Introduction to Civil Procedure Legal System of Pakistan

· Always use word “Civil Suit” not use “Civil Case”

Trail of Civil Nature:

· Obligation in contracts

nd
· Money
· Property

ha
· Damages (In law “damage”
means Compensation)
· Family suits

B
· Rent suits
· Specific Relief Act.

h
The object of civil court is determination
of right
la
ul
Right:
na

1- Primary right
Sa

2- Sanction right

How to start Civil Suit:

e
at

1- Plaint:
oc

· A person who brings any action before court is called a plaintiff.

dv

· After filing plaint court issue the summon.

· Summon is written, sign and
A

sealed order
· After summoning
the defendant is come in the Court.
· Defendant is a person against
whom the suit has been filed.
· Defendant is also called respondent
- Defendant files the written statement.
Civil Suit Parties:

1) Plaintiff.

2) Defendant.

nd
· Civil justice system is called Private justice system

· The Civil Suit of Pakistan has one law which is known as “Code of

ha
Civil Procedure, 1908.

B
BASIC CIVIL PROCEDURE IN PAKISTAN

h
1- Plaint

2- Summon
la
ul
3- Defendant appearance
na

4- Written statement
Sa

5- Framing of issues

6- Evidence/ witnesses recorded

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at

7- Judgment/ decree
oc

8- Review/ revision/ appeal.

dv

9- Execution.

1) Plaint:
A

The person who files the complaint is called plaintiff.

2) Summon:

Summon is a written, signed, sealed order to call any person before court.
 3) Defendant:

The person against whom the suit has been filled, the summon is issued court to
defendant, if defendant does not come then court second time issued the summon
then if the defendant does not come so the court order to attach the summon the
defendant home if after that he is not come then court order to publish in summon

nd
in newspaper if after that he does not come so ex- parte proceeding and ex- parte
decree which is called one side decision.

ha
After summons defendant come then:

B
He file written statement and in written statement he replies every para of
plaint after that court see both thing in plaint and written statement then court

h
pass the decree.

4) Decree:
la
ul
The final judgment of civil court
na

ORDER, DECREE AND JUDGMENT

Sa

Decree:

Decree is one order which is added in civil court and after adjudication the
e

determination of the rights of parties, must have conclusive determination right of

at

the party which nature matters in controversy is called decree.

oc

Under section-2 (2) of CPC defined as decree is the formal expression of an

adjudication which so far as to court expression it conclusively determines the
dv

rights of parties with regard to all or any matter in controversy and any be other
preliminary or final.
A

Essentials:

i- Formal expression of court:

Written, signed & sealed of judge is called formal expression court

ii- Adjudication:

· Adjudication is always in civil suit, when we file the suit then first file
plaint, or application for appeal, for stay order.
· Decree is always
passed in civil suits which come in.

nd
· Any formal expression which
comes from complaining only those
is called decree.

ha
iii- Determines the right of parties
iv- Must be have

B
conclusively determination of right
The party

h
v- Matter in controversy

la
Which is alleged by one party and denied by the other party is called a matter of
ul
controversy.
na

ORDER:

Under section 2(14) all the decree are basically ordered but all the orders is not
Sa

called decree.

· The formal expression of any decision other than decree.

e
at

· Decree can never be passed in appeal, in revision, in review or in mischief

application.
oc

JUDGMENT:
dv

· Finally the court gives judgment.

· Judgment followed by decree
A

Judgment is detailed decisions of

civil court giving grounds of decree.
APPEAL, REVIEW, REVISION AND REFERENCE

Appeal:
· 1st appeal in section 96 of CPC.

· 2nd appeal U/S 100 of CPC.

Forum:

nd
· Appeal file in forum of High Court.
· 1st appeal filed in district

ha
court but second appeal filed in High
Court.

B
Who can file:

h
· Right of a party originates from an aggrieved person.

Purpose/Scope:
la
ul
· The first appeal U/S 98 of CPC is winder scope
na

· The second appeal U/S 100 of CPC is narrow scope.

Sa

· In the 1st appeal question of law and question of fact both discuss but in
second appeal only discuss question of law or serious matter.
e

Review:
at

· U/S 114 of CPC

oc

Forum:
dv

· Review file in the forum of the same court which passed the order of
decree, can review as its own decision as in inherent power.
A

Who can file:

· Power of court

· It can be the power of court which originated by itself action plus

application of an aggrieved person.
Power/Scope:

When the court reviews its judgment when there is a mistake, an accidental step
or omission occurs then the court reviews for correction of the judgment.

nd
Revision:

ha
· U/S 115 of CPC

· Revision files in superior court.

B
Forum:

h
· File against the order of lower court.

la
ul
Who can file:
na

· Power of court

· Originated by court, by itself action plus application of aggrieved person.

Sa

Purpose/Scope:
e

· Jurisdiction.
at

· When a question of jurisdiction arises then the revision file.

oc

Reference:
dv

· U/S 113 of CPC

A

Forum:

· Reference file in forum of High Court.

Who can file:

· By lower court.
Purpose/Scope:

When lower courts do not handle any issue then lower courts file the reference to
the higher court.

nd
CODE OF CIVIL PROCEDURE, 1908

ha
PRELIMINARY

B
1. Short title, commencement and extent:

§ This Act may be cited as the Code of Civil Procedure, 1908.

h
la
§ It shall come into force on the first day of January, 1909.
ul
§ It extends to the whole of Pakistan.
na

2. Definitions.
Sa

In this Act, unless there is anything repugnant in the subject or context,

(1) "Code" includes rules:

e

(2) "decree" means the formal expression of an adjudication which, so far as

at

regards the Court expressing it, conclusively determines the rights of the parties
oc

which regard to all or any of the matters in controversy in the suit and may be
either preliminary or final. It shall be deemed to include the rejection of a plaint,
dv

the determination of any question within section 144 and an order under rule 60,
98, 99, 101, or 103 of Order XXI], but shall not include
A

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

(b) any order of dismissal for default.

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

(3) "decree­holder" means any person in whose favor a decree has been passed or
an order capable of execution has been made:

(4) "district" means the local limits of the jurisdiction of a principal Civil Court of

nd
original jurisdiction (hereinafter called a "District Court"), and includes the local
limits of the ordinary original civil jurisdiction of a High Court:

ha
(5) "foreign Court" means a Court situate beyond the limits of [Pakistan] which

B
has no authority in [Pakistan] and is not established or continued by the [Federal
Government]

h
(6) "foreign judgment" means the judgment of a foreign Court:

la
ul
(7) "Government Pleader" includes any officer appointed by the [Provincial
Government] to perform all or any of the functions expressly imposed by this Code
na

on the Government Pleader and also any pleader acting under the directions of the
Government Pleader.
Sa

(8) "Judge" means the presiding officer of a Civil Court.

(9) "judgment" means the statement given by the Judge of the grounds of a decree
e

or order
at

(10) "judgment­debtor" means any person against whom a decree has been
oc

passed or an order capable of execution has been made

dv

(11) "legal representative" means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of the
A

deceased and where a party sues or is sued in a representative character the person
on whom the estate devolves on the death of the party so suing or sued

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

(13) "moveable property" includes growing crops:

(14) "order" means the formal expression of any decision of a Civil Court which
is not a decree

nd
(15) "pleader" means any person entitled to appear and plead for another in
Court, and includes an advocate, a vakil and an attorney of a High Court:

ha
(16) "prescribed" means prescribed by rules:

B
(17) "public officer" means a person falling under any of the following
descriptions, namely:

h
la
(a) every Judge; ul
(b) Every person in the service of Pakistan;
na

(c) every commissioned or gazette officer in the military, [naval or air] forces of
[Pakistan while in the service of the State] ;
Sa

(d) every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make, authenticate or keep
e

any document, or to take charge or dispose of any property, or to execute any

at

judicial process, or to administer any oath, or to interpret, or to preserve order, in

the Court, and every person especially authorized by a Court of Justice to perform
oc

any of such duties;

dv

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

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

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

(h) every officer in the service or pay of [the Government], or remunerated by fees

nd
or commission for the performance of any public duty:

(18) "rules" means rules and forms contained in the First Schedule or made under

ha
section 122 or section 125:

B
(19) "share in a corporation" shall be deemed to include stock, debenture stock,
debentures or bonds: and

h
(20) "signed", save in the case of a judgment or decree, includes stamped.

la
ul
3. Subordination of Courts:
na

For the purposes of this Code,

· The District Court is subordinate to the High Court, and

Sa

· Every Civil Court of' a grade inferior to that of a District Court and
e

· Every Court of Small Causes is subordinate to the High Court and District
at

Court.
oc

4. Savings:
dv

Unless otherwise stated, this code shall not be applicable to any special or local
laws or jurisdictions or power conferred or any other legal requirements or
A

restrictions or other influences in the form of any special procedures required by

any other laws initially effective.

Especially without affecting the generality of the sentences contained in the

subsections (1) nothing in this law shall be taken as a limitation or any other
influence on the remedies available to landowners or the landlord according to any
law currently in force for the collection of agricultural land leases the land comes
from the products of this land.

nd
5. Application of the Code to the Revenue Court:

ha
Where any Revenue Courts are governed by the provisions of this Code on
procedural issues, among which special rules that apply to them are silent,

B
[Provincial Government] may, through [Official Gazette], stating that all the
unspecified parts of these regulations the content applicable under this Code does

h
not apply to these courts or only applies to such courts such modification

la
[Provincial Government] Can be specified.
ul
Revenue courts are courts having jurisdiction under any local law to entertain suits
na

or other proceedings relating to the rent, revenue or profits of land used for
agricultural purposes, but does not include a Civil Court having original
jurisdiction under this Code to try such suits or proceedings as being suits or
Sa

proceedings of a civil nature.

6. Pecuniary Jurisdiction:
e
at

· Civil Courts of different grades have jurisdiction to try suits and hear appeals
of different pecuniary value.
oc

· Every suit or appeal has pecuniary value and according to which suit is to be
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filed before appropriate court.

A

· A suit is valued on the basis of value of damages, compensation, property

involved, or as per Court Fees Act.

· A Court cannot entertain suit exceeding its pecuniary jurisdiction.

7. Provincial Small Cause Courts:

The following provisions shall not extend to Courts constituted under the
Provincial Small Cause Courts Act, 1887 or to Courts exercising the jurisdiction of
a Court of Small Causes [under the said Act], that is to say;

(i) suits excepted from the cognizance of a Court of Small Causes;

(ii) the execution of decrees in such suits;

nd
(iii) the execution of decrees against immoveable property; and

(b) the following sections, that is to say, section 9, sections 91 and 92, sections 94

ha
and 95 [so far as they authorize or relate to

B
(i) orders for the attachment of immovable property,

h
(ii) injunctions,

la
(iii) the appointment of a receiver of immovable property, or
ul
(iv) the interlocutory orders referred to in clause (e) of section 94] and sections 96
na

to 112 and 115.

Sa
e
at
oc
dv
A
 nd
PART I

SUITS IN GENERAL

ha
JURISDICTION OF THE COURTS AND Res Judicata

B
9. Courts to try all civil suits unless barred:

h
Section 9 of Pakistan’s Code of Civil Procedure 1908 confers jurisdiction on civil

la
courts to adjudicate upon all suits of a civil nature, except such suits the
cognizance of which is either expressly or impliedly barred. In other words,
ul
whenever the object of proceedings is the enforcement of civil rights, a civil court
na

would have jurisdiction to entertain the suit unless the cognizance of the same is
barred through a legislative instrument.
Sa

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

· Allegation of the fact or claims (Mere averments) in the plaintiff would not
at

confer jurisdiction on civil court where it inherently lacked jurisdiction. [PLD

oc

1992 Pesh. 87 (D.B.)]

· Allegation of the fact or claims (Mere averments) in the plaintiff would not
dv

confer jurisdiction on civil court where it inherently lacked jurisdiction. Courts

below correctly found that special banking court had exclusive jurisdiction –order
A

unexceptionable.[PLD 1992 PESH 87(DB)]

Doctrine of Res-Subjudice:

Introduction:
 Section 10 of the CPC deals with the principle of re sub-judice, which bars
the trial of a subsequent suit in which the matter in issue is also directly and
substantially in issue in the former suit between the same parties. The object of a
provision of this kind is to prevent courts of concurrent jurisdiction from
proceeding simultaneously with the trial of two suits on the same matter. Such
trials may mean waste of public time and may result in conflicting decisions.

nd
ESSENTIALS:

ha
i. Matter in Issue Same in Suits

B
a. Matter in Issue

h
Section 11

Explanation III:
la
ul
The matter above referred to must in the former suit have been alleged by one
na

party and either denied or admitted, expressly, or impliedly by the other.

Sa

b. Directly or substantially same

Section 11
e

Explanation 1V:
at

Any matter which might and ought to have been made ground of defense or attack
oc

in such a former suit shall be deemed to have been a matter directly and
substantially in issue -in such suit. Test is whether decision on a matter will operate
dv

as res-judicata on the subsequent suit

A

ii. Previously Instituted Suit Pending

iii. Court of Competent Jurisdiction

a. Lawful jurisdiction of court

b. Pendency in foreign court does not attract Section 10

c. Appeal is continuation of suit so during pendency of appeal, new suit can’t
filed

d. If courts are not of concurrent jurisdiction than, proceedings can be stayed

u/s 151 CPC

iv. Court Trying of Earlier Suit Has Jurisdiction Over Relief in Later
Suit

nd
v. Same Parties Litigating Under Same Title

ha
Title means legal capacity or interest of party or legal personality of a party

B
3. CASE LAW:

h
i. Rationale behind section 10 seems to be based on the principle that

la
multiplicity of litigation should be avoided and no one should be troubled twice for
the same cause of action. [2006 SCMR 1261]
ul
ii. It was observed that when once an order of stay is made under this
na

section, the Court ceases to have jurisdiction over the suit till the other suit is
disposed of.
Sa

[(1968) 70 of Puj. (RCD),84]

e

4. RELIEF:
at

Revision under Section 115 CPC

oc

5. Nature of Order Under Section 10

dv

i. If all conditions are not fulfilled, Court can consolidate both suits
A

ii. Court can partly stay the subsequent suit if part of the subsequent suit is
already pending in the first suit. After judgment in the earlier suit, the stayed suit
will be disposed of under principle of res-judicata.

6. APPLICATION:
Applicable on suits, appeals and writs not applicable on execution proceedings and
banking

7. CONCLUSION:

Avoid contradictory judgments

nd
ha
RES - JUDICATA

B
(Section 11)

1. INTRODUCTION:

h
la
The Res Judicata is the term of code of civil procedure and section 11 deal with the
term of Res Judicata, the word came from Latin language in which the means that
ul
any matter is already judged or final the term is used for both civil law and
na

common law legal systems where the case has been a final judgment and is no
longer subject to appeal and the legal doctrine meant to bar continued litigation of
Sa

a case on same issues between the same parties. In the case of Res Judicata, the
matter cannot be raised again, either in the same court or in a different court. A
court will use Res Judicata to deny reconsideration of a matter.
e
at

2. ESSENTIALS / CONDITIONS:
oc

A. Matter Directly and Substantially in Issue in Former & Subsequent Suit

are Same
dv

i. Matter in Issue
A

a. Matter:

· Meaning

Matter means necessary facts

· Nature of Matter:
Alleged by either party which was either admitted or denied by other party

· Expressly or Impliedly:

Explanation III

· Matter in Issue must be the same. Subject Matter, Cause of action and relief
can be different

nd
ha
b. Issue:

· Meaning

B
Material Point in Dispute

h
la
· Kinds of Issues: ul
Issues of Fact
na

Issues of Law

ii. Directly & Substantially:

Sa

· Matters for which relief has been sought are matters which are directly and
substantially in issue.
e

· Judgment will stand or not if decision is not given on that matter

at

a. Actual & Constructive

oc

Actual:
dv

Explanation III

The matter above referred to must in the former suit have been alleged by one
A

party and either denied or admitted, expressly, or impliedly by the other.

This is called ACTUAL RES-JUDICATA

Constructive
Explanation – IV
Any matter which might and ought to have been made ground of defense or attack
in such a former suit shall be deemed to have been a matter directly and
substantially in issue -in such suit.
This is called CONSTRUCTIVE RES-JUDICATA
b. Incidental and Collateral

· Unnecessary and irrelevant allegations

nd
· Matters which will not affect Judgment

ha
Cross Reference: Order II rule 1 to 5

Order VII rule 7

B
iii. Former Suit

h
Explanation – I

la
The expression "former suit" shall denote a Suit which has been decided prior to
the suit in question whether or not it was instituted prior thereto or during
ul
pendency of appeal
na

B. Between Same Parties or Parties Under Whom They Claim

i. Party:
Sa

Ordinarily means persons whose name is mentioned as Plaintiff or Defendant but

does not include
e

· Person whose name has been struck off

at

· Unrepresented Minor
· Person whose name was added fraudulently and without his consent
oc

ii. “Parties Under Whom They Claim”

dv

e.g., Assignee, Transferee, Lessee, etc.

However, transfer of interest must be after filing of suit

A

C. Parties Litigated Under Same Title

Title means legal capacity or interest of party or legal personality of a party
D. Court Competent to Try Both Suits

· Explanation II:
For the purposes of this section, the competence of a Court shall be determined
irrespective of any provisions as to a right of appeal from the decision of such
Court

· Competency at the time of filing of suit and not at the time of passing of
judgment

· Decisions of Courts of Exclusive Jurisdictions operate as res-judicata on

nd
other courts/tribunals

ha
E. Issue Heard and Finally Decided in First Suit

B
· Appeal is continuation of suit

· Decree is not final till limitation period expires

h
la
3. RELIEF NOT EXPRESSLY GRANTED:
Explanation V
ul
Any relief claimed in the plaint, which is not expressly granted by the decree, shall,
na

for the purposes of this section, be deemed to have been refused.

4. PARTIES TO PUBLIC INTEREST OR COMMON INTEREST:

Sa

Explanation VI
Where persons litigate bona fide in respect of a public right or of a private right
e

claimed in common for themselves and others, all persons interested in such right
at

shall, for the purposes of this section, be deemed to claim under the person so
oc

litigating.

5. APPLICATION:
dv

i. Decision must be on merits

ii. Consent of parties can’t affect res-judicata
A

iii. Principal under res-judicata applies even where Section 11 doesn’t apply in
terms
e,g., Execution proceedings, Decision on Interlocutory Applications
iv. Plea of res-judicata can be raised first time in appeal
v. If objection of res-judicata is not raised, and Judgment has become final than
such objection shall be deemed to have been waived
vi. Consent Judgment is not res-judicata

6. RES-JUDICATA & ESTOPPEL:

i. Rule of procedural law / rule of evidence
ii. Prohibits the courts / prohibits parties
7. CONCLUSION:

Avoid multifariousness

nd
ha
DIFFERENCE BETWEEN SECTION 10 and 11

B
RES SUBJUDICE

h
§ Suit must be pending before competent court

la
§ Both suits must be between the same parties.
ul
§ The parties must be litigating in both the suits under the same title.
na

§ Bars the trial of subsequent suit in which the matter directly and substantially in
previously instituted suit between same
Sa

RES JUDICATA
e

§ The suit must be decided and the final order already announced.
at

§ The same titled suit cannot fill with the same issues and parties.
oc

§ Once the order is announced it is deemed to be final except the remedy of appeal
dv

or other provisions of the concerned law.

12. Bar to further suit

A

According to Section 12 of the Code of Civil Procedure, where a plaintiff is

precluded by rules from instituting a further suit in respect of any particular cause
of action, he shall not be entitled to institute a suit in respect of such cause of
action in any Court to which this Code applies.
The main object of this section is to prevent endless litigations and to prevent
abuse of Legal procedure...
The Code of Civil Procedure 1908 precludes a plaintiff from instituting a suit in the
following cases -

1. Where is suit is barred by Res-judicata (Section 11 of CPC)

2. Section 21(1) No objection as to the place of suing shall be allowed by any

appellate or Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases where issues or settled

nd
at or before such settlement, and unless there has been a consequent failure of
justice.

ha
3. Section 47(1) All questions arising between the parties to the suit in which

B
the decree was passed, or their representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be determined by the Court executing

h
the decree and not by a separate suit.

la
4. Section 95(2) An order determining any such application shall bar any suit
ul
for compensation in respect of such arrest, attachment or injunction.
na

5. Section 144(2) No suit shall be instituted for the purpose of obtaining any
restitution or other relief which could be obtained by application under sub-section
Sa

(1).

6. Where a suit is dismissed for non-compliance with an order of Discovery.

e

[Order 11, Rule 21(2)]

at

7. Where a suit is abated [Order 22 Rule (9)]

oc

8. Where a suit or part of a claim has been abandoned by the plaintiff [Order 23
Rule 1(1)]
dv

9. Where a suit or part of a claim has been withdrawn by a plaintiff without the
A

leave of the court [Order 23 rule 1(3)]

10. Where a compromise decree is sought to be challenged on the ground that the
compromise was not lawful [Order 23 rule 3(a)]

Case Laws:
SECTION 12(2)

Forum of –venue-court wherein to make application

1983 CLC 1948 Lah
1986 Law Notes (Lah) 431
1986 CLC 1211 Lah

nd
ha
B
SECTION 12(2)

h
Courts which passed the final decree means judgment against which no remedy is

la
available and all remedies, appeals, revisions, review has been exhausted and no
remedy is left.Adjudication Means the decision on merits after proper appraisal.
ul
[PLD 1995 SC 564]
na

SECTION 12(2) & 151 C.P.C.

Sa

Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C.
and the same was set aside by Lower Appellate court in exercise of revisional
jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open
e

fraud---No rule was required to correct/rectify a wrong---Court had always

at

inherent powers to prevent abuse of process of law by molding relief in appropriate

cases---Provisions of S.151, C.P.C. were rightly invoked by the Lower Appellate
oc

Court in aid of justice, as it was thought necessary in the circumstances of the case
to prevent abuse of process of the court and to avoid a situation resulting in
dv

stalemate.
Muhammad Ismail Versus Rehmat Ali
A

2009 YLR 1265

Lahore-High-Court-Lahore

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

nd
ha
FOREIGN JUDGMENTS

B
1. INTRODUCTION:

h
la
Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines a foreign
judgment as a judgment of a foreign court. A foreign court is defined by Section
ul
2(5) of the CPC as a court situated outside Pakistan and not established or
na

continued by the authority of the Provincial Government. CPC dictates the

procedure for the enforcement of foreign judgements in Pakistan and requires the
Sa

judgment or decree passed by the foreign court to be conclusive in nature and it

should have been decided on the merits of the case by a court of competent
jurisdiction. Section 13 of the CPC underlies the principle of res judicata and any
e

judgment passed by a foreign court can be enforced in India and will act as res
at

judicata between the subject parties.

oc

2. DEFINITIONS:
dv

Code of Civil Procedure, 1908

Section 2 (6)
A

"Foreign judgment" means the judgment of a foreign Court

Case Law Definition:

PLD 1960 594

“It refers to the decree or order of the foreign court and not to the statement or
reasons for such adjudication.”

nd
ha
3. INCONCLUSIVE FOREIGN JUDGMENT

I. Judgment Not by Court of Competent Jurisdiction:

B
Competence is determined by International Law and not by Municipal Law

h
la
Territorial competence of foreign court over defendant or subject matter
ul
For Example:
na

a. Defendant is citizen of that state

b. Defendant is resident of that state
Sa

c. Defendant sued as plaintiff in that country before

d. Defendant contracted to submit himself to jurisdiction of that forum
e. Defendant voluntarily appeared before that forum
e

II. Judgment Not On Merits:

at

Test is whether judgment was given as penalty for nonappearance or on the basis of
oc

genuineness of his claim

III. Judgment Against International Law or Recognition of Pakistani

dv

Law
A

“Lex Loci Contracts”

Law of the place where contract was made, shall be applicable

“Lex Loci Solutions”

Law of the place where contract is to be performed shall be applicable

IV. Judgment Opposed to Principles of Natural Justice:

· Audi AlteramPartem

No one can be condemned unheard

· Defendant was duly represented

nd
V. Judgment Obtained By Fraud

ha
· Fraud committed in procedure

B
· Foreign judgment cannot be challenged in Pakistan on basis of fraud

VI. Judgment Founded on Breach of Law of Pakistan

h
la
· Judgment against law, Public Policy or injunctions of Islam
ul
4. COURSES AVAILABLE AFTER FOREIGN JUDGMENT:
na

A. Execution:

Proceedings under Section 44A

Sa

B. Suit
e

i. Suit on the basis of foreign judgment as cause of action

at

· Within 6 years as per Article 117, Limitation Act, 1908

oc

ii. Suit on the basis of original cause of action

dv

5. APPLICATION:
A

Operates as res-judicata, if conditions of Section 11 and 13 are fulfilled

6. NATURE OF FOREIGN JUDGMENT:

Judgment in Personam governed by Section 13

Judgment in Rem governed by Qanoon e Shahadat Order, 1984

 nd
PLACE OF SUING

ha
INTRODUCTION:

B
To determine the jurisdiction of civil court one must first check whether the suit
falls under category barred under Section 9 of Code of Civil Procedure deals

h
(hereinafter CPC).

la
The meaning of place of suing is simply the venue of the trial. Section 15 to 20 of
ul
CPC deals with this. Every court has specific pecuniary and territorial jurisdiction.
na

15. Court in which suits to be instituted:

Sa

Section 15 of CPC states that the suit be filled in the court of the lowest grade
competent to try it.
e

Territorial Jurisdiction u/s 16

at

For territorial purpose the suits can be divided in the following respects: -
oc

1. Suits concerning immovable property

dv

2. Suits concerning movable property

3. Suits concerning compensation for wrong
A

4. Other suits

Immovable Property (Section 16-18 CPC)

Section 16 clause (a) to (e) deals with the matter of immovable property. This
includes the following type of suit: -
· For the recovery of immovable property with or without rent or profits,

· For the partition of immovable property,

· For foreclosure, sale or redemption in the case of a mortgage of or charge

upon immovable property,

· For the determination of any other right to or interest in immovable property,

nd
· For compensation for wrong to immovable property.

ha
The suit must be filled in that court only within which jurisdiction the immovable
property lies. But the question arises when the property falls under the jurisdiction

B
of more than one court. To curb this phenomenon Section 17 of the CPC comes
into picture. Section 17 states that in any court the case can be instituted, if it falls

h
under the pecuniary jurisdiction of the court.

Section 19: Movable Property

la
ul
Section 19 states that Where a suit is for compensation for wrong done to the
na

person (Tort) or to movable property, if the wrong was done within the local limits
of the jurisdiction of one Court and the defendant resides, or carries on business or
Sa

personally works for gain, within the local limits of the jurisdiction of another
Court, the suit may be instituted at the option of the plaintiff in either of the said
Courts. In simpler words the suit can be instituted by the plaintiff at the place of
e

residence of the respondent, or at the place of his business, or at the place where
at

the wrong has been committed. This can be best understood by the way of
oc

illustration.

Illustration: A person “A” who lives in Islamabad carries his business of

dv

transportation of goods from Karachi. “B” ordered some goods to be transferred

from Karachi to Quetta but in middle i.e. Lucknow the goods were misplaced.
A

Now B can sue A at Islamabad as this is his place of residence, may be at Karachi
as this is his place of caring business, may be at Lucknow as the wrong was
committed here.

Section 20
Section 20 of the act covers all the other cases not covered by any of the earlier
discussed provisions. The plaintiff can file suit in the following place

1. The defendant, or each of the defendants where there are more than one, at
the time of the commencement of the suit, actually and voluntarily resides,
or carries on business, or personally works for gain; or
2. Any of the defendants, where there are more than one, at the time of the

nd
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on

ha
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

B
3. The cause of action, wholly or in part, arises.

h
Illustration - A resides at Karachi, B at Lahore and C at Islamabad. A, B and C

la
being together at Faisalabad, B and C make a joint promissory note payable on
ul
demand and deliver it to A. A may sue B and C at Faisalabad, where the cause of
action arose. He may also sue them at Karachi, where B resides, or at Lahore.
na

There C resides; but in each of these cases, if the non-resident defendant objects,
the suit cannot proceed without the leave of the Court.
Sa

Objection to the Jurisdiction

Section 21 of the CPC states that objections regarding the jurisdiction must be
e

taken as early as possible in a suit.

at

Transfer of Suit (S-22 to 25)

oc

When a suit has been instituted by a plaintiff in one civil of his choice, there
dv

may be two choices available to the defendant: either to file his written
statement, i.e. accepting the jurisdiction of the court or to file an application for
A

transfer of the suit.

Section 22 and 23 of CPC confers power of the civil court to transfer suits from
one civil court to another on the application of the defendant. Section 22 is the
substantive section which confers upon the civil court the power. Section 23
specifies the appropriate court for this purpose.
Section 23- To what court application lies:
1.Where the several Courts having jurisdiction are subordinate to the same
appellate Court, an application under section 22 shall be made to the Appellate
Court.
2.Where such Courts are subordinate to different Appellate Courts but to the same
High Court, the application shall be made to the said High Court.
3.Where such courts are subordinate to different High Courts, the application shall
be made to the High Court within the local limits of whose jurisdiction the Court in

nd
which the suit is brought is situated.

ha
Section 24- General power of transfer and withdrawal:
1.on the application of any of the parties and after notice to the parties and after

B
hearing such of them as desired to be heard, or of its own motion without such
notice, the High Court or the district Court may at any stage-7(a) transfer any suit,

h
appeal or other proceeding pending before it for trial or disposal to any Court

la
subordinate to it and competent to try or dispose of the same, or (b) withdraw any
suit, appeal or other proceeding pending in any Court subordinate to it, and
ul
a. Try or dispose of the same; or
na

b. Transfer the same for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same;
Sa

c.Retransfer the same for trial or disposal to the Court from which it was
withdrawn
d.Where any suit or proceeding has been transferred or withdrawn under
e

sub-section (1), the Court which, may subject to any special directions in the case
at

of any order of transfer, either retry it or proceed from the point at which it was
transferred or withdrawn.
oc

(2) Where any suit or proceeding has been transferred or withdrawn under sub
dv

section (1), the Court which thereafter tries such suit may, subject to any special
directions in the case of an order of transfer, either retry it or proceed from the
A

point at which it was transferred or withdrawn.

(3) For the purposes of this section, Courts of Additional and Assistant Judges shall
be deemed subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a
Court of Small Causes shall, for the purposes of' such suit, be deemed to be a Court
of Small Causes.

CASE LAW:

SECTION 24: Transfer of appeals appellate court earlier as trial court

recorded evidence of some witnesses-had not recorded his own observation-no

nd
material order passed- still appeals recalled from him.

ha
[PLD 1995 Lah 89]

INSTITUTION OF SUITS

B
26. Institution of Suits:

h
la
Every suit shall be instituted by the presentation of a plaintiff or in such other
manner as may be prescribed.
ul
SUMMONS AND DISCOVERY
na

Introduction:
Sa

Summons are issued to defendants to inform them that a legal action is going
on against them mentioning the date and place of hearing. The issuance of
e

summons is based on the maxim

at

“AUDI ALTERAM PARTEM”

oc

Moreover, it is the issuance of summons, which vests the jurisdiction to the court
over the defendant.
dv

Definition of Summons:
A

It is an instrument to commence a civil action or a special proceeding and is

a means of acquiring jurisdiction over a party.

Condition for issuing of Summons u/s 27:

· Only where suit has duly been instituted.

· A suit is deemed to have been duly instituted after it has been duly
registered” [PLD 1958 SC 195]

Modes of service of summons:

a- By delivering or tendering a copy

b- Service by post.

nd
c- Personal service

ha
B
Presumption in favor of service:

“Where summons is sent by means of registered post, properly addressed, the

h
service shall be presumed to have been affected, even where the envelope endorsed

la
as refused or postal acknowledgment not signed” [PLD 1990 KAR 312]
ul
Different modes of effecting personal service:
na

1- Service upon the defendant personally.

Sa

· All efforts should be made to effect personal service and it is only where it is
not possible that the summons should be affixed.
e

2- Service upon the agent of the defendant.

at

a. Agent generally empowered in this behalf

oc

b. Agent who carries on the business of the defendant.

dv

· Provided that the suit relates such business or work

A

· If service is affected upon the agent or manager, then regardless of whether

it was communicated to the principal or not, it will be deemed to be valid service.

c. Agent is charge of the immovable property

d. Service upon the family member of the defendant.

Personal served to sign acknowledgment

i- Service by affixation

1- Refusal to sign acknowledgment

2- Defendant cannot be found and has no agent.

ii- Manner of affixation

nd
iii- Report to the court

ha
iv- Mandatory nature

B
“The provisions of this rule are mandatory in nature and failure to comply with
would render the service vitiated” [1985 SCMR 1228].

h
la
Service of Foreign summons – S29
ul
Summonses [and other processes] issued by any Civil orRevenueCourt scituate
[outside Pakistan] may be sent to the Courts [in Pakistan] and served as if they
na

[were summonses] issued by such Courts: [Provided that the Courts issuing such
summonses [or processes] have been established or continued by the authority of
Sa

the [Federal Government] or that the Provincial Government[of the Province in

which such summonses or processes are] to be served has by notification in the
official Gazette declared the provisions of this section to apply to [such Courts].]
e
at

30. Power to order discovery and the like:

oc

Subject to such conditions and limitations as may be prescribed, the Court may, at
any time, either of its own motion or on the application of any party;
dv

(a) make such orders as may be necessary or reasonable in all matters relating to
A

the delivery and answering of interrogatories, the admission of documents and

facts, and the discovery, inspection, production, impounding and return of
documents or other materialobjects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give

evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.

31. Summons to witness.

The provisions in sections 27, 28 and 29 shall apply to summonses to give

evidence or to produce documents or other material objects.

32. Penalty for default.

nd
The Court may compel the attendance of any person to whom a summons has been
issued under section 30 and for that purpose may­

ha
(a) issue a warrant for his arrest;

B
(b) attach and sell his property;

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

la
(d) order him to furnish security for his appearance and in default commit him to
ul
prison.
na

Critical Analysis:
Sa

· According to the principle of natural justice the defendant has a right to

appear and defend the case instituted against him.
e

· A summons is issued to the defendant after a suit is instituted so that it must

at

come to his knowledge that a legal proceeding is going on against him.

oc

· Code of Civil Procedure provides different modes of service summons. And

if the service summons is ordinary, it cannot be made or the defendant avoids the
dv

service it provides for substituted service.

A

JUDGMENT AND DECREE

33. Judgment and decree:

The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow.
JUDGMENT:

v Finally the court gives judgment.

v Judgment followed by decree

v Judgment is detailed decisions of civil court giving grounds of decree.

nd
Decree:

Decree is one order which is added in civil court and after adjudication the

ha
determination of the rights of parties, must have conclusive determination right of
the party which nature matters in controversy is called decree.

B
Under section-2 (2) of CPC defined as decree is the formal expression of an

h
adjudication which so far as to court expression it conclusively determines the

la
rights of parties with regard to all or any matter in controversy and any be other
preliminary or final.
ul
Essentials:
na

i. Formal expression of court:

Sa

Written, signed & sealed of judge is called formal expression court

ii. Adjudication:
e
at

· Adjudication is always in civil suit, when we file the suit then first file a
plaint, or application for appeal, for stay order.
oc

· Decree is always passed in civil suits which come in.

dv

· Any formal expression which comes from complaining only those is called
decree.
A

iii. Determines the right of parties

iv. Must be have conclusively determination of right of party

v. Matter in controversy:
Which is alleged by one party and denied by the other party is called a matter of
controversy.

nd
ha
B
COSTS

h
la
Meaning of Costs: ul
“A pecuniary allowance, made to the successful party and recoverable from
na
the losing party, for his expenses in prosecuting or defending on action or a distinct
proceeding within on action”
Sa

Types of costs have been mention in CPC:

Following are the main points:

e
at

a. Actual cost under section 35 CPC

oc

b. Compensatory cost under section 35-A

c. Special cost under section 35-A

dv

Section 35 CPC
A

a) It relates to actual costs

b) Object of awarding actual costs

PLD 1990 SC 28
c) Analysis of section 35

i) Subject to conditions, limitations and provisions of law

ii) Costs and incidents to all suits

iii) Discretion of courts

iv) Costs by whom payable

nd
v) Interest may also be given on costs

ha
vi) Courts shall follow the event

B
h
Rules for awarding actual costs u/s 35

d)
la
The successful party is entitled to his costs
ul
e) Where each party is partly successful, the court should apportion the costs
na

between them.

f) In the absence of any agreement between several parties defending an action

Sa

or proceeding, the court shall apportion the costs allotted to them.

g) A person wrongfully or unnecessarily made a party is entitled to his costs.

e
at

h) Where both parties are guilty of bad faith, they shall be deprived of the costs.
oc

i) Where the law is laid down for the first time or the law point is not free from
doubt, the parties should be made to bear their own costs.
dv

j) In test cases there should be no costs.

