1) Temporary Injunctions & Interlocutory Orders

Relevant Provisions: Section 94-95 of CPC and Order 39

Introduction: An injunction is a court order that requires a person to do or abstain from doing
an act that is necessary in terms of justice, and the absence of which would be contrary to good
faith and good conscience. Basically, the grant of an injunction, aims to restore the violated
rights of a party, whereby monetary or compensatory damages are insufficient. It follows the
principles of Natural Justice and Equity. There are primarily two kinds of injunctions. They are:
(a) Temporary Injunction and (b) Permanent Injunction.
Kinds of Injunction:
A temporary injunction restrains a party temporarily from doing the specified act and can be
granted only until the disposal of the suit or until the further order of the court. It is regulated
under the provisions of Order 39 of CPC and may be granted at any stage of the suit.
Permanent Injunction restrains a party forever from doing the specified act and can be granted
only on the merits at the conclusions of the trial after hearing both the parties to the suit. It is
governed by Section-38 to 42 of Specific Relief Act.
Injunctions are also:
Preventive, prohibitive or restrictive i.e. when they prevent, prohibit, or restrain someone from
doing something; or
Mandatory i.e. when they compel command or order person to do something.
Grounds of Temporary Injunction: Order 39 R-1 provides that Temporary Injunction may be
granted by court:
 Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by
any party to the suit, or WRONGFULLY SOLD IN EXECUTION OF DECREE.
 Where defendant, THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS
PROPERTY with a view to defraud creditors.
 Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE
INJURY to the plaintiff in RELATION TO THE PROPERTY IN DISPUTE.
 Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR
OTHERWISE (Order 39 Rule 2).
 Where the court is of opinion that INTEREST OF JUSTICE, so required.

Conditions for granting Temporary Injunction:Injunction is discretionary remedy and thus,

before granting of the temporary injunction, the following conditions are required to be satisfied:
 Prima Facie Case is in the favour of the plaintiff and against the defendant.
 Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for
in terms of money.
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  Balance of convenience is in favor of the plaintiff and against the defendant.
 There is a bona fide dispute raised by the applicant and there is a probability of the
applicant being entitled to the relief claimed by him.
Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above
conditions does not entitle a person to an order of temporary Injunction.
Discharge or set aside and variation of order of injunction: Order 39 R-4 lays down that any
order for an injunction may be discharged or varied or set aside by the court on an application
made thereto by any party dissatisfied with such order.
It is further provided that if an application for temporary Injunction, or in any affidavit
supporting such application, a party has knowingly made a false or misleading statement in
relation to a particular matter and the injunction was granted without giving notice to the
opposite party, the court must vacate the injunction unless for the reasons to be recorded, it
considers that it is not necessary so to do in the interests of justice. Moreover, if an order for an
injunction has been passed after giving to a party an opportunity of being heard, the order is not
to be discharged, varied or set aside on the application of that party, except where such
discharge, variation or setting aside has been necessitated by a change in the circumstances, or
unless the court is satisfied that the order has caused undue hardship to that party.

Remember that where the cases are not covered by Order 39, Interim injunctions can be
granted by the court in exercise of inherent powers under section 151 of CPC.
Interlocutory order:Interlocutory orders are orders passed by a court during the pendency of a
suit. They relate to matters of procedure as they arise during the trial of the suit or in the course
of execution proceedings. They are passed to assist the parties in the prosecution of their case, or
for the purpose of protecting the subject matter of the suit or for ensuring the determination of
the merits of the case. They only settle intervening matters relating to the cause. Such orders
aremade to secure some end and purpose necessary and essential to the progress of the case
andgenerally collateral to the issues to be settled by the court in the final judgment. They,
however, do not determine the substantive rights of the parties in respect to subject matter ofthe
suit. These orders are also of different natures, such as:
 Interim Sale: Interim sale of any movable property may be ordered, if it is subject
tonatural decay, such as vegetable, etc.
 Detention, Preservation, Inspection, etc. of subject matter of the suit.

Rules 6 to 10 of Order 39 provide for making certain interlocutory orders. The court has power
to order sale of any movable property, which is the subject-matter of the suit orattached before
judgment in such suit, which is subject to speedy and natural decay or for any just and sufficient
cause desirable to be sold at once." It can also order for detention, preservation or inspection of
any property which is the subject-matter of such suit, or as towhich any question may arise
therein. And for that purpose it can authorize any person toenter upon or into any land or
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building in the possession of any other party to such suit or authorize any samples to be taken or
observation to be made or experiment to be tried for the purpose of obtaining full information."
However, before making such orders the court shallgive notice to the opposite party except
where it appears that the object of making such orderswould be defeated by the delay. Where the
suit land is liable to payment of revenue togovernment or a tenure liable to sale and the party in
possession of such land or tenureneglects to pay revenue or rent, any other party to the suit
claiming an interest in such landor tenure may, on payment of the revenue or rent due, be put in
immediate possession ofthe property. The court may award in the decree the amount so paid with
interest thereonagainst the defaulter. Where the subject-matter of a suit is money or some other
thingcapable of delivery and a party to a suit admits that he holds such money or thing as a
trusteefor another party or that it belongs or is due to that party, the court may order it to
bedeposited in court or delivered to that party with or without security.

