress of the suit. Or
(4) The party fails to perform any of the acts for which the adjournment was
granted within the time allowed by the court.
IMPORTANT NOTE. There may be some case to which both the rules 2 and 3 are
applicable, in such matters the court should proceed under rule 2 instead of rule 3 i.e.
either adjourn or proceed under order IX CPC, which is a lesser penalty.
10. Rule 2 and 3 Order XVII CPC Distinguished.
a. The application of rule 3 is in the nature of an exception to the general rule/
provision contained in rule 2. It applies where the adjournment is granted for any
of the purposes mentioned in the rule.
b. While the application of rule 2 is in the cases where the adjournment is generally
granted not for specific purpose.
11. Conclusion. In the light of above discussion, I can say that according to rule 2 of order
XVII of CPC suit may be dismiss if the plaintiff is not appear on the date of hearing or
may proceed ex-parte decree when defendant is not appear on date of hearing, despite of
duly service of summons. Rule 3 of order XVII of CPC is applicable only when any party
had sought adjournment for any proceeding and failed to fulfill the obligation.

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Q -7: Up to what stage of proceedings the parties can amend their pleadings. Is a
permission of court necessary for such amendment?
All rules of court are intended to secure the proper administration of justice, so full
power of amendment must be enjoyed and should be liberally exercised by the court.
Whenever it is necessary to make amendments in the pleadings, court should grant leave
to it. Pleadings means plaint or written statement, filed by plaintiff or defendant in which
plaintiff should allege the cause of action and the defendant should state the material facts
on which he relies for his defence and the court may allow amendment in it to meet the
end of justice.
2. Meaning of Pleading u/o 6 Rule 1. “The term pleading means any plaint or written
statement filed by the plaintiff or defendant”.
3. Meaning of Amendment. “Amendment of pleadings means correction of some error
or defect in plaint or written statement”.
4. Relevant Provisions. Following are the relevant provisions of: -
a. Order 6 rules 16 and 17 CPC.
b. Section 152, 153 CPC.
c. Order 14 rule 5 of CPC.
5. Amendment of Pleadings u/o 6 rule 17.
Amendment in the pleadings may be allowed by the court at any stage of the
proceedings on application of either plaintiff of defendant or even suo motu under the
provision of order 6 rule 17 CPC.
a. Who may apply for amendment. An application for amendment may be filed
either by : -
(1) Plaintiff for amendment in plaint,
(2) Defendant for amendment in written statement
b. Leave to amend by Court. The court after satisfaction and if it thinks fit may
grant leave to amend the pleadings.
c. Court which may grant leave. Leave to amend may only be granted by the
court having jurisdiction over the matter.
d. Amendment of pleadings. It is essential that the amendment should be made on
the face of the plaint or written statement. It may be made on a separate sheet of
paper.
e. Amendment at any stage of proceedings (206 SCJ 509). “Court may at any
stage of proceedings allow either party to alter or amend the pleadings in such
manner and on such terms as may be just”. If may be allowed at any time before
the final decree in the case.
f. Extent of Amendment. Pleadings can be amended only to the extent allowed
by the court.
g. Discretionary and Mandatory power. Under order 6 rule 17 court has
discretionary as well as mandatory power, regarding the amendment of pleadings.
(1) Discretionary Power. The first part of order 6 rule 17 vests in a
court a discretionary power to amend the pleadings and court may allow
amendment where it is just and necessary and court may impose such terms
or conditions as it thinks fit, in granting leave. The discretionary vests in a
court is to be exercised judicially and only in interest of justice.
Example. Where plaint did not disclose the cause of action the court
may instead of rejecting it u/ord 7 rule 11 allow an amendment in it.
(2) Mandatory Power. The second part order 6 rule 17 is mandatory in
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nature and where amendment in pleading is necessary for determining real
controversy between parties and nature and character of suit was not
changed thereby, the amendment should not be refused.
6. Restrictions on Amendment of Pleadings. Amendment of pleadings is subject to
the following restrictions:-
a. Amendment of pleadings will not be allowed where application for amendment is
mala fide.
b. Amendment can only be made upto the extent allowed by court.
c. Amendment cannot be made without express leave of court,
d. Amendment should not be allowed where the basic character of the suit is changed
thereby,
e. No amendment shall be made where the suit is barred by law.
f. Amendment can not be made, where it would invoke injustice to the opposite
party.
g. No amendment can be made where no useful purpose would be served by allowing
amendment.
h. Amendment may not be allowed where application to amend pleadings founded on
subsequent change in law.
j. Amendment of written statement should not be allowed where plaintiff has closed
his evidence and if allowed plaintiff should be allowed to rebut defendant’s
contentions.
k. Facts admitted by defendant cannot allow to be amend and it operates as estoppel.
l. Amendment of plaint which introduce new cause of action is not permissible
(2004 CLJ 679).
7. Striking Out Pleading Ord. 6 Rule 16. Pleadings may be struck out or
amended by the court under ord. 6 rule 16.
a. Scope. Rule 16 permits the amendment of pleadings even against the will
of the party concerned.
b. Mode of Allowing Amendment. The court may exercise this power of
amendment or striking out of pleadings: -
(1) Suo Muto or
(2) On application of any opponent party for amendment of pleading of
opposite party.
c. Amendment of any Matter. There may be amendment of any matter, falls
under any of the following categories: -
(1) Unnecessary. A matter which has been un-necessarily incorporated in the
pleadings and which is not the matter in issue may be struck out be the
court.
(2) Scandalous. A scandalous material may be struck out by the court unless
it is directly in issue.
(3) Which Embarrass, Prejudice or Delay. Where the pleadings may
embarrass prejudice or tend to delay the trail the court may order the
irrelevant portions to be struck out.
8. Conclusion. At the end it can be said that both plaintiff and defendant are allowed u/ord 6
rule 17 to amend their pleadings after obtaining leave of the court which is though
discretionary in nature but exercised judicially. Order 6 rule 17 is not exhaustive in nature
and the court may also amend pleadings under its inherent power u/s 151 CPC. The court
may also struck out or amend pleadings of any party suo motu, if it falls under order 6 rule
16 CPC 1908.