A

Section 35-A of CPC

k) It relates to compensatory costs

l) Explanation of section 35-A (1)

m) Analysis of section 34-A (1)

1- In any suit or other proceedings

2- Not being an appeal

3- Any party

4- Objects to the claim or defense

nd
5- On the ground that claim or defense is false or vexatious

6- To the knowledge of the party by whom it is put forward

ha
7- Such claim is disallowed, abandoned or withdrawn

B
8- At the earliest opportunity

h
9- After recording reasons

la
10- Order for payment of costs by way of compensation
ul
n) False or vexatious claim or defense
na

o) Maximum compensatory costs to be awarded u/s 35-A (2)

Sa

p) Powers of court of small causes u/s 35-A (2)

q) Power of High court u/s 35-A (2)

e
at

1- High court can enhance the power of courts of small causes awarding
compensatory costs
oc

2- High courts can limit the powers of courts or classes of courts in awarding
dv

compensatory costs.

r) Order of compensatory costs do not bring any exemption from criminal

A

liability u/s 35-A (3)

s) Subsequent suit for damages u/s 35-A (4)

Conditions for awarding compensatory costs u/s 35-A

t) The claim of defense must be false of vexatious

u) Objection must be taken that the claim or defense is false or vexations to the
knowledge of the party rising it

v) Such claim or defense must have been disallowed or abandoned or

withdrawn in whole or in part.

nd
Different between actual costs and compensatory costs

Scope:

ha
1- Under section 35 scope is limited

B
2- Under section 24-A scope is wider.

h
Limits by High Court:

1- la
In actual costs, court has the complete discretion to award costs
ul
na
2- In compensatory costs, the High Court has the power to limit the costs to be
awarded.
Sa

Jurisdiction of court:

1- Under section 35 courts can award costs even if it has no jurisdiction to try
e

the suit.
at

2- Under section 35-A a Court cannot go behind its pecuniary limits.

oc

Interest on Costs:
dv

1- Under section 35, interest may be given on actual costs

A

2- Under section 35-A no such provision is present for compensatory costs

By who paid?

1- Actual costs under section 35 may also be apportioned between the two
opposite parties.
2- Compensatory damages under section 35-A are always paid by the party who
made the false or vexatious claim or defense.

Appeal:

1- Under section 35, where directions to costs are a party of a non-appealable

under, no appeal lies against it.

nd
2- Order under section 35-A is an appealable order and an appeal is competent
against such an order.

ha
B
h
PART II
la
ul
EXECUTION GENERAL
na

36. Application to orders:

Sa

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

37. Definition of Court which passed a decree:

at

The expression "Court which passed a decree," or words to that effect, shall, in
oc

relation to the execution of decrees, unless there is anything repugnant in the

subject or context, be deemed to include;
dv

(a) Where the decree to be executed has been passed in the exercise of
A

appellate jurisdiction, the Court of first instance, and

(b) Where the Court of first instance has ceased to exist or to have
jurisdiction to execute it, the Court which, if the suit wherein the decree
was passed was instituted at the time of making the application for the
execution of the decree, would have Jurisdiction to try such a suit.
`QUESTIONS TO BE DETERMINED BY COURT EXECUTING DECREE

Section 47 deals with the power of court executing decree. The executing court has
the power to consider each and every question which is determined while passing
the decree by the other or same court.

Conditions: -

nd
1. All questions must arise between the parties to the suit or their
representative.

ha
2. It must arise in the suit in which the decree was passed.
3. It must relate to the execution, discharge or satisfaction of the decree.

B
4. It must be determined by the execution court.

h
Ambit and Scope
la
ul
The scope of sec. 47 is very wide as exclusive jurisdiction has been conferred on
na

the executing court in respect of all matters relating to execution. The provision is
Sa

not ultra vires Article 14 of the constitution.

Applicability of Section 47:-

e
at

It does not apply where dispute arises between parties and his own representative
oc

or between two persons who both represent the same party. ( Mohd. Osman Ali v.

Mohd. Kharim, 1995(2) CCC 408 A.P.)

dv

Object:-
A

1. To provide a cheap & expeditious remedy for determination of certain

questions in execution.
2. To avoid the multiplicity of suits.

In conditions two are important: -

 1. One arises between parties or their representatives.
2. Execution, discharge or satisfaction of decree
1. Whether a decree is executable?
2. Whether the property is liable to be sold in execution of the decree?
3. Whether a decree is fully satisfied?
4. Whether a particular property is included or not in decree?
5. Question regarding attachment, sale or delivery of property

nd
ha
B
2. Modes of Execution: -

Elaborate procedures have been laid down for execution of various types of

h
la
decrees. By virtue of the very nature of such decrees special intricacies may be
ul
involved and specific remedies may be provided under the law to meet with such a
na

situation.
Sa

1. Delivery of property
2. Moveable sec. 51(a) , Rule31
3. Immoveable Rules 35-36
e

4. Attachment and sale of property.

at

5. Arrest and detention Sec. 51(C).

oc

6. Appointment of receiver Sec. 51(d)

7. Partition Sec. 54
8. Cross decrees and cross claims Rule 18-20
dv

9. Payment of money Rule 2 & 30

A

Modes

1. Payment in court
2. Payment out of court
3. Certification of payment
4. Uncertified payment
 5. Specific performance of contract Rule 32
6. Injection Rule 32
7. Restitution of conjugal rights, Rule 32&33
8. Execution of document Rule 34
9. Endorsement of negotiable instrument Rule 34
10.Attachment of rent, mesne profits Rule 42
11.Liability of surety Section 145

nd
12.Decree against firm, Rule 49-50
13.Decree against corporation Rule 32

ha
14.Attachment of decree Rule 53
15.Payment of coins or currency notes Rule 56.

B
LIMIT OF TIME FOR EXECUTION

h
48 Execution barred in certain cases

la
Application for execution of decree of civil court was governed by Article 181 of
ul
the Limitation Act 1908, prescribing a period of three years and any subsequent or
na

fresh application for execution was governed by the six years time limit prescribed
by section 48, C.P.C
Sa

TRANSFEREES AND LEGAL REPRESENTATIVES

49. Transferee:
e
at

Every transferee of a decree shall hold the same subject to the value (if any) which
the Judgment debtor might have enforced against the original decree holder.
oc

50. Legal representative:

dv

When the judgment debtor dies before the law is fully enacted, if the decree is
fulfilled, the holder of the decree can enforce it in the court that issued the decree
A

against the legal representative of the deceased.

If the sanction is enforced against the legal representative, he is only

responsible for him the extent to which the property of the deceased fell into his
hands and was improperly disposed of; and the court that enforces the decree can
take the initiative to determine this responsibility at the request of the legal
representative or the person authorized to dispose of it, the legal representative
shall be compelled to produce it and it considers the appropriate account.

PROCEDURE IN EXECUTION

MODES FOR EXECUTION:

Section 51 to 54 describes procedure in execution or mode for execution.

nd
ha
B
Mode of executing decree under section 51:

h
la
a) By delivery of any property specifically decreed. Property may be movable
or immovable
ul
b) By attachment and sale of the property or by sale without attachment of the
na

property.
Sa

c) By arrest and detention.

d) By appointing a receiver.
e
at

e) Is the residuary clause and comes into play only when the decree cannot be
executed in any of the modes prescribed under clause (a) to (d).
oc

Enforcement of decree u/s 52 against Legal representative:

dv

Section 52 (1) empowers a creditor to execute his decree against the property of
the deceased in the hands of a legal representative so long as it remains in his hand.
A

For application of this clause the decree should have passed against the party as the
legal representative of the deceased person, and it should be for the payment of
money out of the property of the deceased.
Section 52 (2) empowers a creditor to execute his decree against the legal
representative personally if he fails to account for the properties received by him
from the deceased person.

Section 53: Liability of ancestral property:

No legal representative should be held personally accountable where the suit has
been filed against a joint Hindu family unless he has received some property of the

nd
joint Hindu family. Under pious obligation if he has received the property of a joint
Hindu family then will be held liable. Where the decree has been passed against

ha
Karta, no execution is made against the son under pious obligation if the decree is
passed after partition. Even after partition a son can be held liable if a suit was

B
pending before partition.

h
la
Section 54: Partition of estate or separation of share:
ul
Section 54 comes into play when a decree has been passed for partition or for
na

separate possession of a share of an undivided estate paying revenue to the

government. Section 54 deals with a case where though the civil court has the
Sa

power to pass a decree yet it is not competent to execute the same. Under this
section the execution of decree shall be made by the collector.
e

ARREST AND DETENTION

at

One of the modes of executing a decree is arrest and detention of the

oc

judgment-debtor in civil imprisonment. Where the decree is for payment of money,

it can be executed by arrest and detention of the judgment-debtor. Following points
dv

are very important regarding arrest and detention:-

a) A judgment-debtor may be arrested at any time on any day in execution of a

A

decree. After his arrest, he must be brought before the court as soon as practicable.

b) For the purpose of making an arrest, no dwelling house may be entered after
sunset or before sunrise. Further, no outer door of a dwelling house may be broken
open unless such dwelling house is in the occupancy of the judgment-debtor and he
refuses or prevents access thereto.
c) No order of detention of the judgment-debtor shall be made where the decretal
amount does not exceed Rs.2000.

d) Where the judgment-debtor pays the decretal amount and costs of arrest to the
officer, he should be released once.

e) A decree for money cannot be executed by arrest and detention where the
judgment-debtor is a woman, or a minor, or a legal representative of a deceased

nd
judgment-debtor. The Code of Civil Procedure lays down various modes of
executing a decree. One of such modes is arrest and detention of the

ha
judgment-debtor in a civil prison. The decree-holder has an option to choose a
mode for executing his decree and normally, a Court of law in the absence of any

B
special circumstances, cannot compel him to invoke a particular mode of
execution.

h
la
56. Prohibition of arrest or detention of women in execution of decree for
money:
ul
Notwithstanding anything in this Part, the Court shall not order the arrest or
na

detention in the prison of women in execution of a decree for the payment of

money.
Sa

58. Release from detention:

e

Every person detained in prison in execution of a decree shall be released from

at

such detention, before the expiry of the period of detention, if

oc

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

b) The decree against him is otherwise fully satisfied ; or

A

c) The person on whose application he has been detained so requests:

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

DISTRIBUTION OF ASSETS
Section-73

The distribution of assets involves evaluation of the market value of assets,

analysis of the share of individuals entitled to the assets, granting a decree to the
individuals entitled to the assets by passing judgment and executing the decree to
divide the assets among the entitled individuals.

Object:

nd
The object of Section 73, which provides for the distribution of proceeds of

ha
execution sale rateable amongst the decree-holders, is to provide a cheap and

B
expeditious remedy for the execution of money decree held against the same

judgment-debtor by adjusting the claims of rival decree-holders without the

h
la
necessity for separate proceedings. The special provision was provided to ensure
ul
all the decree-holders had an equal footing in the property or assets they were
na

entitled to, for the purpose of execution. And that each decree-holder secured their

share of the assets lawfully. There are two prime objectives of the special provision
Sa

under Section 73, which are:

e
at

1. It helps prevent an unnecessary multiplicity of proceedings when dealing

oc

with multiple parties holding a decree or claim to be entitled to a share in the

assets.
dv

2. To ensure a lawful and equitable distribution of assets among all

A

decree-holders by providing an equal footing to them.

Conditions
The following conditions must be met to entitle a decree-holder to participate in

the assets of a judgment-debtor and are essential for the application of Section 73:

1. An application must be made to the Court which holds the assets by the

decree-holder claiming to share in the ratable distribution;

nd
2. Such an application should have been made before the receipt of assets held

ha
by the Court;

B
3. Only the assets held by the Court can be claimed in ratable distribution

h
la
4. Both the attaching creditor and the decree-holder claiming to participate in
ul
the assets should hold the decree for payment of money;
na

5. Such a decree should have been obtained against the same judgment-debtor.
Sa

Section 73(1)(c) provides, “Where any immovable property is sold in execution of

a decree ordering its sale for the discharge of an encumbrance thereon, the
e
at

proceedings of sale shall be applied in the following way:

oc

1. Firstly, in defraying the expenses of the sale;

dv

2. Secondly, in discharging the amount due under the decree;

A

3. Thirdly, in discharging the interest and principal money due on subsequent

encumbrances (if any); and

4. Fourthly, ratably among the holders of decrees for the payment of money

against the judgment-debtor, who have, prior to the sale of the property, applied to

the court which passed the decree ordering such sale for the execution of such

decrees, and have not obtained satisfaction thereof?”

nd
ha
B
h
la
RESISTANCE TO EXECUTION (S-74)
ul
MEANING:
na

In simpler terms, “execution” means the process of enforcing or giving effect to

any decree/judgment of a Court of competent authority, by compelling the
Sa

judgment-debtor to carry out such mandate of the decree or order, and enable
the decree-holder to recover or exercise the object granted to him by such
decree or judgment.
e
at

“Resistance” in its literal sense refers to the refusal to accept or comply with
something. In legal terms, a resistance may either be lawful or unlawful. In the
oc

case of self-defense, resistance can be said to be lawful as to deter oneself from any
injury or harm.
dv

In other instances where a person resists any person acting out of lawful authority
or a court order enforcing to do something or omit from doing such thing, the
A

resistance shall be considered unlawful.

Hence, “resistance to execution” also falls under the purview of an unlawful

act, done by a person (judgment-debtor) against another (judgment-holder).

· Section 74 of Code of Civil Procedure 1908 “Resistance to execution”

“Where the Court is satisfied that the holder of a decree for the possession of
immovable property or that the purchaser of immovable property sold in
execution of a decree has been resisted or obstructed in obtaining possession of
the property by the judgment-debtor or some person on his behalf and that such
resistance or obstruction was without any just cause, the Court may, at the
instance of the decree-holder or purchaser, order the judgment-debtor or such
other person to be detained in the civil prison for a term which may extend to

nd
thirty days and may further direct that the decree-holder or purchaser be put into
possession of the property.”

ha
B
h
la
PART III ul
INCIDENTAL PROCEEDINGS
na

COMMISSIONS
Sa

75. Power of Court to issue commissions:

e

Subject to such conditions and limitations as may be prescribed, the Court may
at

issue a commission
oc

a) To examine any person;

dv

b) To make a local investigation;

c) To examine or adjust accounts; or

A

d) To make a partition.

76. Commission to another Court:

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

Every Court receiving a commission for the examination of any person under
sub­section (1) shall examine him or cause him to be examined pursuant thereto,

nd
and the commission, when it has been duly executed, shall be returned together
with the evidence taken under it to the Court from which it was issued, unless the
order for issuing the commission has otherwise directed, in which case the

ha
commission shall be returned in terms of such order.

B
77. Letter of request.

h
In lieu of issuing a commission the Court may issue a letter of request to examine

la
a witness residing at any place not within [Pakistan].
ul
78. Commissions issued by foreign Courts:
na

[Subject to such conditions and limitations as may be prescribed,] the provisions as

to the execution and return of commissions for the examination of witnesses shall
Sa

apply to commissions issued by [or at the instance of]­

a) Courts situate beyond the limits of [Pakistan] and established or continued by

e

the authority of [Federal Government], or

at

b) Courts of any State or country outside Pakistan.

oc
dv

PART IV
A

SUITS IN PARTICULAR CASES

SUITS BY OR AGAINST [THE GOVERNMENT] OR PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY:

Name of parties to the suit:

a) A suit by or against the federal government is filed in the name of Pakistan.

b) A suit by or against the provincial government is filed in the name of

concerned province

c) A public officer is to be sued personally and not in his public name unless he
is a corporation sole.

nd
Procedure of suit filed against government or public officer

a) With notice u/s 80 (1) CPC

ha
b) Without notice u/s 80 (2) CPC

B
Institution of suit with notice u/s 80 (1) CPC

h
A suit against a government or public officer may be filed by giving notice to such

la
government or public officer two months before such filing.
ul
To whom notice is to be served?
na

1) In case a suit is against the federal government, notice is to be served to the

secretary of state.
Sa

2) In case a suit is against the provincial government, notice is to be served to

either the secretary of the province concerned or to the collector of the district.
e
at

3) In case a suit is against the Railway , the notice is to be served to the General
Manager.
oc

4) In case a suit is against a public officer, notice is to be served to such a public

dv

officer or left at his office.

A

Contents of notice:

1) Cause of action

2) Description and the name of plaintiff

3) Relief claimed
Object of the notice:

To give sufficient time to the government or public officer that he/he may consider
the position and decide whether the claim of the plaintiff should be accepted or
defended.

Notice:

nd
Where at the expiration of a period of two months and the plaintiff claim remains
unsatisfied the plaintiff is then allowed to institute a suit.

ha
Plaint under section 80 (2):

B
Plaint in case notice served but claim remains unsatisfied must contain a statement
of delivery of such notice.

h
la
ul
Institution of suit without notice/without statement of delivery of notice u/s 80
(2):
na

Court shall allow not less than three months to the defendant for a written
Sa

statement.

Procedure by the government/ public officer as a plaintiff/defendant

e

a) Signing of plaint and written statement

at

In any suit by or against the government, a plain or written statement should be

oc

signed by the person, whom the government appoints in this behalf through general
or special order.
dv

b) Verification of plaint and written statement:

A

In any suit by or against the government, a plain or written statement should be

verified by that person, whom the government appoints in this behalf through
general or special order and who is familiar with the facts of the case.

c) Fixing day for appearance on behalf of Government:

In fixing days for the government to answer a petition, the court should allow
reasonable time for necessary communication with the government through proper
channels and for issuance of instructions to the government pleader to appear and
answer on behalf of the Government. Even the court possesses discretion to extend
such time.

d) Extension of time:

nd
When the defendant is a public officer and he considers it proper to make a
reference to the government before answering the plaint and he applies for

ha
extension of time so that he can make such reference and can receive orders, the
court should extend time for answering to the plaintiff.

B
h
la
ul
Procedure in suits against public officer:
na

If the government undertakes defense of some suit against a public officer, the
government pleader should apply to court at the time when he is furnished with
authority to appear and answer the complaint. And the court should enter a note of
Sa

his authority in the register of civil suits. But if such an application is not filed, the
case is considered to be a suit between private parties.
e

Execution proceeding by or against government of public officer:

at

Time for execution of Decree:

oc

When decree is against some public officer in respect of that act, which he has
dv

done in his official capacity, time should be specified in decree within which
decree should be satisfied.
A

Reporting of case:

When such is not satisfied within specified time, the court should report the case
for orders of the provincial government.

Execution after reporting of case:

Execution should not be issued on any such decree unless it remains unsatisfied for
a period of three months, and this period is computed from the date when case is
reported for order of the provincial government.

Arrest/Attachment of property of public officer:

Public officer is not liable to arrest or his property is not liable to attachment in that
suit, which is filed against him in his official capacity. However, he can be liable to

nd
arrest or his property can be liable to attachment in execution of decree.

ha
B
h
la
ul
Law regarding cost:
na

Plaintiff is not entitled to cost

· If the issue is resolved within two months after institution of the suit.
Sa

· If the claim of the plaintiff is accepted within the two months after the
institution of the suit.
e
at

SUITS BY ALIENS AND BY OR AGAINST FOREIGN RULERS,

AMBASSADORS AND ENVOYS
oc

Classification of Alien:
dv

a. Alien friend:
A

Those who resides in a country to which their mother land is at friendship

b. Alien Enemy:

Those who resides in a country to which their mother land is at war

c. Alien Enemy residing in a foreign country:

Every person residing and carrying on business without a license of the Central
Government in a foreign country at war with Pakistan is for this purpose, deemed
to be an alien enemy in a foreign country.

1) Condition to sue as alien by Alien friend:

Alien friends may sue in any court of competent jurisdiction as if they were
citizens of Pakistan.

nd
2) Conditions to sue as alien by Alien Enemy:

ha
Alien enemies can sue with the permission of the Central Government provided
they are residing in Pakistan.

B
h
la
ul
3) Alien Enemy residing in a foreign country:
na

Alien enemies residing in a foreign country as defined above with the permission
of the Central Government can sue in any court of Pakistan having competent
Sa

jurisdiction.

PART V
e

SPECIAL PROCEEDINGS ARBITRATION

at

89­A. Alternate dispute resolution:

oc

The Court may, where it considers necessary, having regard to the facts and
dv

circumstances of the case, with the object of securing expeditious disposal of a

case, in or in relation to a suit, adopt with the consent of the parties alternate
A

dispute resolution method, including mediation and conciliation

SPECIAL CASE

90. Power to state case for opinion of Court:

 Where any person agrees in writing to state a case for the opinion of the Court,
then the Court shall try and determine the same in the manner prescribed.

SUITS RELATING TO PUBLIC MATTERS

Public Nuisance under CPC

The issue of public nuisance is dealt under Section 91 of Part V of the Code. The

nd
provision gives the right to sue any person who has caused a public nuisance in the
society.

ha
Besides these acts of public nuisance, other acts have also been considered as
giving rise to a cause of action under Section 91. For instance, the courts have held

B
the killing of cattle in public places either normally or during festivals as affecting
public tranquility and raising cause of action under Section 91. However, the

h
provision excludes lawful and necessary nuisance from being sued.

la
ul
na

For instance, a noise made by train engines and aircraft or any hindrances caused
due to the construction of public roads or yards, etc. Public nuisance caused
Sa

because of acts undertaken in public interest and welfare is not actionable.

Procedure to file Suit

e

According to Section 91, there are two methods in which a suit may be instituted
at

against a person or entity for causing a public nuisance. Firstly, by the advocate
oc

general of the State and secondly, by way of class litigation filed by two or
more persons of the affected place or genuinely interested in the redress of public
dv

harm.

Remedies for Public Nuisance

A

Section 91 acknowledges several remedies for public nuisance divided into two
parts. Firstly, Section 91 (1) provides for certain civil remedies and then Section 91
(2) provides for other residuary remedies. Under civil remedies, the
advocate-general or the plaintiff, as the case may be, may pray for a declaration,
injunction and any other relief as the court considers appropriate.
Declaration signifies any order with which the court establishes the rights and
liabilities of the parties. For instance, if a suit is filed against a company disposing
sewage into the public river and the question arises whether people have a right
over the public water. Any order passed by the court stating that the people have a
right to use the public water is a declaration.

Suit against Trust under CPC

nd
Meaning of trust

ha
Section 92 allows suing of only public trusts either charitable or religious. In case
of public trusts; the trust is made for a specific purpose or for a specific period and

B
all the assets are required to be used for the benefit of the people to meet that
purpose only.

h
la
Procedure to File Suit ul
According to Section 92 (1) of the Code, where there is some kind of deviation
from the purposes of the trust or need for change in administration of the trust, the
na

advocate-general of the State or two or more persons interested in the maintenance

of the trust may file a suit against such breach of objects of the trust.
Sa

When the suit is filed by a class of persons aiming to ameliorate the management
of the trust, it is essential that the leave of the court is obtained before instituting
e

the suit.
at

Remedies for Breach of Trust

oc

The Code enlists several remedies that can be sought in a suit for breach of public
dv

trust under Section 92 (1) and (3). The remedies that are available to the
advocate-general or the aggrieved persons are;
A

1) To remove a present trustee from the post for mismanagement.

2) To appoint a new trustee to either replace an old trustee or to supervise the

present trustees.

3) To vest any asset or property of the trust in a trustee.

4) To direct a dismissed or retired trustee to transfer the possession of any trust
property to the trust.

5) To direct the inspection of accounts of the trust and conduct inquiries.

6) To declare the proportion of trust property available for separate objects of

the trust.

nd
7) To authorize the sale, exchange or mortgage of any property in possession of
the trust.

ha
8) To settle a claim or any scheme allowed by the trust to a beneficiary.

B
9) To change or modify the original objective for which the trust was created if
the original objective has been fulfilled or becomes impossible to fulfill.

h
la
93. Exercise of powers of Advocate General:
ul
The powers conferred by sections 91 and 92 on the Advocate General may, be,
with the previous sanction of the [Provincial Government], exercised also by the
na

Collector or by such officer as the [Provincial Government], may appoint in this

behalf.
Sa

PART VI
e

SUPPLEMENTAL PROCEEDINGS
at

Supplemental proceedings u/s 94:

oc

Court can do everything to ensure justice in compliance with the law. Orders 38
and 39 are relevant to this section. Civil Court may take following measures in the
dv

interest of justice:
A

1) Issuance of warrant: Where it becomes into the knowledge of Court the

defendant may leave the jurisdiction of Court, Court may issue warrant of his arrest
to ensure his presence in Court for the end of justice.
2) Demand of security: Where it reveals from facts that the defendant may
defeat or frustrate the call of the Court, the Court may demand security from the
defendant to get assurance of his presence in Court at due time.

3) Civil prison: Where the defendant fails to furnish security being surety of his
presence in Court, the Court may order for his civil prison until the defendant
furnishes sufficient security.

nd
4) Temporary injunction: Court may issue temporary injunctions to keep him
in the jurisdiction of Court for appearance as and when required.

ha
5) Attachment of property: Where the defendant fails to comply with the

B
orders of the Court for the provision of security and defeats the purpose of the
temporary injunction, the Court may attach his property and may sell.

h
6) Appointment of receiver: In order to keep the property of defendant in the

la
custody of Court, Court may appoint receiver for maintenance and subsequently its
ul
sale.
na

7) Interlocutory order: Where the Court thinks fit and proper may issue
interlocutory orders.
Sa

8) Any other order, which is reasonable, the Court may pass any order, which
it thinks fit for the end of justice.
e

95. Compensation, for obtaining arrest, attachment or injunction on in

at

sufficient grounds:
oc

Where, in any suit in which an arrest or attachment has been effected or a

temporary injunction granted under the last preceding section;
dv

1) it appears to the Court that such arrest, attachment or injunction was applied
A

for on insufficient grounds, or

2) the suit of the plaintiff fails and it appears to the Court that there was no
reasonable or probable ground for instituting the same,

The defendant can apply to the court, and the court can object to the defendant on
the basis of the application the plaintiff must not exceed thousand rupees, because
it thinks reasonable compensation for expenses or damages incurred by the
defendant:

Provided that a Court shall not award, under this section, an amount exceeding the
limits of its pecuniary jurisdiction

An order determining any such application shall bar any suit for compensation in
respect of such arrest, attachment or injunction.

nd
ha
B
h
PART VII

APPEALS
la
ul
APPEALS FROM ORIGINAL DECREES
na

Preface:
Sa

Appeal has not been defined in the Civil Procedure Code. It is, in fact, that
complaint, which is made to some superior court against a decision of a
subordinate court. Basic object of appeal is to test the soundness of the decision of
e

the lower court. Appeal may be filed against original decree, or against decree
at

passed in appeal.
oc

Meaning of Appeal:
dv

“Appeal means removal of a cause from inferior to a superior court for the purpose
of a testing soundness of decision of an inferior court”
A

Definition of Appeal:

“Judicial examination of the decision by a higher court of the decision of the

inferior court”

Right of Appeal:
 Every person has the right of appeal against decree. However, the right of appeal
is not an inherent right. Rather it can only be availed where it is expressly granted
by law. Appeal lies against a decree and not against a judgment.

Nature of Right of Appeal:

nd
Right of appeal is substantive right and they are not mere matters of procedure.
Right of appeal is governed by the law prevailing at the date of the suit and not by

ha
law that prevails at the date of the decision or at the date of filling of the appeal.

B
Appeals from a decree:

h
la
An appeal lies under section 96 CPC only from a decree because the decree marks
the stage at which the jurisdiction of the court where the appeal is made begins. As
ul
such unless a decree is drawn up, no appeal lies from a mere finding, but if the
na

finding amounts to a decree, an appeal would lie.

First appeal u/s 96:

Sa

First appeal lies in the Court competent to hear the appeal. Grounds of objection
must arise from the pleadings and evidence, and are necessary for the decision of
e

the suit. The grounds must be stated briefly and concisely and no legal arguments
at

must be set out therein. Grounds of appeal can be described as under:

oc

1) The judgment or decree of the lower Court is contrary to law.

dv

2) The judgment or decree of the lower Court is against fact.

3) The judgment or decree of lower Court is contravened to law and fact

A

4) The Court below has omitted to determine any material points.

Kinds of Appeal:

Appeal may be classified not following two kinds;

1) 1st Appeal:

Generally, first appeal shall lie from every decree passed by any court exercising
original jurisdiction to the court authorized to hear appeal from the decisions of
such court.

i. Forum of Appeal

nd
First appeal lies to the District court, if the value of the subject matter of the suit is
below rs. Two lakhs, and to the high court in all other cases.

ha
ii. Person who may Appeal:

B
· Parties to the suit

h
· Persons adversely affected by the decree.

iii.
la
Person otherwise competent to file appeal:
ul
· Legal representatives of the party
na

· Transferee of the interest of party

Sa

· A benamidar on behalf of a real owner

· A guardian on behalf of a minor

e
at

· Government (Federal or Provincial)

oc

iv. Appeal against preliminary decree:

Preliminary decree is not allowed to appeal after passing of specific time.

dv

Decisions in Appeal under section 98:

A

§ When the appeal is heard by two or more judges then it will be decided by
majority.

§ When the appeal is heard by two judges and they differ upon a matter of fact
then the decision despite differing opinion shall stand confirmed.
§ When the appeal is heard by two judges but the point of difference is about law
then they will refer the matter to referee judges of the same court and the decision
shall be confirmed by the majority including the judges who referred the matter but
if they will not agree to refer it then the decision shall be confirmed.

v. Grounds of first Appeal:

· Judicial mind not applied

nd
· Misreading or non reading of evidence

ha
· Any other irregularity in procedure

B
h
vi. Effect of irregularity in decree at appeal stage u/s 99:

la
The decree shall not be remanded, varied, or reversed merely on the ground of
ul
irregularity during the proceeding except:
na

· Where the decision is not on merit.

· The court was not competent with regard to jurisdiction.

Sa

2nd Appeal
e

Generally, 2nd Appeal lies to the High Court, from every decree passed in an
at

appeal, by a court subordinate to the High Court. It lies only on grounds mentioned
in section100 CPC but not on the question of fact.
oc

I Grounds for second Appeal:

dv

It is a settled proposition of law that the second will lie where judgment is
A

uncertain in its meaning and finding is vague and inconclusive or where reasons
are not given at all. Following are the grounds where second appeal is competent
and not otherwise:

· Decision being contrary to the usage having force of law

· Decision having failed to determine some material issue of law usage having
the force of law.

· Decision having failed to determine some material issue of law or usage

having the force of law

· Substantial error or defect in procedure.

nd
Cases where 2nd Appeal is barred:

· Small cause court decree where the value of suit does not exceed 25000/=

ha
· Where the value of suit is up to 250000/= in court other than small cause

B
h
II. Powers of High Court to determine issues of fact:

la
In a second appeal the High Court may determine an issue of fact.
ul
na
· Where there is sufficient evidence, on the record, for determining the issue
of fact, necessary for the disposal of the lower appellate court but that inferior
court fails to consider.
Sa

· An issue of fact, necessary for the disposal of the case, has been wrongly
determined by the lower appellate court by reasons of any omission, error or defect
e

to determine some material issue of law.

at

Conclusion:
oc

To conclude that appeal is a substantive right, and it is a matter of interest. The

dv

question as to whether the appeal is competent or not can only be decided by the
court hearing the appeal. Appeal may be filed against original or appellate decree
A

passed by a court subordinate to the High Court. Appeal only lies against a decree
and not against judgment. The right of appeal is the creation of statute.

APPEALS FROM ORDERS

104: Order from which appeal lies:

 The following orders can be appealed, with the exception of the main part of
this code or any currently applicable law clearly stipulates otherwise, from any
other order:

ü An order under section 35A;

ü an order under section 47

nd
ü an order under section 91 or section 92 refusing leave to institute a suit

ü an order under section 95

ha
ü an order under any of the provisions of this Code imposing a fine or directing the

B
arrest or detention in the civil prison of any person except where such arrest or
detention is in execution of a decree;

h
la
ü any order made under rules from which an appeal is expressly allowed by rules:
ul
Provided that no appeal shall lie against any order specified in clause 2 [(f)] save
on the ground that no order, or an order for the payment of a less amount, ought to
na

have been made

Sa

· No appeal shall lie from any order passed in appeal under this section.

105. Others order:

e

Unless expressly stated otherwise, no legal remedies can be offered against

at

the order issued by a court exercising original jurisdiction or appellate jurisdiction,

oc

but when an appeal against a decree can point out errors, shortcomings or
irregularities in any order that affect the judgment of the case as the reason for
dv

objection in the notice of appeal.

Notwithstanding the provisions of paragraph (1), if the party at a

A

disadvantage due to the order pre-trial detention after the entry into force of this
Code can be appealed without being challenged therefore, it is impossible for him
to dispute their correctness.

106. What Courts to hear appeals:

If the appeal against the order is admissible, then the court appeals the decision in
the litigation in which such an order was issued, or such orders are issued by the
court (except the High Court) that exercises appellate jurisdiction, and then High
court.

GENERAL PROVISIONS RELATING TO APPEALS

107. Powers of Appellate Court:

nd
Subject to such conditions and limitations as may be prescribed, an Appellate

ha
Court shall have power;

(a) To determine a case finally;

B
(b) To remand a case;

h
la
(c) To frame issues and refer them for trial;
ul
(d) To take additional evidence or to require such evidence to be taken.
na

The Appellate Court shall have the same powers and shall perform as nearly as
may be the same duties as are conferred and imposed by this Code on Courts of
Sa

original jurisdiction in respect of suits instituted therein.

108. Procedure in appeals from appellate decrees and orders:

e

The provisions of this Part relating to appeal from original decrees shall, so far as
at

may be, apply to appeals­

oc

(a) From appellate decrees, and

dv

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

APPEALS TO THE SUPREME COURT

Third appeal u/s 109:

Third appeal lies in the Supreme Court. Grounds of third appeal can be
summarized as under:
1. Where the value of the suit is Rs. 50,000/- or upward.

2. Where the amount of decree and claim is varied.

3. Where the High Court certifies that as to the constitution substantial question
of law is involved.

nd
ha
B
h
la
PART VIII
ul
REFERENCE, REVIEW AND REVISION
na

Reference u/s 113:

Sa

The decision of a question by a referee, any lower Court may refer points for
determination to its superior Court. Although it is the duty of every Court to decide
the case after getting through the depth of the case, sometimes assistance from the
e

higher Court is sought. And the higher Court may also put an important question to
at

the High Court to get its opinion.

oc

Reference:
dv

· U/S 113 of CPC

Forum:
A

· Reference file in forum of High Court.

Who can file:

· By lower court.
Purpose/Scope:

When lower courts do not handle any issue then lower courts file the reference to
the higher court.

Review u/s 114:

It means the reconsideration of the judgment on the application of a dissatisfied

nd
party. Review is made by the Court, which passes the decree or makes the order.
Aggrieved person may institute appeal for review:

ha
1- Where appeal is not preferred: Where decree or order from which an
appeal is allowed but the party aggrieved has not preferred the appeal.

B
2- Where appeal is not allowed: Where the Code of Civil Procedure does not

h
allow appeal for such decree or order passed by the Court.

la
3- On the decision of the Small Cause Court: Where the Small Cause Court
ul
has decided upon reference.
na

4- Only aggrieved party:

Sa

5- Objection on decree:

6- Objection on Order:
e

7- Where appeal is allowed:

at

Review:
oc

· U/S 114 of CPC

dv

Forum:
A

· Review file in the forum of the same court which passed the order of decree,
can review as its own decision as in inherent power.

Who can file:

· Power of court
· It can be the power of court which originated by itself action plus application
of an aggrieved person.