2) INHERENT POWERS OF THE COURT

Introduction: Meaning of „inherent‟ is existing in something as a permanent, absolute,
inseparable, essential or characteristic attribute. 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 court, though not
conferred. Section 151 of the CPC deals with the inherent powers of the court. It is not
obligatory for the court to wait for the law made by parliament or order from the higher
judiciary. Court has discretionary or inherent power to make such order which is not given in
terms of laws for the security of justice or to check misuse of the method of the Court.
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;
 While operating the powers, the court has to follow the method shown by the legislature;
 Courts can neither exercise jurisdiction nor entrust in them by law;
 To abide by the principle of Res Judicata i.e., not to open the issues which have already
been decided finally;

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 3) JUDGEMENT, DECREE AND ORDER
Introduction: The term Judgement is defined in Section 2(9) of the Code of Civil Procedure,
1908. A judgement contains facts of the case, the issues involved, the evidence brought by the
parties, finding on issues (based on evidence and arguments). Every judgement shall include a
summary of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by
the court. On a daily basis, numerous judgements are pronounced and various cases are disposed
of. Judgement plays a very important role in the working of our judicial system because they act
as precedents for cases to come in the near future. A judge in the judgement pronounced, always
states the reasons for such a decision.
Pronouncement of Judgement:The word pronouncement means to make an official public
announcement. Pronouncement of a judgment means that after the hearing is completed i.e. after
the Court has heard the pleadings of the parties, the judgement shall be announced by the Judges
in an open Court, either at once or at some future day, after providing due notice to the parties or
their learned counsels. Once the judgement is pronounced the copies of that particular judgement
should be immediately made available to the parties on payment of costs as specified, by the
party applying for such copy, of such charges as may be specified in the rules and orders made
by the High Court.
Contents of the judgement
 Summary of the pleadings which is a concise statement of the case;
 Issues which are the points for determination;
 Findings on each issue and the decision thereon;
 Ratio decidendi (reasons for such a decision); and
 The remedy, which is the relief granted.
Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree always
follows judgement and is based upon a judgement. It is a formal declaration or adjudication and
is conclusive in nature. A decree is of three kinds namely, preliminary decree, final decree and
partly preliminary & partly final. A decree may be delivered with an order. The decree contains
the outcome of the suit and conclusively determines the rights of the parties with regard to the
issues in dispute in the suit. After passing the decree, the suit stands disposed of since the rights
of the parties are finally determined by the court.
A decree shall be deemed to include the rejection of a plaint and any question within Section 144
of Code of Civil Procedure, 1908 but shall not include:
 Any such sentence (adjudication) from which it appears that an appeal lies as an appeal
from an order, or
 Any such order of discharge (dismissal) of default.
Contents of a Decree: A decree always follows the judgement, coincides with it and contains:

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  The suit‟s number
 The names, description and registered addresses of the parties
 The particulars of the parties claims or defence
 The relief or the remedy granted to the aggrieved party
 The total amount of cost incurred in the suit-
 Date of the judgement
 The judge‟s signature on the decree
Types of Decree: The Civil procedure code recognizes three kinds of decrees
a) Preliminary Decree: A decree is identified as a preliminary decree when adjudication decides
the rights of parties regarding all or any of the matter in dispute but it does not dispose of the suit
completely. It is considered to be only a former stage. A preliminary decree is only a stage to
work out the rights of parties until the matter is finally decided by the Court and adjudicated by a
final decree.
Illustration: A files a partition suit against B. During the proceedings, the Court passes a
preliminary decree on the share of A and B. Subsequently, after hearing both the parties and the
arguments contended by both, the court passes a final decree adjudicating upon the said partition.
b) Final Decree: In general sense, the word „final‟ means last, ultimate, conclusive or decisive. In
legal sense, a final decree is a decree which completely disposes of the suit and settles all the
questions in discussion between the parties and nothing is left further for deciding thereafter. It is
only said to be final when such adjudication completely disposes of the suit.
c) Partly preliminary and partly final Decree: A decree is said to be partly preliminary and partly
final when the court decides two questions by the same decree. For instance, if the court passes a
decree in favour of one party along with a direction of inquiry for the other party, the former part
of the decree is final while the latter part is a preliminary decree for which further proceedings
have to take place. For example, in a suit of possession of a property with company „C‟, if the
court passes a decree of possession of the property in favour of the plaintiff and directs an
enquiry into the company „C‟, then the former part of the decree is final decree while the latter
part is the preliminary decree.
Illustration: „A‟ filed a suit for the recovery of possession of a property from B. The court passed
a partly preliminary and partly final decree. So far as final decree is concerned if the court
granted possession of the suit property to A; and it was preliminary as even though mesne profits
were awarded. In this case, only the granting of possession of property to A will be executable;
however, preliminary decree will be executable only after the amount due is determined.
Difference between Judgment & Decree
 Judgment is defined under Section 2(9) of the Civil Procedure code, 1908 while Decree
is defined under Section 2(2) of Civil Procedure code, 1908.

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  Judgement means statement given by a Judge of the grounds of decree or order. Decree
is an adjudication conclusively determining the rights of the parties with regards to all or
any of the matter in the controversy.
 Judgement states preciously the relief granted while Decree must determinate the rights
of the parties
 Judgement contains the grounds of decree while Decree follows the judgment.
 Judgment may be passed in civil suits as well as in criminal cases. While Decree is
passed in a civil suit.
 Judgment is not capable of execution. Decree is capable of execution.