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Q -8: Narrate the importance of Order II rule 2 in drafting plaint?
Every suit as far as practicable, be framed so as to afford ground for final decision
upon the subject or subjects and to prevent further litigation concerning it. It should
include the entire claim of the plaintiff in respect of the cause of action, but it is open to
the plaintiff to relinquish any part of his claim, but if any part of claim is relinquished, no
further suit in respect of it shall lie. When a person is entitled to several relief’s he may
sue for all or any of them. But if he omits without leave of the court to sue for any of the
relief’s, he shall not be allowed to claim the same relief subsequently. These principles are
akin (similar) to the principle of res-judicata.
2. Object of Order – II Rule 2.
The object of the rule is to avoid splitting of claims and to prevent multiplicity of
suits. The rule is based on the principle that the defendant should not be twice vexed for
one and the same cause.
3. Scope of Sub-Rule (1), Rule 2 Order 2.
This sub-rule deals with the frame of the suit and enables the plaintiff to abandon
or relinquish a part of his claim before filing his plaint. After the suit is filed he cannot by
way of amendment reduce the value of his claim by abandoning a part of his claim with a
view to get his plaint returned for being presented in another court of lower pecuniary
jurisdiction.
4. Splitting of Claim.
Order II rule 2 is a proceedings rule which is aimed against multiplicity of suits in
respect of the same cause of action. The object of the present rule is to use the language of
rule 1 Order II “to prevent further litigation”. For that purpose the rule provides that every
suit shall include the whole of the claim which the plaintiff is entitled to make in respect
of the same cause of action, he is not entitled to split his cause of action into parts and
bring separate suits in respect of each part.
5. Distinct Causes of Action.
If the cause of action in the subsequent suit is different from that of the first suit,
the subsequent suit is not barred.
6. Different Causes of Action Arising From the Same Transaction.
The rule does not require that when several causes of action arise from one
transaction the plaintiff should sue for all of them in one suit. What the rule lays down is
that where there is one entire cause of action, the plaintiff cannot split the cause of action

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into parts so as to bring separate suits in respect of those parts.
7. Omitting to Sue in respect of Any portion of his Claim.
Where a person is entitled to more than one relief in respect of the same cause of
action, he may sue for all the relief’s or he may sue for one or more of hem and reserve his
right with the leave of the court to sue for the rest. If no such leave is obtained he will be
preclude (Prevented) from afterwards suing for any relief so omitted.
8. Exceptions to the Rule Against Splitting of Relief’s. Following are the exceptions
to this rule: -
a. Order XXXIV Rule 6. The effect of this rule is that where a mortgagee has
obtained a decree for sale of the mortgage property and the property is sold, but
the net sale proceeds are not sufficient to pay the mortgage-debt, he may
subsequently apply for a decree for balance, not withstanding anything contained
in order II rule 2. Although a claim to such relief has not been included in his
previous suit.
b. Order XXXIV Rule 14. Sub-rule 3 provides that where a person entitled to
more than one relief in respect of the same cause of action omits, except with the
leave of the court to sue for all such relief’s he cannot afterwards sue for any relief
so omitted.
9. Conclusion.
To conclude it can be said that law pertaining to civil matters is provided in civil
procedure code 1908, order 2 rule 2 of civil procedure code is contained in the code
provide the rule that aggrieved party must take the whole of the claim when cause of
action arise. If the plaintiff failed to make whole of the claim he is preclude from the
brining of the fresh suit, subsequently.