Power/Scope:

When the court reviews its judgment when a mistake, accidental step or omission
occurs then the court reviews the correction of the judgment.

nd
Revision u/s 115:

The jurisdiction exercised by the High Court under this section is called Revisional

ha
Jurisdiction. Conditions for the application of revision are as follows:

B
1. The Subordinate Court appears to have exercised a jurisdiction not vested in
it by law.

h
la
2. The Subordinate Court has failed to exercise a jurisdiction vested in it by law.
ul
3. Such Court has acted in the exercise of its jurisdiction illegally or with
material irregularity.
na

Above are the cases in which the High Court can interfere. The High Court cannot
Sa

interfere in all other cases. Revision lies in the following cases:

1. Jurisdiction without law:

e

2. Where jurisdiction fails to exercise:

at

3. Illegally exercise:
oc

4. Material irregularity:
dv

5. Case decided:
A

6. Decision of subordinate court:

7. Extinction of appeal right:

8. Code of Civil Procedure violation:

9. Substantial error:
Revision:

· U/S 115 of CPC

· Revision files in superior court.

Forum:

nd
· File against the order of lower court.

Who can file:

ha
· Power of court

B
· Originated by court, by itself action plus application of aggrieved person.

h
Purpose/Scope:
la
ul
· Jurisdiction.
na

· When a question of jurisdiction arises then the revision file.

Sa

Exemption of certain woman from personal appearance u/s 132:

Where parda observing lady cannot appear in Court due to customs of the country,
e

she cannot be compelled to appear personally in the Court. Accused also can apply
at

for the exemption from appearance on certain reasons such as bodily infirmity, old
oc

age factor, or imprisonment. She has to prove that up to what extent she is parda
observing. Where she is an ultra modern lady, who wears a skirt and visits Liberty
dv

Market etc., cannot keep away from appearance in Court. Generally law lies in
favor of women.
A

U/s 133 also Provincial Government may exempt any person from the personal
appearance in Court keeping in view of the rank of the employee. Government
prepares the list of such exempted persons with residential addresses and provides
them to the High Court and such subordinate courts in whose jurisdiction they
reside.
U/s 135 Judges and Magistrates are also exempted to arrest in civil suits while
returning from courts or while presiding in Court.

Inherent powers of courts:

S. 151 of Code of Civil Procedure provides the inherent powers to civil courts to
exercise such powers which are necessary to ensure justice and which are
necessary to prevent abuse of the process of the Court. This power is not available

nd
on the criminal side. Only civil courts enjoy this power. Since Code of Civil
Procedure is not fully exhaustive, therefore, the Court in many cases, where the

ha
circumstances require it, acts upon the assumption of the possessions of an inherent
power to act ex debito justitiae and to do that real and substantial justice for the

B
administration of which alone it exists.

h
la
ul
na

Circumstances in which Court may exercise its inherent powers:

Sa

Following are the circumstances in which Court may exercise its inherent powers:

1. Abuse of process: Where the Court by employing a procedure does

e

something that it never intended and there is miscarriage of justice, the Court
at

possesses inherent powers to rectify such mistake, as an act of Court should not
prejudice any person.
oc

2. Lack of provisions: Codified law is never fully exhaustive in nature at all. It

dv

always lacks sufficient provisions. Where law lacks, inherent powers of Court fill
this space.
A

3. Non-Islamic provisions: Where law provides provisions in contravention to

Islamic Injunction, the Court can exercise its inherent power to avoid its un-Islamic
application.

4. Where substantial justice is unavailable: The inherent powers can only be

exercised where there is no express provision of law applicable to the case, and as
such where an express provision of law is applicable, the Court will not invoke its
inherent jurisdiction.

5. Consolidation of suits: Courts may pass orders for the consolidation of suits
where more than one suit of the same nature is pending at different forums so that
they may be discharged at once.

6. Abuse of power:

nd
7. End of justice:

ha
8. To prevent abuse of power:

B
9. Re-hearing and ex-parte decree:

h
10. Refund of fee excess paid:

la
11. Making good of deficient court fee:
ul
12. Rectification of error in Order:
na

It must also be noted that the Court has no inherent power to do so, which is
prohibited by this code. Thus, a Court has no power after the judgment is signed to
Sa

alter or add to it as to do so would be in direct contravention of the provisions of

Order 20, Rule 3.
e

Amendment of judgments, decrees, or orders u/s 152:

at

Court is not free from error and may commit error or omission while making
oc

judgment, decree, or order. There are only two cases in which Court can amend or
vary a decree or order after it is drawn up and signed, namely:
dv

1. Inherent power: Under its inherent powers, when the decree or order does
A

not correctly state what the Court actually decided and intended.

2. Clerical error: Under this section, where there has been a clerical or
arithmetical mistake, or an error arising from an accidental slip or omission.

3. Arithmetical error:
4. Omission:

5. Suo Motu:

6. On application:

7. Application u/s 100:

nd
8. Review u/s 114:

How the amendment in judgment is made:

ha
U/s 152 Court can use its powers to amend or alter the judgment where it discloses

B
any mistake or error. There are two ways under which deficiency can be made
good:

h
la
1. At own motion: Where the Court fined any error on the face of record can
ul
modify it without affecting the substantive part of the judgment at own motion.
na

2. On application: Where a party applies for the rectification of error, the Court
may entertain it under its powers and may rectify it.
Sa

Inherent power to amend decrees and orders:

e

Every Court has an inherent power to vary or amend its own decree or order so as
at

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
oc

up, it only insists that the decree drawn up in the office of the Court should
correctly express the judgment given by the Court. It would be perfectly shocking
dv

if the Court could not rectify an error, which is really the error of its own minister.
When an error has been committed, it is always within the competency of the
A

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.
 nd
ha
B
h
la
ORDER I
ul
PARTIES OF SUITS
na

R.1- Who may be joined as plaintiff?

Sa

Any person whose interest is involved in any suit may join as plaintiff. It is
not necessary that the plaintiff has interest in the subject matter of the suit. If any
particular interest is affected, they may join as plaintiffs.
e
at

R.2- Court can order separate Trail:

oc

If the court feels that various parties file independent suits which are connected
then the court can proceed with a separate trial for each such party.
dv

R.3- Who may be joined as defendants?

A

Every person who is involved as a defendant in a suit may join as a defendant.

R.4- Court can pass judgment against one or more:

It is not binding on court to pass in favor or against of the entire plaintiff or all
defendants, but each party proves its own case.
R.5- Defendant need not be interested in all relives:

It is not necessary that all defendants should be interested in all relief; few may
seek one relief and others may seek different relief but the matter in issue must be
the same for all parties.

R.6- Joinder of parties on same contract:

nd
The plaintiff may, at his option, join as parties to the same suit all or any of liable
on any one contract.

ha
R.7- When plaintiff is in doubt:

B
If plaintiff is in doubt as to who should be defendants then plaintiff can join all
those who may be involved as defendants

h
la
ul
R.8- One person may sue on behalf of all:
na

Through special power of attorney one person may sue on behalf of all.

R.9- Mis-joinder and Nonjoinder

Sa

In case of mis-joinder or non-joinder suit shall not be defeated. Mis-joinder means

any person which is wrongfully added and non-joinder means any necessary party
e

which cannot add in suit.

at

R.10- Suit in the name of wrong plaintiff:

oc

Suit in the name of the wrong person as plaintiff or it is doubtful;

dv

Substitution:
A

Replacing one with the other

Addition of parties:

Add a new party as plaintiff or as defendants.

Transposition:
Becoming plaintiff from defendant and defendant from plaintiff

Condition:

• If a necessary party is absent so no effective decree can be passed.

• The proper party presence will enable the court to effectively and completely
adjudicate upon and settle all questions involved.

nd
R.11- Conduct of case:

ha
When plaintiff file the plaint after that court decide that who give summon and
when defendant give written statement after that court decide further how to

B
conduct the suit.

h
la
R.12- Appearance of one of several plaintiffs or defendant for others:
ul
In any case have several plaintiffs or defendants then such parties give the power
na

of attorney to one person that such person only comes in. But power of attorney
shall be written and signed.
Sa

R.13- objections as to non-joinder or mis-joinder:

Non-joinder, not make party who should have been made party and mis-joinder
e

making party who should not have been made party. The objection as to
at

mis-joinder and nonjoinder should be raised at the earliest especially before

oc

framing of issues but cannot be raised in appeal, if not raised in suit.

ORDER II
dv

FRAME OF SUIT
A

R.1- Frame of suit:

It deals with the frame of the suit. Plaint must provide grounds for final decision,
mention all subjects in dispute to prevent further litigation.

R.2- Relinquishment of part of claim:

Every suit must include the whole of the claim to which the plaintiff is entitled in
respect of the cause of action and where the plaintiff omits to sue for or
intentionally relinquishes any portion of his claim, shall not be allowed to sue in
respect of the portion so omitted or relinquished.

The parties are disposed of finality. All matters in dispute between the parties
relating to the same cause of action should be disposed of in the same suit to

nd
prevent further litigation.

R.3- Joinder of causes of action:

ha
This rule enables joinder of several causes of action in one suit in certain

B
circumstances subject to the provision of the code. Joinder causes of action are:

• One plaintiff, one defendant and several causes of action.

h
•
la
Joinder of plaintiffs and causes of action.
ul
• Joinder of plaintiffs, defendants & causes of action.
na

• Joinder of defendants & causes of action.

Sa

R.4- Only certain claim to be joined for recovery of immovable property:

This rule lays down that in a suit for the recovery of immovable property, a
e

plaintiff is not entitled, without the leave of the court, to join any claim except;
at

• Claims of mesne profit or arrears of rent in respect of the property claimed

oc

or any part thereof.

• Claims for damages for breach of any contract under which the property or
dv

any part thereof is held,

A

• Claims in which the relief sought is based on the same cause of action

R.5- Claims by or against executor, administrator or heir:

Personal claims against the executor, administrator or heir cannot be filed against
them.
R.6- Power to court to order separate trails:

If such trail will complicate the issues

R.7- objections as to mis-joinder:

Objection to be raised at the earliest or else it will be considered as waived off.

nd
ha
B
h
la
ORDER IV
ul
INSTITUTION OF SUITS
na

R.1- Suit to be commenced by plaint:

Sa

Every suit shall be instituted by proceedings a plaint to the court or such officers as
it appoints in this behalf. Every plaintiff shall comply with the rule contained in
e

order VI and VII, so far as they are applicable.

at

R.2- Register of suits:

oc

The court shall cause the particulars of every suit to be entered in a book to be kept
for the purpose and called the register of civil suit. Such entries shall be numbered
dv

every year according to the order in which the plaints are admitted.
A

ORDER V

ISSUE AND SERVICE OF SUMMONS

R.1- Summon:
When a suit has been duly instituted a summons may be issued to the defendant to
appear and answer the claim on a day to be therein specified. No summons shall be
issued when the defendant has appeared at the presentation of the plaintiff and
admitted the plaintiff claim.

Way of appearance:

• In person

nd
• By pleader

ha
• By pleader accompanied by a person who can answer the question.

B
Summons to be signed and sealed (stamped) by the judge

h
la
ul
R.2- copy of statements annexed to summons:
na

Every summons shall be accompanied by a copy of the plaint, or if so permitted,

by a concise statement.
Sa

R.3- court may order defendant or plaintiff to appear in person:

e

Court may order personal appearance and the court can order for personal
at

appearance on the same date.

oc

R.4- No party to be ordered to appear in person unless resident within

certain limits:
dv

No party shall be ordered to appear in person unless he reside;

A

• Lives outside of the court's ordinary jurisdiction.

• Lives beyond 200 miles from the courthouse.

R.5- Summon to be either to settle issues or for final disposal:

The court shall determine at the time of issuing the summons. Whether it shall be
for the settlement of issues only, for the final disposal of suit and summons shall
contain a direct accordingly.

R.6- Fixing day for appearance of defendant:

The day for appearance of the defendant shall be fixed with reference to the
current business of the court, the place of residence of the defendant and the time

nd
necessary for service of the summons, and the day shall be fixed as to allow the
defendant sufficient time to enable him to appear and answer on such day.

ha
R.7- Summons to order defendant to produce documents relied on by him:

B
Defendant to appear and also produce all documents which defendants want to
produce to support his claim

h
la
ul
R.8- On issue of summons for final disposal, defendant to be directed to
na

produce his witnesses:

In this case the defendant will produce all the witnesses on whose evidence the
Sa

defendant wants to rely.

R.9- Delivery or transmission of summons for service:

e
at

Summons to be served through the proper officer or his subordinate, in cases where
the defendant or his agent resides within jurisdiction of court. Proper officer can
oc

form another court but in those cases summons shall be sent to that officer.
dv

R.10- Mode of service:

• By delivery of summons, or
A

• By tendering copy of summons

R.10 A- A service by post:

Simultaneously as per service of summon rule 9 or as court order. Another copy of

the summon shall be sent through registered post, acknowledgment due.
R.11- service in several defendants:

Service to be made on each defendant even if they live at any place service must be
upon each defendant.

R.12- service to be on defendant in person when practicable or on his agent:

General rule:

nd
Service should be in person.

ha
Exception:

B
Agent who is duly empowered

h
la
ul
R.13- Service on agent by whom defendant carries on business:
na

• Suit must be relating to business

Sa

• Defendant resides outside jurisdiction.

Service of summons on a manager or agent carrying such business for such a

e

defendant will be valid service. Master of the ship shall be an agent of the owner or
at

charter.
oc

R.14- Service on agent in charge in suits for immovable property:

• Suit relates to immovable property

dv

• Service cannot be made on defendant permanently

A

• Defendant has no agent who is empowered to receive summons

In such cases service on an agent who is in charge of immovable property is valid

service.

R.15- When service may be on male member of defendant’s family:

• Defendant cannot be found

• Defendant has no agent empowered.

In such cases service can be made on the adult member of the family of the
defendant, but all efforts should be made to locate such defendant first.

R.16- person served to sign acknowledgement:

nd
Officers must get the signature of the person served on original summons.

ha
B
h
la
R.17- Procedure when defendant refuses to accept service, or cannot be
found:
ul
na
• Defendant or agent or other person refuses to sign acknowledgment.

• Defendant cannot be found.

Sa

• No agent empowered.
e

• No other person available.

at

Procedure:
oc

• Affix copy of summon on outer door or other conspicuous place of house in

which defendant either;
dv

• Resides
A

• Carries on business

• Personally works for gain

• Return the original to the court with

• Written report of affixation

• Circumstances

• Name and address of person by whom house was identified copy was
affixed.

nd
ha
B
h
la
R.18- Endorsement of time and manner of service:]
ul
The serving officer, where service was made under rule 16 shall write on original
na
summons:

• Time and manner of service.

Sa

• Name and address of person identifying the person served.

e

• Name and address of person identifying witnessing delivery or tender of

at

summons.
oc

R.19- Examination of serving officer:

• Where summons were refused to be received.

dv

• Serving officer shall be questioned by the court.

A

• After examination, the court shall decide if summons were rightly served.

Such examination and its recording are important and without this ex-parte decree
cannot be passed.

R.20- Substituted service:

Application when substituted serve can be ordered:

• Defendant is avoiding service

• Summons cannot be served.

Modes of substituted service:

nd
• Affixation

• Electronic communication

ha
• Courier service

B
• Beat of drum

h
• Publication in press

• Any other manner.

la
ul
Substituted service is good as personal service and time for appearance should not
na

be exceeding 15 days.
Sa

R.21- service of summons where defendant resides within jurisdiction of

another court:
e

In such cases the court shall send summons through:

at

• Officer, or
oc

• By post
dv

To such a court within whose jurisdiction such a defendant resides.

R.23- Duty of court to which summons is sent:

A

• Such a court will proceed with summons as if issued by it.

• After completion of the process such court will return the summons along
with record proceedings.
R.24- Service on defendant in prison:

Court through the officer will give summons to the officer in charge of prison and
he will affect service on the defendant.

R.25- Service where defendant resides out of Pakistan and has no agent in
Pakistan:

nd
By post such as the defendant, if postal communication is available.

Exception: sub-rule 26 (A).

ha
B
h
R.26- Service in foreign territory through political agent or court:

la
Application
ul
na
• Where the federal government appointed political agents or courts in foreign
territory.
Sa

• Where the provincial government appointed a political agent or court in such

territory.
e

Service & Procedure

at

• Service shall be through such political agent or court

oc

• Political agent and court returns summons with endorsement, signed by such
dv

political agent or court

R.26-A- Service on civil public officer on servant of Railway Company or

A

local authority, in Pakistan:

• If the defendant is working under the service of India then through the
secretary of government of India.
• If the defendant is working under another government of India, then
through the Home Secretary.

R.27- Service on civil public officer or on servant of Railway Company or

local authority:

Service on public officer, servant of railway, local authority then service shall be
through head of officer, in which he is employed.

nd
R.28- Service on soldiers, sailors or airmen:

ha
Service shall be through commanding officers.

B
h
la
R.29- Duty of person to whom summons is delivered or sent for service:
ul
• Bound to serve
na

• Return under his signature

Sa

With written acknowledgment of defendant which will be proof of service

If the service is impossible then return summons with full statement of cause &
e

step taken
at

R.30- Substitution of letter for summons:

oc

Summons can be substituted with a letter of summon, depending on the honor rank
dv

of the defendant.

ORDER VI
A

PLEADINGS GENERALLY (THE FIRST SCHEDULE)

R.1- Pleading:

Pleading shall means plaint or written statement

R.2- Pleading to state material facts and not evidence:

Every pleading shall contain

• Statement in a concise form of material fact

• Those material fact in which party relies for his claim or defense

• But not evidence by which they are to be proved.

nd
• Divided into paragraphs

• Numbered consecutively

ha
• Dates, sums & numbers shall be expressed in figures.

B
h
R.3- Form of pleading:
la
ul
• The forms in Appendix “A” when applicable
na

• When they are not applicable forms of the like character

Sa

• Then they shall be used for all pleadings.

R.4- particulars to given where necessary:

e
at

In all cases in which party pleading relies on

oc

• Misrepresentation, fraud, breach of trust, willful default, or undue influence,

in these cases that is necessary to define all facts relating which is necessary.
dv

R.5- further & better statement of particulars:

A

• A further & better statement of the nature of the claim or defense.

• Better particular of any matter stated in any pleading, may in all cases be
ordered

• Upon such terms, as to costs and as may just.

R.6- Condition precedent:

Any condition precedent the performance or occurrence of which is intended to be

contested, shall be distinctly specified in his pleading by the plaintiff or defendant,
as the case may be; and, subject thereto, an averment of the performance or
occurrence of all conditions precedent necessary for the case of the plaintiff or
defendant shall be implied in his pleading.

nd
• No need to mention condition precedent unless mandated by law
• e.g., prior notice in case of defamation under Defamation Ordinance, 2002

ha
R.7- Departure:
No pleading shall, except by way of amendment, raise any new ground of claim or

B
contain any allegation of fact inconsistent with the previous pleadings of the party
pleading the same.

h
R. 8- Denial of Contract:
la
ul
Where a contract is alleged in any pleading, a bare denial of the same by the
na

opposite-party shall be construed only as a denial in fact of the express contract

alleged or of the matters of fact from which the same may be implied, and not
Sa

as a denial of the legality or sufficiency in law of such contract.

• Denial of contract is only denial of factum of contract and not of its validity
e

• Cases of Ex-facie legal (mere denial would not benefit the objector)
at

• Case of ex-facie illegal contract (even if not denied, contract will not be
oc

enforced)

R.9- Effect of document to be stated:

dv

Wherever the contents of any document are material, it shall be sufficient in any
pleading to state the effect thereof as briefly as possible, without setting out the
A

whole or any part thereof, unless the precise words of the document or any part
thereof are material.
• Effect of any document needs to be noted. No need of reproducing a
document unless words are important to be reproduced
R.10- Malice, Knowledge, etc:
Wherever it is material to allege malice, fraudulent intention, knowledge or other
condition of the mind of any person, it shall be sufficient to allege the same as a
fact without setting out the circumstances from which the same is to be inferred.

R.11- Notice:
Wherever it is material to allege notice to any person of any fact, matter or thing, it
shall be sufficient to allege such notice as a fact, unless the form or the precise

nd
terms of such notice, or the circumstances from which such notice is to be inferred,
are material.

ha
B
h
la
ul
R.12- Implied Contract or relation:
na

Whenever any contract or any relation between any persons is to be implied from a
series of letters or conversations or otherwise from a number of circumstances, it
Sa

shall be sufficient to allege such contract or relation as a fact, and to refer generally
to such letters, conversations or circumstances without setting them out in detail.
And if in such a case the person so pleading desires to rely in the alternative upon
e

more contracts or relations than one as to be implied from such circumstances, he

at

may state the same in the alternative.

oc

• Implied contracts or relationships

dv

R.13- Presumptions of law:

Neither party need in any pleading allege any matter of fact which the law
A

presumes in his favor or as to which the burden of proof lies upon the other side
unless the same has first been specifically denied (e.g., consideration for a bill of
exchange where the plaintiff sues only on the bill and not for the consideration as a
substantive ground of claim).
• Presumptions which law provides need not be pleaded
• e.g.,
Article 90- 101 - Qanoon e Shahadat Order, 1984
Section 118 - Negotiable Instrument Act, 1881

R.14- Pleading too signed:

Every pleading shall be signed by the party and his pleader (if any): Provided that

nd
where a party pleading is, by reason of absence or for other good cause, unable to
sign the pleading, it may be signed by any person duly authorized by him to sign
the same or to sue or defend on his behalf.

ha
• Pleadings to be signed by authorized persons as per nature of person.

B
• Signature by an unauthorized person is mere irregularity. It can be corrected

h
by amendment.

la
ul
na

R.15- Verification of pleadings:

It is an admission of the truth of the fact asserted in a plain and written statement.
Sa

Without making verification the plant remains incomplete and liable to reject.
In the end of the pleading it shall be signed by the both plaintiff and defendant and
the date of the presentation of suit will be given
e

• Facts of case - Verification to the extent of knowledge and belief

at

• Legal points - Verification to the extent of information

oc

• Defect in verification is merely an irregularity not illegality

R.16- Sticking out pleadings:

dv

The Court may at any stage of the proceedings order to be struck out or amended
A

any matter in any pleading which may be unnecessary or scandalous or which may
tend to prejudice, embarrass or delay the fair trial of the suit.

STRIKING OUT PLEADINGS: Rule 16

i. Struck out or amend

ii. In Any Pleading
• Unnecessary
Merely being unnecessary isn’t enough
• Scandalous
Abusive or indecent
c. Embarrass or prejudice
Vague, irrelevant, not concerning matter in issue, too general

nd
iii. At any stage
• Unless hit by bars e.g., Order II rule 2, CPC

ha
• However, not in appellate stage for the first time

iv. Suo motu or on Application

B
v. Application of Rule 16

h
In Opponent’s Pleadings

la
ul
na

Case Law:
PLD 2016 Karachi 392
Sa

Suit for Specific Performance, Permanent Injunction, Damages and Penal Interests,
court directed that, the words “all family members are habitual offender” be struck
e

out from plaint.

at

R.17- Amendment of pleading:

The Court may at any stage of the proceedings allow either party to alter or amend
oc

his pleadings in such manner and on such terms as may be just or all such
amendments shall be made as may be necessary for the purpose of determining the
dv

real questions in controversy between the parties.

AMENDMENT OF PLEADING: Rule 17
A

A. Ingredients:

i. Court – having jurisdiction

ii. At any stage

But not after one party has recorded evidence
iii. Allow either party – one’s own pleadings
• To determine real question of controversy

B. Restrictions:
• Change of Character of Suit
• No new case
Once admitted can't be retracted

nd
iii. No new cause of action or subject matter
• New cause of action means new set of facts
• One plea of fraud can't be replaced by another plea of fraud

ha
• Negligence can't replace nuisance
iv. Not to cover limitations

B
v. To save rejection or to cover up bar

h
v. Order only by court of competent jurisdiction
• Amendment cannot be allowed by a court to bring suit to its own
jurisdiction.
la
ul
• However, the contrary is allowed.
na

C. Procedure:
• Application for amendment
Sa

• Reply
• Arguments
e

• Order allowing amendment (e.g., in plaint)

at

• Amended Plaint
• Amended Written Statement
oc

D. Remedy
dv

Revision u/s 115, CPC

A

E. Case Law:

2018 SCMR 82
• Plaintiff filed a suit for Declaration that certain wills are outcome of
coercion and undue influence.
• Plaintiff filed an application for amendment in addition to a plea that such
wills were forged and did not bear the signatures of the deceased.
• Defendant contested that such amendment would change the entire
complexion of the suit as earlier plaintiff’s plea was on coercion and undue
influence and now contradictory plea of forgery is being raised.
• Court held:
“By way of proposed amendment, all the plaintiffs were seeking was verification of

nd
the signatures of the deceased on the disputed wills, therefore, it could not be
considered to be a case of contradictory or mutually destructive pleas. At best it

ha
could be a plea in the alternate that could legitimately be taken in the
circumstances of the case. Application for amendment is allowed.”

B
R.18- Failure to amend after order:
Things for which amendment in pleadings are not allowed, which they are as

h
under:

la
• Where their amendment changes the nature of suit.
• Where new relief is added or asked.
ul
• Where a new cause of action is arisen by a new application.
na
Sa

Effect of failure to amend:

• Amendment will not be allowed after 14 days from the time which was
given for amendment
e
at

ORDER VII
PLAINT (THE FIRST SCHEDULE)
oc

R.1- Specific contents of plaints:

dv

The plaint shall contain following particulars:

A

• Name of the Court

• Name, description & place of residence of the plaintiff

• Name, description & place of residence of the defendant

• Statement as the minority of defendant or state of mind

• Fact constituting cause of action & when it arise;

• Facts showing that the Court has jurisdiction;

• Relief

• Where the plaintiff has allowed a set off or relinquished a portion of his
claim, the amount so allowed or relinquished; and

nd
• Value of the subject-matter of suit for the purpose of jurisdiction and court
fees.

ha
R.2- Contents for recovery of Money:

B
• Where the plaintiff seeks the recovery of money, the plaint shall the precise

h
amount claimed;

•
la
But where the plaintiff is uncertain about the amount the plaint shall
ul
approximately the amount sued for.
na

R.3- Subject Matter Immovable Property:

Sa

• Description of the property sufficient to identify it, &

e

• Detail of boundaries and numbers in a record of settlement of survey.

at

R.4- Plaintiff sues in a Representative Character:

oc

Plaintiff shall show not only that he has an actual existing interest in the
dv

subject-matter, but that he has taken the steps (if any) necessary to enable him to
institute a suit concerning it.
A

R.5- Plaintiff to show liability of Defendant:

The plaintiff shall show that the defendant is or claims to be interested in the
subject-matter and that he is liable to be called upon to answer the plaintiff’s
demand.
R.6- Suit failed after period of limitation:

Plaint shall show the ground upon which exemption is claimed.

R.7- Mentioning of Relief:

Relief which the plaintiff claims either simply or in the alternative, same rule shall
apply to any relief claimed by the defendant in his written statement.

nd
• Ref. order II rule 2, Order VI rule 17.

ha
• Alternate Relief

B
• Events after institution of suit.

R.8- Relief for several claims or causes of action:

h
la
Several distinct claims or causes of action founded upon separate and distinct
grounds then those shall be stated as far as may be separately and distinctly.
ul
na
R.9- List of Document & form of summons:

List of document which plaintiff annexed with plaint

Sa

Copies of plaint & summons:

e

• As many copies on plain paper of the as there are defendants, plus two extra
at

copies.
oc

• Forms of summons & fees for service.

Capacity of parties:
dv

Representative capacity of plaintiff (s) of defendant (s), if any

A

R.10- Return of plaint:

• The plaintiff shall at any stage of the suit be returned to be presented to the
court in which the suit should have been instituted.
• On returning a plaint the judge shall endorse thereon the date of its
presentation and return, the name of the party presenting it, and a brief statement of
the reasons for returning it.

Essentials:

• Apply only to plaints;

nd
2007 CLC 1257:

“Appeals can be returned u/order VII rule 10 read with S-107

ha
• Banking courts can also return & High Court can also write in original

B
jurisdiction.

h
• At any stage

• Preferably at the earliest

la
ul
• Return
na

• Contents of plaint regarding cause of action and jurisdiction are to be seen

and not evidence
Sa

• On return plaintiff have three options:

e

• File appeal
at

• Amend plaint & file

oc

• Present complaint to the court of competent jurisdiction.

dv

• To be presented to the court of competent jurisdiction.

A

• Jurisdiction refers to pecuniary & territorial.

Effect of prior proceedings:

• Proceeding before the return of the plaintiff shall be of no legal effect.

• If the court has jurisdiction during proceedings then the suit will proceed.
• If jurisdiction of court is ousted during proceedings then, the suit will be
returned or referred to DJ to be transferred to competent court.

Limitation of New Suit:

• Limitation of new suits shall run from representation of the plaintiff in court
of competent jurisdiction.

nd
• If time barred; an application for condonation of delay can be filed u/s 14 of
limitation Act, along with plaint within reasonable time.

ha
Remedy against Dismissal of Application:

B
• Appeal u/order 43 rule 1/9, or

h
• Revision can be filed.

la
ul
na
Sa

R.11- Rejection of Plaint:

e
at

The plaint shall be rejected in the following cases:

oc

• Where it does not disclose a cause of action.

• Where the relief claimed in under-valued, and the plaintiff, on being

dv

required by the court to correct the valuation within a time to be fixed by the court,
fails to do so;
A

• Where the relief claimed is properly valued, but the plaint is written upon
proper insufficiently stamped, & the plaintiff on being required by the court to
supply the requisite stamp-paper in a time to be fixed by the court fails

• Where the suits appear from the statement in the plaint to be barred by law.
Grounds of Rejection:

• Non-Disclosure of cause of action:

• Plaint does not explicitly show any cause of action.

• Plaint discloses cause of action but it is unclear

nd
• If the matter requires evidence then the plaintiff will not be rejected.

Relief is undervalued:

ha
• Suit are valued for the purpose of court fee and jurisdiction

B
• Duty of plaintiff to determine it rightly

h
• Court on its own or on the application of the defendant can direct the

la
plaintiff to correct the value. ul
• On failure of plaintiff to determine it rightly.
na

• In case after correction of valued of suit; the amount increases from

the pecuniary jurisdiction of the court then plaint shall returned
Sa

• Time for fixing correct value can be extended by court u/s 149 of
CPC
e
at

Plaint Insufficiently Stamped:

oc

• Plaint stamped (stamp paper) as per value of suit.

• Duty of the plaintiff

dv

• Court on its own or on the application of the defendant can direct the
A

plaintiff to affix sufficient stamp duty.

• On failure of the plaintiff to affix a stamp of correct value, the

plaintiff shall be rejected.

• Time for fixing correct value can be extended by court u/s 149 CPC
Barred by Law:

If plaint as presented is barred by law

Application:

Plaint application, appeal (order 41 rule 3).

nd
Stage:

• Plaint can be rejected at any stage;

ha
• However, preferably it should be done at the earliest stage before framing

B
the issue.

Fresh plaint (order VII rule 13):

h
la
• Even after rejection of a complaint, fresh plaint can be filed for the same
cause of action & relief.
ul
na
• Limitation will keep running.
Sa

Remedy:
e

• Only rejecting a plaint is a decree therefore, appeal shall be filed.

at

• Revision shall lie when the court declined to reject the plaintiff.
oc

R.12- Reasoned order:

dv

Where a plaint is rejected the judge shall record an order to that effect with the
reason for such order.
A

R.13- Fresh suit after Rejection:

The rejection of the plaint on any of the ground hereinbefore mentioned shall not
of its own force preclude the plaintiff from presenting a fresh plaint in respect of
the same cause of action.
R.14- Document in possession:

To be produced with a plain or a copy.

Document whether in possession or not in possession:

List of documents, those in possession and those which are not in possession, to be
added or annexed to the plaintiff.

nd
R.15- Name of the possessor:

ha
Where any such document is not in the possession or power of the plaintiff, he
shall, if possible, state in whose possession or power it is.

B
R.16- Reliance of plaintiff on lost negotiable instrument:

h
Where the suit founded upon a negotiable instrument, and it is proved that, the

la
instrument is lost and on indemnity is given by the plaintiff, to the satisfaction of
ul
the court, against the claims of any other person upon such instrument, the court
may pass such decree as it would have passed if the plaintiff had purchased the
na

instrument in court when the plaint was presented, and had at the same time
delivery a copy the instrument to be filed with the plaint.
Sa

R.17- Suit on basis of entry in book:

e

• Plaintiff shall produce the book or account at the time of filing the plaint,
at

together with a copy of the entry on which he relies.

oc

• The court, shall mark the document for the purpose of identifications

• After examining & comparing the copy with the original certify it to be true
dv

copy & return the book to the plaintiff & cause the copy to be failed.
A

R.18- Production of Document not relied upon:

A document which should have been produced with plaintiff, if in possession, but
was not produced or annexed than the same cannot be produced in evidence unless
by leave of the court.

Exceptions:
• Document produced for cross-examinations of the defendant,
witnesses, or

• In answer to any case set-up by the defendant; or

• Document handed to a witness merely to refresh his memory.

R.19- Address of plaintiff:

nd
• A form showing the address of the plaintiff is annexed with.

ha
• Plaintiff or petitioners subsequently added shall immediately on being an
added file a proceeding of this nature.

B
• The address file under this rule shall be entered in the register of suits

h
maintained u/order IV, rule 2.

R.20- Nature of address to filed:

la
ul
Address should be within local limits of the District Court within which the suit or
na

petition is filed, or of the district court within which the party ordinarily resides.

R.21- Consequences when party not found at the place address:

Sa

Suit shall be dismissed in case of default in providing address. However, a lenient

view is taken in practice.
e
at

R.22- Procedure when party not found at the place address:

oc

• Affixation in case the plaintiff is not available on a given address.

dv

• Summons/ notices shall be sent through registered post, if on the date fixed,
such party is not present.
A

R.23- Service on pleader:

Service can be on the pleader.

R.24- Change of address:

Amendment in address can be allowed on application.

R.25- Service by other modes:

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

R.26- List of legal representatives of plaintiff:

nd
In every suit the nature referred to in rule 3, order XXII, the plaint shall be
accompanied by a statement giving:

ha
• Names & addresses of the persons who, in the event of the death of the
plaintiff, may be made a party as his legal representatives;

B
• Name & addresses of the persons who, in the event of the death of the

h
plaintiff, shall intimate such facts to the court, furnish the court with the names,

la
particulars and addresses of the legal representatives of the plaintiff & make an
ul
application for the legal representatives to be made a party.
na

Amendment list:
Sa

A plaintiff at any time;

e

• File in the court an amended list, of his presumptive legal representative;

at

• Nominate another person, in the place of the person nominated under clause
oc

(b) of sub-rule

• For the purposes of that clause.

dv

Nomination holds till finality:

A

A nomination made under clause (b) of sub-rule (1) shall, unless varied under
clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and
any proceedings a rising therefore, including appeal, revision and review.

ORDER VIII
 WRITTEN STATEMENT AND SET-OFF

Rule 1: Written Statement

The defendant should within 30 days from the service of summons on him, present
a written statement of his defense the period is extendable up to 90 days, but for
reasons to be recorded for such extension.

nd
A written statement should be drafted carefully. All the general rules of pleading
apply to a written statement also. Before proceeding to draft a written statement it

ha
is absolutely necessary to examine the plaint carefully.

B
• 2000 CLC 1559
Admission made in written statements cannot be retracted by amendment and the

h
same can be used as evidence.
• PLD 2010 SC 604
la
ul
However, to use a written statement as evidence, defendant who filed that written
statement should be examined as witness.
na

• 2006 CLC 566

Sa

In case of non-filing, court can either strike off defense under rule 10 or pronounce
judgment under Order XVII rule 3
• 2007 CLC 401
e

Application under Order VII rule 11 can be treated as written statement

at

• Para wise comments cannot be treated as written statement

oc

Rule 2: New Facts Must Be Specifically Pleaded

dv

The defendant must raise by his pleading all matters, which show the suit not to be
maintainable, or that the transaction is either void or voidable in point of law, and
A

all such grounds of defense as, if not raised, would be likely to take the opposite
party by surprise or would raise issues of fact not arising out of the plaint, as, for
instance, fraud, limitation, release, payment, performance, or facts showing
illegality.

Rule 3: Denial to be Specific

The defendant must deny specifically with each allegation of fact which he does
not admit the truth.