Order
The term Order has been defined under Section 2(14) of the Code as the formal expression of
any decision of a civil court which is not a decree. Essential elements of order are as follows:
 It should be a formal expression of any decision.
 The formal expression should not be a decree.
 The decision to be pronounced by a civil court.
Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of
a court is founded on the objective considerations and as such judicial order must contain a
discussion of the question at issue and the reasons which prevailed the court which led to the
passing of the order.
Orders are of two kinds:
 Appealable orders – Orders against which an appeal lies.
 Non appealable orders – Orders against which no appeal lies.
Similarly, there are two classes of orders:
 Final orders – An order that disposes of all of the claims and adjudicates the rights and
liabilities of all the parties in the suit.
 Interlocutory orders – Interlocutory order only settles an intervening matter relating to the
cause. Such orders are made to secure some end and purpose necessary which are
essential for the progress of case. In simple terms, a temporary order issued during the
course of litigation is called Interlocutory order. Also known as the Interim order is the
decision of the court which does not deal with the finality of the case but rather settles a
subordinate issue relating to the main subject matter.
Difference between Decree and Order
1) A decree is an adjudication conclusively determining the rights of the parties with regard to all
or any of the matters in controversy. An order may or may not finally determination of such
rights.

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2) In a suit, there is only one decree, except in certain suits, where two decrees, one preliminary
and the other final are passed. In a suit, there can be more than one order.
3) A decree is an adjudication conclusively determining the rights of the parties with regard to all
or any of the matters in controversy. An order may or may not finally determination of such
rights.
4) A decree is normally appealable except if it is specifically barred by law.Only those orders are
appealable as specified in the Code under sec.104 and Order 43 R.1.
5) There can be a second appeal on the grounds mentioned in sec 100 of the CPC from a decree.
But in case of an appealable order, no second appeal lies,

4) APPOINTMENT OF RECEIVER
Introduction: In civil litigation, a receiver plays an important role in assisting the court. The
Receiver is considered to be an officer of the court who helps the court to protect and preserve
the subject matter of suit till the time the court decides the matter. Sometimes, the court thinks, it
is in the best interest of both the parties to appoint a receiver who will be responsible for the
management of the subject matter. The subject matter is generally a movable or immovable
property. The Receiver is liable to take care of the property just as a prudent man will take care
of his own personal property. He should follow the directions of the court or else his property
can be attached by the court to recover the amount which is due to him.
Explanation: Under order 40 of CPC, The Receiver is an independent and impartial person who
is appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit.
For example, in a dispute between A and B for an immovable property, if the court thinks that it
is in the best interest of both the parties that possession should be taken from B and given to an
independent person, the court may appoint a receiver who can manage the property till the time
the suit is being decided. Such a receiver appointed by the court would be responsible for the
maintenance of the property. He can collect the income accruing like rent or any other profits
and utilize it to maintain the property. After deducting the expenses incurred in maintenance
from the income received from the property, the receiver will have to submit the remaining
income, if any, in the court.
He is not representative of either of the parties in the action, but as an officer of the court
working in the interest of neither plaintiff nor defendant but for the common benefit of all the
parties.

Court has to keep the following principles in mind before appointing a receiver:
 Appointment of a receiver is a discretionary power.

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  The object is to protect and preserve the disputed property till the time the suit is pending
in the court.
 A receiver should not be appointed unless the plaintiff shows prima facie that he has a
strong case against the defendant and it is more than likely that he will succeed in the
suit.
 Appointment of a receiver is one of the hardest remedies as it deprives the defendant of
his right to possession before the final decree. Therefore, the court should not resort to it
merely on the ground that it will do no harm. There should be strong apprehension that
there is a danger to the property or the plaintiff will be in worse of a situation if the
appointment of a receiver is delayed.
 The court should appoint a receiver only when there is a possibility of wrong or injury.
Also, if it is shown that the subject matter is not in the possession of any of the parties
and it is in the common interest of both the parties to appoint a receiver for the protection
and preservation of the property.
 The court should look at the conduct of the party who makes the application for
appointment of a receiver. The party should come to the court with clean hands and their
conduct should be such that they are not disentitled to this equitable relief.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants can also
file such application. A third party is not allowed to file the application but if he is interested in
the protection and preservation of the property, he can also make an application after taking
permission from the court.
Powers of the receiver
 Collection of rents and profits arising out of the property.
 Execution of documents as the owner himself.
 To institute and defend the suit.
 Such powers as the court may deem fit.
Without the permission of the court, the receiver cannot:
 Grant lease on the property.
 Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.
Duties of the receiver
 Furnish security to account for what he will receive from the property as income.
 Submit accounts for such period or form as directed by the court. The account basically
includes the income received and expenses incurred for the protection and preservation of
the property.
 Pay the amount due to the court.