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Q -9: What is duty cast upon the parties, after then framing of issue if they want to
produce evidence state your views in the light of order XVI of CPC.
Law favours the adjudication on merits, that’s why parties are required to produce
evidence in support of their claims. Parties should not be deprived of right of producing
evidence and from examining evidence and from examining witness, unless mala fide is
established. Provisions of order XVI provides the procedure of summoning of witness to
give evidence or to produce the documents which are relevant with the matter in dispute.
2. Meaning of Summons. “A written notification issued by a Civil Court requiring that
one must appear before the court in prescribed manner”
a. Order XVI of CPC.
b. Sections 30, 31, 32 of CPC 1908 are relevant provisions.
4. Power to Call Witness. There are two ways of causing attendance of witness:-
a. Parties to the suit can apply
b. Court itself on its own motion call witness or suo motu
5. Summoning of Witness by Parties.
Witness may be summoned by the parties upon application made by the parties,
court is bound to issue summons upon such application.
If, application is made at late stage witness may be summoned at party’s risk.
6. Procedure. Following procedure shall be adopted by the court when witness are
summoned on the application of the parties: -
a. List of Witness. Parties are required to present a list of witness, with the
court in support of their claims within seven days after settlement of issues.
¾ Sub-rule 2 provides that witnesses not named in the list cannot be called
afterwards (2006 CLJ 851)
¾ Unless party shows good cause for such omission
¾ But the court shall record the reasons for granting such permission (2006 CLJ
851)
b. Issuance of Summons. Parties are bound to make an application to the court
for issuance of summons not later than 14 days prior to the date of hearing and the
expenses are deposited.
c. Expenses of Witness. A witness is entitled to be reimbursed on account or
travel and other expenses. Party is bound to pay such expenses before grant of
summons by court within time as fixed by court.
d. Insufficiency of Sum. Where it appear to court that sum paid is not
sufficient court may direct the parties to deposit further sum as appears necessary
on that account.
e. Default in Payment. In case of default in payment of sum by party, court
can order for attachment and sale of the movable property of such party or may
discharge the summon without recording evidence.
7. Service of Summons By Parties. Court shall serve summon to the parties applying for
witness, except where it appears to the court that summons under this order should be
served by the court in the same manner as summon to the defendant.
8. Service of Summons by Court. Following procedure shall be adopted for service of
summons by court: -
a. Power of Court to Call upon Witness. The court has power to direct a
person present in court to give evidence or to produce any document whether he is
named in witness list or not.
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b. Service of Summons. The court shall serve summons under this order in
the same manner as to the defendant
(1) by person (2) by Post
(3) by affixation or (4) by substituted service
c. Particulars of Summons. Summons must contained: -
(1) Time and place of attendance and
(2) Any particular document which is required to be produced.
d. Time for serving Summons. It is required by law to serve summons
before time specified in summons for the attendance of the person.
9. Power of Court in Case of Failure to Comply with Summons. Following are the
powers of court in case of failure to comply with summons: -
a. Examination of Serving Officer. Where a person to whom summon has been
issued to give evidence fails to give evidence court shall examine the serving
officer on oath, regarding service or non-service of summons.
b. Issuance of proclamation. In case where court has reasons to believe that such
evidence is material and such person has failed to attend without lawful excuse and
intentionally avoided service then in such case court may issue a proclamation
requiring him to give evidence at time and place named therein.
c. Issuance of Warrant and Attachment of Property. The court may in its
directions issues a warrant for arrest of such person or may make order for the
attachment of his property to such amount as it think fit.
¾ An order of attachment is appealable.
d. Withdrawal of Attachment. Law provides for withdrawal of attachment
at any time on appearance of such person on satisfaction of court.
e. Procedure if witness fails to appear. In case is such person does not appear
or appears but fails to satisfy the court, court may make order;
(1) Fine not exceeding Rs. 5000/-
(2) Attachment or sale of property
(3) If attachment already has been taken place for its sale.
9. Duty of Persons Summoned.
Person who is summoned to appear and give evidence in a suit shall attend the
court at the time and place named in the summon, person who is required to produce any
document shall either attend to produce it, or cause it to be produced.
10. Consequence of Refusal.
Where any party to a suit present in court refuses without lawful excuse to give
evidence or to produce any document, the court pronounces the judgement against him or
make such order as think fit. An appeal will lies against such order by virtue of order 43 of
CPC 1908.
11. Suo Motu Action of Court.
Where at any time court thinks it necessary to examine person other than a party to
suit and not called upon by party as a witness court may on its own motion cause such
person to be summoned as witness to give evidence or may examine him as a witness or
require him to produce such documents.
12. Conclusion.
It can be said that at administration of justice. In order to achieve justice, law
favours the adjudication on merits. Evidence plays vital role to decide matter on merits.
Order XVI of CPC 1908 deals with the procedure of collection of evidence by way of
summoning and attendance of witness.
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Q -10: What are the three main factors to be considered by the court before issuing a
temporary injunction? Also differ rule 1 and 2 of order XXXIX of CPC?
A- 10: Introduction. It is a general rule of English law, to restrain all vexatious alienations of
property, by pending a suit. For this purpose injunction may be granted under order 39
rule 1 CPC, which is related to injunctions against waste pendete life and under order 39
rule 2, which relates to injunctions against breach of contracts and torts. It is a preventive
remedy for purposes of preserving the status quo or to prevent a party from being
permanently deprived of relief
2. Meaning of Injunction. The term injunction may be defined as under:
“An injunction is a judicial process whereby a party is ordered to do or to refrain from
doing a particular act and as such can either be mandatory or prohibitory in nature”.
3. Relevant Provisions. Order XXXIX rule 1 and 2 of CPC 1908, Section 94 and 151 of
CPC 1908 and Section 52 to 57 of specific relief act 1877 are relevant provisions. Here I
discuss order XXXIX rule 1 and 2.
4. Kinds of Injunctions. There are following two kinds of injunctions: -
a. Temporary Injunction. Regulated by rule 1 and 2 of order XXXIX of CPC.
b. Permanent Injunction. Regulated by Section 52 to 57 of Specific Relief Act.
5. Meaning of Temporary Injunction. It may be defined as under: -
“Temporary inunctions are such as are to continue until a specified time or until
the further order of the court and they may be granted at any stage of a suit”.
6. Conditions for the Grant of Temporary Injunction. A temporary injunction may
only be granted in a pending suit where following conditions are fulfilled: -
a. Prima Facie Case. The existence of a prima facie case in favour of the plaintiff
is necessary before granting temporary injunction in favour of plaintiff.
¾ The term “Prima Facie” means “on the face of case”.
b. Irreparable Damage or Injury. This term refers to injury which cannot be
adequately compensated. The application should show that irreparable damage or
injury will occur to him if the injunction is not granted. “Loss which can be
measured in term of money cannot be termed as irreparable loss (2000 CLJ 416).
c. Balance of Convenience. The court should issue the injunction where the
balance of convenience is in favour of the applicant, i.e. he will suffer more
inconvenience by with holding of injunction than that of respondent.
7. Discretionary Power of Court. Jurisdiction to grant injunction is of an equitable
character and an applicant is required to satisfy the court’s conscious whether injunction
should be issued or not and in granting injunction court may impose such conditions as it
thinks fit.
8. Grant of Temporary Injunction u/ o 39 rule 1. Temporary injunction may be granted
by court in case relating to disputed property.
a. Who Can Apply. Following parties may apply for injunction: -
(1) Plaintiff against defendant (2) Defendant against Plaintiff
b. Cases for Temporary Injunctions. Temporary injunction may be granted under
order XXXIX rule 1 in following cases: -
(1) Property in so Danger of being wasted. An injunction may be granted under
this rule only if there is a real danger of subject matter of the suit being wasted or
damaged by a party to the suit. Where there is no such danger the application should
be rejected
(2) Property in Danger Wrongfully Sold. An injunction may be granted, where
property is in danger of being wrongfully sold in execution of a decree i.e. where the
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property of a person other than the judgment debtor is being sold.
(3) Disposal of Property in Fraud. An injunction may be granted to restrain a
threatened disposal of property in fraud of creditor. In such case intention to defraud
must be proved.
c. Effect of Injunction. An injunction only acts on the parties to the suit and
an alienation of property contrary to the order of injunction is valid, though the party
can be punished for disobedience.
Exception. u/s 52 pf Transfer of Property Act 1882, a transfer cannot be prevail
against a decree that may ultimately be passed in the suit.
9. Appeal. An appeal lies under order 43 rule 1, against an order refusing or allowing
an injunction u/ord. 39 rule 1.
10. Grant of Injunction u/ ord XXXIX Rule 2. Under order XXXIX rule 2 an injunction
may be granted by a court in suits relating to contracts or other injury of any kind.
a. Who May Apply. Under order 39 rule 2 only plaintiff may apply for the
injunction.
b. Cases where injunction granted. In the following cases injunction may be
granted under order 39 rule 2: -
(1) To restrain Breach of Contract. The court may grant an injunction to restrain
the commission of any act which will involve a breach of the contract.
Exception. According to sec 56 (1) of Specific Relief Act 1877, no injunction
can be issued to prevent the breach of contract, which cannot be ordered to be
specifically enforced and by virtue of sec 21 of SRA 1877 a contract will not be
specifically enforced where there is adequate remedy is available.
(2) To restrain injury of any kind. The word “Injury” refers to the infringement
of legal rights. For the applicability of rule 2, even a reasonable apprehension of
injury is sufficient.
Example. Infringement of trade mark or copy right, trespass or nuisance.
(3) Disobedience of Injunction. In case of disobedience of injunction, the
court granting injunction may order the attachment of the property of the person
disobeyed and may also order for imprisonment of him for a term not exceeding
six months.
11. Notice to opposite Party Order XXXIX Rule 3. The court shall in all cases before
granting an injunction direct, that the notice of an application for injunction must be given
to opposite party.
12. Period of Notice. The period of notice to Govt or any statutory authority shall not be
less than two days nor exceeding seven days.
13. Dispense of requirement of Issuing Notice. Notice will not be issued by a court
where the very object of issuing the injunction will be defeated by the issuance of notice
to the respondent.
14. Duration of Temporary Injunction. Whenever the court grants an extension, then
the main case shall be given priority for disposal and before expiry of extended period the
court shall decide the main case in all circumstances (2006 CLJ 796).
15. Set-Aside of Injunction Rule 4. An order for injunction may be discharged, varied or
set aside by the court on application made there to any dissatisfied with such order.
16. Conclusion. At the end it can be said that injunction may be granted to applicant where
he shows that there is no other remedy open to him by which he can protect himself from
the consequences of the apprehended injury or damages. It is issued only against party to
the suit and not against stranger. It is provisional in nature and does not conclude a right
but if it is affirmed at the final having and embodied in the decree it becomes perpetual