Rule 4: Evasive Denial

Where a defendant denies an allegation of fact in the plant, 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

nd
particular amount, but he must deny that he received that sum or any pay thereof,
or else set but how much he received. And if an allegation is made with diverse

ha
circumstances, it shall not be sufficient to deny it along with those circumstances.

B
Rule 5: Effect of Evasive Denial

h
Every allegation of fact in the plaint, if not denied specifically or by necessary

la
implication, or stated to be not admitted in the pleading of the defendant, shall be
taken to be admitted except as against a person under disability:
ul
Provided that, the Court may in its discretion require any fact so admitted to be
na

proved otherwise than by such admission

• An evasive denial can be construed as admission (PLD 2010 SC 119)
Sa

• Judgment can be given on Admission (Order XII rule 1 & 6)

Rule 6: Set-Off
e

• Where in suit for the recovery of money the defendant claims to set-off
at

against the plaintiff's demand any ascertained sum of money legally recoverable by
him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
oc

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
dv

by the Court, present a written statement containing the particulars of the debt
sought to be se-off.
A

• The written statement shall have the same effect as a plaint in a cross-suit so
as to enable the Court to pronounce a final judgment in respect both of the original
claim and of the set-off: but this shall not affect the lien, upon the amount decreed,
of any pleader in respect of the costs payable to him under the decree.
• The rules relating to a written statement by a defendant apply to a written
statement in answer to a claim of set-off.
• Conditions:
(2009 SCMR 666)
• Suit must be for recovery of money
• Money legally recoverable from plaintiff or against all the plaintiffs

nd
• Plaintiff or plaintiffs fill the same character in defendant’s claim
• Set off of an ascertained sum of money

ha
• Set off within pecuniary limits of court
• Claim must be made at first hearing

B
h
• Change of Status of Parties before Court

la
• To the extent of set off, plaintiff will become defendant and defendant will
become plaintiff
ul
• If Plaintiff does not appear – ex-parte judgment against plaintiff
na

If plaintiff withdraws – judgment still can be passed against him

• Effects:
Sa

When a defendant claims set-off, he is put in the position of the plaintiff as regards
the amount claimed by him. Where the plaintiff does not appear his suit is
e

dismissed or he withdraws, it does not affect the claim for a set-off by the
at

defendant and a decree may be passed in his favor if he is able to prove his claim.
oc

Rule 7: Defense of Set Off Founded on Separate Grounds

dv

Where the defendant relies upon several distinct grounds of defense or set-off
founded upon separate and distinct facts, they shall be stated, as far as may be
A

separately and distinctly.

Rule 8: New Grounds of Defense

Any ground of defense which has arisen after the institution of the suit or the
presentation of a written statement claiming a set-off may be raised by the
defendant or plaintiff, as the case may be in his written statement.

Rule 9: Subsequent Pleadings

No pleading subsequent to the written statement of a defendant other than by way

nd
of defense to a set-off shall be presented except by the leave of the Court and upon
such terms as the Court thinks fit, but the Court may at any time require a written
statement or additional written statement from any of the parties and fix a time for

ha
presenting the same.

B
Rule 10: Failure to File Written Statement

h
Where any party from whom a written statement is so required fails to present the

la
same within the time fixed by Court, the Court may pronounce judgment against
him, or make such order in relation to the suit as it thinks fit.
ul
na

Conditions:
Sa

• Only applies where the defendant has been duly served and supplied a copy
of the plaint and court specifically asked for written statement.
• Judgment can be announced however, evidence of plaintiff is directed in
e

practice
at

Remedy:
oc

• In case judgment is pronounced – Appeal under Order 43 rule 1

• Refusal by court to pronounce judgment – No Appeal
dv

• Closing right of defendant to file written statement – No Appeal

A

Rule 11: Address for Service

• 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.
• Such address shall be entered in the Register of suits to be maintained under
Order, IV rule 2.
• Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to
addresses for service filed under this rule.

Rule 12: Consequence of Failure to File Address

• Where a party fails to file an address for service as provided in the preceding

nd
rule, he shall be liable to have his defense, if any, struck out and to be placed in the
same position as if he had not defended.

ha
• The Court may pass an order under sub-rule (1) suo motu or on the
application of any party.

B
Rule 13: List of Legal Representatives

h
(1) In every suit of the nature referred to in rule 4, Order XXII, the written

la
statement shall be accompanied by a statement giving -
ul
a) The names and addresses of the persons who, in the event of the death of the
na

defendant, may be made a party as his legal representatives;

b) The name and address of the person, who in the event of the death of the
Sa

defendant, shall intimate such facts to the Court, furnish the Court with the names,
particulars and addresses of the legal representatives of the defendant and make an
e

application for the legal representatives to be made a party.

at

(2) A defendant may at any time -

oc

a) File in the Court an amended list of his presumptive representatives;

dv

b) Nominate another person, in the place of the person nominated under clause (b)
of sub-rule (1) for the purposes of that clause.
A

(3) A nomination made under clause (b) of sub-rule (1) shall, unless varied under
clause (b) of sub-rule (2), remain in force throughout the pendency of the suit and
any proceedings arising there from, including appeal, revision of review.

ORDER IX
 APPEARANCE OF PARTIES AND CONSEQUENCE OF
NON-APPEARANCE

Application of Order IX:

• Order IX applies to suits only
• Order IX does not apply to banking cases as special law deals with such
cases

nd
• Order IX doesn’t apply to execution proceedings (fresh execution petition
can be filed)

ha
RULE 1: Parties to appear on day fixed

B
On the day fixed in the summons for the defendant to appear and answer, the
parties shall be in attendance at the Courthouse in person or by their respective

h
pleaders, and the suit shall then be heard unless the hearing is adjourned to a future

la
fixed by the Court.
• In person, or
ul
• Through pleader
na
Sa

RULE 2: Dismissal of Suit for Non Payment of Cost of Service

Where on the day so fixed it is found that the summons has not been served upon
e

the defendant in consequence of the failure of the plaintiff to pay the court-fee or
at

postal charges (if any) chargeable for such service, the Court may make an order
that the suit be dismissed:
oc

Provided that no such order shall be made although the summons has not been
dv

served upon the defendant, if on the day fixed for him to appear and answer he
attends in person or by agent when he is allowed to appear by agent.
A

General Rule: Suit may be dismissed if plaintiff fails to pay cost of service of
summons

Exception: if defendant appears on date fixed for his attendance, without summons

Remedy: Plaintiff can file

• Revision or
• an Application u/o IX rule 4 or
• fresh suit

RULE 3: Where Neither Party Appears:

Where neither party appears when the suit is called on for hearing, the Court may

nd
make an order that the suit be dismissed.

General RULE:

ha
• Suit shall be dismissed
• Court will not decide the case on merits

B
Remedy:

h
Plaintiff can file
•
la
application u/o IX rule 4 and
ul
• Revision in case that application is also dismissed or
• new suit
na
Sa

RULE 4: Fresh Suit or Restore the Earlier One

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the
e

law of limitation) bring a fresh suit; or he may apply for an order to set the
at

dismissal aside, and if he satisfies the Court that there was sufficient cause for his
oc

not paying the court-fee and postal charges (if any) required within the time fixed
before the issue of the summons, or for his non-appearance, as the case may be, the
dv

Court shall make an order setting aside the dismissal and shall appoint a day for
proceeding with the suit.
A

• If suit is dismissed under rule 2 or 3 then Plaintiff can file:

• Fresh suit (subject to limitation) or
• Application under rule 4 for restoration of suit

2. Sufficient Cause

3. Any one of the Plaintiff can file application for restoration of suit
4. If suit is restored then it will be considered that suit was filed on the date on
which it was originally filed. Limitation will not be affected. However, if the
plaintiff decides to file a fresh suit then limitation will keep running till the filing of
fresh suit, irrespective of earlier suit.
5. If a suit is restored then all proceedings in that suit will be restored. If
interim stay was granted then that will also be restored
6. Limitation for Filing Application under RULE 4:

nd
• 30 days from order of dismissal
RULE 5: Where Summons were not Served to Defendant for 3 months:

ha
(1) Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved, the plaintiff fails, for a period of three months

B
from the date of the return made to the Court by the officer ordinarily certifying to

h
the Court returns made by the serving officers, to apply for the issue of a fresh
summons the Court shall make an order that the suit be dismissed as against such

la
defendant, unless the plaintiff has within the said period satisfied the Court that -
ul
a) He has failed after using his best endeavors to discover the residence of the
defendant who has not been served, or
na

b) Such defendant is avoiding service of process, or

c) There is any other sufficient cause for extending the time, in which case the
Sa

Court may extend the time for making such an application for such a period as it
thinks fit.
e

(2) In such a case the plaintiff may (subject to the law of limitation) bring a fresh
at

suit.
General Rule: Suit shall be dismissed unless court extends time
oc

Exception:
• Residence of Defendant(s) is unknown
dv

• Defendant is avoiding service

• Any other sufficient cause
A

Remedy:
Fresh suit can be filed subject to limitation
RULE 6: Procedure Where Only Plaintiff Appears

(1) Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then -
(a) If it is proved that the summons was duly served, the Court may proceed ex
parte and pass decree without recording evidence

(b) If it is not proved that the summons was duly served the Court shall direct a
second summons to be issued and served on the defendant;

(c) If it is proved that the summons was served on the defendant, but not in
sufficient time to enable him to appear and answer on the day fixed in the

nd
summons, the Court shall postpone the hearing of the suit to a future day to be
fixed by the Court and shall direct notice of such day to be given to the defendant.

ha
(2) Where it is owing to the plaintiff's default that the summons was not duly

B
served or was not served in sufficient time, the Court shall order the plaintiff to pay
the costs occasioned by the postponement.

h
Case I: When Summons were duly Served

la
• Defendant may be proceeded against ex parte
• Court may pass a decree without recording of evidence (but in
ul
practice the court records evidence of the plaintiff and decides on merits). Court
na

can also dismiss suit if not on merits

Case II: When Summons Not Duly Served

Sa

• Court will order that, summons be sent again

Case III: Summons Served but Not in Due Time

e

• Court will order that, summons be sent again

at

RULE 7: Procedure Where Defendant Appears on Adjourned Hearing

oc

Where the Court has adjourned the hearing of the suit ex parte and the defendant at
dv

or before such hearing, appears and assigns good cause for his previous
non-appearance, he may upon such terms as the Court directs as to costs or
A

otherwise be heard in answer to the suit as if he had appeared on the day fixed for
his appearance.

Application:
• Where defendant has been proceeded against ex-parte
• Defendant appears on any hearing of case
• Good cause for previous non appearance
• Court can set terms e.g., Fine, etc

Participation of Defendant:

1992 SCMR 1009

Defendants can participate in proceedings even after being proceeded against

nd
ex-parte. Even plaintiff can give evidence and cross examine witnesses

Remedies in case Application u/r 7 is dismissed:

ha
• Defendant can challenge ex parte Decree u/r 13
• Defendant can file appeal against ex parte Decree

B
• Defendant can Revision against dismissal Order

h
RULE - 8: Procedure Where Only Defendant Appears

la
Where the defendant appears and the plaintiff does not appear when the suit is
ul
called on for hearing, the Court shall make an order that the suit be dismissed,
na

unless the defendant admits the claim, or part thereof in which case the Court shall
pass a decree against the defendant upon such admission, and, where part only of
the claim has been admitted, shall dismiss the suit so far as it relates to the
Sa

remainder.

General Rule: Suit shall be dismissed

e
at

Exception:
• If defendant admits to claim of the plaintiff
oc

• Wholly or partly, the court will decree the case accordingly

dv

Application:
• This rule will apply if all defendants appear
A

• If few defendants absent then Rule 3 (non appearance of both parties) will
apply, to their extent
• Suit will be DISMISSED

Effect:
• Fresh Suit shall be Barred against those defendants who appeared, but not
barred against those who didn’t appear
• If all defendants appeared then fresh suit is barred against all

Remedy:
• Application Under Rule 9

Limitation:

nd
• 30 days from Order

ha
RULE - 9: Dismissal under Rule 8 Bars Fresh Suit

(1) Where a suit is wholly or partly dismissed under RULE 8, the plaintiff shall be

B
precluded from bringing a fresh suit in respect of the same cause of action. But he
may apply for an order to set the dismissal aside, and if he satisfies the Court that

h
there was sufficient cause for his non-appearance when the suit was called on for

la
hearing, the Court shall make an order setting aside the dismissal upon such terms
ul
as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with
the suit.
na

(2) No order shall be made under this rule unless notice of the application has been
Sa

served on the opposite party.

(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908), shall apply
e

to applications under sub-rule (1).

at

General Rule:
oc

• Fresh Suit cannot be filed against those defendants who were present when
suit was dismissed for non prosecution under rule 8
dv

Remedy & Procedure:

• Plaintiff can file application for restoration of suit with sufficient cause
A

• Court will issue notices to defendants

• Reply and arguments
• Court can order restoration with condition e.g., fine

Who Can File:

• All or any one of the Plaintiffs
Sufficient Cause:
• Beyond Control

Limitation
• 30 days from order (Article 163, Limitation Act)

Remedy:

nd
For Plaintiff (on dismissal of application for restoration):
• Appeal U/O 43 (1)

ha
For Defendant (on acceptance of application for restoration of suit)
• Revision u/s 115 CPC

B
RULE - 10: Procedure Where One or More of Plaintiffs Do Not Appear

h
la
Where there are more plaintiffs than one and, one or more of them appear, and the
others do not appear, the Court may, at the instance of the plaintiff or plaintiffs
ul
appearing, permit the suit to proceed in the same way as if all the plaintiffs had
na

appeared, or make such order as it thinks fit.

• Suit will not be dismissed
• Court will consider attendance of those who appear as attendance of all
Sa

plaintiffs

RULE – 11:Procedure Where One or More of Defendant Do Not Appear:

e
at

Where there are more defendants than one and one or more of them appear and the
others do not appear the suit shall proceed, and the Court shall a the time of
oc

pronouncing judgment make such order as it thinks fit with respect to the
defendants who do not appear.
dv

• Court may proceed as usual

• But court will mention this in judgment
A

In practice, court order ex-parte decree against absent defendants

RULE – 12:Failure to Appear In Person

Where a plaintiff or defendant who has been ordered to appear in person does not
appear in person or show sufficient cause to the satisfaction of the Court for failing
to appear he shall be subject to all the provisions of the foregoing Rules applicable
to plaintiffs and defendants, respectively, who do not appear.

All above rules will be applicable

RULE – 13:Setting Aside Ex-parte Decree

(1) In any case in which a decree is passed ex parte against a defendant he may

nd
apply to the Court by which the decree was passed for an order to set it aside; and
if he satisfies the Court that the summons was not duly served, or that he was

ha
prevented by any sufficient cause from appearing when the suit was called on for
hearing, the Court shall make an order setting aside the decree as against him upon

B
such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

h
Provided that where the decree is of such a nature that it cannot be set aside as

la
against such defendant only it may be set aside as against all or any of the other
ul
defendants also:
na

Provided further that no decree passed ex parte shall be set aside merely on the
ground of any irregularity in the service of summons, if the Court is satisfied for
Sa

reason to be accorded, that the defendant had knowledge of the date of hearing in
sufficient time to appear on that date and answer the claim.
• The provisions of section 5 of the Limitation Act 1908 (X of 1908), shall
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apply to applications under sub-rule (1)

at

A. Remedy and Procedure:

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• Defendant will file an application for setting aside ex-parte Decree

• Grounds:
dv

• Summons were not duly served

• Other sufficient cause
A

• Court will send Notices to Plaintiffs

• Reply and Arguments
• Order
Court can impose fine or other condition

B. Inseparable Decree: (Proviso)

If Decree can’t be separated against defendants then whole decree shall be
separated
e.g., if one of many defendants has applied for setting aside a decree regarding
joint property of defendants then Decree shall be set aside against all defendants
even if they didn’t apply

C. Mere Irregularity in Service wills not Effect Decree (Proviso)

nd
D. Effect of Setting Aside
• Re-hearing will restart from where ex-parte proceedings started (de novo)

ha
• If Decree is set aside on the ground that claim is fraudulent then, there will
be no retrial

B
E. Remedies against Ex-parte Decrees

h
• Application u/o IX rule 13

la
• Review u/s 114
• Appeal u/s 96
ul
• Application for re-hearing
na

• Revision
• Writ
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F. Limitation:

30 days from Decree

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at

G. Remedy against Dismissal of Application for Setting Aside Ex-parte

Decree
oc

• Revision u/s 115 within 90 days if conditions of Section 115 are fulfilled
• Appeal u/o 43 (1) (d) within 30 days, if suit is appealable
dv

RULE 14:
A

No Decree without Notice

No decree shall be set aside on any such application as aforesaid unless notice
thereof has been served on the opposite party.
 ORDER IX A
INTERMEDIATE DATES

R.1- Fixation of Intermediate dates:

(1) After the close of the pleadings, the Court shall fix:
• A day by which parties shall apply for orders of the Court with regard to any
of the following matters, namely, Pleadings further and better particulars,

nd
admissions, discoveries, inspection of documents or movable or immovable
property and the mode by which particular facts may be proved.

ha
• Another day by which parties may reply such applications; and
• A third day on which, unless the hearing is adjourned, the applications shall

B
be disposed of.

h
la
ul
na

R.2- Applications regarding pleadings, etc., their replies and disposal:

No opportunity shall be given to any party for making any such application as
Sa

aforesaid or for submitting a reply thereto after the expiry of the day fixed for that
purpose, unless the time is enlarged under the provisions of this Code; but nothing
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herein shall affect the right of the parties to make such applications before the
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closing of the pleadings".

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ORDER X
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EXAMINATION OF PARTIES BY THE COURT

A

1. Ascertainment whether allegations in pleadings are admitted or denied:

At the first hearing of the suit the Court shall ascertain from each party or his
pleader whether he admits or denies such allegations of fact as are made in the
plaint or written statement (if any) of the opposite party, and as are not expressly or
by necessary implication admitted or denied by the party against whom they are
made. The Court shall record such admissions and denials.

1A The Court may adopt any lawful procedure not inconsistent with the
provisions of this Code to

• Conduct preliminary proceedings and issue orders for expediting processing

of the case;

nd
• Issue, with the consent of parties, commission to examine witnesses, admit

ha
documents and take other steps for the purpose of trial;

• Adopt, with the consent of parties, any alternative method of dispute

B
resolution including mediation, conciliation or any such other means.

h
• Oral examination of party or companion of party:

la
At the first hearing of the suit, or at any subsequent hearing, any party appearing in
ul
person or present in Court, or any person able to answer any material questions
na

relating to the suit by whom such party or his pleader is accompanied, [shall] be
examined orally by the Court; and the Court may, if it thinks fit, put in the course
of such examination questions suggested by either party.
Sa

• Substance of examination to be written:

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The substance of the examination shall be reduced to writing by the Judge, and
at

shall form part of the record.

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• Consequence of refusal or inability of pleader to answer:

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Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to answer
A

any material question relating to the suit which the Court is of opinion that the
party whom he represents ought to answer, and is likely to be able to answer if
interested in person, the Court may postpone the hearing of the suit to a future day
and direct that such party shall appear in person on such day.
If such a party fails without a lawful excuse to appear in person on the day so
appointed, the Court may pronounce judgment against him, or make such order in
relation to the suit as it thinks fit.

ORDER XI
DISCOVERY AND INSPECTION

Introduction:

nd
One of the essential elements of the rule of law is its procedures. To run a fair trial,

ha
equal opportunities shall be given to both parties to access the documents related to
the case. In the Civil Procedure Code, 1908, separate chapters are provided so that

B
a fair trial is attainable by both the parties of the suit. After the plaint has been filed
by the plaintiff and written statement by the defendant, if the parties feel that

h
proper facts were not disclosed in the suit, either of them can ask for the documents

la
to obtain proper facts of the case. Before we go further, we need to understand that
there are two types of facts:-
ul
•‘Facto probanda’ – the facts which constitute a party’s case.
na

•‘Facto probantia’ – the facts which will be considered as evidence if proven.

Sa

Under the procedure of discovery, only Facto Probanda can be asked by the parties.
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Interrogatories:
at

Section 30 and Order XIHYPERLINK

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"https://www.writinglaw.com/order-xi-discovery-and-inspection/" Rule 1 to 11, 21

and 22 of CPC covers interrogatories. When, with the leave of the Court, parties
administer a set of questions on the other party then it is called ‘Interrogatories’.
dv

Interrogatories shall be confined to the facts; it shall not be conclusions of law,

construction of words or documents, or inference from facts. Under CPC, this is
A

known as the ‘right to obtain information’ by the parties. The party to whom the set
of questions were administered shall give reply to another party in writing and
under oath. ‘Discovery of interrogatories’ means when the party, while giving
answers to the interrogatories, discloses the nature of the case, with affidavit.
As per the provisions of the code, any party in a suit can file an application to
obtain an order from the court to ask interrogatories from the other party. So after
filing the plaint, when the written statement is filed by the defendant and when the
court sends summons to parties for the first hearing, if any party feels that there is a
gap in the facts, then they can file an application under this section and ask order
from the court.

nd
Objective:

ha
The objectives of the interrogatories are:-

•To determine the nature of the case when it is not clear from the suit filed.

B
•To make your own case stronger by making the other party do admissions.

h
•To destroy the case of the opponent.

la
ul
Procedure
na

The willing party to deliver interrogatories shall apply for leave to the court and
shall submit the proposed interrogatories to the court. As per Rule 2, the court shall
Sa

decide the matter within 7 days of filing the application by the party.

While deciding the matter the court shall take into consideration the following
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points:
at

•Any offer which may be sought by the party to be interrogated to deliver

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particulars;
•To make an admission;
dv

•To produce documents associated with the matters in question; or

A

•Any of them.

Further, the court shall consider whether it is necessary in a particular matter, to

dispose of the suit fairly or for saving costs. After one set of interrogatories are
served, the parties cannot serve another set without the permission of the court.
The set of questions shall be the ‘question of fact’ rather than the ‘question of law’.
Interrogatories shall not be allowed at the premature stage of the case.

Within 10 days of the service, the affidavit to answer shall be filed by the
party to whom the interrogatories were administered. If the party fails to
comply with such order of the court:-

nd
•The suit will be dismissed if the party is the plaintiff; and
•If he is the defendant, his defense can be struck off.

ha
Rejection of documents:

B
Rule 3 gives the discretion to the court to reject the documents on the basis of

h
inadmissibility or irrelevance of the document. The court while rejecting the

la
documents shall also mention the grounds of such rejection.
ul
Against whom interrogatories may be allowed?
na

As per Rule 5 of Order XI, any party to a suit which can be a:-
Sa

(i) Corporation; or

(ii) Body of persons;

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at

which may be incorporated or not incorporated; empowered by the law to sue or to

be sued; on its own name or giving any other person responsibility to sue or any
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officer, against whom interrogatories can be filed.

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If a body corporate is a party to the suit, then in interrogatories it shall be

specifically mentioned that to which person or the officer the questions are to be
A

served.

As per Rule 6, the parties can object to some of the interrogatories but not all. If
the parties want to object to the interrogatories, then within seven days of service
of such interrogatories, the party shall file the application of the opposition as per
Rule 7 of the Order XI of the Code.
Setting aside and Striking off Interrogatories can be made on the following grounds
(Rule 7):

•Unreasonably or vexatious exhibited;

•Prolix, Oppressive, Unnecessary or Scandalous.

The Application for setting aside or striking off interrogatories shall be made

nd
within 7 days after service of interrogatories.

ha
Return of documents

If any party to the suit or not is having the desire to receive back any of the

B
documents submitted by him in the suit which is placed on the record is entitled to
receive the documents unless it is impounded by the court under Rule 8.

h
la
ul
na
Sa
e

The court can return the documents on the following grounds:-

at

•Where the suit is one in which an appeal is not allowed, when the suit has been
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disposed of, and;

•where the suit is one in which an appeal is allowed when the Court is satisfied that
dv

the time for preferring an appeal has elapsed and that no appeal has been preferred
or if an appeal has been preferred when the appeal has been disposed of;
A

•During the pendency of the suit, the party can receive the documents if the
following conditions are fulfilled:
•the party is substituting the original document with a certified copy from a proper
officer;
•Undertakes to produce the original copy if required.
While returning the document which has been admitted in evidence, a receipt shall
be given to the person who is receiving it.

Discovery of documents

When the adversary party is simply compelled to disclose the documents which are
under its possession or power, then that is called the discovery of documents. The
discovery of documents is covered under the Rule 12-14 Order XI of the code.

nd
If the defendant considers that he is entitled to protection in respect of the

ha
production of any particular documents which may be entered in the affidavit
under Order 11, Rule 13 of the Code, he will be at liberty to raise such objection

B
at the proper stage of the proceedings if and when he is ordered to produce such
documents under Order 11, Rule 14 or to give inspection of them under Order 11,

h
Rule 18.

la
It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during
ul
the pendency of any suit to order the production of a document. The words “at any
na

time” are very significant and important. Rule 14 does not require that the order
for production should be made only after an order of discovery is obtained under
Sa

Order 11 Rule 12 C.P.C.”.

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at

As per the Rule 15-19 of Order XI of the code, the inspection of documents
can be divided into two categories:
oc

• The documents which are referred to in the affidavits or pleadings of the parties.
dv

•The documents which are not referred to in the pleadings of the party but are in
the power or possession of the parties.
A

And the parties are allowed to get the inspection of the former category documents,
not the latter one.

Premature discovery:
As per Rule 20, a discovery is termed as premature discovery or inspection:

1) When the right to discovery is based on the determination of any issue or

question in dispute; or

2) For any reason, it is desirable that any issue or question in a suit should be
determined before deciding upon the right of discovery.

nd
Non-compliance with order of discovery or inspection

ha
As per Rule 21, the order of the court is binding in nature, and the parties who do
not comply shall be liable to pay the penalty. Hereby, we can understand that the

B
intent of the legislature to provide such provision is:

h
•To compel the parties to disclose all the material documents and facts on oath.

la
•To restrict the parties from coming up with new documents which are actually in
ul
power or possession of the party during the trial.
na
Sa
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ORDER XII
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ADMISSION
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R.1- Notice of admission of case:

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Any party to a suit may give notice, by his pleading, or otherwise in writing, that
he admits the truth of the whole or any part of the case of any other party.
A

Judgment or Order obtained on base of fraud – remedies u/s 12(2) and Order
12, Rule 2:

1. Set aside judgment: Judgment can set aside where it is proved that it was so
obtained on the grounds of fraud.
2. Set aside sale: Where sale has taken place in consequence of judgment on
the basis of fraud, the court may set aside such sale.

3. Arrest: Person defrauding the court may be arrested.

4. Attachment: Property of the decree holder can be attached if it is obtained

on fraud basis.

nd
5. Civil prison: Person obtaining judgment on the basis of fraud can be
detained in civil prison.

ha
6. Fine:

B
7. Damages:

h
8. Application:

9. Revision:
la
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10. Retrial:
na

11. Recovery:
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12. Re-institution:

13. Limitation extension:

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at

R.3- Form of notice:

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A notice to admit documents shall be in Form No.9 in Appendix C, with such

variations as circumstances may require.
dv

R.5- Forms of admission:

A

A notice to admit facts shall be in Form No.10 in Appendix C, and admissions of

facts shall be in Form No.11 in Appendix C, with such variations as circumstances
may require.

R.6- Judgment on admissions:

 Any party may, at any stage of a suit, where admissions of fact have been made,
either on the pleadings, or otherwise, apply to the Court for such judgment or order
as upon such admissions he may be entitled to, without waiting for the
determination of any other question between the parties: and the Court may upon
such application make such order, or give such judgment, as the Court may think
just.

nd
R.7- Affidavit of signature:

An affidavit of the pleader or his clerk, of the due signature of any admissions

ha
made in pursuance of any notice to admit documents or facts, shall be sufficient
evidence of such admissions, if evidence thereof is required.

B
R.8- Notice to produce documents:

h
Notice to produce documents shall be in Form No.12 in Appendix C, with such

la
variations as circumstances may require. An affidavit of the pleader, or his clerk, of
ul
the service of any notice to produce, and of the time when it was served, with a
copy of the notice to produce, shall in all cases be sufficient evidence of the service
na

of the notice, and of the time when it was served

Sa

R.9- Costs:

If a notice to admit or produce specifies documents which are not necessary, the
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costs occasioned thereby shall be borne by the party giving such notice
at

ORDER XIII
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PRODUCTION, IMPOUNDING AND RETURN OF

DOCUMENTS
dv

Production, impounding (confine), and return of documents under Order 13:

A

This Order deals with the procedure about the production of documents, their
retention and return. Original documents are preferred as compared to photocopies.
Where photocopy is allowed it must be copied from the original one and not from
copy to copy. Documents, which are not made part of record, are returned
subsequently.
 ORDER XIV
SETTLEMENT OF ISSUES AND DETERMINATION OF SUIT ON ISSUES
OF LAW OR ON ISSUES AGREED UPON
Meaning of Issues:

According to Black Law Dictionary; “a point in dispute between two or more

parties”

nd
Issues when arises:

ha
When issues arise then material propositions of law or fact or law is affirmed by
the one party and denied by the other.

B
Kinds of Issues:

h
• Issues of Fact

• Issues of Law
la
ul
Object:
na

• Framing of issues – the most important stage at trial

Sa

• Matter which should be considered while framing the issues

• Allegations made on oath by the parties

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at

• Allegations made in pleadings

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• Contents of documents produced by either party

dv

• Examinations of witness

• Admissions and denials

A

• Examination of documents

Importance of Issues in a Suit:

• To ascertain the real controversy

• To narrow down the area of conflict

• Issues are required to be proved

• Decision of each issue

• To determine where parties differ

nd
Effect of not Framing Issues:

If no issues are framed at all and the parties are prejudiced it will be a material

ha
irregularity.

B
Amendment of Issues:

• Stage at which issues can be amended

h
la
• Application ul
• Requirement in case of framing new issues
na

• Discretionary power
Sa
e
at

ORDER XV
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DISPOSAL OF THE SUIT AT THE FIRST HEARING

dv

Disposal of the suit at the first hearing under Order 15:

• There are certain grounds on which Court may pronounce judgment on first
A

hearing:
Where parties are not concerned with any question of law or fact.

• Where there is an irrelevant defendant, the Court may pronounce judgment

against the irrelevant defendant and case remains in proceeding against other
defendants who are at issue of either question of law or fact.
• Where the Court comes to the conclusion that further arguments or evidence
is not required, and immediate judgment shall not affect the essence of justice, the
Court may pronounce judgment at the very first hearing.

• Where parties are present in Court and have no objection in settlement, the
Court pronounces the judgment.

• Where parties fail to produce evidence after issuing the summons.

nd
ha
ORDER XVI

B
SUMMONS AND DISCOVERY

h
Introduction:

la
Summons are issued to defendants to inform them that a legal action is going on
ul
against them mentioning the date and place of hearing. The issuance of summons is
based on the maxim
na

“AUDI ALTERAM PARTEM”

Sa

Moreover, it is the issuance of summons, which vests the jurisdiction to the court
over the defendant.
e
at

Definition of Summons:
oc

It is an instrument to commence a civil action or a special proceeding and is a

dv

means of acquiring jurisdiction over a party.

A

Modes of service of summons:

• By delivering or tendering a copy

• Service by post.

• Personal service
Presumption in favor of service:

“Where summons is sent by means of registered post, properly addressed, the

service shall be presumed to have been affected, even where the envelope endorsed
as refused or postal acknowledgment not signed” [PLD 1990 KAR 312]

Different modes of effecting personal service:

nd
• Service upon the defendant personally.

• All efforts should be made to effect personal service and it is only where it is

ha
not possible that the summons should be affixed.

B
• Service upon the agent of the defendant.

h
• Agent generally empowered in this behalf

•
la
Agent who carries on the business of the defendant.
ul
• Provided that the suit relates such business or work
na

• If service is affected upon the agent or manager, then regardless of whether

it was communicated to the principal or not, it will be deemed to be valid service.
Sa

• Agent in charge of the immovable property

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• Service upon the family member of the defendant.

at
oc

Personal served to sign acknowledgment

dv

• Service by affixation

• Refusal to sign acknowledgment

A

• Defendant cannot be found and has no agent.

• Manner of affixation

• Report to the court

• Mandatory nature

“The provisions of this rule are mandatory in nature and failure to comply with
would render the service vitiated” [1985 SCMR 1228].

Substituted Service:

• Substituted service is opted as a last resort

nd
• Relay section

ha
• Satisfaction of the court

• Evasion of service by the defendant

B
• Summons can be served in ordinary way

h
la
• Court shall order substituted service
ul
• Conditions
na

• Modes of substituted service

• Affixing a copy of the summon on some conspicuous part of the house R. 20

Sa

(1)(a)

• The use of electronic devices R. 20 (1)(b)

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at

• Urgent mail service or public courier service R. 20(1)(c)

oc

• Beat of drum in the locality where the defendant resides R. 20(1)(d)

• Publication in the press R. 20(1)(e)

dv

• Any other manner or mode R. 20 (1)(f)

A

• Effect of substituted service

• Time limit

• Proviso

• Effect of irregularities
Critical Analysis:

• According to the principle of natural justice the defendant has a right to

appear and defend the case instituted against him.

• A summons is issued to the defendant after a suit is instituted so that it must

come to his knowledge that a legal proceeding is going on against him.

nd
• Code of Civil Procedure provides different modes of service summons. And
if the service summons is ordinary, it cannot be made or the defendant avoids the

ha
service it provides for substituted service.

B
h
la
ul
na
Sa
e
at
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ORDER XVII
dv

ADJOURNMENTS

Adjournment under Order 17:

A

Where the Court thinks fit and where there is sufficient reason with prejudice or
defeat of justice, Court may allow time to parties. There may be certain reasons
such as absence of counsel, witnesses, or Judge. When the party makes a request
for the next date, the Court may impose cost reasonably. Engagement of a lawyer
in another Court is also a reason for his absence. Court may close the evidence of
the defaulted party for the pronouncement of judgment. Person once defaulted may
be debarred to give evidence in subsequent cases.

ORDER XVIII

HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

Examination of witnesses under CPC

nd
Rule.1- Right to begin:

ha
If any fact proved in the case which is proposed by the party in the evidence then a
judge may ask the party in what the alleged fact would be relevant or not. A Judge

B
will decide the fact must be relevant. If the evidence would not be relevant then the
judge would not allow the party from proving it because it would only waste the

h
time of the court. In such conditions the court may disallow evidence.

Rule.2-
la
Statement and production of evidence:
ul
If the party suggests the fact of the evidence which is proved in the court and also
na

depends on another fact of the evidence then the other fact must be proved before
evidence of the first fact is given. For example dying declaration, if a person wants
Sa

to prove a dying declaration then he must prove that the declarant is dead. Here
admission of fact depends on condition.
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at
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Rule.3- Evidence where several issues:

dv

Rule 3 is the exception of rule 1 and 2. If there is a relevancy, an alleged fact is

there which depends on the proof of another alleged fact. In this condition, the
judge may allow in his discretion the first fact to be proved without proof of the
A

second fact. But in this condition, the party must undertake to prove the second fact
to the satisfaction of the court Illustration (e).

Rule.4- Witnesses to be examined in open Court:

The evidence of the witnesses in attendance shall be taken orally in open Court in
the presence and under the personal direction and superintendence of the Judge.

Rule.5- How evidence shall be taken in appealable cases:

How to take the evidence in appealable cases:

nd
(a) brought down in the language of the Court;

(i) Recorded as a hard copy by, or in the nearness and under the individual bearing

ha
and superintendence of, the Judge; or

B
(ii) From the dictation of the Judge directly on a typewriter; or

h
(b) If the Judge, for reasons to be recorded, so coordinates, recorded precisely in

la
the language of the Court within the sight of the Judge.
ul
Rule.6- When deposition to be interpreted:
na

Where the evidence is brought down in a language not the same as that in which it
is given, and the witness does not understand the language wherein it is brought
Sa

down, the proof as brought down recorded as a hard copy will be converted to him
in the language in which it is given.
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at
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Rule.7- Evidence under section 138

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Evidence taken down under section 138 shall be in the form prescribed by rule 5
and shall be read over and signed and, as occasion may require, interpreted and
A

corrected as if it were evidence taken down under that rule.