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  Take responsibility for any reduction in the value of the property because of the
receiver‟s willful negligence.
 Discharge the duties personally and should not delegate or assign any of the rights
entrusted to him by the court.
The receiver has to fulfill all the duties and responsibilities entrusted to him by the court.
Otherwise, the court can take action against him and make him personally liable for any loss
which might occur due to his negligence or willful failure to protect and preserve the property.
Remuneration of Receiver: Receivers are entitled to remuneration as fixed by the court for the
services rendered by them. Also, a receiver has to be provided for the loss or expenses incurred
by him for maintaining the property. Under order 40 rule (2), the court can fix the remuneration
to be paid to the receiver for the services provided by him. The court can pass a general or
specific order regarding the same

Conclusion: The receiver is an officer of the courts and the subject matter managed by him is
considered to be in custody of the law. The court appoints a receiver when the court is of the
opinion that neither of the party should manage the property till the time the matter is decided. A
receiver should be of impartial, independent and indifferent character who has no stake in the
subject matter and can manage the property just as a prudent man will do with his own property.
Court has vested certain powers and responsibilities on the receiver which he should use to
manage the property in the best way possible. The receiver should be careful while making an
important decision related to the subject matter as he is personally liable for any damage to it. He
can seek the permission of the court before making such decisions to be safe.

5) JURISDICTION OF CIVIL COURTS UNDER CPC

Introduction: Jurisdiction has not been defined under the CPC. Black‟s Law Dictionary defines
the term as “A court‟s power to decide a case or issue a decree. Jurisdiction is the power of a
court to decide a matter where such power is provided by the statute and cannot be conferred or
taken away by mere consent of the parties involved in the suit. If a court does not have
jurisdiction in a matter, it cannot be acquiesced by mere consent of both parties. So, parties
cannot confer jurisdiction upon the court by an agreement in a matter on which such court does
not have jurisdiction. Similarly, if a court has jurisdiction over a matter, parties cannot by mutual
consent take away such jurisdiction from the court.

The Lack/Want of jurisdiction & the Irregular Exercise of Jurisdiction

 When a court does not have jurisdiction to decide a matter in the first place, it is lack of
jurisdiction. When the court having jurisdiction exercises its power wrongly, it is an
irregular exercise of jurisdiction.

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  In lack of jurisdiction, actually there is no jurisdiction at all. However in irregular
jurisdiction, the court has jurisdiction to decide the matter but it merely exercises its
power irregularly.
 The decision given in lack of jurisdiction can be declared null and void. However the
judgment pronounced by the irregular exercise of jurisdiction is not null because the
power to decide includes the power to decide rightly as well as wrongly.
 In lack of jurisdiction, there cannot be any appeal or revision of such judgment. The
wrongly decided judgment can be appealed for or can be corrected during revision.
Jurisdiction of civil court can be determined by following grounds,
 Fiscal value of suit
 Geographical boundaries of a court;
 The subject matter of court.
Kinds/Types of Jurisdiction
a) Territorial or local jurisdiction: Under this territorial or local jurisdiction, the geographical
limits of a court‟s authority are clearly delineated and specified. It cannot exercise authority
beyond that geographical/ territorial limit. For example, if a civil dispute accrued in Hyderabad
city, only the courts of law within the boundaries of Hyderabad can hear and decide the case.
Furthermore, Section 16 of the CPC explains the territorial jurisdiction on the grounds of the
location of the immovable property. The court does not have the power to decide the rights of
property which are not situated in its boundary.
b) Pecuniary jurisdiction:Pecuniary means „related to capital.‟ It approaches the question of
whether the court is competent to try the case of the financial value. The code allows analyzing
the case unless the suit‟s value exceeds the financial limit of the court. Section 15 of the Code of
Civil Procedure commands the organization of the suit in the court of the low grade. It refers to
pecuniary jurisdiction of civil court. It is a course of the method and it does not affect the
jurisdiction of the court. The main objective of establishing pecuniary jurisdiction is to prevent
the court of a higher level from getting burdened and to provide assistance to the parties. In
Sindh province, Civil Judge can entertain a suit upto 50k and above 50k the senior civil judge
shall have jurisdiction to entertain the respective suit.
c) Subject matter jurisdiction: The courts have been divided on the basis of subject matter on
which they can entertain a suit. Like Family matters can be dealt only by family courts.
d) Original and appellate jurisdiction: Original jurisdiction is the power of court to entertain a
suit in first instance. When the aggrieved party appeals that judgment given by court of first
instance in other court, such court is called the appellate court and its power to entertain that
appeal is its appellate jurisdiction. The District Court, High Court and Supreme Court have the
appellate jurisdiction.

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e) Exclusive and concurrent jurisdiction: Exclusive jurisdiction is when there is only one court
which can hear and decide a matter. Concurrent jurisdiction is when two or more courts can
entertain a matter at the same time.

Presumption & Burden of Proof on Jurisdiction

If the question as to whether the court has jurisdiction over a matter or not cannot be
conclusively determined by any means then it will be presumed that it has jurisdiction over it. If
one of the concerned party contends that the court trying the suit does not have jurisdiction to
entertain that matter, the burden of proof primarily would lie upon the party who contends that
such civil court does not have jurisdiction over that matter.