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Part-III (Limitation Act 1908)
Q -1: Discuss the “Sufficient Causes” which compel the court to condone delay also differe
it with section 14 of limitation act 1908?
All the law relating to limitation of suit, appeal or application is provided in
limitation act 1908. Section 3 provides that every suit instituted, appeal preferred or
application made after the period of limitation prescribed there for shall be dismissed,
irrespect of the fact that it has setup by the defendant as defense or not. It appears to
proceed on the assumption that it is in public interest that action must be taken within the
statutory time limit and the words “although limitation has not been setup as defense”
show a clear intention of legislation that it is not left to the parties to take or not take the
objection that the suit, appeal or application is outside the time limit fixed by law and the
court must dismissed the suit, appeal or application if it has not been made timely.
2. Plea of Limitation & Duty of Court Sec -3.
Sec 3 is peremptory and the duty of the court is to notice the act and give effect to
it even though limitation is not referred to in the pleadings. The court is bound to take
notice of the point of limitation, if it appears to it that the suit is barred by time even if the
defense did not taken up the plea or the plea was abandoned.
3. Nature of Sec – 3.
The words of sec 3 are mandatory in nature in that every suit instituted after period
of limitation shall subject to provision of 4 and 25 of the limitation act, be dismissed
although limitation has not been set up as defense.
4. Extension of Limitation Period Sec – 5. This section empowers the court of law to
extend the period of limitation if there is a sufficient cause is available in delay.
5. Scope of Sec-5. This sec applies only to appeals and certain applications as mentioned in
the sec and it does not apply to the suit.
6. Condonation of Delay. A party, who seeks condonation of delay in instituting the
proceedings under sec 5 of limitation act, is bound to offer plausible explanation
constituting sufficient cause in approaching the court.
7. Sufficient Cause. What constitute sufficient cause can not be laid down by hard and fast
rules. Broadly speaking, however, it connotes something beyond control of the party.
8. Determination of Sufficient Cause.
Sufficient cause must be determined by reference to the circumstances of each
particular case. The question whether a cause is a “Sufficient Cause” is question of fact in
each case. The “Sufficient Case” can properly be said to be a cause which is beyond the
control of the party invoking the aid of the section. A cause for delay which by due care or
attention the parties could have avoided cannot be sufficient cause. The test, therefore,
whether or not a cause is a “sufficient cause” is to see whether it could have been avoided
by a party by the exercise of due care and attention.
9. Cases of Sufficient Cause Following are the instances where cause can be said as a
sufficient cause of applicant :-
a. Illness of serious nature of applicant may be sufficient cause.
b. Wrong proceeding taken by applicant in good faith or proceeding taken in wrong
court through bonafide mistake of applicant may be sufficient cause.
c. A legal advisor’s mistake if made bonafide is a sufficient cause. However, filing of
on appeal in wrong court through negligence of counsel is not a sufficient cause for
presenting the appeal to the proper court after the expiry of period of limitation.