Rule.8- Memorandum when evidence not taken down by judge:

When evidence not brought by the judge in writing for his command in the open
Court or recorded automatically in his presence now he shall be bound for the
examination of witnesses to make an update of the substance of what each observer
expel, and such remainder shall be written and signed by the Judge and will shape
some portion of the record.

Rule.9- When evidence may be taken in English:

Where English isn’t the language of the Court, yet every one of the gatherings to

nd
the suit who show up face to face, if an advocate and the group of people does not
know the English language then evidence not produced in the Court in English

ha
language.

Rule.10- Any particular question and answer may be taken down:

B
The Court may do so if any party files an application regarding a particular

h
question and answer or any objection to any question brought down in the Court if

la
there appears to be any special reason for doing so then the Court will accept that
ul
application.
na

Rule.11- Questions objected to and allowed by Court:

Sa

If there is a question objected by the adverse party and pleader during the
examination of witnesses then the judge of the Court allows the same to be put and
shall be brought down the question, the answer, the objection and the name of the
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person making it, with the decision of the Court.

at
oc

Rule.12- Remarks on demeanor of witnesses:

dv

The Court may record such comments as it might suspect material respecting the
A

behavior of any witness while under examination.

Rule.13- Memorandum of evidence in unappeasable cases:

Cases in which appeal is not allowed then there is no need to bring down and
maintain a record of evidence of witnesses at length, but the judge of the Court
records all the examination of witnesses proceeds in a writing and prescribe to the
typewriter, or cause to be automatically recorded for the remainder of the case with
the sign of the judge.

Rule.14- Judge unable to make such memorandum to record reasons of his

inability:

nd
Judges cannot make such reminders to record reasons for his lack of ability.

ha
Rule.15- Power to deal with evidence taken before another Judge:

(1)Where a Judge is prevented by death, move or other reason from closing the

B
preliminary of a suit, his successor may manage any proof or reminder brought
down or made under the prior standards as though such proof or notice had been

h
brought down or made by him or under his course under the said principles and

la
may continue with the suit from the phase at which his predecessor left it.
ul
(2) The arrangements of sub-rule (1) will, so far as they are material, be esteemed
na

to apply to proof taken in a suit moved under Section 24.

Sa

Rule.16- Power to examine witness immediately:

• If the witness leaves the jurisdiction of the court or any other reason which is
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sufficient reason why his evidence should be brought immediately then Court
at

sends the application to the party or of the witness at any time after the filing of the
suit. Brought the evidence of such a witness immediately.
oc

•If the Court thinks the reason which is given by the party or evidence is not
dv

sufficient then the Court fixes the date for the examination of witnesses.
•The evidence which is submitted to the Court read in front of a witness if there is
A

any change in the evidence then corrected by the Court and signed by the witness
and read at any hearing of the suit.

Rule.17- Court may recall and examine witness:

Court has power to recall the witness at any stage of the suit. And ask the question
to him as the Court thinks fit.

Rule.18- Power of Court to inspect:

The Court may at any stage of a suit inspect any property or thing concerning
which any question may arise.

nd
ha
B
h
la
ul
na
Sa
e
at
oc
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ORDER XIX
A

AFFIDAVITS

Introduction:
Order 19 deals with the affidavits. An affidavit is a sworn statement of the facts by
a person who is familiar with the facts and circumstances that have taken place.
The person who makes it and signs it is known as Deponent. In the affidavit, the
contents are true and correct to the knowledge of the person who signed it and he
has nothing concealed material there from.

Meaning of affidavit:-

nd
Though the expression “affidavit” has not been defined in the code, it has been

ha
commonly understood to mean “a sworn statement in writing made especially
under oath or on affirmation before an authorized officer or Magistrate.”

B
The essentials attributes of an affidavit are following:

h
a) It must be a declaration made by a person,

la
b) It must relate to facts and not inferences from the same,
ul
c) It must be in the first person,
na

d) It must be in writing, and

Sa

e) It must be a sworn statement made or affirmed before a Magistrate or any

other authorized officer.
e

Contents of the affidavit:-

at
oc

An affidavit should be confined to such facts as the deponent is able to prove to his
personal knowledge except on interlocutory applications on which statements of
dv

his belief may be admitted. (R. 3)

Important points about Affidavits:-

A

I. A Court may order that any fact may be proved by affidavit. Ordinarily, a
fact has to be proved by oral evidence.
II. The definition of the affidavit is not defined under S. 3 of the Evidence
Act. It can be used as evidence only if, for sufficient reason, the court invokes the
provisions of Order 19 of the code.

III. Rule 1 is a short exception to this rule and empowers the court to make
an order that any particular fact may be proved by affidavit, subject, however, to
the right of the opposite party to have the deponent produced for

nd
cross-examination.

ha
IV. An affidavit should be confined to such facts as the deponent is able to
prove to his personal knowledge except on interlocutory applications on which

B
statements of his belief may be admitted. (R. 3)

h
V. Unless affidavits are properly verified and are in conformity with the

la
rules, they will be rejected by the court. But, instead of rejecting an affidavit, a
court may give an opportunity to a party to file a proper affidavit.
ul
VI. Ordinarily interlocutory applications such as interim injunctions, the
na

appointment of the receiver, etc, can be decided on the basis of an affidavit.

Sa

Consequences of Filling A false affidavit:-

e

Filing a false affidavit before the court of law is an offense under Sections. 191,
at

193, 195, 199 of PPC (Pakistan Penal Code), 1860. It is a grave and serious matter
oc

and a lenient view is not warranted. Where such an affidavit is filed by an officer
of the government, very strict action should be taken. Further, criminal contempt of
dv

court proceedings can be initiated against the person filing a false affidavit.
A

ORDER XX

JUDGMENT AND DECREE

R.1- Judgment when pronounced:

On completion of evidence, the Court shall fix a date, not exceeding fifteen days,
for hearing of arguments of parties.

The Court shall, after the case has been heard, pronounce judgment in open Court,
either at once or on some future day not exceeding thirty days, for which due
notice shall be given to the parties or their advocates.

R.2- Power to pronounce judgment written by judge's predecessor:

nd
A Judge may pronounce a judgment written but not pronounced by his

ha
predecessor.

R.3- Judgment to be signed:

B
The judgment shall be dated and signed by the Judge in open Court at the time of

h
pronouncing it and, when once signed, shall not afterwards be altered or added to,

la
save as provided by section 152 or on review.
ul
R.4- Judgment of Small Cause Courts:
na

• Judgments of a Court of Small Causes are satisfactory if they contain the

points for determination and the decision thereon.
Sa

• Judgments of other Courts shall contain:

e

• Summary of the pleadings which is a concise statement of the case;

at

• Issues which are the points for determination;

oc

• Findings on each issue and the decision thereon;

dv

• Ratio decided (reasons for such a decision); and

A

• The remedy, which is the relief granted.

R.5- Court to state its decision on each issue:

In suits in which issues have been framed, the Court shall state its finding or
decision, with the reasons therefore, upon each separate issue, unless the finding
upon any one or more of the issues is sufficient for the decision of the suit.
R.6- Contents of decree:

The decree shall agree with the judgment; it shall contain the number of the suit,
the names and descriptions of the parties, and particulars of the claim, and shall
specify clearly the relief granted or other determination of the suit.

The decree shall also state the amount of costs incurred in the suit, and by whom or
out of what property and in what proportions such costs are to be paid.

nd
The Court may direct that the costs payable to one party by the other shall be set

ha
off against any sum which is admitted or found to be due from the former to the
latter.

B
R.7- Date of decree:

h
The decree shall bear the day on which the judgment was pronounced, and, when

la
the Judge has satisfied himself that the decree has been drawn up in accordance
ul
with the judgment, he shall sign the decree.
na

R.8- Procedure where Judge has vacated office before signing decree:

Where a Judge has vacated office after pronouncing judgment but without signing
Sa

the decree a decree drawn up in accordance with such judgment may be signed by
his successor or, if the Court has ceased to exist, by the Judge of any Court to
which such Court was subordinate.
e
at

R.9- Decree for recovery of immovable property:

oc

Where the subject matter of the suit is immovable property, the decree shall contain
a description of such property sufficient to identify the same, and where such
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property can be identified by boundaries or by numbers in a record of settlement or

survey, the decree shall specify such boundaries or numbers. R.10- Decree for
A

delivery of movable property:

Where the suit is for moveable property, and the decree is for the delivery of such
property, the decree shall also state the amount of money to be paid as an
alternative if delivery cannot be had.

R.11- Decree may direct payment by installments:

Where and in so far as a decree is for the payment of money, the Court may for any
sufficient reason at the time of passing the decree order that payment of the amount
decree shall be postponed or shall be made by installments, with or without
interest, notwithstanding anything contained in the contract under which the money
is payable.

Order, after decree, for payment by installments, after the passing of any such

nd
decree the Court may, on the application of the judgment debtor and with the
consent of the decree holders, order that payment of the amount decree shall be
postponed or shall be made by installments on such terms as to the payment of

ha
interest, the attachment of the property of the judgment debtor, or the taking of
security from him, or otherwise, as it thinks fit.

B
R.12- Decree for possession and mesne profits:

h
la
It states that a decree for specific performance of a contract for sale or lease of an
immovable property which can also be termed as real estate shall specify the exact
ul
period within which the amount of money or other sum is to be paid by the
na

purchaser or lessee.

R.13- Decree in administration suit:

Sa

It states that the final decree shall be passed or delivered in accordance with the
result of preliminary enquiry i.e., in a lawsuit for an account of any property either
e

movable or immovable and for its due administration under the decree of Court,
at

before passing a final decree, the court should pass a preliminary decree ordering
oc

accounts to be taken and enquiries to be made.

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A

R.14- Decree in preemption suit:

states a decree in a pre-emption suit, it is a suit where the displacement of a lower

jurisdiction’s laws when they conflict with those of a higher jurisdiction, where the
purchase money has not been paid into Court, shall specify a particular day on or
before which the purchase money has to be paid and direct that on payment to
Court, the defendant shall deliver property to the plaintiff, but if the payment is not
made on a specific day, the lawsuit shall be dismissed with costs. In cases the
Court has settled upon rival claims to pre-emption, the decree shall direct:
•The claim or defense of each pre-emptor shall take effect proportionately if the
claims decreed are equal in degree.
•The claim or defense of the inferior pre-emptor will not take place till the superior

nd
pre-emptor fails to make the payment if the claims decreed are different in degree.

R.19- Decree when setoff is allowed:

ha
Where the defendant has been allowed a set off against the claim of the plaintiff,

B
the decree shall state what amount is due to the plaintiff and what amount is due to
the defendant, and shall be for the recovery of any sum which appears to be due to

h
either party.

la
Appeal from decree relating to set off. Any decree passed in a suit in which a setoff
ul
is claimed shall be subject to the same provisions in respect of appeal to which it
would have been subject if no setoff had been claimed.
na

The provisions of this rule shall apply whether the setoff is admissible under rule 6
Sa

of Order VIII or otherwise.

R.20- Certified copies of the judgment and decree to be furnished:

e

Certified copies of the judgment and decree shall be furnished to the parties on
at

application to the Court and at their expense.

oc
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A

ORDER XXI

EXECUTION OF DECREES AND ORDERS

MODES OF EXECUTION AS PER THE NATURE OF DECREE

• DECREE FOR PAYMENT OF MONEY OR ALTERNATIVE IN
MONEY: (Rule-30)

Modes:

• By the detention in prison of the judgment-debtor, or

nd
• By the attachment and sale of his property, or
• By both

ha
• DECREE FOR SPECIFIC MOVABLE OR SHARE IN SPECIFIC
MOVABLE: (Rule 31)

B
Modes:
• By the seizure

h
If practicable, of the movable or share, and by the delivery to the party to whom it

la
has been adjudged, or his representative, or
• By the detention in prison of the judgment-debtor, or
ul
• By the attachment of his property, or
na

• By both detention and attachment

Condition to Invoke Procedure In Case of Attachment:

Sa

• Attachment remained in force for six months

• Judgment-debtor has not obeyed the decree and
e

• The decree-holder has applied to have the attached property sold

at

Procedure:
oc

• Property to be sold, and

• out of the proceeds the Court may award to the decree-holder
• in cases where any amount has been fixed by the decree to be paid as an
dv

alternative to delivery of movable property, such amount, and

• In other cases, compensation as it thinks fit, and
A

• Balance (if any), to be paid to the judgment-debtor on his application

Attachment will cease:

• Full decretal amount has been paid, or
• No application for sale was made by the end of 6 months from date
of attachment
• DECREE FOR SPECIFIC PERFORMANCE, RESTITUTION
OF CONJUGAL RIGHTS & INJUNCTIONS: (Rule 32)

Modes:
• In the case of a Decree for Restitution of Conjugal Rights
• By the attachment of his property
• By periodical payments (Rule 33)

nd
• The Court may vary or modify order for payments, either
• by altering the times of payment or

ha
• by increasing or
• diminishing the amount, or

B
• may temporarily suspend the same as to the whole or any part of the money,
and again revive the same, either wholly or in part

h
•
la
In the case of a Decree for the Specific Performance of a Contract or for
ul
an Injunction
• By his detention in prison, or
na

• By the attachment of his property, or

• By both.
Sa

• In lieu of or in addition to all or any of the processes aforesaid,

• Court direct that the act required to be done may be done so far as
practicable by the decree-holder or some other person appointed by the Court, at
e

the cost of the judgment-debtor, and

at

• The expenses may be ascertained as the Court may direct and be recovered
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as if they were included in the decree

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A

Decree against Corporation:

• Attachment of the property of the corporation, or
• With the leave of the Court, by the detention in prison of the directors or
other principal officers thereof or
• By both attachment and detention.
Condition to Invoke Procedure In Case of Attachment:
• Attachment remained in force for one year,
• Judgment debtor has not obeyed the decree and
• The decree-holder has applied to have the attached property sold,

Procedure:

• Property may be sold; and

nd
• out of the proceeds, the Court may award to the decree-holder such
compensation as it thinks fit, and

ha
• Pay the balance (if any), to the judgment-debtor on his application

B
Attachment will cease:
• Full decretal amount has been paid, or

h
• No application for sale was made by the end of 1 year from date of

la
attachment ul
IV. DECREE FOR EXECUTION OF DOCUMENT OR FOR THE
ENDORSEMENT OF A NEGOTIABLE INSTRUMENT (Rule 34)
na

Procedure:
Sa

Step-1:

The decree-holder may prepare a draft of the document or endorsement in

e

accordance with the terms of the decree and deliver the same to the Court.
at

Step-2:
oc

The draft to be served on the judgment-debtor together with a notice requiring his
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objections (if any) to be made within such time as the Court fixes in this behalf.
A

Step 3:

Arguments

Step 4:
The Court shall make such order approving or altering the draft

Step 5:

The decree-holder shall deliver to the Court a copy of the draft with such
alterations (if any) as the Court may have directed upon the proper stamp-paper if a
stamp is required by the law for the time being in force; and

nd
Step 6:

The judge or such officer as may be appointed in this behalf shall execute the

ha
document so delivered

B
Step 7:

h
The Court, or such officer as it may appoint in this behalf, shall cause the

la
document to be registered, if its registration is required by law for the time being in
force or the decree-holder desires to have it registered, and may make such order as
ul
it thinks fit as to the payment of the expenses of the registration.
na

• DECREE FOR DELIVERY OF ANY IMMOVABLE

PROPERTY (Rule 35)
Sa

Mode & Procedure:

• Possession shall be delivered to the party to whom it has
been adjudged, or to such person as he may appoint to receive delivery
e

on his behalf, and,

at

• If necessary, by removing any person bound by the decree

oc

who refuses to vacate the property

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A

VI. DECREE FOR JOINT POSSESSION OF IMMOVABLE PROPERTY

{Rule 35(2)}

Procedure:
• Possession shall be delivered by affixing a copy of the warrant in
some conspicuous place on the property and
• Proclaiming by beat of drum, or other customary mode, at some
convenient place, the substance of the decree
• If the person in possession, being bound by the decree, does not
afford free access, the Court, through its officers, may withdraw, remove or open
any lock or bolt or break open any door or do any other act necessary for putting
the decree-holder in possession

nd
VII. DECREE FOR THE DELIVERY OF ANY IMMOVABLE PROPERTY
IN POSSESSION OF TENANT OR OTHER PERSON NOT BOUND BY
THE DECREE (Rule 36)

ha
Procedure:

B
• The Court shall order delivery to be made by affixing a copy of the

h
warrant in some conspicuous place on the property, and

•
la
Proclaiming to the occupant by beat of drum or other customary
ul
mode, at some convenient place, the substance of the decree in regard to the
property.
na
Sa
e
at
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A

ARREST & DETENTION

(Rule 37 – 40)

Execution of Decree for the Payment of Money: (Rule 37)

Procedure:
• The Court shall issue a notice calling upon him to appear before the
Court on a day to be specified in the notice and show cause why he should not be
detained in prison. Notice shall not be necessary if court thinks that, Judgment
Debtor may abscond (Rule 37)

nd
• In case of non appearance after notice, warrant of arrest shall be
issued

ha
• Warrant will be entrusted to an officer to bring JD to court unless

B
decretal amount is paid (Rule 38)
• On appearance, the Court shall hear Decree Holder and consider

h
evidence in support of DH, then Judgment Debtor shall be heard (Rule 40)
•
la
If matter need inquiry then for the meantime JD can be detained in
ul
custody of the officer or be released on furnishing security (Rule 40)
na

• Matters enumerated under Section 51 shall be considered such as:

Section 51:
Sa

Provided that execution by detention in prison shall not be ordered unless,

after giving the judgment debtor an opportunity of showing cause why he
should not be committed to prison, the Court, for reasons recorded in
e

writing, is satisfied:-
at
oc

• That the judgment-debtor, with the object or effect of obstructing or

delaying the execution of the decree
dv

• is likely to abscond or leave the local limits of the jurisdiction

of the Court; or
A

• has, after the decree was passed, dishonestly transferred,

concealed, or removed any part, committed any other act of to his property ;
or
• That the judgment-debtor has, or has had on the date of the decree, the
means to pay the decree or some substantial part thereof or neglects or has
refused or neglected same; or

(c) That the decree is for a sum for which the judgment debtor was bound in
a fiduciary capacity to account
• The Court make an order for the detention of the judgment-debtor in

nd
prison, if he is not already under arrest

ha
ATTACHMENT OF PROPERTY

B
DECREE FOR PAYMENT OF MONEY: (Rule 41)

h
Procedure:

•
la
Decree Holder files application that, JD or in the case of a
ul
corporation, any officer, or any other person, be orally examined.
na

• Examination that, as to
• Whether any or what debts are owing to the judgment-debtor and
Sa

• whether the judgment-debtor has any and what other property or means of
satisfying the decree; and
e

• The Court may make an order for the attendance and examination of
at

such judgment-debtor or officer or other person, and for the production of any
oc

books or documents
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A

DECREE DIRECTING INQUIRY AS TO RENTS OR MESNE PROFIT:

(Rule 42)

Procedure:

Same as for Decree for the payment of money

 ATTACHMENT OF MOVABLE PROPERTY OTHER THAN
AGRICULTURAL PRODUCE: (Rule 43)

Procedure:
• Attachment shall be made by actual seizure, and
• The attaching officer shall keep the property in his own custody or in

nd
the custody of one of his subordinates, and shall be responsible for the due custody
thereof:

ha
Sale in case of Perishable Goods:

B
Conditions:

h
• If property seized is subject to speedy and natural decay, or
•
la
the expense of keeping in custody is likely to exceed its value
ul
ATTACHMENT OF AGRICULTURAL PRODUCE: (Rule 44)
na

Procedure Where Produce is Growing Crop:

Sa

Affixing a copy of the warrant of attachment, on the land on which such crop has
grown
e

Procedure Where Produce Has Been Cut or Gathered:

at

• Affixing a copy of the warrant of attachment, on the land

oc

• Affixing another copy on the outer door or on some other

conspicuous part of
dv

• The house in which the judgment-debtor ordinarily resides or,

• The house in which he carries on business or personally works for gain or
A

• The house in which he is known to have last resided or carried on business

or personally worked for gain
• Court shall make arrangements for its custody (Rule 44)
• If the judgment-debtor fails to look after, cut, gather and store the
produce and do any other act necessary for maturing or preserving it, the
decree-holder may, with the permission of the Court, do all or any of them. (Rule
45)

• The costs incurred by the decree-holder shall be recoverable from the

judgment-debtor as if they were included in the decree. (Rule 45)

PROPERTY IS DEBT, SHARE OR OTHER MOVABLE PROPERTY NOT

nd
IN POSSESSION OF JD (Rule 46)

ha
Procedure:

B
• Written Order prohibiting:
• Recovery of loan by Creditor and debtor from paying until the further order

h
of the Court;
•
la
Transfer of share or receiving any dividend;
ul
• Third person from handing over possession of movable property to JD.
na

• Copy of Order is affixed on some conspicuous part of the

Court-house and
Sa

• another copy shall be sent

• In the case of the debt, to the debtor,
e

• In the case of the share, to the proper officer of the corporation, and,
at

• In the case of the other movable property, to the person in possession of the
oc

same
If person prohibited makes payment of debt in court, then he will be discharged
dv

from liability against JD

A

PROPERTY IS SHARE OR INTEREST OF THE JUDGMENT-DEBTOR IN

MOVABLE PROPERTY (Rule 47)

Procedure:
Notice to the judgment-debtor prohibiting him from transferring the share or
interest or charging it in any way

PROPERTY TO BE ATTACHED IS THE SALARY OR ALLOWANCE OF

CIVIL SERVANT (Rule 48)

Procedure:
• The Court may order that the amount of salary shall be withheld

nd
either in one payment or by monthly installments; and
• Notice shall be given to disbursing authority to withhold and remit to

ha
the Court the amount due under the order, or the monthly installments
• If salary is already attached under any other previous order than,

B
officer shall return that Order with detail of existing attachments

h
PROPERTY BELONGING TO PARTNERSHIP: (RULE 49)

(Decree against Partner)

la
ul
General Rule:
na

Property belonging to a partnership shall not be attached or sold in execution of a

Sa

decree other than a decree passed against the firm or against the partners in the
firm as such.
e
at

Procedure:
• Court on application of DH Order a charge on the interest of partner
oc

• Appoint a receiver of the share of such partner in the profits and

• Direct accounts and inquiries and
dv

• Make an order for the sale of such interest or any other order. The
other partner or partners shall be at liberty at any time to redeem the interest
A

charged or, in the case of a sale being directed, to purchase the same

PROPERTY OF FIRM (Rule 50)

(Decree against Firm)

Manner & Procedure:

Execution may be against
• Any property of the partnership;
• Any person who has appeared in his own name as partner or who has
admitted on the pleadings that he is, or who has been adjudged to be, a partner;
• Any person who has been individually served as a partner with a
summons and has failed to appear:

nd
PROPERTY IS A NEGOTIABLE INSTRUMENT (Rule 51)

Manner & Procedure:

ha
• The attachment shall be made by actual seizure, and

B
• The instrument shall be brought into Court and held subject to
further orders of the Court.

h
PROPERTY IN CUSTODY OF ANY COURT OF PUBLIC OFFICER

la
(Rule52)
ul
Procedure:
na

• Attachment shall be made by a notice to such court or officer,

requesting that such property and any interest or dividend, may be held subject to
Sa

the further orders of the Court

• Where such property is in the custody of a Court, any question of
title or priority arising between the decree-holder and any other person, claiming to
e

be interested in such property by virtue of any assignment, attachment or

at

otherwise, shall be determined by such Court

oc
dv
A

PROPERTY IS A DECREE (Rule 53)

Procedure:

The attachment shall be made

• If the decrees were passed by the same Court, then by order of such Court:
In this case the Court shall proceed to execute the attached decree and apply the net
proceeds in satisfaction of the decree sought to be executed
• If the decree sought to be attached was passed by another Court,
In this case notice will be sent to such other court, requesting such other Court to
stay the execution of its decree unless and until –

nd
• The Court which passed the decree sought to be executed cancels the notice,
or
• The holder of the decree sought to be executed or his judgment-debtor

ha
applies to the Court, receiving such notice, to execute its own decree

B
PROPERTY IS IMMOVABLE (Rule 54)

h
Procedure:

Attachment shall be made by

la
ul
• An order prohibiting the JD from transferring or charging the
na

property in any way and also prohibiting all persons from making any benefit from
such transfer or charge
Sa

• Copy of the order shall be affixed on a conspicuous part of

• The property
• The Court-house
e

• In the office of the Collector of the District, where the property is land
at

paying revenue to the Government

oc
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A

WITHDRAWAL OF ATTACHMENT (Rule 55)

Conditions:

• All the amounts including decretal amount, cost, expenses etc are
paid into Court or,
• Satisfaction of the decree is otherwise made through the Court or
certified to the Court or
• The decree is set aside or reversed,

In the case of Immovable Property:

• Withdrawal shall, if the JD so desires, be proclaimed at his expense,

and

nd
• Copy of the proclamation shall be affixed in the manner prescribed
by the last preceding rule

ha
PROPERTY ATTACHED IS CURRENT COIN OR CURRENCY NOTES

B
(Rule 56)

The court may at any time during the continuance of the attachment, direct that

h
la
such coin or notes, or a part, be paid over to the party entitled under the decree to
receive the same
ul
na

DISMISSAL OF EXECUTION PETITION: (Rule 57)

Sa

If by reason of the decree-holder's default the Court is unable to proceed further

with the application for execution, it shall either
e

• Dismiss the application or

at

• Adjourn the proceedings to a future date.

oc

Upon the dismissal of such application the attachment shall cease.

dv
A

INVESTIGATION OF CLAIMS AND OBJECTIONS

Power of Executing Court: (Rule 58)

Objection or claim shall be heard as if the Objection Petitioner is a party to a suit

Limitation on Filing of Objections:

Executing Court shall not investigate if:

• Unnecessary delay, or
• Beyond reasonable time, or
• Claim or Objection was filed after one year of the date of the first

nd
attachment, whichever is earlier

ha
Considerations to Prove:

Objection petitioner shall have to prove:

B
• That the title acquired in good faith and for consideration subsequent

h
to the date of the first attachment;

la
• That his predecessors-in-interest, fraudulently omitted to make a
claim or objection; and
ul
• That he has impleaded all such predecessors-in-interest, as parties
na

• That at the date of the attachment he had a title to, or right or interest
in, the property attached. (Rule 59)
Sa

Stay of Sale Proceedings:

e

If Property has been advertised for sale, the executing court can postpone the sale
at

till the decision of Objection Petition.

oc

Release of Property: (Rule 60)

dv

If executing Court is satisfied that,

• That the claimant or objector had a title to, or right or interest in the
A

said property and

• That the said property was not, by reason of such title, right or
interest, wholly or partly liable to attachment,
The Court shall make an order releasing the property, wholly, or as the case may
be, to such extent as it is not so liable, from attachment.

SALE GENERALLY

General Rule: (Rule 64)

• Executing Court has power to Order for sale of a property attached

nd
• Proceeds of sale shall be paid to DH, to the extent of Decree

Mode of Sale: (Rule 65)

ha
• Only through Public Auction

B
Procedure: (Rule 66)

h
• Application for Sale

la
DH files an application for sale of attached property. Detail of property shall be
mentioned in application and application shall be verified
ul
• Hearing of Objections
na
• Appointment of Auctioneer & Preparation of Proclamation
• Draft of proclamation be prepared by Auctioneer
• Notice
Sa

Notice shall be given to DH & JD.

• Consultation of DH & JD
e

Proclamation shall be drafted with consultation of DH & JD

at

• Contents of Proclamation:
• The time and place of sale
oc

• The property to be sold;

• The revenue assessed upon the estate or part of the estate;
dv

• Any encumbrance to which the property is liable;

• The amount for the recovery of which the sale is ordered; and
A

• Every other thing which the Court considers material for a purchaser to
know
• Assistance of Court
Court can call anyone for assistance regarding property or matters involving
property
• Publication of Proclamation: (Rule 67)
• Copy of the Proclamation shall be affixed on a conspicuous part of
• The property
• The Court-House
• In the office of the Collector of the District, where the property is land
paying revenue to the Government
• On Order, Proclamation shall also be published in the official Gazette or in a
local newspaper, or in both and the costs of such publication shall be deemed to be

nd
costs of the sale
• Adjournment of sale: (Rule 69)

ha
• Sale can be adjourned by court or by officer with reasons recorded.
• However, if sale is adjourned for more than 7 days then new proclamation

B
shall be made unless JD waive off that.
• Stopping of Sale: (Rule 69)

h
• If decretal amount, costs, expenses on sale, etc., are paid by JD

la
• Defaulting Purchaser: (Rule 71)
If resale happens due to default of purchaser then deficiency, if any, in price of
ul
property shall be recoverable from defaulting purchaser
na

• Participation of JD in Auction: (Rule 72)

• Decree Holder cannot participate except with permission of court
Sa

• If DH participate and purchases the property then amount will be set off
against decretal amount and other expenses
• Sale may be set aside if DH or through another person participate without
e

permission. Costs and deficiency in price of property due to re-sale shall be

at

recovered from DH
• Other Persons barred from Participating: (Rule 73)
oc

No officer or other person having any duty to perform in connection with any sale
shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest
dv

in the property sold

A

SALE OF MOVABLE PROPERTY

PROPERTY TO BE SOLD IS AGRICULTURAL PRODUCE (Rule 74)

Procedure:
• If such produce is a growing crop,
Sale shall be conducted on or near the land on which such crop has grown
• If such produce has been cut or gathered
Salle shall be conducted at or near the threshing-floor or place for treading out
grain or the like or fodder-stack on or in which it is deposited
• The Court may direct the sale to be held at the nearest place of public
resort, if it is of opinion that the produce is thereby likely to sell to greater
advantage.

nd
Postponement of Sale:

ha
Condition:
• Fair price, in the estimation of the person holding the sale, is not

B
offered for it, and
• The owner of the produce or a person authorized to act in his behalf

h
applies to have the sale postponed till the next day or,
•
la
If a market is held at the place of sale, the next market-day
ul
The sale shall be postponed accordingly and shall be then completed, whatever
price may be offered for the produce.
na

PROPERTY TO BE SOLD IS A NEGOTIABLE INSTRUMENT OR A

Sa

SHARE IN A CORPORATION (Rule 76)

Procedure:
e

Sale can be through Broker instead of public auction

at

Payment & Re-Sale: (Rule 77)

oc

Price of each lot shall be paid at the time of sale or as soon after as the officer or
dv

other person holding the sale directs, and in default of payment the property shall
forthwith be re-sold.
A

Receipt:

Receipt shall be issued to the purchaser and sale will become final

Irregularity in publishing or conducting the sale:

Shall not vitiate the sale

Remedy against Irregularity:

Suit for compensation by affected person

PROPERTY SOLD IS MOVABLE PROPERTY (Rule 79)

In case the property sold is movable property of which actual seizure has been
made, it shall be delivered to the purchaser

nd
PROPERTY SOLD IS MOVABLE PROPERTY NOT IN POSSESSION OF
THE JUDGMENT-DEBTOR {Rule 79 (2)}

ha
Procedure:

B
Notice to person in possession of property, not to hand over to any other person

h
except the purchaser

la
PROPERTY SOLD IS A DEBT NOT SECURED BY A NEGOTIABLE
ul
INSTRUMENT, OR IS A SHARE IN A CORPORATION {Rule 79 (3)}
• Court Order to:
na

• The Creditor prohibiting him from receiving the debt

• The debtor from making payment thereof to any person except the
Sa

purchaser, or
• Prohibiting the person in whose name the share may be standing from
making any transfer of the share to any person except the purchaser, or receiving
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payment of any dividend or interest thereon,

at

• The manager, secretary or other proper officer of the corporation from

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permitting any transfer of shares to any other person than purchaser or making any
such payment to any person except the purchaser.
dv

• The Judge or such officer as he may appoint in this behalf may

execute such document or make such endorsement as may be necessary, and such
A

execution or endorsement shall have the same effect as an execution or

endorsement by the party (Rule 80)
• Until the transfer of such negotiable instrument or share, the Court
may appoint Receiver to receive any interest or dividend due thereon and to sign a
receipt {Rule 80(3)}
 SALE OF IMMOVABLE PROPERTY

JURISDICTION: (Rule 82)

Sales of immovable property in execution of decrees may be ordered by any Court

other than a Court of Small Causes.

LAST OPPORTUNITY TO JUDGMENT DEBTOR: (Rule 83)

nd
• If Judgment-Debtor satisfy the Court that, decretal amount may be raised by
the mortgage or lease or private sale of such property, or some part thereof, or of

ha
any other immovable property of the judgment-debtor
• The Court may on his application postpone the sale of the property, to enable

B
him to raise the amount
• The Court shall grant a certificate to the judgment-debtor authorizing him

h
within a period to be mentioned therein, to make the proposed mortgage lease or

la
sale
• All monies payable under such mortgage, lease or sale shall be paid not to
ul
the judgment-debtor, but to decree-holder, to the extent of his right under decree:
na

• Mortgage, leases or sale be subject to confirmation by the Court

• This concession shall be not be provided where property is being sold in
Sa

execution of a decree for sale in enforcement of a mortgage of or charge on such

property

PROCEDURE AT THE TIME OF AUCTION: (Rule 84-87)

e

• The purchaser shall pay immediately a deposit of 25%.

at

• In case of default of such deposit the property shall forthwith be

oc

resold
• If the decree holder is the purchaser then the Court may dispense
dv

with the requirements of payment of 25%

• Remaining amount shall be paid in court within 15 days from the
A

sale (Rule 85)

• The purchaser can claim set-off
• In case of default by the purchaser to deposit money, already paid
amount shall be forfeited. Expenses on sale shall be deducted from such amount
and the remaining amount will be sent to Government depository (Rule 86)
• Defaulting purchaser cannot participate in re-sale
• In case of re-sale on default on purchaser, fresh proclamation shall be
made (Rule 87)

PROCEDURE AFTER AUCTION: (Rule 89)

Objections to Sale:

Any person who claims title acquired before such sale may apply to have the sale

nd
set aside.

Conditions Precedent for Objections:

ha
Objection Petitioner shall have to deposit:

B
• Payment to the purchaser 5% of the purchase money; and
• Payment to the Decree Holder the decretal amount less any amount which

h
have been received by the decree holder since proclamation

la
(Decretal amount – amount received)
ul
Setting Aside Sale on Material Irregularity: (Rule 90)
na

Who Can Apply?

• The decree-holder or
Sa

• any person entitled to share in a rateable distribution of assets or

• Whose interests are affected by the sale
e

Grounds of Setting Aside:

at

• Material irregularity or
• Fraud in publishing or conducting Sale
oc

• Substantial injury by reason of such irregularity or fraud should have been

caused
dv

Condition Precedent to Set Aside on Irregularity:

A

• The applicant deposits amount not exceeding 25% of the sum

realized at the sale, or
• Furnishes security as the Court may direct

Setting Aide Sale by Purchaser: (Rule 91)

• Judgment-debtor had no saleable interest in the property sold
Result of Set Aside: (Rule 93)

The purchaser shall be entitled repayment of his purchase money with or without
interest as the Court may direct against any person to whom it has been paid

CONFIRMATION OF SALE: (Rule 92, 94)

• Order Confirming Sale:
• If no objection applications are made or in case those have been dismissed,

nd
the Court shall make an order confirming the sale and thereupon the sale shall
become absolute

ha
• Sale Certificate: (Rule 94)
• The Court shall grant a Sale Certificate

B
Contents of Sale Certificate:
• Detail of the property sold and

h
• Name of the Purchaser.
•
la
Date & day on which the sale became absolute
ul
na
Sa
e
at
oc
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DELIVERY OF PROPERTY
A

Delivery of Property from Unauthorized Occupant: (Rule 95)

The Court shall Order delivery to be made by putting such purchaser or his
authorized person to receive delivery on his behalf and if need be, by removing any
person who refuses to vacate the same

Delivery of Property from Tenant or Person Entitled To Occupy: (Rule 96)

Procedure:
• The Court shall, order delivery to be made by affixing a copy of the
certificate of sale in some conspicuous place on the property and
• Proclaiming to the occupant by beat of drum or other customary mode, at
some convenient place that the interest of judgment debtor has been transferred to
the purchaser.

nd
RESISTANCE TO DELIVERY OF POSSESSION

Resistance to Delivery of Possession to Decree-holder Or Purchaser

ha
Procedure:

B
• holder of a decree for the possession of immovable property or the purchaser
can file an application / complaint (Rule 97)

h
• Summons to the person who is resisting

la
• Court will conduct an Investigation
• If found that resistance was uncalled for, the court shall order handing over
ul
of possession
na

• If there is still resistance, Court orders the judgment-debtor or any person

resisting on the behalf of JD, to be detained in prison for a term which may extend
Sa

to thirty days (Rule 98)

• Application of Decree Holder can be dismissed if court finds that, resistance
is in good faith from a person other than JD (Rule 99)
e
at
oc
dv

ORDER XXII

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

A

Introduction

Death, marriage and insolvency of parties, these are three different concepts. These
are mentioned and discussed under the Civil Procedure Code, 1908. What happens
in cases of death, marriage and insolvency of parties all this is discussed under
their relevant headers. There are different provisions for each of these three cases.
One general rule in cases of death says that the suit shall not be gone with the death
of any one party.