Section 9 CPC
This Section states that unless it is expressly or impliedly barred, civil court will have
jurisdiction to try all suits of civil nature. This definition, therefore, leads to following points
ingredients:
a) Suit of civil nature:The CPC does not contain the definition for the term „civil nature‟ and it
carries the ordinary meaning of civil which means anything dealing with private citizen‟s rights
and remedies. So, a suit of civil nature would be anything in which the moot question would be
the determination of civil rights and remedies thereon. The subject matter of suit would be the
determining factor and not the status of the parties. For example, it would not be relevant that
how the party has acquired the right but what the right really is, is what determines if the suit is
of civil nature.
b) Cognizance not barred:It is also necessary that any statute should not have expressly barred
the jurisdiction of that court. In corollary, if any statute provides exclusive jurisdiction to any
court over a matter all other court‟s jurisdiction over that matter will be considered to be
impliedly barred.

Absolute Bar on Jurisdiction of Civil Courts:If the bar is placed by the Constitution, which is
the supreme law of the land, then the jurisdiction of civil courts would not be invoked in any
situation whatsoever. As per Article 212 of the Constitution of Islamic Republic of Pakistan no
court can take cognizance of the matter relating to the terms and conditions of civil servants,
except for the service tribunals. There is also a bar on jurisdiction of all courts, except the
tribunal established by legislation, in taxation matters. As per Article 225 of the Constitution, the
elections of the National or Provincial Assembly can only be challenged through election
petition before election tribunals. All of these matters are absolutely immune from scrutiny by
the civil courts since immunity has been granted by the Constitution and the bar on jurisdiction is
absolute without any exception. The question of invalidity of an order or action for being mala

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fide and void etc. can only be raised before special tribunals established by the legislature under
the command of the Constitution or by other remedies provided by the Constitution itself.

6) RETURN AND REJECTION OF PLAINT

Introduction: The entire machinery of the civil law is put into motion by the filing of the plaint
by the plaintiff in the court of law. The meaning of “Plaint” has not been defined in the Code of
Civil Procedure. Plaint essentially means the pleadings of the plaintiff. Plaint is the statement or
a document in which the plaintiff put forwards his claims before the court and it is by the
presentation of the plaint that the suit is instituted.
Return of Plaint: The CPC empowers the civil courts to return the plaint to the plaintiff if the
court believes that the plaint is not properly filed. Return is different from rejection and it needs
to be noted. Return of plaint does not connote that the plaint had mistaken or that the rules for
drafting the plaint were not conformed to. It simply means that the court is not empowered to try
the suit for which the plaint is filed. On the contrary, the plaint is rejected if the essential
requirements of a plaint are not provided in the plaint or if the certain elements are vague and
ambiguous.
Nature of returned plaint: When a plaint has been returned for want of proper jurisdiction, it is
to be treated as a fresh plaint. This fresh plaint can be amended and no consequences can arise as
a result of it. This amended plaint cannot be rejected by stating that the averments were not
present in the original plaint. This argument will not be taken into consideration and the plaint
will be allowed to stand.
Grounds for Return of Plaint:According to Order 7 Rule 10 of CPC, a plaint is returned on the
sole ground of lack of jurisdiction with the concerned court. For instance, a plaint is filed in the
city civil court by A against his employer for unlawful retrenchment from a job. Since there are
specific labour courts to deal with these cases, the city civil court does not have the jurisdiction
to adjudge and hence, plaint can be returned by the court. Under this rule, the court can return the
plaint for lack of jurisdiction but the plaintiff has every right to file the plaint again in the
appropriate forum.
The court can lack jurisdiction on three occasions:
a) Territorial Jurisdiction: Every court has a specific territory under its control and it can take
cases when disputes have arisen in those territories only.
b) Pecuniary Jurisdiction: Every suit is required to be valued according to the compensation that
is claimed and the value of the property which is in dispute, if any. This is called suit valuation
and it is decided according to the Suit Valuation and Court Fees Acts. Now, every court has been
allotted a limit which means a suit which is valued within the limits of that court‟s pecuniary
jurisdiction is admissible and rest is returned.
c) Subject-matter Jurisdiction: Every court has been established to deal with cases of specific
nature. For instance, civil courts deal with civil cases, criminal courts deal with criminal matter,

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family courts deal with personal laws and so on. If it is filed before a court that does not deal in
that matter, the court is empowered to return the plaint to be filed before competent court.
On the returning of the plaint, the court is required to endorse on the plaint the following
particulars
 Date of presentation of the plaint.
 Date of returning of the plaint.
 Name of the party which presented the plaint.
 Reasons for returning the plaint.

Rejection of Plaint
Order VII Rule 11 of the Code of Civil Procedure elaborates on the rejection of plaints in certain
circumstances. It has mentioned certain grounds on the basis of which the plaints are rejected by
the courts. There are four grounds for which a plaint can be rejected under this provision and
they are as follows:
a) If the plaint doesn’t mention a cause of action:The first ground for rejection of plaint is
„non-disclosure of cause of action‟. The Supreme Court of Pakistan defined „cause of action‟ as
„the ground on the basis of which the plaintiff asks for favorable judgment and not related to
defense or the relief prayed for‟. There may be different causes of action from one transaction‟.
b) Under-Valuation of Relief Claimed: The second ground for rejection of plaint is under
valuation of relief claimed. This ground has nexus with valuation of suit for purpose of
jurisdiction. This valuation is done under Suit valuation Act 1887. The initial duty of
determination of proper valuation of relief is upon the plaintiff. If valuation of relief determined
by the plaintiff is incorrect, it the duty of the court to determine proper valuation and also allow
reasonable time to amend the plaint accordingly. When, the plaintiff fails in correcting the
valuation of the relief, only then, rejection of plaint is permissible.
c) Insufficient Court fee Stamps: The third ground for rejection of plaint is insufficiency of
court fee stamps. Every legal document is required to be drafted on a stamp paper of the requisite
value. If it is not filed on the stamp paper of the value specified by law, the court may ask the
plaintiff to submit the stamp paper and if he fails to do that, it can be rejected.
d) If the suit is barred by law: As per Order VII Rule 11(d) of the Code, a plaint shall be
rejected if the suit is barred by Limitation.