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10. Cases of Not a Sufficient Cause.
Following are the instances in which cause can not be considered as sufficient cause:-
a. Poverty of applicant or appellant is not a sufficient cause.
b. Mere please of illness is not sufficient cause.
c. The mere fact of pardenashin lady is not a sufficient cause Unless she was actually
preventing from appearing herself or engaging a counsel for the purpose.
d. Mistake or ignorance of law is not a sufficient cause.
11. Explanation Of Delay
If the prescribed period of limitation has expired, the person who desiring the court to
condone the delay under section 5, he must explain the cause of each day of delay.
12. Extension of Time is Not A Matter of Right
Extension of time under section 5 is a matter of concession provided by the court to
the applicant and it can not be claimed by him as matter of absolute right.
13. Exclusion of Time of Proceeding Bonafide in Court Without Jurisdiction :S.14
Section 14 of Limitation act applies to suit and applications only, and not to
appeals. Circumstances in this section may and ordinary would, constitute a “Sufficient
Cause” in the sense of section5. The reason why this section is limited to course of
original jurisdiction is merely because section 5 gives a large and more unfettered power
in the same behalf to appellate courts. The reasonable principle of this section may be
applied to appeal.
14. Principle of Section 14
Principle of the section is the protection against the bar of limitation of a person
honestly doing his best to get his case tried on the merits but failing through the court
being unable to give him such a trail. It envisage that the time during which another civil
proceeding was being prosecuted with due diligence against the same party bar same relief
in good faith, in a court which from defect of jurisdiction or other cause of allied nature is
unable to entertain it, can be excluded.
15. Requisites of Section 14 Following are the requisites of section 14: -
a. That the plaintiff has been prosecuting another civil proceeding against the defendant.
b. That he has been prosecuting it with due diligence.
c. That this proceeding is formulated on same cause of action.
e. That it is prosecuted in good faith.
f. That it does not bear fruit because the court is unable to entertain it due to defect of
jurisdiction or other cause of like nature.
16. Sec 5 & Sec 14 Distinguished.
Sec 5 applies only to appeals and certain applications mentioned in the section and
it does not apply to the suits.
Sec 14 applies to suits and applications only and not to appeals.
17. Discretion.
Section 5 is discretion of court.
Section 14 allows no discretion, it is mandatory.
18. Conclusion. In the light of above discussion it can be said that the principle of
condonation of delay is an exception to general, that no suit, appeal or application can be
entertain after the period of limitation prescribed by law. But aggrieved party must show
sufficient cause to invoke the favour of these sections and explain the cause of each day of
delay.
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Q -2: What are the principle of condonation of delay:
a. In filling suits
b. In preferring appeals OR
State whether the absence abroad of a defendant affected the prescribed limitation of
a suit?
All the law relating to limitation of suit, appeals or application is provided in
Limitation Act 1908. Sec 12 of limitation act is provides the principle of condonation of
delay. It is an exclusionary provision whereby a certain time in certain situations and
circumstances is excluded from the computation of period of limitation prescribed by law.
2. Principle of Condonation of Delay.
Section 12 of limitation act allows time requisite for obtaining copy of document
concern to case and the question what period is a question of act to be determined on the
circumstances of each case.
Exclusionary time.
The time requisite for obtaining copies which can be excluded under sec 12, of
Limitation Act, the time which is taken between the date of application and the date when
the copies are ready.
But it can be further extended if further delay takes place by reason of the
carelessness of the office in giving wrong information, no information or false information
to the applicant as to the date on which copies would be ready or in giving no information
at all.
3. Duty of Court.
Sec 12 does not require any prayer or application for condonation of delay on the
part of a party for the exclusion of time as such exclusion is made imperative by the
section itself. It is duty of the court to exclude such time.
4. Rule in Order to Claim Extension u/s 12.
The rule that appellant has to account for the delay of each and every day beyond
the prescribed time, in order to claim extension would apply where sec 5 of limitation act
comes into play but not in case of section 12 of the Limitation Act.
5. Essential condition
For purpose of application of “Principle of Condonation of delay” all instruments
must be deemed to be made with reference to the Gregorian Calendar u/s 25 and in
computing the period of limitation the day from which the period is to be reckoned has to
be excluded by virtue of sec 12.
6. Computing of Limitation.
Following rules shall apply in computation of period of limitation: -
a. Cause of action. Where time is to be computed from the date of cause of
action. The day on which such cause of action arises is to be excluded.
b. Acknowledgment. If, in respect of cause of action there is an
acknowledgement, the day of acknowledgement is to be excluded.
c. Agreement to Sell. In reckoning (calculating) the period stipulated in a contract
for specific performance, the date on which the document was executed must be
excluded.
7. Grounds of exemption from Limitation.
a. In Case of Suits. For computing the period of limitation prescribed for any
suit is as following:-
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(1) The day from which such period is to be reckoned shall exclude.
(2) The time during which the defendant has been absent from Pakistan and
from the territories beyond Pakistan under the administration of the central
Govt shall be excluded.
(3) The time during which the plaintiff has been prosecuting in good faith,
another civil proceedings in a court without jurisdiction against the same
defendant founded on same cause of action, shall be excluded.
(4) If the institution of the suit has stayed by injunction or order the time of the
continuance of the injunction or order. The day on which it was issued or
made, and the day on which it was withdraw shall be excluded.
(5) If notice has been given in accordance with the requirement of the
enactment for time being enforce. The period of such notice shall be
excluded.
(6) If a suit is for possession by purchaser at a sale in execution of decree, the
time during which a proceeding to set aside the sale has been prosecuted
shall be excluded.
b. In Case of Appeals.
(1) In computing the period of limitation prescribed for any appeal. The day
from which such period is to be reckoned, shall be excluded.
(2) The day on which the judgment complained of was pronounced and the
time require for obtaining a copy of the decree and judgment sentence or
order appeals farm, shall be excluded.
8. Exclusion of Time Due to Defended Absence from Pakistan Sec 13.
“In computing the period of limitation prescribed for any suit, the time during
which the defendant has been absent from Pakistan and from the territories beyond
Pakistan under the administration of the central Govt, shall be excluded.
9. Scope of Sec 13.
This section applies only to defendant and in favour of plaintiff so as to prevent
limitation from running against later. It has reference only to the absence of defendant
from the country not to that of the plaintiff. It is not applicable in favour of the defendant
who has been absent and wants to set aside proceedings in execution.
10. Procedure of application of Sec-13.
The procedure to apply the section is that in case the plaintiff claims exclusion of
the period of the defendant absence from Pakistan or from the territories under the
administration of the Govt. of Pakistan he should specifically plead and prove strictly the
fact.
11. Application of Sec-13. Sec 13 is applicable only to suits and not to the execution
proceedings. It is equally not applicable to the applications and appeals.
12. Absence After Accrual of Cause of Action.
Sec 13 is not affected or qualified by section 9 and therefore if, after limitation has
commenced to run defendant leaves Pakistan the period absence can be excluded.
13. Conclusion In the light of above discussion, I conclude that sec. 12 and 13 of Limitation
Act 1908 are exclusionary sections, according to which the period which spend in
obtaining the copies of judgement or decree by appellant or petitioner shall be excluded
from the period of limitation. According to sec 13 the time in which defendant is absence
from Pakistan also shall be excluded from the period of limitation.