Rule-1: No abatement by party's death, if right to sue survives:

The court in its judgment held that according to the provisions mentioned under the
Order XXII of the Code of Civil Procedure, 1908 it can be reasonably observed

nd
that cases or situations in which either of the party or parties dies and their right to
sue survives there shall be no abatement of the suit. Further, the court held that this

ha
case is not any exception and the petitioner falls within the ambit of Order XXII
rule 1 and said that the application of the petitioner for the abatement of suit is

B
rejected.

h
Death of plaintiff

la
Order XXII of the Code of Civil Procedure, 1908 talks about the provision that
ul
what happens when there is a death of a plaintiff. Rule 2 of Order XXII of the CPC
says that “ Procedure where one of several plaintiffs or defendants dies and right to
na

sue survives- Where there are more plaintiffs or defendants than one, and any of
them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs
Sa

alone, or against the surviving defendant or defendants alone, the Court shall cause
an entry to the effect to be made on the record, and the suit shall proceed at the
instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or
e

defendants.”
at
oc
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Death of defendant
A

Order XXII of the Code of Civil Procedure, 1908 talks about the provision that
what happens when there is a death of a defendant. Rule 4 of Order XXII of the
CPC says that “Procedure in case of death of one of several defendants or of sole
defendant- Where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole defendant or
sole surviving defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative of the deceased
defendant to be made a party and shall proceed with the suit.”

Rule-6: No abatement by reason of death after hearing:

A situation where either party dies during the process of hearing and the
pronouncement of judgment, that situation is one of the most confusing ones. The

nd
solution to this kind of situation has been provided under Rule 6 Order XXII of the
Code of Civil Procedure, 1908. In such a situation, the suit shall not abate

ha
regardless of the survival of the right to sue and cause of action. But if a situation
in which a suit is instituted against the person who is already deceased, it will be

B
considered as null and void and it will have no legal effect.

h
Marriage of party

la
A marriage of a party does not have any substantial effect on the suit but there is an
ul
exception to it. A case or a situation in which a decree has been executed against a
female who is married; the decree shall be executed against her only. It has been
na

mentioned under Rule 7 of Order XXII of CPC that a decree which is in favor or
against a wife, where the husband is legally entitled to the subject matter of the
Sa

decree or if he is liable for the debt of his wife may, with the explicit permission of
the court, it should be executed by or against him.
e
at
oc
dv
A

Insolvency of party

Insolvency of the party is defined and discussed under Rule XXII of the Code
of Civil Procedure, 1908. Rule 8 of Order XXII says:

· Where a plaintiff becomes insolvent and a receiver or assignee may want to

maintain the suit for the benefit of the creditors of the plaintiff, the suit should not
abate except in cases where the assignee or the receiver declines to continue the
suit, or in certain cases in which the court itself directs the assignee or receiver to
pay the security for costs and the assignee or receiver declines to neglects to pay
the same.

· Where the receiver or the assignee wishes to proceed with the suit or fails to
pay the security for the costs within the time limit, the defendant then may make an

nd
application to the court and may claim in that for dismissal of the suit.

· Further, the court can order that costs be paid to the defendant and the same

ha
should be deemed to be a debt against the estate of the plaintiff.

B
· This rule is not at all applicable to the insolvency of the defendant. In these
types of cases, the court may put a stay on the proceedings or suit against such a

h
defendant.

·
la
Rule 9 of the same Order says that where a suit is abated, the receiver or
ul
assignee in cases where the plaintiff becomes insolvent he or she may make
application to the court to set aside the abatement,
na

· The receiver or assignee will have to show that there was reasonable cause
Sa

for not continuing with the suit and if the court is satisfied with the same then it
may pass an order in this regard.
e

· The application to the court should be filed within the time limit as
at

prescribed under Section 5 of the Limitation Act.

oc
dv
A

Insolvency of party

Insolvency of the party is defined and discussed under Rule XXII of the Code of
Civil Procedure, 1908. Rule 8 of Order XXII says:
• Where a plaintiff becomes insolvent and a receiver or assignee may want to
maintain the suit for the benefit of the creditors of the plaintiff, the suit should not
abate except in cases where the assignee or the receiver declines to continue the
suit, or in certain cases in which the court itself directs the assignee or receiver to
pay the security for costs and the assignee or receiver declines to neglects to pay
the same.

nd
• Where the receiver or the assignee wishes to proceed with the suit or fails to
pay the security for the costs within the time limit, the defendant then may make an
application to the court and may claim in that for dismissal of the suit.

ha
• Further, the court can order that costs be paid to the defendant and the same

B
should be deemed to be a debt against the estate of the plaintiff.

h
• This rule is not at all applicable to the insolvency of the defendant. In these

la
types of cases, the court may put a stay on the proceedings or suit against such a
defendant.
ul
• Rule 9 of the same Order says that where a suit is abated, the receiver or
na

assignee in cases where the plaintiff becomes insolvent he or she may make
application to the court to set aside the abatement,
Sa

• The receiver or assignee will have to show that there was reasonable cause
for not continuing with the suit and if the court is satisfied with the same then it
e

may pass an order in this regard.

at

• The application to the court should be filed within the time limit as
oc

prescribed under Section 5 of the Limitation Act.

dv
A

ORDER XXIII

WITHDRAWAL AND ADJUSTMENT OF SUITS

 Consent decree and appeal u/s 96(3) and Order 23, Rule 3:

1. Generally no appeal:

2. Why does it determine rights?

3. Where appeal is allowed:

nd
a) Want of jurisdiction

b) No compromise:

ha
c) By mistake:

B
d) Where one party admits:

h
e) Coercion:

f) Fraud:
la
ul
g) Undue influence:
na

Withdrawal and adjustment of suits under Order 23:

Sa

After institution of suit any party either plaintiff or defendant may withdraw
suit. Defect in suit and any other reason which Court thinks fit, may cause
e

adjudge the suit. Parties may institute fresh suits after removal of defects.
at

Where a suit is withdrawn without permission of the Court, the withdrawing

oc

party has to pay costs to the other party amount of which Court sets.

Time limitation for fresh suit Order 23, Rule 2:

dv

Extra time limit is not provided where the party institutes a fresh suit with the
A

permission of the Court. Court treats it as the first suit.

Compromise of suit Order 23, Rule 3:

 Where parties make lawful agreement for the withdrawal of suit and satisfy
Court, Court adjudges the suit and passes a decree according to the nature of
suit.

• The agreement, compromise, or satisfaction contemplated by this rule may

relate to the whole suit, it may relate only to a part thereof, or it may also
compromise matters that do not relate to the suit.

nd
• When the agreement relates to the whole suit, the Court must, on being
invited by the parties, record the agreement, and pass a decree in accordance with

ha
the agreement, and the suit stops there.

B
• Where the agreement relates to a part only of the suit, the Court must, on the
application of the parties, pass a decree in accordance with the agreement and the

h
suit may be proceeded with as to the rest. But the Court is not obliged to pass a

la
decree as soon as the compromise is recorded. In the case of a compromise of part
of a suit, which did not include a party whose interest could not be separated, the
ul
Court was held to be justified in postponing passing a decree until the termination
na

of the suit.
Sa
e
at
oc
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A

ORDER XXIV
 PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim:

The defendant in any suit to recover a debt or damages may, at any stage of the
suit, deposit in Court such sum of money as he considers a satisfaction in full of
the claim.

nd
2. Notice of deposit:

Notice of the deposit shall be given through the Court by the defendant to the

ha
plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be
paid to the plaintiff on his application.

B
h
la
3. Interest on deposit not allowed to plaintiff after notice:
ul
No interest shall be allowed to the plaintiff on any sum deposited by the defendant
from the date of the receipt of such notice, whether the sum deposited is in full of
na

the claim or falls short thereof.

Sa

4. Procedure where plaintiff accepts deposit as satisfaction in part:

Where the plaintiff accepts such an amount as satisfaction in part only of his claim,
e

he may prosecute his suit for the balance; And, if the court decides that the deposit
at

by the defendant was a full satisfaction. Of the plaintiff's claim, the plaintiff shall
pay the costs of the suit incurred after the deposit and the costs incurred previous
oc

thereto, so far as they were caused by excess in the plaintiff's claim.

dv

Procedure where he accepts it as satisfaction in full. Where the plaintiff accepts

such amount as satisfaction in full of his claim, he shall present to the Court a
A

statement to that effect, and such statement shall be filed and the Court shall
pronounce judgment accordingly; and, in directing by whom the costs of each
party are to be paid, the Court shall consider which of the parties is most to blame
for the litigation.

ORDER XXVI
 COMMISSIONS

Commissions to examine witnesses under Order 26:

In any suit in which a party cannot appear before Court due to any reason
permissible, i.e., pardanashin lady, sickness, or infirmity of the party, Court may
constitute a commission for examination on interrogatories on spot. Commission
goes to the party physically and examines his statement. Commission is constituted

nd
for the following purposes namely:

ha
1. To examine any person in a suit.

2. For local investigation.

B
3. To inspect and jam the accounts.

h
la
4. For the purpose of partitioning of the property.
ul
ORDER XXVII
na

SUITS BY OR AGAINST [THE GOVERNMENT] OR PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY:
Sa

Name of parties to the suit:

• A suit by or against the federal government is filed in the name of Pakistan.
e

• A suit by or against the provincial government is filed in the name of

at

concerned province
oc

• A public officer is to be sued personally and not in his public name unless he
is a corporation sole.
dv

Procedure of suit filed against government or public officer

A

• With notice u/s 80 (1) CPC

• Without notice u/s 80 (2) CPC

Institution of suit with notice u/s 80 (1) CPC

A suit against a government or public officer may be filed by giving notice to such
government or public officer two months before such filing.

To whom notice is to be served?

• In case a suit is against federal government notice is to be served to the
secretary of the state.
• In case a suit is against the provincial government, notice is to be served to

nd
either the secretary of the province concerned or to the collector of the district.
• In case a suit is against the Railway the notice is to be served to the General

ha
Manager.
• In case a suit is against public officer notice is to be served to such public

B
officer or left at his office.

h
Contents of notice:
• Cause of action
la
ul
• Description and the name of plaintiff
na

• Relief claimed

Object of the notice:

Sa

To give sufficient time to the government or public officer that he/he may consider
the position and decide whether the claim of the plaintiff should be accepted or
e

defended.
at

Notice:
oc

Where at the expiration of a period of two months and the plaintiff claim remains
unsatisfied the plaintiff is then allowed to institute a suit.
dv

Plaint under section 80 (2):

A

Plaint in case notice served but claim remains unsatisfied must contain a statement
of delivery of such notice.

Institution of suit without notice/without statement of delivery of notice u/s 80

(2):
Court shall allow not less than three months to the defendant for a written
statement.

Procedure by the government/ public officer as a plaintiff/defendant

• Signing of plaint and written statement

In any suit by or against the government, a plain or written statement should be

signed by the person, whom the government appoints in this behalf through general

nd
or special order.
• Verification of plaint and written statement:

ha
In any suit by or against the government, a plain or written statement should be

B
verified by that person, whom the government appoints on this behalf through
general or special order and who is familiar with the facts of the case.

h
• Fixing day for appearance on behalf of Government:

la
In fixing the day for the government to answer the petition, the court should allow
ul
reasonable time for necessary communication with the government through proper
na

channels and for issuance of instructions to government pleader to appear and

answer on behalf of Government. Even the court possesses discretion to extend
such time.
Sa

• Extension of time:
e

When the defendant is a public officer and he considers it proper to make a

at

reference to the government before answering the petition and he applies for
extension of time so that he can make such reference and can receive orders, the
oc

court should extend time for answering to the plaintiff.

Procedure in suits against public officer:

dv

If the government undertakes defense of some suit against a public officer, the
A

government pleader should apply to court at the time when he is furnished with
authority to appear and answer a complaint. And the court should enter a note of
his authority in the register of civil suits. But if such an application is not filed, the
case is considered to be a suit between private parties.

Execution proceeding by or against government of public officer:

Time for execution of Decree:

When decree is against some public officer in respect of that act, which he has
done in his official capacity, time should be specified in decree within which
decree should be satisfied.

Reporting of case:

nd
When such is not satisfied within specified time, the court should report the case
for orders of the provincial government.

ha
Execution after reporting of case:

Execution should not be issued on any such decree unless it remains unsatisfied for

B
a period of three months, and this period is computed from the date when case is
reported for order of the provincial government.

h
la
Arrest/Attachment of property of public officer:
ul
Public officer is not liable to arrest or his property is not liable to attachment in that
suit, which is filed against him in his official capacity. However, he can be liable to
na

arrest or his property can be liable to attachment in execution of decree.

Sa

Law regarding cost:

Plaintiff is not entitled to cost

e

• If the issue is resolved within two months after institution of the suit.
at

• If the claim of the plaintiff is accepted within the two months after the
oc

institution of the suit.

dv
A

ORDER XXVIIA
 SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS TO THE
INTERPRETATION OF CONSTITUTIONAL LAW
1. Notice to the Advocate General:
In any suit in which it appears to the Court that any substantial question as to the
interpretation of constitutional law is involved, the Court shall not proceed to
determine that question until after notice has been given to the [Attorney General
for Pakistan] if the question of law concerns the [Federal Government] and to the

nd
Advocate ­General of the Province if the question of law concerns a Provincial
Government.

ha
2. The Court may add the Government as party.

B
The Court may at any stage of the proceedings order that the [Federal Government]
or a provincial Government shall be added as a defendant in any suit involving

h
[any substantial question as to the interpretation of constitutional law] if the

la
[Attorney General for Pakistan] or the Advocate General of the Province as the
case may be, whether upon receipt of notice under rule 1, or otherwise, applies for
ul
such addition and the Court is satisfied that such addition is necessary or desirable
for the satisfactory determination of the question of law involved.
na

3. Costs when Government added as party:

Sa

Where under rule 2 Government is added as a defendant in a suit, [the Attorney

General,] the Advocate General or the Government shall not be entitled to or liable
for costs in the Court which ordered the addition unless the Court having regard to
e

all the circumstances of the case for any special reason otherwise orders .
at

4. Application of Order to appeals:

oc

In the application of this Order to appeals the word “defendant” shall be held to
include a respondent and the word “suit” an appeal.
dv
A

ORDER XXIX
 SUITS BY OR AGAINST CORPORATIONS
1. Subscription and verification of pleading:
In suits by or against a corporation, any pleading may be signed and verified on
behalf of the corporation by the secretary or by any director or other principal
officer of the corporation who is able to depose to the facts of the case.
2. Service on corporation:

nd
Subject to any statutory provision regulating service of process, where the suit
is against a corporation, the summons may be served

ha
(a) On the secretary, or on any director, or other principal officer of the
corporation, or

B
(b) By leaving it or sending it by post addressed to the corporation at the

h
registered office, or if there is no registered office then at the place where the

la
corporation carries on business.
3. Power to require personal attendance of officer of corporation:
ul
The Court may, at any stage of the suit, require the personal appearance of the
na

secretary or of any director, or other principal officer of the corporation who

may be able to answer material questions relating to the suit.
Sa
e
at
oc
dv
A

ORDER XXXVII
 SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS

Rule 1 – Application of Order

This order shall apply only to the High Court to the District Court and to any other
Civil Court notified in this behalf by the High Court.

Rule 2 – Institution of Summary Suits

nd
(1) All suits upon bills of exchange, handiest or promissory notes, may, in case the
plaintiff desires to proceed hereunder be instituted by presenting a plaint in the

ha
form prescribed; but the summons shall be in Form No.4 in Appendix B or in such
other form as may be from time to time prescribed.

B
(2) In any case in which the plaint and summons are in such forms respectively the

h
defendant shall not appear or defend the suit unless he obtains leave from a Judge

la
as hereinafter provided so to appear and defend; and in default of his obtaining
ul
such leave or of his appearance and defense in pursuance thereof, the allegations in
the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a
na

decree –
a) for the principal sum due on the instrument and for interest calculated in
Sa

accordance with the provisions of section 79 or section 80 as the case may be of

the Negotiable Instruments Act 1881 up to the date of the institution of the suit or
for the sum mentioned in the summons whichever is less and for interest up to the
e

date of the decree at the same rate or at such other rate as the Court thinks fit; and
at

b) For such subsequent interest if any as the Court may order under section 34 of
oc

this Code; and

d) For such sum for costs as may be prescribed
dv

Provided that if the plaintiff claims more than such fixed sum for costs the costs
shall be ascertained in the ordinary way.
A

(3) A decree passed under this rule may be executed forthwith.

Rule 3 – Defendant Showing Defense on Merits to Have Leave To Appear

(1) The Court shall upon application by the defendant give leave to appear and to
defend the suit, upon affidavits which disclose such facts as would make it
incumbent on the holder to prove consideration, or such other facts as the Court
may deem sufficient to support the application.

(2) Leave to defend may be given unconditionally or subject to such terms as to

payment into Court giving security, framing and recording issues or otherwise as

nd
the Court thinks fit.

(3) The provisions of section 5 of the Limitation Act 1908 (IX of 1908) shall apply

ha
to applications under sub-rule (1).

B
Rule 4 – Power to Set Aside Decree

After decree the Court may under special circumstances, set aside the decree and if

h
necessary stay or set aside execution, and may give leave to the defendant to

la
appear to the summons and to defend the suit, if it seems reasonable to the Court so
ul
to do and on such terms as the Court thinks fit.
na

Rule 5 – Power to Order Bill Etc to Be Deposited With Officer of Court

In any proceedings under this Order the Court may order the bill hundi or note on
Sa

which the suit is founded to be forthwith deposited with an officer of the Court and
may further order that all proceedings shall be stayed until the plaintiff gives
e

security for the costs thereof.

at

Rule 6 – Recovery of Cost of Noting

oc

The holder of every dishonored bill of exchange or promissory note shall have the
same remedies for the recovery of the expenses incurred in noting the same for
dv

non-acceptance or non-payment or otherwise, by reason of such dishonor, as he has

under this Order for the recovery of the amount of such bill or note.
A

Rule 7 – Procedure in Suits

Save as provided by this Order the procedure in suits hereunder shall be the same
as the procedure in suits instituted in the ordinary manner.

Application:
• Order does not limited to negotiable instruments, it covers even non
negotiable instrument e.g., crossed cheque accept expired cheque

• Where instrument is not negotiable e.g., guarantee, indemnity bond, Order

37 will not apply

• If there are more than 1 defendants and claim regarding neg. instrument is
only against 1 defendant, than decree under Order 37 can be passed against such

nd
defendant and against all other defendants normal course shall be adopted, subject
to jurisdiction of court

ha
• If loan was secured by another document as well e.g., mortgage than suit

B
under Order 37 will be maintainable

• If part payment under negotiable instrument has been made than for

h
remainder, suit under order 37 will not lie

la
ul
Leave to Defend:
na

• Application for Leave to Appear and Defend must show substantial question
of law or fact
Sa

• Application to be filed within 10 days from service of summons which

should be accompanied with copy of plaint otherwise time will start from receiving
copy of plaint
e
at

• Written statement can be considered as application and vice a versa

oc

• Leave can be granted conditionally or unconditionally. If allowed on

condition of payment of money then for that time will be fixed which can be
dv

extended u/s 148.

A

• Leave may be granted against a few of defendants and not against others.
Decree can be passed against those whose application was not allowed, but
execution shall be made jointly

• Leave can be granted for part of claim and refused for other part of claim

Procedure:
• Filing of Plaint (all documents attached. Original negotiable instrument can
also be attached or as per order of the court
• Summons to defendants
• Application for leave to appear and defend within 10 days from receipt of
copy of plaint
• Judgment / Order
• If leave is refused judgment may be passed straightaway. However, it is not

nd
mandatory on court. Court can seek evidence of plaintiff
• If leave is allowed than permission can be conditional or unconditional as

ha
per Order
• Revision can be filed by aggrieved party if leave is granted

B
• Filing of Written statement (if leave allowed)
Court can pass judgment under Order 17 rule 3 and Order 8 rule 10 at this

h
stage

la
• Evidence of parties
• Judgment
ul
Interest & Costs
na

Decree may grant

Sa

• Principal sum due on the instrument

• Interest calculated in accordance with the provisions of section 79 or section
e

80 of the Negotiable Instruments Act 1881 up to the date of the institution of the
at

suit or for the sum mentioned in the summons whichever is less

• Interest up to the date of the decree at the same rate or at such other rate as
oc

the Court thinks fit;

b) Subsequent interest if any as the Court may order under Section 34 CPC;
dv

d) Costs as may be prescribed

A

Remedies:
 • If leave is refused after hearing parties and decree is passed - Appeal under
Section 96
• If Leave Application is dismissed for non prosecution and ex-parte decree is
passed or decree is passed under fraud, misrepresentation and want of jurisdiction
then Judgment can be challenged under rule 4 by filing an application
• Order 9 rule 13 is inapplicable however, if after grant of leave, suit is being
proceeded as ordinary suit and suit gets dismissed in default than Order 9 rule 13

nd
will apply
• Judgment can be challenged under rule 4 on showing special circumstances

ha
• Conditions may be imposed on setting aside a decree
• Order under rule 4 is appealable

B
Limitation:

h
For filing Suit 3 years (Article - 64)

la
ul
For Leave Application 10 days (Article - 159)
na

For Appeal 30 days

Sa

For Challenging Judgment under 3 years (Article – 181)

Rule 4
e
at

For Application under Order 9 30 days (article - 164)

oc
dv
A
 ORDER XXXVIII
ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest and attachment before judgment Order 38:
Order for arrest of attachment of property can be passed in following
circumstances:

nd
1. Secret departs from jurisdiction:

ha
Court has no jurisdiction outside its territorial limits. Where a case is being
processed in Lahore and the defendant plans to leave Lahore for Karachi,
jurisdiction of Court may be vitiated. It also defeats and frustrates the case. Said

B
person can be ordered to produce sufficient security to remain in Lahore or attend
the Court as and when Court wants. Remaining in local jurisdiction ensures justice.

h
la
2. Likely secret depart from jurisdiction:
Where a defendant has not departed from local jurisdiction but may depart secretly
ul
keeping in view of the expected judgment of the Court, security can be ordered to
na

ensure his remaining within local limits of jurisdiction.

3. Disposal or removal of property from jurisdiction:
Sa

Property, which is under litigation and determination of Court, cannot be disposed

of or removed until the execution of decree. To ensure its remaining within local
e

jurisdiction, security is ordered. Its sale or alienation becomes prohibited.

at

4. Likely to leave Pakistan:

oc

When the defendant is likely to leave Pakistan and his departure may cause
abandon the execution of decree, he may be arrested before judgment. This arrest
is made to have sufficient security so that proceedings of Court may not be
dv

affected.
A

5. Removal of property:
6. Damage to property:
7. Causing delay in execution:
8. Failure in show cause:
9. Failure to furnish security:
10. Delayed compliance:

ORDER XXXIX
TEMPORARY INJUNCTIONS AND INTERLOCUTORY ORDERS

TEMPORARY INJUNCTIONS

nd
2. CONDITIONS:
• Prima Facie Case:

ha
Means on the face of it
Court will not go into the depth of the case, but will only peruse the record

B
available
• Pleading showing existence of a right

h
• Affidavits & Documents
• Contentions of law
la
ul
• Evidence is additionally considered at time of grant of permanent injunction
• Irreparable Loss & Injury:
na

Black’s Law Dictionary:

Irreparable damages In the law pertaining to injunctions, damages for which no
Sa

certain pecuniary standard exists for measurement.

• Balance of Inconvenience:
Which side the balance of inconvenience would lie if injunction is refused
e
at

3. CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED:

• Danger Of Being Wasted
oc

• Damaged Or Alienation
• Wrongfully sold in execution
dv

• Threat or intend
• Remove or dispose to defraud creditors
A

• Section 56 Specific Relief Act

• Question of Evidence

4. PROCEDURE:

i. Application for stay is filled with plaint

 ii. Court can grant ad-interim stay

iii. Defendant will file reply to application along with written statement

iv. Arguments

v. Order of Court
• Allow application and grant stay till end of proceedings

nd
• Dismiss the application

5. STAGE:

ha
• Procedurally along with the plaint by the plaintiff
• However, plaintiff or defendant can file at any stage of the proceedings if

B
required

h
6. WHO CAN APPLY FOR INJUNCTION?
• Either party
la
ul
7. REMEDY:
na

• Appeal u/Order XLIII rule 1

8. EFFECTIVENESS:
Sa

Stay Order: from the date of passing of order

e

Injunctive order: from the date of notice

at
oc
dv
A

ORDER XL
APPOINTMENT OF RECEIVERS
1. Appointment of receivers:
Where it appears to the Court to be just and convenient, the Court may by order __
a) Appoint a receiver of any property, whether before or after decree;
b) Remove any person from the possession or custody of the property;
c) Commit the same to the possession, custody or management of the receiver; and

nd
d) Confer upon the receiver all such powers, as to bringing and defending suits and
for the realization, management, protection, preservation and improvement of the
property, the collection of the rents and profits thereof, the application and disposal

ha
of such rents and profits, and the execution of documents as the owner himself has,
or such of those powers as the Court thinks fit.

B
Nothing in this rule shall authorize the Court to remove from the possession or

h
custody of property any person whom any party to the suit has no present right to

la
remove.
2. Remuneration:
ul
The Court may by general or special order fix the amount to be paid as
na

remuneration for the service of the receiver.

3. Duties:
Sa

Every receiver so appointed shall ­

a) Furnish such security (if any) as the Court thinks fit, duly to account for what he
e

shall receive in respect of the property;

at

b) Submit his accounts at such periods and in such form as the Court directs:
oc

c) Pay the amount due from him as the Court directs; And
dv

d) Be responsible for any loss occasioned to the property by his willful default or
gross negligence.
A

4. Enforcement of recover’s duties:

Where a receiver ­
a) Fails to submit his accounts at such periods and in such form as the Court
directs, or
b) Fails to pay the amount due from him as the Court directs, or
c) occasions loss to the property by his willful default or gross negligence, the
Court may direct his property to be attached and may sell such property, and may
apply the proceeds to make good any amount found to be due from him or any loss
occasioned by him, and shall pay the balance (if any) to the receiver.
5. When Collector may be appointed receiver:

nd
Where the property is land paying revenue to the Government, or land of which the
revenue has been assigned or redeemed and the Court considers that the interests of

ha
those concerned will be promoted by the management of the Collector, the Court
may, with the consent of the Collector, appoint him to be receiver of such property.

B
h
la
ul
na
Sa
e
at
oc
dv
A

ORDER XLI
APPEALS FROM ORIGINAL DECREES
Memorandum of appeal must be signed and presented by:
a. Party in person
b. Authorized agent
c. Authorized pleader
Memorandum of appeal must be presented to:
a. The Court

nd
b. Officer authorized
Documents to be annexed with memorandum:

ha
a. Copy of decree

B
b. Final judgment not interim
c. Grounds of objection from pleadings or evidence numbered connectively

h
It is the duty of the officer of the court to verify whether it is validly presented

la
keeping all requirements above stated in mind and limitation period. Grounds of
ul
objections not raised at time of presentation of appeal shall not be heard as a matter
of right but with leave of court.
na

Date of filing of appeal is considered two ways:

Sa

a. By receipt of memo of appeal

b. By refilling if memo was filed without copy of judgment
e

Rejection of memo of appeal at any stage with reasons and after hearing
at

appellant:
a. Not on prescribed form
oc

b. On the grounds of rejection of plaint

dv

c. Rejection is a decree appealable

A

Return of appeal at any stage for removal of defects:

a. Technical defects and irregularities in memo of appeal
b. After removal of defects it may be presented fresh.
c. Amended appeal shall be signed by the judge or officer on his behalf.
Stay of proceedings and execution during pendency of appeal
Court possesses power to stay proceedings and execution after the appeal is filed
and mere filing does not affect execution and proceedings of interim relief. On
application of appellate court which pronounced decree can grant stay if
• Decree is appealable

nd
• If application is filed before expiry period of filing appeal

Conditions for stay

ha
• Sufficient cause
• Without reasonable delay

B
• Security
• Prove that substantial loss in result of execution

h
la
Security in case of stay of execution
If the appeal is filed either at the direction of the appellate court or at the
ul
application of appellant the court which passed the decree shall take the
na

security for
• Restitution of property which in future may be taken in execution of decree
• Restitution of property which has already been taken in execution of a decree
Sa

• Payment of the value of property which may or has been in execution of decree
or order
e

• due performance of the decree or order

at

Court shall order for stay of sale of immovable property if the order is made in
execution and judgment debtor has deposited the Decretal amount or security for
oc

decree holder’s cost.

Admission of appeal by the court
dv

Court or officer on behalf of court shall take following procedure

A

• Endorse on the memo date of presentation

• Register the appeal in the court book

Rejection of Appeal
If on the application of the respondent, appellant fails to submit the cost for
appeal or original suit as a security before disposing of appeal and after giving
reasonable opportunity court shall reject the appeal which is not a decree and not
appealable.

Notice by appellate court to court which passed the decree to order for
dispatch of material regarding suit
Notice of day of hearing appeal
• to court which passed the decree

nd
• to respondent or his pleader
• all provisions of service of summon shall be applicable
• notice shall contain text that if respondent will not appear appeal will be heard

ha
Ex-parte
• appeal shall be dismissed if appellant will not be appeared on the fix day

B
• appeal shall be dismissed if appellant will not submit the cost to serve the

h
notice
• such order shall not be made before the date of hearing and if the

la
respondent himself appears to the court
ul
• appeal shall be Ex-parte if the respondent will not be appeared on the fix day
na

• if the appeal is dismissed on default an application may be made for restoration

• if the appeal is Ex-parte then application for setting aside of the Ex-parte may be
Sa

made
Readmission of Appeal by application within 30 days of dismissal or
knowledge against cost
e
at

• U/R-11(2) dismissal for not submitting security for cost of appeal

• U/R-17(1) dismissal of appeal for non appearance of Appellant
oc

• U/R-17(1) dismissal of appeal for non appearance of Respondent

• U/R-18 where the cost of serving notice is not submitted by the Appellant
dv
A

Rehearing of respondent after Ex-parte order against

order for cost Cross objection by respondent U/R-22

wherever the relief claimed in the suit was decreed partly in favor of plaintiff
and partly in favor of defendant and also where the original appeal is not filed
by the appellant then the respondent may file cross objections upon the points
which were decided against him and may object against any party to appeal and
also to any person party to original suit by filing memo of appeal with cross
objections after getting leave to file by application within 30 days of notice of
hearing of appeal. If the appeal is dismissed or withdrawn the court will hear the
cross objections even by serving notice to the opposite parties.
Remand of case

nd
Where the lower court has determined the suit on a preliminary issue
(jurisdiction, Res- judicata or limitation) and disposed of the suit the

ha
appellate court may after considering following points may remand the case
to that lower court for re-determining under the same number of register of

B
civil suits.

h
• Entire suit must have been disposed of by the trial court
• Trial court has disposed of the issue at preliminary point

la
• Appellate court has reversed the decree
ul
But if the evidence on record is sufficient to pronounce the judgment, the
na

appellate court may determine it by itself.

Trial court fails to any material issue

Sa

Appellate court may frame issues and send the suit for collection of evidence on
that point and then try the suit by itself.
e
at
oc

Difference between Remand of Case is sent back for

dv

case recording of
U/R-23 and Remand for missing evidence
A

of some material issueU/R-25

Whole case is sent back for trial

Final order Interlocutory order

 Case is at preliminary point Case is already been
decided

Memorandum of objection on the new evidence

Opposite parties may object by filing memo of objection to new objection and
case is heard by the appellate court who remanded the case.

nd
Production of Additional Evidence in Appellate court
As a general rule appellate court cannot call for additional evidence but rule 27 is

ha
an exception to general rule where appellate court may order for sending paper
for inspection, issue commission and examine parties by recording such reason

B
and applying judicial discretion in the following circumstances;

• Where trial court had refused to record the evidence necessary

h
• Where Appellate court cannot pronounce judgment without taking or

la
requiring such additional evidence
ul
• Where appellate court may require such additional evidence for any other
na

substantial cause

Mode of recording such Additional evidence

Sa

• By Appellate court itself

• By Trial Court on the orders of Appellate Court
e

• By another Lower Court

at
oc
dv

Points to be specifically defined to which additional evidence is

A

recorded Judgment in Appeal

• After hearing both parties or their Pleaders

• After giving notices to the parties or their pleaders
• On some future day
Essentials of judgment
• Concise statement of the facts of the case
• Issues
• Decision issue wise
• Reasons for decision
• Relief reversal, varied
• Date and signature judge/judges

nd
ORDER XLII

ha
APPEALS FROM APPELLATE DECREES
1. Procedure:

B
The rules of Order XLI shall apply, so far as may be, to appeals from Appellate
Decrees.

h
la
ul
na
Sa
e
at
oc
dv

ORDER XLIII
A

APPEALS FROM ORDERS

1. Appeals from Orders:
An appeal shall lie from the following orders under the provisions of section
104, namely:
(a) An order under rule 10 of Order VII returning a plaint to be presented to the
proper Court;
 (b) An order under rule 10 of Order VIII pronouncing judgment against a party;
(c) An order under rule 9 of Order IX rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
(d) An order under rule 13 of Order IX rejecting an application (in a case open
to appeal) for an order to set aside a decree passed ex parte;
(e) An order under rule 4 of Order X pronouncing judgment against a party;
(f) An order under rule 21 of Order XI;

nd
(g) An order under rule 10 of Order XVI for the attachment of property;
(h) An order under rule 20 of Order XVI pronouncing judgment against a party;

ha
(i) An order under rule 34 of Order XXI on an objection to the draft of a
document or of an endorsement;

B
(ii) An order under rule 62 or rule 103 of Order XXI relating to the right, title or
interest of the claimant or objector in attached property;

h
(j) An order under rule 72 or rule 92 of Order XXI setting aside or refusing to

la
set aside a sale;
(k) An order under rule 9 of Order XXII refusing to set aside the abatement or
ul
dismissal of a suit;
na

(l) An order under rule 10 of Order XXII giving or refusing to give leave;
(m) An order under rule 3 of Order XXIII recording or refusing to record an
Sa

agreement, compromise or satisfaction;

(n) An order under rule 2 of Order XXV rejecting an application (in a case open
to appeal)for an order to set aside the dismissal of a suit;
e

(o) An order 1 [under rule 2, rule 4 or rule 7] of Order XXXIV refusing to

at

extend the time for the payment of mortgage money;

(p) An order in interpleader suits under rule 3, rule 4 or rule 6 of Order XXXV;
oc

(q) An order under rule 2, rule 3 or rule 6 of Order XXXVIII;

(r) An order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;
dv

(s) An order under rule 1 or rule 4 of Order XL;

(t) An order of refusal under rule 19 of Order XLI to readmit, or under rule 21 of
A

Order XLI to re­hear an, appeal;

(u) An order under rule 23 of Order XLI remanding a case where an appeal
would lie from the decree of the Appellate Court;
(v) An order made by any Court other than a High Court refusing the grant of a
certificate under rule 6 of Order XLV;
(w) An order under rule 4 of Order XLVII granting an application for review
 2. Procedure:
The rules of Order XLI shall apply, so far as may be, to appeals from orders.
3. Notice before presentation of appeal:
Where an appeal against an order is preferred during the pendency of a suit,
the appellant shall, before presenting the appeal, give notice of such appeal to
the respondent or his advocate by delivering a copy of the memorandum and
grounds of appeal along with a copy of the order appealed against either

nd
personally or through registered post acknowledgement due and the postal or
other receipt shall be filed with the memorandum of appeal for the record of the

ha
appellate Court.
On receipt of notice referred to in sub rule (1), the respondent may, with the

B
permission of the Court, appear before it and contest the appeal and may be
awarded costs on dismissal of the appeal in liming.

h
The provisions of rule 3 shall, mutatis mutandis, apply to all applications filed

la
before an appellate Court during the pendency of a suit.
ul
na
Sa
e
at
oc
dv

ORDER XLVII
A

REVIEW
• Preface
Civil Procedure code has granted right of review, but this right has been made
subject to procedure, conditions and limitations, which have been prescribed in
rules of order 47 of Civil Procedure Code. Right of review is a substantive right,
the main object of which is to enable the courts to correct errors in the decisions
pronounced by them. If the decree or an order or made on the basis of some
record and there has been some mistake or error apparent on the face of record or
some new and important matter or evidence is discovered after the passage of
decree or order or another such sufficient reasons, the application of review, may
be made by the aggrieved party.
• Relay Sections

nd
Section 114 Order 47
• LEXICAL MEANING OF REVIEW:

ha
According to black’s law dictionary:
“Consideration, inspection or reexamination of a subject or things”

B
• Grounds of Review

h
Following are the main points:

la
• Appealable Decree or Order
When any person is aggrieved by a decree or order and appeal is allowed
ul
against such decree or order, but appeal is not filed, review application can be
na

filed against such decree or order.