Rejection of Plaint and Dismissal of Suit: The Lahore High Court discussed distinction
between rejection of plaint and dismissal of suit in the words that "the rejection of plaint" meant
that if ingredients in Order VII, Rule.11 C.P.C. 1908 were available in plaint, the Court had
jurisdiction and powers to reject the plaint. Dismissal of suit connoted that it was a final
determination of controversy between parties meaning thereby the Trial Court could dismiss the

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suit only after holding inquiry and recording of evidence. Rejection of plaint provided or opened
door for plaintiff for filing fresh suit but in case of dismissal of suit, no fresh suit could be filed
and only statutory remedy was available against dismissal order.

Rejection of Plaint and Return of Plaint: There is delicate simple difference between rejection
of plaint and return of plaint. Return of plaint is concerned with competency of the Court
whereas rejection of plaint is concerned with competency of the suit. When, the court comes to
conclusion at any stage that it has no jurisdiction, the plaint is to be returned under Order VII
Rule 10 and not rejected under Order VII Rule 11 of Code of Civil Procedure 1908.
Consequences: The consequences of rejection of plaint are both ultimate and temporary. The
„rejection of plaint is not res-judicata against a plaintiff and defendant except when rejection of
plaint amounts to final adjudication e.g. res-judicata or time barred suit. The rejection of plaint is
decree as defined in section 2(2) and is appealable under Order 41 Rule 23 of Code of Civil
Procedure 1908. However, when plaint is not rejected, the order of rejection can be questioned in
revision. The fresh suit may be instituted if not barred by law.

7) BAR TO FURTHER SUIT SECTION 12 (2)

It is a very important section in the Code of Civil procedure, (C.P.C.) which is usually filed an
application by an aggrieved person for setting aside a final judgment, decree or order, which is
passed by a court due to fraud, misrepresentation or want of jurisdiction.
Grounds of application: Fraud, misrepresentation or want of jurisdiction are grounds for filing
of application under this section, but if these grounds are missing in an application, then it is not
maintainable. Application under section 12 (2) C.P.C. can be filed before a court which passed a
final judgment, decree or order.
New suit is barred: A new suit is barred against a final judgment, decree or order, which is
procured by fraud, misrepresentation or want of jurisdiction from a court. Hence, it is the
precedents of the Superior Courts of Pakistan on this point as follows: “Section 12(2), C.P.C. had
barred independent suit for challenging a decree or judgment on basis of fraud and it had
provided a speedy remedy for cancellation of such a decree” Further it was held that Application
under this section is equal to a new suit.
Limitation: No limitation provided for moving the court under section 12(2) for setting aside a
decree obtained through fraud and deception however, it has been ruled that article 181
limitation Act, 1908 would be applicable which had provided 3 years limitation to an aggrieved
person from the date when he got knowledge about such a decree or judgment”. When ground
of fraud and misrepresentation were taken in such an application, then there would be no
limitation for its filing.

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 8) REFERENCE, REVIEW, REVISION, & APPEAL
Reference: Every case has different circumstances. Many questions come before the subordinate
court that requires the assistance of the High Court. When the subordinate court in order to take
assistance refers the case to the High Court, it is called as the reference. The opinion of the High
Court can also be sought when the subordinate court has some doubts about the question of law.
Reference is always made to the High Court. Section 113 of the Code of Civil Procedure
empowers a subordinate court to state a case and refer it to the High Court for its opinion.
Who can apply for reference: The court of civil judicature can refer the case to the High Court
either on an application made by a party or suo moto.
Conditions for seeking reference: Reference can be sought only in a suit, appeal or an
execution proceeding which is pending before the court. Order 46 Rule 1 of the Code of Civil
Procedure prescribes certain conditions to be fulfilled in order to obtain a reference from the
High Court. The conditions required to obtain a reference from the High Court are as followings:
 The suit or appeal must be pending in which the decree is non-appealable or the
execution of such decree is still pending.
 There must arise a question of law of such proceeding, suit or appeal.
 There must be a reasonable doubt on such question by the court trying the suit or appeal
or, by the court executing the decree.

Review
The meaning of “review” is “the process of judicial re-examination of a case by the same court
and by the same judge who has passed the judgement or order earlier”. The review application is
not an appeal or revision made to the superior court, but it is a request to recall and reconsider
the decision made before the same court.
Right to review is provided to be exercised in certain circumstances under section 114 of the
Code of Civil Procedure and the procedure to be followed for review procedure is laid down
under Order 47 of the Code. The general rule laid down by Order 20 R. 3 of the Code which is
followed in a legal procedure is that once a judgement is signed and pronounced by the court,
that court ceases to have control over the matter. The court passing judgement or order cannot
later alter its pronouncement. But, the power of review is an exception to this general rule.