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Q -3: Discuss the “Right of Easement” how and in what manner this right can be
acquired?
The law pertaining to limitation as to filling of suits, preferring of appeal or
application as well as for acquiring the right of easement is provided in limitation act
1908, sec 26 of limitation act provide period of limitation and conditions for acquiring the
right of easement.
2. Definition of Easement.
According to Easement Act Sec-4: - “Easement is a right possessed by an owner
of property, for its beneficial enjoyment appurtenant to property owned by another
person”.
Right of Easement this accrues in respect of the property owned by someone else.
3. According to Limitation Act Sec 2 (5).
“Easement includes a right not arising from contract, by which one person is
entitled to remove and appropriate for his own profit any part of the soil belonging to
another or any thing growing in, or attached to or subsisting upon, the land of another”.
So far limitation goes it is not concerned with the general law as to easement their
verities, nature and extent and not event with the whole of law relating to the modes of
their acquisition and extinction.
4. Object of Section 26.
The object of sec 26 is to make more easy the establishment of rights of this
description by allowing an enjoyment of twenty years. It is exercised under the conditions
prescribed by the Act and to give without more a title to easement.
5. Explanation of Sec-26.
Sec 26 of limitation act 1908 provides that:-
a. Where the access and the use of light or air and to for any building have been
peaceably enjoyed therewith as an easement and as of right, without interruption
and for twenty years.
b. Where any way or watercourse r the use of any water, or any other easement
(whether affirmative or negative), has been peaceably and openly enjoyed by any
person claiming title thereto as an easement and as of right without interruption
and for twenty years, the right to such access and use of right or air, way, water
course, use of water or other easement shall be absolute and indefeasible.
6. Acquisition of Right of Easement. For acquiring the right of easement following
condition must be fulfilled: -
a. Peaceably. The maxim of the law is that the enjoyment of an easement must be
necui, nec caim, nec precario i.e. it must be neither by violence or force nor by
stealth nor must it be permissive or precarious.
b. Openly. The enjoyment must have from the very beginning been visible and
manifest not secret or clandestine.
c. As to Right. In order that an enjoyment should be as of right. The person
claiming it must have exercised it without leave or license from anyone.
d. As an easement. The claimant must have enjoyed the right as an easement. If
there had been any unity of possession and ownership, he could not have enjoyed
an easement.
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e. Without Interruption. “Without interruption” means “Without any
obstruction on the part of the person against whom the easement is claimed”. Mere
non-user of the easement for a time is not an interruption within the meaning of
this section.
f. Period of Enjoyment. The enjoyment must be for twenty years. If the
property belong to Govt it must be for 60 (Sixty) Years.
7. Period of Limitation.
“Each of the said periods of twenty years shall be taken to be a period ending
within two years next before the institution of the suit wherein the claim to which such
period relates is contested”.
In other words, where a person is in the continuous enjoyment of an easement for
more then twenty years and an obstruction is thereafter made, he must bring his period of
limitation of two years from the date of such obstruction otherwise his right will be
defeated.
Illustration. Miss. Ammar brought a suit in 1965 for obstructing a right of way.
He proved that he had enjoyed the right peaceable and openly as an easement and as of
right without interruption since 1942 for twenty years. Mr. Nisar Ahmad Inqilabi, the
defendant admitted the enjoyment for twenty years but proved that the right was not
enjoyed since 1962 the suit must be dismissed.
8. Exclusion of Certain Period Sec 27. Following period shall be excluded in
computation of twenty years.
a. Interest. Where the servient tenement has been held under or by virtue of
any interest for life or any term of years exceeding three from date of granting,
shall be excluded.
b. Determination of Interest. Where the person entitled to the servient tenement
on the determination, of such interest or terms resist the enjoyment within three
years from such determination, the time of the enjoyment of such easement during
the continuance of such interest or term shall be excluded in the computation of
twenty years.
9. Conclusion.
Keeping in view the above discussion it is clear that in order to establish a right of
easement under section 26 of the limitation act, it is enough for a plaintiff to prove that he
has been exercising the right without interruption without express or implied permission
of the owner of the servient tenement and without secrecy or stealth.

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Q -4: Describe the effects of fraud on the period of limitation?
The law pertaining to period of limitation is provided in limitation act 1908. Every
suit, appeal and application should be instituted within the period prescribed in schedules
of limitation act. But an affectee of fraud is protected u/s 18 of limitation act 1908 by
excluding such time which waste by of the guilty party.
2. Text of Sec 18.
“Where any person having a right to institute as a suit or make an application has,
by means of fraud been kept from the knowledge of such right of the title on which it is
founded or where any document necessary to establish such right has been fraudulently
concealed from him. The time limit for instituting a suit or making on application : -
a. Against the person guilty of the fraud or accessory thereto, or
b. Against any person claiming through him otherwise then in good faith and for a
valuable consideration, shall be computed from the time when the fraud first
become known to the person injuriously affected thereby, or in the case of the
concealed document, when the 1st had the means of producing it or compelling its
production”.
3. Explanation of Sec-18. Following are the explanations of sec 18 of limitation Act
1908: -
a. Fraud as a General. A fraud is a multidimensional concept. Broadly speaking, it
is a deceitful act which exposes someone to actual loss or risk of possible loss. An
active concealment of fact by anyone having knowledge of the same is another
facet of the fraud.
b. Fraud u/s 18. The term fraud as used in sec 18 means active deceit (dishonestly or
cheating) in defrauding or endeavoring to defraud a person of his right by artful
advice.
The fraud contemplated by this section is not confined to fraud committed at the
inception of the cause of action, but may include fraud committed even before that
date.
c. Basis of Sec 18. The principle on which sec 18 is based, is that where a
remedy is given on the ground of fraud. The right of the party is not affected by
the lapse of time so long as he remains in ignorance of the fraud.
d. Scope & Application of Sec-18. A person desiring to invoke the aid of this