• No Right of Appeal allowed

Sa

Where no right of appeal is allowed to an aggrieved party, he can file a review

application.
e

• Discovery of new and important matter or evidence

at

When new and important matter or evidence is discovered, but such matter or
evidence was not within knowledge of aggrieved person or such matter or
oc

evidence could not be produced by aggrieved person at that time when decree
or order was passed, review application can be filed.
dv

Note evidence must be Relay and such nature that would if not allowed effect the
decree or order and party has to show strict proof regarding this ground
A

otherwise application is liable to be rejected by the court.

• Mistake or error
When any mistake or error is apparent on face of record, and does not require
any extra evidence to establish it, then a review application can be filed.
• Any other sufficient Ground
Party may apply for review, an order or decree when there is any other sufficient
ground or reason, a review application can be filed.
4. Forum of Review
An application for review shall lie to the following authorities.
• Review application against decree or order of High Court

nd
When a decree or order, against which review is prayed for, is that of the
High Court, a review application should be filed before any judge of the

ha
High Court.

• Same judge or his successor

B
When the decree or order is that of a court, other than the High Court, it shall
be reviewed by the same judge or his successor.

h
Rejection of Application of Review

la
• Where it appears to the court, that there is no sufficient reason for review.
ul
• Where an application for review is heard by more than one judge, and
na

the court is equally divided.

• Order of Rejection non-Appealable
Sa

No appeal lies, from an order rejecting an application for review.

• Restoration of review application

e

When application for review is rejected for non appearance of applicant then
at

court application by the applicant may restore it and shall serve a notice to the
oc

defendant.
dv

• Limitation Period Application of Review

A

The application for review provides a period of 90 days from date of the decree
or order except in cases mentioned in sec 161 and 162 of limitation act 1908
which respectively deal with the review of judgment or decree of the small
causes court and the High Court.
• SCOPE OF REVIEW :
Review has a very limited scope and that is only to rectify any mistake apparent
on the face of record or if some material evidence has not been taken into
consideration one has been totally ignored while passing the judgment.
• Preclude Remarks
To conclude that the court possesses discretionary power to allow review
application. However, it is necessary that such power should be exercised

nd
judicially.

ha
ORDER XLVIII

B
MISCELLANEOUS
1. Process to be served at expense of party issuing:

h
Every process issued under this Code shall be served at the expense of the

la
party on whose behalf it is issued, unless the Court otherwise directs.
ul
Costs of service:
na

The court fee chargeable for such service shall be paid within a time to be
fixed before the process is issued.
Sa

2. Orders and notices how served:

All orders, notices and other documents required by this Code to be given to
or served on any person shall be served in the manner provided for the service
e

of summons.
at

3. Use of forms in appendices:

oc

The forms given in the appendices, with such variation as the circumstances
of each case may require, shall be used for the purposes therein mentioned.
dv

ORDER XLIX
A

HIGH COURTS
1. Who may serve in the High Court?
Invitation to submit documents and summons witnesses and any other legal
procedures for exercising original civil jurisdiction to the High Court and its
marriage, testament and statutory jurisdiction, excluding subpoenas the
defendant, the arrest warrant and the notice to the defendant can be served by a
lawyer in the proceedings, or any person or any other person employed by them,
such as the High Court under any rule or order, command.
2. Saving in respect of High Courts:
Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in
force at the commencement of this Code for the taking of evidence or the recording
of judgment and orders by a High Court.

nd
3. Application of rules:

ha
The following rules shall not apply to any High Courts in the exercise of its
ordinary or extraordinary original civil jurisdiction, namely:­

B
1) Rule 10 and rule 11, clauses (b) and (c), of Order VII;
2) Rule 3 of Order X;

h
la
3) Rule 2 of Order XVI; ul
4) Rules 5, 6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking
evidence) of OrderXVIII;
na

5) Rules 1 to 8 of Order XX; And

Sa

6) rule 7 of Order XXXIII (as far as relates to the making of a memorandum) ; And
rule 35 of Order XLI shall not apply to any such High Court in the exercise of its
appellate jurisdiction.
e
at
oc
dv
A

INTRODUCTION
Often the subject of conjecture, assumption and incidental attention in Pakistan,
the doctrine of the inherent powers of the court fundamental though it is, has not
received the focus which it warrants. Although Sir Jack Jacob's article, 'The
inherent jurisdiction of the court is an important work which has been cited in
Malaysia,2 it is a general account of English position. The inherent powers (more
commonly referred to as 'inherent jurisdiction') of the English courts have always
been an integral, albeit distinctive, plan of their self-created gene jurisdiction at
common law. In Pakistan, the courts are established, and their jurisdiction
governed, by statutes.3
Inherent powers of courts are those powers which may be applied by the court to
perform full and complete justice between the parties before it. It is the duty of the
Courts to serve justice in every case, whether given in this code or not, brings with
it the important power to do justice in the absence of a definite or separate
provision. This power is said to be the inherent power that is maintained by the

nd
court, though not conferred. Section 151 of the Civil Procedure Code deals with
the inherent powers of the court.

ha
Every court, whether civil or criminal, in the absence of prohibition of procedure is
to be deemed to possess inherent powers embodied in its constitution as may be

B
necessary, to do justice and to undo the wrong, in the course of administration of
justice. The inherent powers of the court are fairly wide to serve the ends of justice.

h
Meaning of “Inherent”:

la
ul
Meaning of ‘inherent’ is existing in something as a permanent, absolute,
inseparable, essential or characteristic attribute.
na

Meaning of Inherent Power

Sa

“An authority possessed, without its being, derived from another”.

e
at
oc
dv
A

History:

Law has always been an essential element of society. It was there even when men
were uncivilized and it is even today when we have entered into a
much-sophisticated world. The presence of law is made much known to us with the
existence of courts. The Courts existed when there was no written statue on the
fundamental principle to do justice and to peacefully settle the matter.

They are not as old as law but law got recognition by courts only. They hold a very
high position in society by virtue of its duty to do justice between the parties.
Every court is constituted for the purpose of administering justice between the
parties and, therefore, must be deemed to possess all such powers as may be

nd
necessary to do the right and to undo the wrong in the process of administering the
justice. The Code of Civil Procedure is a procedural or adjective law and the
provisions thereof must be liberally construed to advance the cause of justice and

ha
further its ends since the basic function of the courts is to do justice rather than
focusing on the procedural part of the parties.

B
The Code of Civil Procedure acknowledges the powers along with limitations on

h
the courts but there are some powers which are vested in the court but not

la
prescribed in the code and those are the Inherent powers. The inherent powers of
the court are in addition to the powers specifically conferred by the code on the
ul
court. They are complementary to those powers. The court is free to exercise them
for the ends of justice or to prevent the abuse of the process of the court. The
na

reason is obvious.
Sa

The provisions of the court are not comprehensive for the simple reason that the
legislature is incapable of contemplating all the possible surroundings which may
arise in future litigations. Inherent powers come to the rescue in such unforeseen
e

circumstances. They can be exercised ex debito justitiae in the absence of

at

provisions in the code. But those need to be exercised with due care and not
arbitrary.
oc

Scope:
dv

The scope of exercising of Section 151 of CPC can be represented by some cases
as follows:
A

· The court may recheck its orders and resolve errors;

· Issuance of provisional sanctions when the case is not included by order 39 or

to place alongside an ‘ex parte’ order;

· Illegal orders or orders passed without jurisdiction can be set-aside;
· Subsequent events in the case can be taken into consideration by the court;

· Power of Court to continue trial ‘in camera’ or prevent disclosure of its

proceedings;

· The court can erase remarks made against a Judge; and

nd
· The court can improve the suit and re-hear on merit or re-examine its order.
Provisions of Section 148 to 153 B of CPC

ha
The law relating to inherent powers of Court is mentioned in Section 148 to

B
Section 153A of the Civil Procedure Code, which deals with the exercise of powers
in different situations. Following are the provisions of Inherent powers of Courts:

h
· Section 148 and Section 149 deals with grant or enlargement of time;

la
ul
· Section 150 deals with the transfer of business;
· Section 151 protects the inherent powers of the courts; and
na

· Section 152, 153 and Section 153A deals with amendments in judgments,
decrees or orders or in separate proceedings.
Sa
e
at
oc
dv
A

Enlargement of time7

Section 148 of the CPC states that where any term is fixed or awarded by the Court
for the doing of any act provided by CPC, it is the discretionary power of the Court
that the Court may enlarge such a period from time to time, even though the term
originally fixed or awarded may have departed.
In simple words, when a term is fixed by provision for the doing of any act, the
Court has the power to extend such a period up to 30 days. This power is
exercisable in the deficiency of any specific provision to the contrary which
reduces or rejects or withholds the period. The power is limited to the extension of
the time fixed by it and is of a discretionary nature.

Payment of court fees

nd
According to Section 149 of CPC, “Where the entire or a portion of any fee
commanded for any certificate by the law for the time being in force relating to
court-fees has not been met, the Court may, in its discretion, at any step, permit the

ha
person by whom such fee is payable, to pay the whole or part as the case may be,
of such court-fee; and upon such payment, the document, in regard of which such

B
fee is payable, shall have the same force and result as if such fee had been paid in
the initial situation.”

h
la
It permits the court to allow a party to make up for the lack of court fees due on a
complaint or notice of appeal etc., even after the expiry of the limitation period
ul
for filing of the lawsuit or appeal, etc. Payment of the expected court fee is
compulsory for any document imputable with court-fee to be presented in the
na

court. If the necessary court fee is paid within the time set by the court, it cannot
be negotiated as time-barred. Such payment made within the time fixed by the
Sa

court retrospectively validates a faulty document. The power of the court is

discretionary and must be exercised only in the importance of justice.
e

Transfer of business
at

According to Section 150 of CPC, “Save as otherwise granted, where the business
oc

of any Court is assigned to any other Court, the Court to which the business is so
assigned shall have the same authority and shall make the same duties as those
sequentially presented and forced by or under this Code upon the Court from
dv

which the business was so assigned.”

A

For example- When the business of a court A is transferred to any other court B,
the court B will exercise the same power or perform the same duties given or
commanded by the CPC upon the transfer court.

Section 151 of CPC10

Section 151 deals with “Saving inherent powers of Court.” This Section states that
‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent
power of the Court to make such orders as may be important for the ends of justice
or to limit abuse of the method of the Court.’ It is not obligatory for the court to
wait for the law made by parliament or order from the higher judiciary. The Court
has discretionary or inherent power to make such an order which is not given in
terms of laws for the security of justice or to check misuse of the method of the
Court.

nd
Inherent Powers of the Court

ha
The court has the following inherent powers

B
i. To postpone the hearing of suits pending the decision of a selected action

h
ii. To stay cross suits on the ground of convenience.

la
iii. To ascertain whether the proper parties are before it.
ul
iv. To inquire whether a plaintiff is entitled to sue as an adult.
na

v. To entertain the application of a third person to be made a party.

Sa

vi. To allow a defense in formal pauperism.

Vii. To decide one question and to reserve another for investigation, it did not
e

require any provision of the code to authorize a judge to do what in this

at

matter was justice and for the advantage of the parties.

oc

viii. To remand a case to which order 41, order 23 or order 41, order 25 applies.
ix. To stay the drawing up of the court’s own orders or to suspend their
dv

operation, if the necessities of justice so require.

x. To apply the principles of res judicata to cases not falling within section 11 of
A

the code.

xi. To add a party, or to transpose parties, or where the appeal is filed against a
dead person or persons to allow the appellant to add legal representatives of the
deceased as parties in a proper case.
xii. To modify a scheme prepared by itself under section 92.

xiii. To set aside a court sale on the ground of the minority of the purchaser.

xiv. To order security for costs in a revision application in a proper case.

xv. To direct restitution.

nd
When inherent powers may be used u/s 151

Courts can exercise inherent powers u/s 151 in the following circumstances.

ha
i. In absence of express provisions of law

B
Inherent powers can only be exercised by the court when there is no express
provision in the code.

h
la
ii. To give effect to any order under CPC
ul
Inherent power may be exercised by the court to give effect to any order under the
CPC.
na

iii. To prevent abuse of Process of any Court

Sa

Court may exercise powers u/s 151 to prevent abuse of process of any court.

iii-a. Meaning of abuse of process

e
at

The term abuse of process of any court has not been defined by the code. It may
be defined as under
oc

“Misuse and colorable use of the powers and procedure or usurpation of

dv

jurisdiction not vested in the court.”

A

iii-b. 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

iv. To secure ends of justice

Inherent powers may be exercised by the court, to secure ends of justice, and it
necessarily means, justice administered by the court, and not justice in an abstract
sense.
Limitation or Restrictions against the arbitrary exercise of Inherent power

nd
Following are the restrictions on the inherent powers of the court:

ha
i. Inherent power can’t be extended to make a new law on the subject

B
ii. It cannot be used against the express intention of the legislature.

h
iii. It cannot override the express provision of law

la
iv. It cannot be used where there is remedy is provided
ul
v. Inherent powers should not affect the substantive rights of the parties.
na

vi. It should not be exercised, to assist a party guilty of laches or delay.

Sa

Instances of Inherent Powers

Following are some of the instances of inherent powers of court u/s 151 CPC
e

i. Correction of Error
at

Court can correct errors in the judgment and decree, or even correct its own
oc

order, or to recall an erroneous order in an appropriate case.

dv

ii. Issuance of Injunctions

Court may issue an injunction in cases not falling under order 59 Rule 1.
A

iii. Determination of Jurisdiction

Courts have inherent power to determine the question of their own jurisdiction,
and it may also set aside an order passed without jurisdiction.

iv. 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.

Appeal

Order passed u/s 151 is not appealable, unless they fall within the definition
of decree or an appealable order.

nd
Revision

Generally, revision will not be competent against order u/s 151 but in appropriate

ha
cases revision may lie.

Limitation Period

B
The law of limitation will not bar the exercise of inherent powers.

h
la
Ends of justice ul
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice”
was explained. It was held that “ends of justice” are solemn words, also there's
na

words are not merely a polite expression as per juristic methodology. These
words also indicate that Justice is the persuit and end of all law. However, this
Sa

expression is not vague and indeterminate notion of justice according to laws of

the land and statutes.
e

The Court is allowed to exercise these inherent powers in cases like- to recheck
at

its own order and correct its error, to pass injunction in case not included by
Order 39, and an ex parte order against the party, etc.
oc
dv
A

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the
infringement of the process of the court. Abuse of the powers of the court which
happens in unfairness to the party needs to get relief on the ground that the act of a
court shall not prejudice anyone. When a party practices fraud on the court or on a
party to a proceeding, the remedies have to be provided on the basis of inherent
power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something
that it is never expected to do is the perpetrator of the said abuse and there is a
failure of justice. The injustice done to the party must be given relief on the basis
of the doctrine of actus curiae neminem gravabit (an act of the court shall prejudice

nd
no one). A party to a case will become the perpetrator of the abuse in cases when
the said party does act like obtaining benefits by functioning fraud on the Court or

ha
a party to the proceedings, prompting the multiplicity of proceedings, etc.

Amendment of judgments, decrees, orders, and other records

B
Section 152 of CPC deals with the “Amendment of judgements, decrees, and

h
order.” According to Section 152 of CPC, the Court has the power to change

la
(either by own actions or on the application of any of the parties) written or
arithmetical mistakes in judgments, decrees or orders or faults arising from an
ul
unexpected lapse or imperfection.
na

Section 153 deals with the “General authority to amend.” This Section
empowers the court to amend any fault and error in any proceedings in suits
Sa

and all required improvements shall be made for the purpose of arranging
raised issues or depending on such proceeding.
e

Section 152 and 153 of the CPC makes it clear that the court may correct any
at

blunders in their experiences at any time.

oc

Power to amend decree or order where an appeal is summarily dismissed and

place of the trial to be deemed to be open Court are defined under Section 153A
and 153B of CPC,1908.
dv
A

Limitation

· The exercise of inherent powers carries with it certain barriers such as:
· They can be applied only in the deficiency of particular provisions in the
Code;

· They cannot be applied in dispute with what has been expressly given in the
code;

· They can be applied in rare or exceptional cases;

nd
· While operating the powers, the court has to follow the method shown by
the legislature;

ha
· Courts can neither exercise jurisdiction nor entrust in them by law;

B
· To abide by the principle of Res Judicata i.e., not to open the issues which
have already been decided finally;

h
· To pick a mediator to make an award afresh;

la
ul
· Substantive rights of the parties shall not be taken away;
na

· To limit a party from taking proceedings in a court of law; and

· To set apart an order which was valid at the moment of its issuance.
Sa

· Summary of Provisions of Inherent powers of Courts

e

· A summary of Section 148 to Section 153B is that the powers of the court
at

are quite deep and extensive for the scope of:

· Reducing litigation;
oc

· Evade multiplicity of proceedings; and

dv

· To supply full and complete justice between the parties.

A

Suggestions
It may be recommended that rules put down by the courts in the application of
inherent powers concurrently with the restraints and limitations on the application
of the power be arranged in the form of rules to be made by the Supreme Court
and be made desirable to the courts for their leadership. The rules may also
provide to deal with different circumstances unprovoked for which arises in future.

Application Under Section 151 of the Civil Procedure Code, 1908 for
Deciding Preliminary Issues

nd
IN THE HONOURABLE LAHORE HIGH COURT

ha
C.M. No. ____________ /2012.

B
IN

h
la
ul
W.P. No. __________ / ________.
na
Sa

________________________________________________
e
at

VERSUS
oc

________________________________________________
dv

APPLICATION UNDER SECTION 151 OF THE CIVIL PROCEDURE

A

CODE, 1908

FOR DECIDING
 PRELIMINARY ISSUES

Respectfully Sheweth:-

1. That the captioned Writ Petition is pending adjudication before this Court and
is now fixed for hearing for ________________

nd
OR no date of hearing has yet been fixed in the matter.

ha
2. (State very briefly the factual matrix of the matter depicting the legal issues
which show that the jurisdiction of the Court is barred under law).

B
3. (State the details of the reasons, on the basis of which the jurisdiction of the
Honorable Court is barred, which may be any of the following:

h
The petition is barred under a specific law, the petition is barred under Article 184

la
of the Constitution of the Islamic Republic of Pakistan, 1973, being a dispute
ul
between a Provincial Government and the Federal Government etc., the petition is
barred under Article 212 of the Constitution of the Islamic Republic of Pakistan,
na

1973).
4. The Petitioner has an alternative and efficacious remedy available to him which
Sa

he has not availed nor are there any compelling reasons justifying circumvention of
due process of law.
e

5. (That the question involved in the case at hand goes to the root of the matter,
therefore, it is humbly submitted that it would be in the fitness of things if the same
at

is adjudicated upon at the foremost, before the decision of the case on merits.)
oc

In view of the above, it is very humbly prayed that the Preliminary Issue(s) may
very graciously be decided before adjudicating the case on merits.
dv

Any other relief which this Honorable Court deems fit and appropriate in the facts
and circumstances of the case may also be passed in favor of the Applicant.
A

Applicant through
Government Pleader Sindh

Conclusion
 Inherent powers are the power of the court which are helpful in minimizing
litigation, avoiding multiplicity of proceedings and to render complete justice
between two parties. Section 148 to 153 B of CPC discusses the provisions of the
Inherent powers of the Court. These provisions discuss the enlargement of time,
payment of court fees, transfer of the business of one court to another court, end of
justice, abuse of process of the court, amendment of judgment, decree, orders, and
records, etc.

nd
ha
B
h
la
ul
na
Sa
e
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dv
A

MCQs Code of Civil Procedure 1908 Pakistan

1. The Code of law which deals with Courts of Civil Judicature is called Code
of Civil Procedure

2. The Code of Civil Procedure was enacted on 21st March, 1908

3. The Code of Civil Procedure was enforced on 1st January, 1909

4. The Code of Civil Procedure, contains___158__ sections

nd
5. The Code of Civil Procedure has, ___ XI __ parts

ha
6. Code of Civil Procedure consists__52___ Orders

B
7. A decree is an operative part of a__ Judgment ___ in civil suits for appeals

8. __ Decree ___ conclusively determines rights of the parties

h
la
9. Section 2, of C.P.C deals with Definitions
ul
10. The term "Decree" is defined in section 2(2)
na

11. The term "Decree holder" is defined in Section___2 sub section (3),__, of
C.P.C.
Sa

12. A person in whose favor a decree has been passed or an order capable of
execution has been made is called Decree holder
e
at

13. Any person against whom a decree has been passed or an order capable of
execution has been made is called a Judgment debtor.
oc

14. The term "Judgment" is defined in section 2(9) C.P.C.

dv

15. The statement given by the Judge on the ground of decree or order is called
Judgment
A

16. A person who in law represents the estate of deceased person is called Legal
representative

17. The term "Legal representative" is defined in Section 2(11)

18. Section 2, sub-section 12 of C.P.C. define Mesne profit

19. The term "Order" is defined in section 2 sub section___(14), of C.P.C._____

20. The formal expression of any decision of a civil Court which not a decree is
called Order

21. Section 5 of C.P.C deals with application of C.P.C to Revenue Courts

22. Section 6, of C.P.C. deals with Pecuniary jurisdiction

nd
23. A suit in which the right of property or office is contested is called suit of___
Civil __ nature

ha
24. The term jurisdiction has __4___ kinds

B
25. Pecuniary Jurisdiction of Civil judge of Class 2nd is limited upto 500,000

h
26. Pecuniary jurisdiction of Civil judge of Class 3rd is limited upto 100,000

la
27. Section 10 of C.P.C. deals with___ Res Sub Judice ___
ul
na
28. The term "Res-subjedice" means. The case instituted later

29. The are___4,__ main ingredients for application of section 10

Sa

30. Section 11 of C.P.C. deals with Res judicata

e

31. The term "Res judicata" is a__ Latin __ term

at

32. The term "Res judicata" means A matter already adjudicated

oc

33. Where a person challenges the validity of a judgment decree or order on the
basis of fraud misrepresentation or want of jurisdiction he shall seeks his remedy
dv

by making an Application
A

34. Section ___12(2),___ of C.P.C. deals with making of application to challenge

the validity of a judgment, decree or order on plea of fraud, misrepresentation or
want of jurisdiction

35. Application under section 12(2) shall be moved to The Court which passed
the final judgment, decree of order
36. A Foreign judgment not pronounced by Court of competent jurisdiction will
Not be conclusive

37. According section 15, of C.P.C. every suit shall be instituted in the Court of
Lowest grade competent to try it

38. A residing in (Karachi) beats B in (Dacca) A may sue in Both at Karachi and
Dacca

nd
39. Section 96 of C.P.C. deals with 1st appeal

ha
40. The term "Appeal" means Transfer of case from inferior Courts to Superior
Court for the purpose of checking credibility of lower Court decision

B
41. Normally__ Court of District Judge ___ is called appellate Court

h
la
42. ___ Pecuniary value of a suit ___ determine forum for first appeal
ul
43. No appeal shall lie from a decree passed by the Court With consent of parties
na

44. Orders from which appeal lies are provided in Section 104, of C.P.C.

45. An order under section 35-A, is Appealable

Sa

46. Section__115___, C.P.C. deals with revision

e

47. The term "Revision" means A re-examination or careful reading of a case

at

for the purpose of correction or improvement

oc

48. The revisional power can be exercised by Court of Session & High Court
dv

49. Time limitation for filing revision petition before High Court as provided
under section 115, is Ninety days
A

50. Revisional power exercised by High Court or Court of Session is ___

Discretionary ___ in nature

51. Revision power can be exercised by High Court or District Court on Question
of law
52. The power enjoyed by Court to fulfill needs of justice in absence of specific
provision of C.P.C are called Inherent powers

53. Section___151__ of C.P.C deals with inherent powers of Court

54. Order 1, of C.P.C deals with Parties to the suit

55. The person who brought the suit or file a suit is called Plaintiff

nd
56. The person or group of persons who are responsible to replying or answering
the suit are called Defendant or defendants

ha
57. To become plaintiff in any suit it is required the interest of plaintiff must be

B
Attached to the litigation

h
58. Under Order 1, Rule 1, all persons may be joined as plaintiffs if Their right to

la
relief is same ul
59. Under Order 1, Rule 2, where it appears to the Court that any joinder of
plaintiffs may embarrass or delay the trial Court can Order for separate trial
na

60. All persons may be joined as___ Defendants __ against whom any right to
Sa

relief is claimed

61. No suit shall be defeated by reason of__ Mis-joinder and non joinder of the
e

parties __ as provided in Order, 1, Rule 9

at

62. Order VI, of C.P.C. deals with Pleadings

oc

63. The term "Pleading" means Plant & Written statement

dv

64. As per principle laid down in Order VI, Rule 2, of C.P.C. Pleadings need to
state. Material facts not evidence
A

65. As per Order VI, Rule 14, pleading to be Signed by the party and his
pleader

66. Order VI, Rule 15, of C.P.C. deals with Amendment of pleadings
67. As per Order VI, Rule 18, of C.P.C. A party allowed for amendment can
amend the pleading within 14 days

68. Order VII, of C.P.C. deals with Plaint

69. O. VII of C.P.C contains___26,__ Rules.

70. Order VII, Rule 1 of C.P.C. contains 9 Sub-rules or ingredients

nd
71. Where the plaintiff seeks recovery of money the plaint shall state the Price
amount claimed

ha
72. As per Order VII, Rule 3, of C.P.C. where the subject matter of the suit is

B
immovable property the plaint shall Contain a description of the property
sufficient to identify it

h
la
73. Order VII, Rule 9, of C.P.C. deals with Procedure of admitting plaint
ul
74. Procedure for return of a plaint is provided in O. VII, R. 10(2),
na

75. Where a plaint does not disclose cause of action It can be rejected

76. Rejection of plaint is dealt by O. VII, R. 11,

Sa

77. Order VII, Rule 11 of C.P.C. provides___4___ ingredients from which

deficiency of any occasion can cause rejection of plaint
e
at

78. The procedure for rejection of a complaint is provided O. VII, Rule 12, of
C.P.C.
oc

79. Where plaintiff rely on any other documents as evidence in support of his
dv

claim he shall enter such documents in In a list to be added or annexed with the
plaint
A

80. Address of the plaintiff to be filed with the plaintiff for service of notices as
provided in O. VII, Rule 19, of C.P.C.

81. Where a plaintiff or petitioner failed to file an address for service of summon
or notices his plaint or petition Shall be rejected
82. Where a party engages a pleader notices summons or other processes for
service on him shall be served in the manners as prescribed in Order III, Rule 5 of
C.P.C.

83. The Order of C.P.C which deals with written statement is Order VIII,

84. The reply of the plaint filed by the defendant is familiar as Written Statement

nd
85. Order VIII of C.P.C have___13__ Rules

86. As per O. VIII, Rule 2, of C.P.C.___ Defendant __ must raise by his pleadings

ha
all matters which show the suit not to be maintainable

B
87. According O. VIII, R. 3, of C.P.C. when defendant deny any fact of plaint
denial to be Specific

h
la
88. Evasive denial by defendant Does not have any sanctity in the eye of law
ul
89. Denial by defendant Must be specific
na

90. As per O. VIII, R. 6, particular of set off to be given in Written statement

91. A sues B on a bill of exchange for Rs.500, B holds a judgment against A for
Sa

Rs.1000. The two claims being both definite pecuniary demands may be set off.
The illustration is given in Order VIII, R. 6, of C.P.C
e

92. O. VIII, Rule 13, of C.P.C. deals with List of legal representatives of
at

defendants
oc

93. O. IX, of C.P.C. contains__14___ Rules

dv

94. As per O. IX, Rule 2, of C.P.C. where summons not served in consequence of
plaintiff failure to pay cost, the Court May dismissed the suit
A

95. Where neither plaintiff nor defendant appears on a fixed day of hearing the
fate of the suit shall be Dismissed as provided in O. IX, R. 3, of C.P.C.

96. Under O. IX, Rule 5, of C.P.C. empowers the Court to dismiss the suit when
summons are unserved and plaintiff failed to apply for fresh summons For a
period of 3 months
97. When plaintiff appears defendant does not appear and summons are duly
served the Court may proceed ex-parte against defendant as provided by O. IX,
Rule 6, of C.P.C.

98. Ex parte order can be passed in favor of Plaintiff

99. For setting aside ex parte order affected party needs to file An application

nd
100. O.IX, Rule 12 deals with where the subject matter of the suit is
immovable property in CPC.

ha
101. O. IX, Rule 13, of C.P.C. deals with Setting aside ex-parte
decree against defendants

B
102. As per O. IX, Rule 14, of C.P.C. no decree to be set aside upon

h
application without notice to Opposite party

103.
la
As per O. XXXIX, R. 5 of C.P.C. an injunction directed to
ul
corporation is binding upon Corporation & Upon all officers and members of
na

corporation
104. The statutory period for injunctive order is Twelve months
or disposal of suit
Sa

105. An interim injunction passed under O. XXXIX, R. 1 or 2 of

C.P.C. in the absence of defendant shall not ordinarily exceeds Fifteen days
e

106. There are ___4___ basic requirements for granting

at

temporary injunction
107. Order XXXIX, of C.P.C contains ____10___ Rules
oc

108. The court to amend a decree. Where in appeal is preferred from a

decree of a court of first instance the appellate court may: dismiss the appeal
dv

under O.41 R-11, without issuing any notice to respondents or confirm,

reverse or vary the decree of the court of first instance O-41,R-32
A

109. Where an appeal is dismissed under R-11 or 17 of CPC the

appellate court can apply for re-admission of appeal as provide in O-41, R-19
110. Where the appellate court is not dismissed under Rule 12 of
O-41, the appellate court shall send notice of appeal to the court from whose
decree the appeal is referred.
111. O-41, R-11 empowered appellate courts to dismiss appeals
without sending notice to lower courts.
112. O-41, R-5 deals with stay of execution by appellate court
113. O-41 contain 37 rules

114. Which of the following deal with the right to challenge

non-appealable order in appeal against decree in the CPC? Order 43, Rule 1

nd
ha
B
h
la
ul
na
Sa
e
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dv
A
MCQs Code of Civil Procedure 1908 Pakistan Part-I (CPC)

MCQs Code of Civil Procedure 1908 Pakistan Part-I

1. The Code of law which deals with Courts of Civil Judicature is called Code
of Civil Procedure
2. The Code of Civil Procedure was enacted on 21st March, 1908
3. The Code of Civil Procedure was enforced on 1st January, 1909

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4. The Code of Civil Procedure, contains 158 sections
5. The Code of Civil Procedure has, XI parts

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6. Code of Civil Procedure consists 52 Orders
7. A decree is an operative part of a Judgment in civil suits for appeals

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8. Decree conclusively determines rights of the parties

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9. Section 2, of C.P.C deals with Definitions
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10. The term "Decree" is defined in section 2(2),
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11. The term "Decree holder" is defined in Section 2 sub section (3), of C.P.C.
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12. A person in whose favor a decree has been passed or an order capable of
execution has been made is called Decree holder
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13. Any person against whom a decree has been passed or an order capable of
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execution has been made is called Judgment debtor

14. The term "Judgment" is defined in section 2(9) C.P.C.
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15. The statement given by the Judge on the ground of decree or order is called
Judgment
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16. A person who in law represents the estate of deceased person is called Legal
representative
17. The term "Legal representative" is defined in Section 2(11)
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18. Section 2, sub-section 12 of C.P.C. define Mesne profit

19. The term "Order" is defined in section 2 sub section (14), of C.P.C.
20. The formal expression of any decision of a civil Court which not a decree is
called Order
21. C.P.C. is not applicable to Civil Courts
22. Section 5 of C.P.C deals with application of C.P.C to Revenue Courts
23. Section 6, of C.P.C. deals with Pecuniary jurisdiction
24. A suit in which the right of property or office is contested is called suit of Civil
nature
25. The term jurisdiction has 4 kinds
26. Pecuniary Jurisdiction of Civil judge of Class 2nd is limited upto 500,000
27. Pecuniary jurisdiction of Civil judge of Class 3rd is limited upto 100,000
28. Section 10 of C.P.C. deals with Res Sub Judice
29. The term "Res-subjudice" means. The case instituted later

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30. The are 4 main ingredients for application of section 10
31. Section 11 of C.P.C. deals with Res judicata

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32. The term "Res judicata" is a Latin term
33. The term "Res judicata" means A matter already adjudicated
34. Where a person challenges the validity of a judgment decree or order on the

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basis of fraud misrepresentation or want of jurisdiction he shall seeks his remedy by
making an Application

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35. Section 12(2) of C.P.C. deals with making of application to challenge the validity

36.
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of a judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction
Application under section 12(2) shall be moved to The Court which passed the
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final judgment, decree of order
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37. A Foreign judgment not pronounced by Court of competent jurisdiction will Not
be conclusive
38. According section 15, of C.P.C. every suit shall be instituted in the Court of
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Lowest grade competent to try it

39. A residing in (Karachi) beats B in (Dacca) A may sue in Both at Karachi and
Dacca
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40. According section 21, of C.P.C. objection at jurisdiction of Court can be raised on
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Trial
41. Section 22, of C.P.C. deals with transfer of cases by Court of Session
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42. Where several Courts having jurisdiction are subordinate to the same appellate
Court an application under section 22, shall be made to Appellate Court
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43. Every suit shall be instituted by the presentation of Plain or in such other manner
as prescribed
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44. Where a suit has been instituted a summon may be issued Defendant
to appear and answer the claim and may be served in a manner prescribed.
45. According section 33, of C.P.C. the Court after the case has been heard shall
pronounce judgment and on such judgment decree shall follow
46. Section 34, of C.P.C. deals with Interest
47. Section 35, of C.P.C. deals with Costs
48. Section 35-A, of C.P.C. deals with compensatory costs in respect of false and
vexatious claims or defenses
49. A decree may be executed either by Court which passed it or by the Court to
which sent for execution
50. The Court which passed a decree may send the decree for execution to another
Court upon Application of decree holder
51. Section 36 to 74 of C.P.C. deals with execution of decree
52. During execution of a decree all question arising between the parties to the suit

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will be dealt by the Executing Court
53. Section 48, C.P.C. provide limitation of Six years years for making execution

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application
54. Section 55, of C.P.C. deals with arrest and detention of Judgment debtor
55. A judgment debtor can be imprisoned for a term not exceeding One year

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56. Women can not be arrested during the execution of money decree.
57. Section 59, of C.P.C. deals with release of judgment debtor on ground of Illness

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58. Section 59, of C.P.C. was omitted by Ordinance 10 of 1980 Section 9
59.
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Which particular from the following can not be attached during execution of a
decree Necessary wearing apparel
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60. Particulars not liable to be attached in execution of decree are provided in
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section 60 of C.P.C.
61. In the case of a suit against the Federal Government the party defendant shall be
Pakistan
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62. In case of suit by Provincial Government of Punjab the titled will be Province of
Punjab Vs ABC
63. As per section 80, of C.P.C. in the case of a suit against Federal Government
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notice will be delivered to Secretary of the Federal Government

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64. In case of a suit against the Provincial Government other than a suit relating to
the affairs of Railway the notice shall be served to The Secretary of that Government
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& The Collector of the District

65. Section 83, of C.P.C. deals with filing of suit by aliens
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66. The term "alien" means A foreigner

67. An alien enemy residing in Pakistan can file a suit with permission of Federal
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Government
68. A foreign State can sue in any Court if such State has been recognized by Federal
government
69. If any diplomatic agent exercised any commercial activity in Pakistan beyond his
official functions he Can be used in any Court
70. For filing a suit of public nuisance the consent of Advocate General is required
71. The term "Public nuisance" means An unreasonable interference with right of
general public
72. Section 92, of C.P.C. deals with suits regarding, Public charities
73. Section 96 of C.P.C. deals with 1st appeal
74. The term "Appeal" means Transfer of case from inferior Courts to Superior Court
for the purpose of checking credibility of lower Court decision
75. Normally Court of District Judge is called appellate Court
76. Pecuniary value of a suit determine forum for first appeal

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77. No appeal shall lie from a decree passed by the Court With consent of parties
78. Section 100, 101, and 102, relates to 2nd appeal

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79. The ground upon which 2nd appeal lies are narrated in Section 100, C.P.C
80. Section 100, 101, and 102, of C.P.C. with deals with appeal to High Court
81. Orders from which appeal lies are provided in Section 104, of C.P.C.