Circumstances when a review petition is maintainable

When no appeal lies in the case: According to section 114 of the code, when no appeal lies
from an order or a decree then it can be reviewed by the Court.
When appeal lies in a case but not preferred: When the provision of appeal is available but it
is not preferred by the aggrieved party then also a review petition is maintainable. An application

15
for review can be presented before the court only till no appeal is preferred against that order.
The court cannot entertain an application for review when an appeal is already instituted before
making an application for review.
Reference from Small Causes Court: The court may review the judgement on a reference
made by the Small Causes Court.

Grounds of Review:There are certain grounds laid down under Rule 1 of Order 47 on which an
application made for the review of a judgement is maintainable
a) On the discovery of new and important matter or evidence: A court can review its
judgement when some new and important matter or evidence is discovered by the applicant
which couldn‟t be produced or was not available at the time of passing the decree.
b) When the mistakes or errors are apparent on the face of the record: When there is an
apparent error on the face of record then the court may review its judgement or decree.
c) Other sufficient reason: The last ground for review is any sufficient reason. Any sufficient
ground considered for review by the court comes under this ground. It could be any reason which
the court feels sufficient to review its judgement in order to avoid a miscarriage of justice.

Revision
Revision is mentioned under Section 115 of the Code of Civil Procedure, 1908. Revision in
simple words means to re-visit or re-examine something carefully. The High Court can re-
examine any order of the court subordinate to it but there are certain conditions to it. Section 115
of the CPC lays down all the conditions when the High Court can exercise its revisional
jurisdiction:
 The case must be decided.
 The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
The subordinate court has decided such case by:
 Exercise of jurisdiction which is not vested to that court by law., or
 It has failed to exercise the vested jurisdiction, or
 Illegal exercise of the vested power or with immaterial irregularity.
The District Court may exercise the powers that conferred on High Court when no appeal lies
and the amount or value of subject matter does not exceed the limits of the jurisdiction of such
District Court. So, by analyzing section 115, we can observe that the revision is done mainly on
jurisdictional errors by the subordinate Court.

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A revision of the decree or order, the limitation period is 90 days. The revision application is
required to be made before the High Court or District Court as case may be, within the limitation
period.

Appeal
The term „appeal‟ nowhere has been defined under the CPC. The Black‟s Law Dictionary, while
explains it as “the complaint to a superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the Court above is called upon to correct or reverse.
Basic object of appeal is to test soundness of decision of lower court Appeal is the continuation
of the original proceedings before a superior court. In-accordance with section 96 of CPC an
appeal lies against all decrees passed by a court in the exercise of original civil jurisdiction,
except consent decree.
Second Appeal: Second appeal under section 100 Civil Procedure Code 1908 deals with high
court jurisdiction, the high court can‟t appreciate evidence or facts unless suit involves
substantial question of law. Second appeal in civil procedure code 1908 is explained through that
way if decree/judgment passed by subordinate court of high court can be challenged by way of
second appeal before worthy high court; if case involves substantial question of law. The second
appeal can even filed against the exparte decree/judgment of the first appellate court on some
grounds.
Limitation: The second appeal must file within 90 days from the date on which first appellate
authority decision was actually received by the appellant or within 90 days after expiry of 45
days of filing of first appeal in cases where no reply has been received.

9) LETTER OF REQUEST & PRECEPT

Letter of Request u/s 77 of CPC: Letters of Request is a formal communication in writing sent
by the Court in which action is pending to a foreign court or Judge requesting the testimony of a
witness residing within the jurisdiction of that foreign court may be formally taken thereon under
its direction and transmitted to the issuing court making such request for use in a pending legal
contest or action. This request entirely depends upon the comity of courts/state towards each
other.
Doctrine of Precept: In legal terms, Precept means „a legal direction by one court to another
court.” The Precept Order is normally issued by one court, while executing a decree, to another
court of other area to attach the property of the judgment debtor situate in that area. The rule
governing the issue of precept is laid down in section 46. It provides that the decree-holder may
apply to the court which passed the decree to issue a precept to that court within whose
jurisdiction the property of the judgment-debtor is lying to attach the property belonging to the
judgment-debtor and specified in the precept. The court to which the precept is sent shall then
proceed to attach the property in the manner prescribed in regard to the attachment of property in

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execution of a decree. The attachment under the precept shall not continue for more than two
months unless the period of attachment is extended by an order of the court which passed the
decree or the decree has been transferred, before the determination of such attachment, to the
court by which attachment has been made.

10) SUB JUDICE & RES-JUDICATA

Rule of Res Sub-Judice

The Res Sub-Judice is a Latin term which has a variety of meanings like, under consider of judge
or before the judge or under the judgement. This Rule states that when a suit is pending before a
competent court between same parties or under same title then it bars the trial of a subsequent
suit. However, pendency of a suit in foreign court doesn‟t bar the courts in Pakistan. Doctrine of
Res Sub-Judice can be invoked when following conditions are satisfied.

 There must be two suits, previously instituted and subsequently instituted.

 Same matter related with both suits
 Both suits between same parties.
 Previous suit must be pending in a competent court.
 Parties litigating under the same titles in both the suit.

For Example: A Wife filed a suit for Khula and custody of minor child against husband.
Subsequently husband claimed custody of minor child by filling another suit against wife. The
second suit is liable to stay under section 10 of CPC.