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section is required to show that his right to sue or to apply has been kept from his
knowledge by means of fraud. Benefits of sec 18 is available only to suits and
applications but not to appeals.
e. Burden of Proof. When a party alleges fraud and invokes the aid of sec 18 of
limitation act, he must first establish the fraud committed from the other side, and
once he has done so it will be for the other side to prove that the party injured had
the knowledge of fraud at a point of time beyond the period of limitation
calculated from the time the application is filed.
4. Application of Sec-18. Sec 18 applies to three classes of cases: -
a. Fraud of defended. Where the right to sue or make an application has been
fraudulently concealed from the plaintiff by the fraud of the defendant,
b. Concealed Title. Where the title on which such right is founded has been so
concealed.
c. Concealed Documents. When any document necessary to establish such
rights has been fraudulently concealed.
5. Computation of limitation.
a. As regards the first two classes. The period of limitation shall be computed
from the time when the fraud first become known to the plaintiff or to the person
injuriously affected by fraud and not from the time when with reasonable
diligence, it might have been known or discovered.
b. In Third Class. The period of limitation shall begin from the time when the
plaintiff or applicant first had the means of producing or compelling its production
and not from the date of discovering of the document.
6. Essential conditions for Sec-18. In order to get benefit of sec 18, the plaintiff
/applicant must prove that: -
a. His cause of action has been concealed from him by fraud and
b. The fraud is of defendant or of a person through whom he claims and
c. The plaintiff is in time since the discovery of the fraud.
7. Effect of Sec-18.
The principle is that the right of a party defrauded can not be affected by lapse of
time or by anything else done or omitted to be done by him, so long as he remains without
any fault of his own, ignorance of the fraud which has been committed.
8. Conclusion. To conclude, I can say that affectee of fraud by the guilty party is protected
u/s 18 of Limitation Act 1908, in filing suits or application. The period waste by aggrieved
party duet to fraud of guilty party shall be excluded from the period of limitation.

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Q -5: Discuss the object of limitation Act with particular reference to sec – 3, 6, 7 and 8 of
limitation act?
The law pertaining to limitation is provided in Limitation Act 1908. the “Doctrine
of Limitation” is founded on public policy. So, due to ground of public policy, it does not
measure the minor or insane person on the same footing as major or sane person. The law
provided in sec 6, 7 are truly protection for minor and insane persons who are unable to
file suit within prescribed time thus time extend specifically for them till their
incapability ceased.
2. Nature of the Limitation Act.
The rule of limitation is a rule of procedure it is a branch of adjective law. It does
not either create or extinguish any right, except in the case of acquisition of title to
immovable property by prescription u/s 28 of limitation act. It is only the remedy by the
way of a suit that is barred but the right itself continues to exist and if there is some other
remedy by which that right can be enforced the limitation act can not come in the way.
3. Object of Limitation Act.
The doctrine of limitation is founded on consideration of public policy and
expediency (Particularly) with the main object “to quite long possession and to extinguish
stale demands”. The object of the act is not to create or define causes of action but simply
to prescribe the period within which existing rights can be enforced in the court of law.
4. Principle of Limitation Act.
The principle of the Act is not to enable suits to be brought within certain periods
but to forbid them being brought after certain periods.
5. Limitation u/s 3.
Sec 3 provides that every suit instituted, appeal preferred and applications made
after the period of limitation prescribed there for in the 1st schedule, shall be dismissed
although limitation has not been setup as defense.
6. Nature of Sec-3.
The words of sec-3 are mandatory in nature in that every suit instituted after period
of limitation shall subject to the provision of sec 4 to 25 of the limitation act be dismissed,
although limitation has not been setup as a defense.
7. Legal Disability.
It is inability to sue owing to minority, lunacy or idiocy. Law recognized no other
ground as sufficient for extending the period of limitation.
8. Effect of Legal Disability.
The effect of legal disability is that it extends the period of limitation but it does
not prevent the period from running.
9. Application of provision of Disability.
The provisions as to disability apply only when the plaintiff is under a disability
and not the defendant and they apply only to suits and applications for execution of
decree.
10. Law as to Legal Disability.
The main provisions regarding legal disability are contained in sections 6, 7, 8 and
9 of limitation act 1908.
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11. Sec – 6 As exception to General Rule.
Generally, limitation beings to run from the accrual of the cause of action. This
section is one of the exceptions to this general rule. In this and similar cases the period of
limitation does not run from the date of the accrual of the cause of action, but runs from a
subsequent date i.e. the day on which the disability cease.
12. Object of Se-6.
The object of the section is not to place minors who are under special disability as
compared to majors, but to make a special concession in their favour. It is clear from the
section that the minority or lunacy would not prevent limitation from running as against
the minor or lunatic. It simply gives to the minor or lunatic an extended period for filing a
suit or application.
13. Section 6 (1).
The plaintiff must be a minor when the cause of action first accrued and the cause
of action must accrued to the minor himself.
14. Section 6 (2).
Where several disabilities co-exist concurrently in the plaintiff, time does not
commence to run against him, till all have cases. If the plaintiff is under one disability at
the time the cause of action accrues and afterwards and while the first disability continues
he comes under another disability time will not commence to run till the last of disabilities
has ceased.
15. Section 6 (3).
Where the disability continues up to the death of such person, his legal
representative may institute the suit or make the application within the same period after
the death as would otherwise have been allowed from the time so prescribed.
16. Section 6 (4).
The sub sec contemplates a case in which an extension in favour of one person
may be taken on to an extension in favour of another. Such a case arise only where the
first person dies while still under a disability and the second person is his legal
representative who is also under a disability at the time of the death of the first person.
17. Disability of One of Several Plaintiff u/s 7.
Sec 7 can only apply when several persons are jointly entitled to institute a suit and
the second condition is that a complete discharge can not be given without the
concurrence of a person under disability who is amongst others who were jointly entitled
to sue.
18. Result.
When above mentioned two conditions are present, two results are: -
a. That where such a discharge can be given time will run against all of them,
including the person under disability.
b. That under no discharge can be given time will not run as against all of them until
one of them becomes capable of giving such discharge without the concurrence of
the other or until the disability has ceased.
¾ Sec-7, therefore would apply to cases such as of firm or a joint Hindu Family.
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19. Basis of Sec-7.
It is based on the principle that where several persons are jointly entitled to sue on
the same cause of action, such of action can not be taken barred if any one of them is
under disability and no discharge can be given without his concurrence. This section does
not warrant the construction that the benefit accruing from the suspension of period of
limitation is purely benefit available only to the original parties and not to other who
acquire their rights.
20. Scope and Application of sec-8.
Sections 6 to 8 are supplement to each other and not mutually exclusive. Provision
of sec 6 and 7 are governed and controlled by sec 8 of the limitation act which lay down
that nothing in these sections shall be deemed to extend the period of limitation to more
than three years from the events specified in sections 6 and 7 of limitation act 1908.
21. Suit for Pre-Emption.
Person disabled on account of insanity or minority can file suit when disability
cases to exist. However, the provisions of sec 6 and 7 have specifically been made
incapable to the suit filed to enforce the right of pre-emption. As such the legal position
would be that in all other cases except the cases where pre-emption is sought to be
asserted, a person would be entitled to file a suit when the disability of insanity or
minority has ceased to exist, but so far as the suit of pre-emption is concerned the same
can be filed immediately after the cause of action has accrued for filling the same.
22. Conclusion.
In the light of above discussion, it can be said that section 6, 7 and 8 of Limitation
Act are providing protecting protection to the minor and a insane person against period of
limitation. According to these sec minor and insane who are under legal disability cannot
measure on the same footing as major or sane. These sections provide concision to
persons who are under legal disability in filing suit or making application. Section 6 to 8
are supplement to each other and not mutually exclusive. The period of limitation shall be
excluded, it doest not extend more than three years.