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82. An order under section 35-A, is Appealable
83. An appellate Court has power to Determine a case finally & Frame new issues

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and remand the case
84.
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The Appellate Court has power to take additional evidence as provided by
Section 107(d), of C.P.C.
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85. Appeal is a Continuation of the suit
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86. An appeal from a judgment decree or final order of High Court shall lie to
Supreme Court
87. An appeal to Supreme Court is dealt by Section 109, C.P.C
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88. If a subordinate trial Court is in doubt regarding question of law it can send
reference to High Court as provided in section 113, C.P.C
89. Power of review is provided in Section 114, C.P.C
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90. The term "Review" means Judicial re-examination of a case in certain prescribed
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and specified circumstances

91. The petition for review shall be instituted in the Court Which passed the decree
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92. Law permits that power of review can be exercised upon Discovery of new facts
93. Scope of review power is Limited
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94. Right of review is called Substantive right

95. Section 115, C.P.C. deals with revision
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96. The term "Revision" means A re-examination or careful reading of a case for the
purpose of correction or improvement
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A re-examination or careful reading of a case for the purpose of correction or
improvement
97. The revisional power can be exercised by Court of Session & High Court
98. Time limitation for filing revision petition before High Court as provided under
section 115, is Ninety days
99. Revisional power exercised by High Court or Court of Session is Discretionary in
nature
100. Revision power can be exercised by High Court or District Court on Question of
law
101. Unauthorized person can not addressed to High Court while exercising it original
civil jurisdiction as provided in section 119, of C.P.C

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102. Women who according to customs and manners of the country ought not to be
compelled to appear in public shall be exempt from personal appearance in Court as

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provided in Section 132, C.P.C
103. Section 135, C.P.C. exempt Judge, Magistrate, Judicial Officers from arrest
under civil processes.

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104. Exemption of members of legislature bodies from arrest and detention in civil
process is provided in Section 135-A, of C.P.C.

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105. As per section 142, C.P.C. all orders and notices served on or given to any person

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under the provisions of the Code of Civil Procedure Shall be in writing
106. Section 139, of C.P.C deals with oath on affidavit
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107. Section 144, of C.P.C deals with Application of restitution
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108. The power of Court to allow a party to fulfill deficiency of Court fees under
section 149, of C.P.C. is its Discretionary power power
109. The power enjoyed by Court to fulfill needs of justice in absence of specific
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provision of C.P.C are called Inherent powers

110. Section 151 of C.P.C deals with inherent powers of Court
111. A decree, judgment or order can be amended if there is Clerical or arithmetical
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error
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112. Section 152, C.P.C deals with amendment of Clerical and arithmetical errors in
judgment, decree or order
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113. Order 1, of C.P.C deals with Parties to the suit

114. The person who brought the suit or file a suit is called Plaintiff
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115. The person or group of persons who are responsible to replying or answering the
suit are called Defendant or defendants
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116. To become plaintiff in any suit it is required the interest of plaintiff must be
Attached to the litigation
117. Under Order 1, Rule 1, all persons may be joined as plaintiffs if Their right to
relief is same
118. Under Order 1, Rule 2, where it appears to the Court that any joinder of plaintiffs
may embarrass or delay the trial Court can Order for separate trial
119. All persons may be joined as Defendants against whom any right to relief is
claimed
120. No suit shall be defeated by reason of Mis-joinder and non joinder of the parties
as provided in Order, 1, Rule 9
121. Order II C.P.C deals with Framing of suit
122. As per Order II, Rule 2, suit include Whole of claim
123. Where it appears to the Court that any cause of action joined in one suit cannot
be conveniently tried or disposed of together the Court may Order separate trial

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124. Order, III, of C.P.C deals with Appearance of recognized agents and pleaders
125. A person can appoint pleader for litigation by singing Power of attorney

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126. Order IV, of C.P.C deals with Defendants
127. A suit can be instituted through plaint by filing it before Competent Court & Court
Authorized Officer

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128. Order V, of C.P.C deals with Issue and service of summons
129. When suit has been duly instituted a summon may be issued to Defendants

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130. As per Order V, Rule 2 the summon shall be accompanied by copy of Plaint

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131. Service of the summons shall be made by delivering or tendering a copy thereof
signed by the Judge
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132. Order V, Rule 10-A, of C.P.C. deals with Delivery of summons through post
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133. When defendant refuse or keeping out of the way for the purpose of avoiding
service or Court is satisfied that summons can not be served in ordinary way than Court
will order for the service of summons in Substituted ways
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134. The term "substituted service" means Service of process made under
authorization of Court upon defendants
135. Order V, Rule 20, of C.P.C deals with Service of summons through substituted
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ways
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136. Order V, Rule 20, prescribed 6 ways and manners for service of summons
137. Urgent mail service or courier service is Substituted way of summon servings
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138. Proclamation in news papers is also a type of Substituted service

139. Where the defendant is confined in a prison the summons shall be delivered or
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sent by post or otherwise to The officer incharge of prison

140. As per OrderV, Rule 28, of C.P.C. where the defendant is a soldier, sailor or airmen
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the Court shall send the summons for service to Commanding Officer together with a
copy to be retained by the defendants
141. Order VI, of C.P.C. deals with Pleadings
142. The term "Pleading" means Plant & Written statement
143. As per principle laid down in Order VI, Rule 2, of C.P.C. Pleadings need to state.
Material facts not evidence
144. As per Order VI, Rule 14, pleading to be Signed by the party and his pleader
145. Order VI, Rule 15, of C.P.C. deals with Amendment of pleadings
146. As per Order VI, Rule 18, of C.P.C. A party allowed for amendment can amend the
pleading within 14 days
147. Order VII, of C.P.C. deals with Plaint
148. O. VII of C.P.C contains 26 Rules.
149. Order VII, Rule 1 of C.P.C. contains Sub-rules or ingredients
151. Where the plaintiff seeks recovery of money the plaint shall state the Price
amount claimed

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152. As per Order VII, Rule 3, of C.P.C. where the subject matter of the suit is
immovable property the plaint shall Contain a description of the property sufficient to

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identify it
153. Order VII, Rule 9, of C.P.C. deals with Procedure of admitting plaint
154. Procedure for return of a plaint is provided in O. VII, R. 10(2)

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155. Where a plaint does not disclose cause of action It can be rejected
156. Rejection of plaint is dealt by O. VII, R. 11,

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157. Order VII, Rule 11 of C.P.C. provides 4 ingredients from which deficiency of any

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occasion can cause rejection of plaint
158. The procedure for rejection of a complaint is provided O. VII, Rule 12, of C.P.C.
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159. Where plaintiff rely on any other documents as evidence in support of his claim
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he shall enter such documents in In a list to be added or annexed with the plaint
160. Address of the plaintiff to be filed with plaint for service of notices as provided in
O. VII, Rule 19, of C.P.C.
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161. Where a plaintiff or petitioner failed to file an address for service of summon or
notices his plaint or petition Shall be rejected
162. Where a party engages a pleader notices summons or other processes for
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service on him shall be served in the manners as prescribed in Order III, Rule 5 of C.P.C.
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163. The Order of C.P.C which deals with written statement is Order VIII,
164. The reply of the plaint filed by the defendant is familiar as Written Statement
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165. Order VIII of C.P.C. 13 have 15 Rules

166. As per O. VIII, Rule 2, of C.P.C. Defendant must raise by his pleadings all matters
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which show the suit not to be maintainable

167. According O. VIII, R. 3, of C.P.C. when defendant deny any fact of plaint denial to
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be Specific
168. Evasive denial by defendant Does not have any sanctity in the eye of law
169. Denial by defendant Must be specific
170. As per O. VIII, R. 6, particular of set off to be given in Written statement
171. A sues B on a bill of exchange for Rs.500, B holds a judgment against A for
Rs.1000. The two claims being both definite pecuniary demands may be set off. The
illustration is given in Order VIII, R. 6, of C.P.C
172. As per O. VIII, R. 10, of C.P.C. Where any party from whom a written statement is
so required fails to produce the same with in fixed time before the Court The Court may
pronounce judgment against it & Make any other order regarding the suit
173. O. VIII, Rule 13, of C.P.C. deals with List of legal representatives of defendants
174. O. IX, of C.P.C. contains 14 Rules
175. O. IX, of C.P.C deals with Appearance of the parties & Consequences of non
appearance of the parties
176. As per O. IX, Rule 2, of C.P.C. where summons not served in consequence of

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plaintiff failure to pay cost, the Court May dismissed the suit
177. Where neither plaintiff nor defendant appear on a fixed day of hearing the fate of

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the suit shall be Dismissed as provided in O. IX, R. 3, of C.P.C.
178. Under O. IX, Rule 5, of C.P.C. empowers the Court to dismiss the suit when
summons are unserved and plaintiff failed to apply for fresh summons For a period of 3

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months
179. When plaintiff appears defendant does not appear and summons are duly served

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the Court may proceed ex-parte against defendant as provided by O. IX, Rule 6, of C.P.C.

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180. Ex parte order can be passed in favor of Plaintiff
181. For setting aside ex parte order affected party needs to file An application
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182. O. IX, Rule 13, of C.P.C. deals with Setting aside ex-parte decree against
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defendants
183. As per O. IX, Rule 14, of C.P.C. no decree to be set aside upon application without
notice to Opposite party
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184. O. IX-A of C.P.C. deals with Intermediate dates after submission of application
185. Order X of C.P.C. deals with Examination of parties by the Court
186. Order X of C.P.C. have 4 Rules
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187. At the first hearing of the suit the Court will conduct oral examination of the party
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or his companion as provided in O. X, Rule 2, of C.P.C.

188. When a judge examine any party under O. X of C.P.C. he shall Reduce such
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examination into writing

189. Order XI, of C.P.C. contains 23 Rules
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190. Or. XI, of C.P.C. deals with Discovery and inspection

191. Under O. XI, Rule 1, of C.P.C. any party of the suit can Deliver interrogatories for
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the examination of the opposite party

192. The interrogatories made by any party under O. Xi, Rule 1, of C.P.C. for discovery
Must be in written form
193. A party can make interrogatories from opposite party by Filing application for
permission to do so
194. Or. XI, Rule 7, of C.P.C. empowers Court To set aside and strike out
interrogatories if they do not fulfill requirement of law
195. The answering party shall answer the interrogatories through affidavit as
provided in O. XI, Rule 8, of C.P.C.
196. O. XI, Rule 13, of C.P.C. provided submission of Affidavit of documents
197. An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C
with such variations as circumstances may require
198. Order XII, of C.P.C. is about Admissions
199. Order XII, of C.P.C. contains 9 Rules,
200. As per O, XII, R. 1 any party to a suit may give notice by his pleadings or otherwise

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in writing that he admits the truth of the whole or any portion of the case of Opposite
party

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201. O. XII, Rule 2, of C.P.C. deals with Notice to admit documents
202. Trial Court is empowered by O. XII, Rule 6 of C.P.C to pass judgment on the basis
of admissions made by parties in their pleadings or at any stage of proceedings

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203. An affidavit of pleader or his clerk with due signature of any admission made in
pursuance of any notice to admit documents or facts shall be sufficient evidence of

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Admission as provided in O. XII, Rule 7, of C.P.C.

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204. Order XIII, contains 11 Rules,
205. O. XIII of C.P.C. deals with Production of documents & Impounding and return of
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documents
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206. As per O. XIII, Rule 1 of C.P.C. documentary evidence to be produced at First

hearing
207. If a party fail to produce any documentary evidence at subsequent stage can
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produce it if that party Shows good cause for non production of evidence
208. As per O. XIII, Rule 3, the Court Can reject irrelevant and inadmissible document
at any stage
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209. When the Court rejects any document under O. XIII, Rule 3 C.P.C. it Must record
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ground of rejection
210. Every document produced in Court Shall be endorsed
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211. The documents submitted in any Court shall be endorsed as provided in O. XIII,
Rule 4, of C.P.C.
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212. When any document is rejected by Court under O. XIII, Rule 3 of C.P.C. the order
of such rejection will be Revisionable
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213. O. XIII, Rule 6, C.P.C. deals with Endorsement on rejected documents

214. _____ can apply for return of admitted documents under O. XIII, Rule 9 Any person
desirous of receiving back such documents who submitted
215. O. XIV, of C.P.C is regarding Settlement of issues and determination of suit on
issues of law or on issues agreed upon
216. O. XIV, of C.P.C. contains 7 Rules
217. At the time of framing of issues Court seek light from Plaint & Written statement
218. As per O. XIV, Rule 1, Sub Rule (6), of C.P.C. Court does not requires to frame
issues where Defendant at the first hearing of the suit makes no defense
219. The term "issue" means Controversy between the parties
220. Issues has 2 kinds
221. According O. XIV, Rule 4, while framing issues Court may examine witnesses or
documents before forming issues
222. The issues once framed can Be changed as provided in O. XIV, Rule 5,
223. Where at the first hearing of a suit it appears that the parties are not at issue on

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any question of law or of fact the Court may At once pronounce judgment
224. O. XV, of C.P.C. deals with Disposal of the suit at first hearing

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225. O. XV, contains 4 Rules,
226. O. XVI, of C.P.C deal with Summoning to attendance of witnesses
227. O. XVI, of C.P.C. contains 21, Rules

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228. Not later than 7 days after settlement of issues the parties shall present in the
Court list of witnesses whom they proposed to call as witness or to produce documents

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229. On application to Court or such officer as it appoints in this behalf the parties

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may obtains summons for persons whose attendance is required in the Court as
provided in O. XVI, Rule 1, Sub rule 3,
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230. When a party apply for summoning to witness the expenses shall be Paid by the
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same party
231. The sum so paid into Courts shall be tendered to the person summoned Time of
receiving summon & In Court
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232. In light of O. XVI, Rule 4, of C.P.C. in case of deficiency of fee for summoning
witnesses the Court may Order to attach or sale moveable property of applying person
233. Every summons for the attendance of a person to give evidence or to produce a
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document shall specify the time and place at which he is required to attend as provided
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in O. XVI, Rule 5, of C.P.C.

234. When a witness for attendance of whom summons were issued intentionally
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avoid from receiving summons the Court may make order for Proclamation
235. If a person for attendance of whom proclamation was made intentionally not
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appear before Court the Court will make Warrant without bail & Bailable warrant
236. When as per O. XVI, Rule, Rule 10, of C.P.C. due to non appearance of a witness
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attached property can be released If he show sufficient good cause for his non
appearance before court
237. Under O. XVI Rule 14 of C.P.C. the Court can summon on its own accord to
witnesses Stranger to suit
238. O. XVII of C.P.C. deals with adjournments
239. O. XVII of C.P.C. contains 5 Rules
240. The Court may grant time and adjourn hearing as provided in O. XVII, Rule 1,
when Any party request for adjournment with sufficient cause
241. Provided that when the Evidence of a case has once begun the hearing of the
suit shall be continued from day to day
242. O. XVII Rule of 3 of C.P.C deals with the right of closing evidence of the party
which failed to produce evidence.
244. O.XVIII deals with Hearing of the suit & Examination of the witnesses
245. O. XVIII, contains 18 Rules

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246. Under O. XVIII Rule 1 of the C.P.C. the Plaintiff must produce whatever evidence
he wishes to rely upon in the first instances

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247. Every party of the case needs to prove its case according Issues of its pleadings
248. The evidence of the witnesses in attendance to be taken orally in Open Court
249. Witness to be examined in open Court as provided in O. XVIII, R. 4,

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MCQs Code of Civil Procedure 1908 Pakistan Part-II (CPC)
MCQs Code of Civil Procedure 1908 Pakistan Part-II

251. The Court may at any stage of a suit has power to inspect any property or thing
concerning which any question may arise as provided in
O. XVIII, R. 18, of C.P.C.
252. O. XIX of C.P.C. contains 3 Rules
253. O. XIX, of C.P.C. deals with Affidavits

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254. A witness who submits affidavit can be ordered by Court for Cross examination
of deponents as provided in O.XIX,R.2,

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255. Order XX, of C.P.C. contains 20 Rules
256. O. XX, of C.P.C. deals with Judgment and decree
257. A judgment must be signed by Judge at the time of pronouncing it

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258. A judgment or order needs to be pronounced In open Court
259. The document through which a Court not passing the judgment execute it is

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called Precept

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260. The Courts needs to states its decisions and findings upon Issues
261. The Decree shall agree with the judgment and it shall contain the number of the
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suits, the names and description of the parties and shall specify clearly the relief
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granted and the cost etc.

262. Where the subject matter of the suit is movable property the decree shall contain
the Description of such property & Value of the property
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263. Order XX, Rule 5, prescribes modes of That Court to state its decision on each
issue
264. A judge may pronounce a judgment written but not pronounced by his
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predecessor as provided in O. XX, Rule 2, of C.P.C.

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265. Where a judge vacated office after pronouncing judgment but without signing
decree the decree may be signed by The successor of decree passing judge as
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provided by O. XX, R. 8,
266. In pre-emption decree in respect of purchase of property the purchasing money
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shall be paid In the Court

267. Pre-emption decree can not be incorporated in Revenue record
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268. O. XXI, of C.P.C. contains 103 Rules

269. O. XXI, of C.P.C. deals with Execution of decrees & Execution of Orders
270. O. XXI, Rule 1 of C.P.C. deals with Modes of paying money under decree
271. Where immovable property forms one estate or tenure situated within local limits
of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the
entire estate or tenure as provided by O. XXI, Rule 3, of C.P.C.
272. Modes of transfer of executing decree is provided in O. XXI, Rule 5, of C.P.C.
273. Where a decree is passed in favor of more than one person the execution
application can be made by Any person from decree holders
274. Rule for execution of decree in cases of cross decrees is provided in O. XXI, Rule
18, of C.P.C.
275. Discretion of Court in executing decrees for restitution of conjugal right is
provided in O. XXI, Rule 33, of C.P.C.
276. Procedure for execution of decree for document or endorsement of negotiable
instrument is provided in O. XXI, Rule 34, of C.P.C.

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277. Where a judgment debtor does not appeared before executing Court upon show
cause notice the Court will issue Warrant of arrest

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278. O. XXI, R. 44, deals with attachment of Agricultural produce
279. Attachment of immovable property during execution of a decree is provided in O.
XXI, R. 54

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280. Sale of immovable property in execution of a decree may be ordered by
Executing Court

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281. Where immovable property has been sold in execution of a decree any person

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either owing such property or holding an interest therein if apply to set aside sale he will
deposit 5% of purchase amount.
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282. A decree holder of a decree in execution of which property is sold can not bid
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without permission of Court

283. O.XXII, of C.P.C deals with Death, marriage and insolvency of plaintiff & Death,
marriage and insolvency of defendant
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284. Where a question arises as to whether any person is or is not the legal
representatives of the deceased plaintiffs or defendants such question shall be
determined by The Court as provided in O. XXII, R. 5, of C.P.C
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285. O. XXII, of C.P.C. deal with Withdrawal and adjustment of suits

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286. O. XXIII, of C.P.C. contains 4 Rules

287. As per O. XXIII R. 1 of C.P.C. after institution of a suit plaintiff can withdraw suit
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With permission and satisfaction of Court

288. When there are more plaintiffs then Consent of the other plaintiff will be needed
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for withdrawal of a suit.

289. Adjustment of suit through compromise is provided by O. XXIII, R. 3, of C.P.C.
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290. Order XIV of C.P.C deals with Payment into Court

291. O. XXIV, contains 4 Rules
292. When defendant deposit an amount in Court and give notice to plaintiff to apply
for amount interest on deposit not allowed to the plaintiff After issuance of notice
293. Security for costs is dealt by O. XXV, of C.P.C.
294. Order XXV, contains 2 Rules
295. When security for costs may be required from plaintiff When plaintiff is out of the
country and does not possess any immovable property in the country
296. When the plaintiff of a suit failed to provide security of costs under O. XXV of
C.P.C. upon order of Court the suit will be Dismissed
297. Order O. XXVI, of C.P.C deals with commission to examine witnesses
298. Order XXVI, of C.P.C contains 22 rules
299. When any person required in Court to produce evidence is unable to attend the
Court due to his or her illness it is Sound reason for the Court issuance of commission

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300. When any party makes an application to the Court for issuance of local
commission underO. XXVI Rule 2, the application Must be with affidavit

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301. Persons for whose examination commissions may be issues are provided in O.
XXVI, R. 4
302. Where the evidence of a witness is necessary but the person to be examined is

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out of Pakistan the Court may Issue commission & Issue a letter of request
303. Local commission to make local investigation can be issued under O. XXVI, R. 9,

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of C.P.C.

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304. For partition of a property court may issue Any person which it deems fit as local
commissioner
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305. The expenses of local commissions to be paid Into the Court
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306. Where commission is issued under Order XXVI, the Court shall direct that the
parties of the suit shall appear before the Commissioner In persons & Through agent or
pleader
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307. O. XXVI Rule 19 of C.P.C deals with issuance of commission by High Court
308. The High Court may issue commission upon application of Concerned party &
Law officer of the Provincial or Federal Government
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309. Under O. XXVI, R. 19, of C.P.C. High Court can issue as commission to Any Court
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within the local limits of whose Jurisdiction the witness reside

310. O.XXVII, of C.P.C deals with Suit by or against public officers in the officials
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capacity
311. O.XXVII, of C.P.C contains 8 Rules
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312. Suits involving any substantial question as to the interpretation of Constitutional

law are dealt by O.XXVII-A
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313. In any suit where interpretation of Constitutional law is involved and the question
of law is concerned to Federal Government the Court shall served notice to Attorney
General
314. In any suit where interpretation of Constitutional law is involved and the question
of law is concerned to Provincial Government the Court shall served notice to Attorney
General
315. O.XXVIII, of C.P.C. deals with Suits by or against (Military, Navy or Airmen) Men
316. O.XXVIII, contains 3 Rules
317. An officer of Army if he is unable to sue or defend any suit due to leave he may
sue or defend any suit through Any person authorized by him
318. Suit by or against corporations dealt by O. XXIX
319. Order XXIX, of C.P.C contains 3 Rules
320. In suit by a corporation any pleading may be signed and verified on behalf of the
corporation by Secretary or director of the corporation & Principal officer of the
corporation

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321. Where a suit is against corporation the summons may be served on Secretary or
director of the corporation & Principal officer of the corporation

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322. The Court may at any stage of the suit require the personal appearance of the
secretary, director or principal officer of the corporation as provided in O. XXIX, Rule 3
323. Order XXX, of C.P.C deals with suits against or by Firms and persons carrying on

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business in names other than own
324. Order XXX, of C.P.C contains 10 Rules

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325. Any two or more persons claiming or being liable as partners and carrying on

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business in Pakistan may sue or be sued in the name Firm
326. Where persons are sued as partners in the name of their firm they shall appear
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individually in their own names but all subsequent proceedings shall nevertheless
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continue in The name of firm

327. Any person carrying on business in a name or style other than his own may be
sued By the name of his business or style & By his own name
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328. The Order of C.P.C. dealing with suits by of against trustees executors and
administrators is Order XXXI, of C.P.C
329. O. XXXI contains 3 Rules.
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330. Where a third person sue a trust property defendant will be Trustee
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331. Where there are several trustees, executors or administrators they shall all be
made parties to a suit against one or more of them as provided in O. XXXI, R. 2 of C.P.C.
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332. Where plaintiff of a suit is minor the matter shall be dealt by Order XXXII of C.P.C
333. O. XXXII contains 16 Rules
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334. Every suit by a minor shall be instituted in his name by a person who in such suit
shall be called Next friend
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335. Any application for the appointment of guardian of minor for suit shall contain An
affidavit verifying the fact that proposed guardian has no interest & List of relatives of
the minors and other persons and their adverse who prima-facie are most likely to act
as guardian
336. Qualification for becoming next friend of minor as provided in O. XXXII is That the
person must be major and sound minded
337. Where a suit on behalf of minor is instituted without next friend plaint To be
taken of the file
338. On the retirement removal or death of the next friend of a minor further
proceeding shall be Stayed until new guardian or next friend is appointed
339. As per O. XXXII, R. 12 sub R. (2) where the guardian for the suit retires dies or
removed by Court during the pendency of the suit The Court shall appoint new guardian
340. Where a minor co-plaintiff on attaining majority apply to the Court that his name
be struck off the Court will serve notices to Next friend of the minor & Defendant of the

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suit before making any order
341. Order XXXIII, of C.P.C deals with Suits by paupers

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342. Order XXXIII of C.P.C contains 16 Rules
343. "Pauper" means a person The person who does not possess property worth
1000/- rupees other than his necessary wearing

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344. Before filing suit as pauper there is required application with full prescription of
applicantAppraisal, belongings and Moveable, immovable property

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property

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345. The application for filing pauper suit shall be filed in Relevant Court
346. O. XXXIII, Rule 9 of C.P.C impose 3 condition for dispaupering
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347. Order declaring a party pauper for the purpose of payment of Court fee is
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Revisable order
348. The Order XXXIV, of C.P.C. deals with suits relating to mortgages of immovable
property
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349. Order XXXIV, of C.P.C. contains 15 Rules

350. All persons having an interest either in the mortgage security or in the right of
redemption shall be joined as parties In a suit relating to mortgage
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351. In a suit for foreclosure if the plaintiff succeeded the Court shall pass a Final
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decree
352. O. XXXIV, R. 3, of C.P.C. deals with Final decree in foreclosure suit.
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353. Mortgage by the deposit of title deeds and charges is provided in O. XXXIV, R. 15,
of C.P.C.
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354. O. XXXV, of C.P.C deals with Interpleader suits

355. O. XXXV, contains 6 Rules
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356. In every suit of interpleader the plaint shall in addition to other statement
necessary for plaints state That the plaintiff claims no interest in the subject matter in
dispute other than for charges, or costs, the claims made by the defendants severally
and That there is no collusion between the plaintiff and any of the defendant
357. As per O. XXXV, R. 2, of C.P.C. in interpleader suit where the thing claimed is
capable of being paid into Court or placed in the custody of the Court The plaintiff may
be required to so pay or place it before Court
358. O. XXXVI of C.P.C. deals with Special cases
359. O. XXXVI, contains 5 Rules
360. In a case where parties claiming to be interested in the decision of any question
of fact or law for the purpose of obtaining opinion of the Court, the case is Case of
special nature
361. In special cases parties claiming to be interested in decision of any question of
fact or law may enter into An agreement in writing stating such question in the form of
case for opinion of the Court

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362. Order XXXVII, of C.P.C. deals with Summary cases on negotiable instruments
cases

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363. O. XXXVII, of C.P.C. contain 7 Rules
364. Under Order XXXVII, summary cases can be filed in Court of Session
365. In summary trial the defendants are summoned in As provided in Form 4

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appendix B of C.P.C.
366. In summary case when defendant appear before Court after receiving summon

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he needs Leave of Court to defend the suit

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367. The application moved by defendant for grant of leave from the Court for defense
must contains Affidavit
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368. Where the trial Court rejected application of defendant for grant of leave to
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defend than the Court Shall decree the suit

369. The trial Court under O. XXXVII Rule 3 sub-rule (2) may grant Unconditional leave
to defend and Leave with terms as to payment in Court for security
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370. Order Order XXXVIII, of C.P.C. deals with arrest and attachment before judgment
371. Order XXXVIII, contains 13 Rules
372. Order XXXVIII, Rule 1 deals with Security of defendant for appearance
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373. Where the defendant is about to abscond or leave the local limits of the
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jurisdiction of the Court, the Court for its own satisfaction may order the defendant To
furnish security
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374. O.XXXIX, of C.P.C. deals with Passing of temporary injunction & Passing of
interlocutory orders
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375. Order XXXIX, of C.P.C contains 10 Rules

376. For application of temporary injunction affidavit is Essential
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377. There are 4 basic requirements for granting temporary injunction

378. Affidavit with application of temporary injunction is 4th essential ingredient for
granting temporary injunction
379. An interim injunction passed under O. XXXIX, R. 1 or 2 of C.P.C. in the absence of
defendant shall not ordinarily exceeds Fifteen days
380. The order of injunction made under Order XXXIX, Rule 1, and 2, of C.P.C. after
hearing the parties or after notice to defendant shall cease to have effect on the
expiration of Twelve months, unless Court extend
381. The statutory period for injunctive order is Twelve months or disposal of suit
382. Order XXXIX, Rule 4, of C.P.C deals with Discharge or setting aside of injunctive
order
383. As per O. XXXIX, R. 5 of C.P.C. an injunction directed to corporation is binding
upon Corporation & Upon all officers and members of corporation

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384. O. XXXIX, R. 6 to 10 of C.P.C. deals Interlocutory orders
385. If the moveable property of a suit is subject to natural and speedy decay the

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Court can pass interlocutory order for its sale Upon application of any party
386. O. XXXIX, Rule 7, of C.P.C Court pass interlocutory order On application of any
party

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387. Order XL, of C.P.C deals with Appointment of receiver
388. Order XL, of C.P.C contains 5 Rules

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389. Under O. XL, Rule 1(a), Courts appoint receiver of any property Before a decree &
After a decree
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390. The Court may by general or special order fix the amount to be paid as
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Remuneration for the service of receiver
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391. Where the property is land paying revenue to the Government or land of which the
revenue has been assigned or redeemed and the Court considers those concerned will
be promoted by the management of the collector the Court may appoint collector as
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receiver with consent of Collector

392. O. XL, Rule 3 of C.P.C deals with appointment of Any personas receiver
393. Order XLI, of C.P.C. deals with appeals from original decree
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394. Order XLI contains 37 Rules

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395. Every appeal shall be preferred in the form of Memorandum

396. Every appeal must be signed By party & By parties pleader
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397. The memorandum of appeal must contain The copy of decree which is
challenged
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398. Order XLI, Rule 5(1) of C.P.C. deals with Stay of execution by Appellate Court
399. Order XLI, Rule 5(2), of C.P.C. deals with Stay of execution by Court which passed
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the decree
400. Where a memorandum of appeal is admitted the Appellate Court or the proper
officer of the Court shall Shall endorse thereon the date of presentation and shell
register the appeal
401. A book in which Appellate Court register appeal is called Register of appeal
402. Order XLI, R. 11 of C.P.C. empowers appellate Court to dismiss appeal without
sending notice to Lower Court
403. On a day fixed for hearing of appeal if appellant does not appear when the appeal
is called The Court may make order that the appeal be dismissed
404. Where the appeal is not dismissed under Rule 12 of Order XLI, of C.P.C. the
appellate Court shall send notice of appeal to The Court from whose decree the appeal
is referred
405. Order XLI, Rule 13, of C.P.C. deals with notice to To the Court whose decree is
challenged Court
406. Where an appeal is dismissed under R. 11 or 17 of C.P.C the appellant can apply

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for re-admission of appeal as provided in Order XLI, R. 19, of C.P.C
407. Order XLI, Rule 23, of C.P.C deals with remand of case by appellate Court

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408. The power of remand of a case enjoyed by appellate Court is Discretionary
power in nature
409. Order XLI, Rule 25, of C.P.C. empowers Appellate Court to Frame issues or refer

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them to Trial Court
410. Order XLI, Rule 27, of C.P.C empowers Appellate Court With recording or

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submission of additional evidence

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411. Modes of additional evidence is provided in O. XLI, Rule 28, of C.P.C.
412. Whenever appellate Court record additional evidence the appellate Court shall
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follow the principle provided in O. XLI, Rule 29
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413. Which Order of C.P.C from the following deals with appeals from appellate
decrees Order XLII
415. The Orders from which appeal shall lie are dealt by Order XLIII, of C.P.C.
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416. Order XLIII of C.P.C contains 4 Rules

417. An order of returning plaint under O. 7, Rule 10, of C.P.C is Appealable as
provided in O. XLIII rule 1
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418. The numbers of Orders which are appealable as provided in O. XLIII, R. 1, of C.P.C.
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are 23
419. An order under Rule 10, Order VIII, pronouncing judgment against a party is
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Appealable
420. An order under Rule 9, Order IX, rejecting an application for an order to set aside
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the dismissal of a suit is Appealable

421. Where an appeal against an order is preferred during the pendency of the suit the
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appellant shall before presenting the appeal give notice to the respondents as provided
in O. XLIII, R. 3
422. Order XLIV, of C.P.C deals with Pauper appeal
423. Order XLIV, of C.P.C. contains 2 Rules
424. Order XLV, of C.P.C deals with appeals to Supreme Court
425. Inder Order XLV, Rule 2, whoever desires to appeal to the Supreme Court shall
apply by the petition to To the Court whose decree is complained of for issuance of
certificate.
426. Certificate acquired by any party from the Court whose decree is complained for
Supreme Court is Mandatory for the party to obtain
427. An appeal can not be admitted in the Supreme Court until the appellant The
appellant submits or deposit security as required as provided in R. 7, O. XLV, of C.P.C.
428. The procedure for admission of appeal is provided in Order XLV, Rule 8, of C.P.C.

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429. Order XLV-A, of C.P.C. deals with execution of order of Federal Court
430. Whoever desires to obtain execution of an order of the Federal Court under

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sub-section 2 of section 209 of Government of India Act, 1935 shall apply by petition
accompanied by a certified copy of the order for execution To High Court from which
the appeal to Federal Court was preferred

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431. As per Rule 2, of Order XLV-A, the Rule 16 Order XLV of C.P.C. shall apply mutatis
mutandis to execution of to the execution of decree or order for cost passed by Federal

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Court in appeal from High Court

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432. Order, XLVI, of C.P.C. deals with Reference to High Court
433. Order XLVI, contains 7 Rules
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434. Reference can be send to High Court by The Court facing question of law
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himself & The Court through parties of the case

435. Reference to the High Court may be sended upon When the executing Court
faces doubt in question of law & When executing Court Faces doubt in question of
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usage
436. Order XLVII, of C.P.C deals with Review
437. Order XLVII, contains 9 Rules
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438. A decree for which appeal is allowed but not made the affected party may Apply
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for review
439. Application of review normally can be made to The Court which passed the order
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or decree
440. No review petition can be granted without serving Notice to opposite party
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441. Where a review petition is rejected due to non appearance of the applicant it can
be restored Upon application of the applicant if it is justified. His absence in
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satisfactory manners
442. Order XLVIII, of C.P.C. deals with Miscellaneous
443. As per Order XLVIII, Rule 1, every process issued and shall be served at the
expense of The party on whose behalf it is issued unless the Court otherwise directs
444. Order XLIX, deals with High Court
445. Order VII, Rules 10, 11 are not applicable to High Courts
446. Order L of C.P.C deals with Provincial Small Causes Courts
447. Order XV III, R. 5, to 12 are not applicable to Provincial Small Causes Courts
448. Order X, Rule 3, is not applicable to Provincial Small Causes Courts
449. Order L1, deals with Presidency Small Causes Courts
450. As per Order LII Rule. 1, Rule 38, of O. 41 shall apply so far as may be to
proceeding under. Section 115

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