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Q -6: The limitation once starts no subsequent inability or disability can stop it? Do You
Agree?
The rule as to the continuous running of time is one of the fundamental principles
of law of limitation. This rule says that where once time has begun to run, it runs
continuously and without any break or interruption until the entire prescribed period has
run out, and no disability or inability to sue occurring subsequently to the commencement
will stop its running.
2. Basis of Sec-9.
This section is founded on the general principle that when once limitation has
commenced to run, it will continue to do so unless it is stopped by virtue of any express
statutory provisions.
3. Scope of Sec-9.
This section contemplates cases where the cause of action continues to exist and
cannot apply to cases where the cause of action is cancelled by subsequent events.
4. Application of Sec-9.
This section is applicable to both suits and applications.
5. Rule As to continuous Running of Time.
The rule as to continuous running of time is one of the fundamental principles of
the law of limitation, this rule says that where once time has begun to run, it run
continuously and without any break or interruption until the entire prescribed period has
run out and no disability or inability to sue occurring subsequently to the commencement
will stop its running. This rule is embodied in sec 9 of the limitation act, which applies to
the suits as well as applications although the words used are “inability to sue”.
6. Disability or Inability to Sue.
a. Disability is want of legal qualification to act i.e. minor, insane or idiot etc.
b. Inability is ant of physical power to act i.e. illness, poverty etc.
7. Principle of Proviso.
The principle of proviso attached to sec 9 is this: -
“When the right to sue and the right to be sued vest and unite by act of law in the same
person and the same person become the hand of receiver and the hand to pay the running
of statute is suspended during such union of rights. When letters of administration to the
estate of the deceased creditor has been granted to his debtor, the time between the grant
of letter of administration and the completion of the administration of the estate is
excluded in computing the period of limitation for suit to recover the debt.
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8. Reason for Introduction of the Exception.
This exception has been introduced lest (in case) the debtor administration by
intentionally omitting to pay or sue for the debt might make the statue a clock for his own
fraud. The proviso applies only to administrator under the grant of letters where he is a
debtor of the decease.
¾ It does not apply to case where there has been a fusion of interests of the mortgagor
and the mortgagee in the same person.
9. Exceptions to the General Rule.
The rule laid down in sec 9 is however is a general rule only and it is subject to
some exceptions. Thus the running of time will be suspended in the following seven cases:
-
a. Administration to the estate of creditor. Where letter of administration to the
estate of a creditor have been granted to his debtor, the running of time in favour
of such debtor is suspended for so long as the administration continues.
b. Time requisite for Obtaining Copy Sec-12. In computing the period of
limitation prescribed for an appeal, an application for leave to appeal and an
application for review of judgment the time requisite for obtaining a copy of the
decree, sentence or order appealed from or sought to be re-viewed shall be
excluded.
c. Absence of Defendant from Pakistan Sec-13. In computing the period of
limitation prescribed for any suit, the time during which the defendant has been
absent from Pakistan and from the territories beyond Pakistan under the
administration of the central Govt. shall be excluded.
d. Proceedings Bonafide in Court Sec-14. When the plaintiff has been
prosecuting another civil proceeding, bonafide in a court without jurisdiction the
running of time is suspended.
e. Injunction or Order Sec-15. When an injunction or order has been
obtained to stay the institution of suit, the running of time is suspended.
f. Notice of Institution of Suit Sec-15. When notice has been given before the
institution of a suit in accordance with law, the limitation will be suspended during
the period of notice.
g. An Execution Sale Sec-16. In a suit for possession by a purchaser at an
execution sale the limitation will be suspended during the time for which the
proceedings to set aside the sale has been prosecuted.
10. Conclusion.
Limitation begins to run from the accrual of the cause of action and no subsequent
event stops its running. There are however, certain circumstances which suspend, interrupt
or extend the period of limitation and there are certain cases where limitation does not run
at all.


Notes On Civil Procedure Code

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“NOTES ON”

CODE OF CIVIL PROCEDURE

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

Prep By: - Muzaffar Khan & Nisar Ahmad Inqilabi

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