2) Rule of Res-Judicata

Res-Judicata is a Latin term that means matter once adjudicated, cannot be re-adjudicated.
Doctrine of Res Judicata is a fundamental concept in legal system. It has a universal application
that once a matter has been decided by a competent court between same parties or same title in
respect of same matter cannot be heard again. The very basic purpose of Res Judicata is that
there should be an end of litigation. So in simple words we can say that where a matter has been
heard and finally decided, it will be res judicata and bars a subsequent suit.

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For Example: A filed a suit for damages against B. The Court refused his claim. Subsequently
A filed another suit for damages for same cause of action. Now it becomes Res judicata as it
previously heard and decided.

 The rule of Sub-Judice is established u/s 10 of CPC.The rule of Res-Judicata is

established u/s 11 of CPC.
 Res Sub-Judice bars/stops the proceeding of subsequent suit between same parties in
respect of same matter.Res-Judicata prohibits the institution of second suit between same
parties in respect of same matter.
 In case of Sub-Judice, the previous suit must be pending in a competent court.In case of
Res Judicata, the previous suit must be decided by a competent court.
 The basic purpose is, to prevent courts from simultaneously trying two parallel suits in
respect of the same matter.The basic purpose is, to end the litigation in respect of same
matter.

11) INTEREST & COSTS

Interest
Interest means compensation that is allowed by law or parties may fix the interest. Section 34 of
CPC talks about legal interest that is allowed by court. In simple words, we can say that Interest
is a compensation that to be paid by either party in a money suit. By virtue of this section, the
Court shall have power to award the interest at a reasonable rate from the date of institution of
suit to the date of decree.
Costs
Cost means the cost of suit or litigation. By virtue of Section 35 of CPC, Court shall have power
to award cost for the expenses incurred in maintaining the suit. Generally losing party is entitled
to pay the cost of litigation to winning party. There is no hard and fast rule for cost. However, the
court considers the facts and circumstances of case, length of litigation, conduct of parties and
nature of dispute for awarding cost.
Difference between Interest & Cost
 Section 34 of CPC deals with interest on money; however section 35 of CPC talks about
costs of litigation.

 Interest is paid on the debt in addition to repayment of principal money. However cost is
a payment to satisfy the expenses incurred during litigation.

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  Court may grant interest only on money suit; however costs of litigation may be given in
any type of suit.
 Interest can be fixed by mutual consent of parties through an agreement, however costs of
suit solely depends upon discretion of court.
 In case of interest, Court may award it from prior to institution of suit. But in case of cost,
Court may award it after institution of suit.

12) SUMMONS UNDER CPC

Introduction: A summons is a legal document that is issued by a Court on a person involved in

a legal proceeding. A summon may be issued to defendant or witnesses as case may be. When a
legal action is taken against a person or when any person is required to appear in the court as a
witness in a court proceeding, to call upon such person and ensure his presence on the given date
of the proceedings, summons is served. If defendant fails to attend court after receiving
summons, he will be ex-parte by the Court. Section 27 and Order V of the CPC deals with
„Service of Summons‟ on the defendant/Respondent. Section 30 & 31 and Order 16 of CPC
deals with summoning and attendance of witnesses

Purpose of Issue of Summons: as above mentioned, the summons are issued to two types of
persons in any civil proceeding, i.e. the defendant against whom the suit is instituted and the
witnesses who need to be called to decide the case. The purpose to serve a summon to a
defendant is to allow him to explain his case and his response to the claims of the plaintiff and
further enable him to file a written statement within the specified statutory period. On the other
hand, summons are served to the witnesses because the witnesses may refuse to be present in the
court on the request of the parties and deny the knowledge of such hearing. Therefore, summon
is issued to ensure that the witness knows about the proceedings and can testify for the same.

Modes of Service of Summons: First of all, it is necessary to understand that issue of summon
and service of summon is different. When the court drafts the summoning document and it is
signed and handed over to the court officer for dispatch, it is called the issue of summons. On the
other hand, when the summon is taken to the person who is being summoned either by the court
officer himself or through the post, it is called service of summons. If the person accepts the
summons, it is said that service is complete and if the person does not receive it for any reason,
the service is attempted but failed. Rule 10 of the CPC provides that summon must be served by
delivering a copy of the original summoning document prepared by the judge to the defendant
sealed with the court‟s seal and signature.

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1) Personal or Direct Service: Wherever it is practicable, service should be made on the
defendant in person, unless he has an agent empowered to accept service in which case service
on such agent shall be sufficient. Where there are two or more defendants, service should be
made on each defendant. Where the defendant is absent from his residence at the time when the
service of summons is sought to be effected on him at his residence and there is no likelihood of
his being found at the residence within a reasonable time and he has no agent empowered to
accept service of the summons on his behalf, service may be made on any adult male member of
the family of the defendant who is residing with him, but not a servant. In a suit for immovable
property service may be made on any agent in charge of the property. Such personal service is
also called direct service because service is made by delivering a copy thereof to the defendant
personally, or to an agent or other person on his behalf, and the signature of the person to whom
the copy is so delivered is obtained to an acknowledgment of service endorsed on the original
summons.

2) Service by Post: Under order 5 Rule 10-A of CPC, a copy of summons would be sent by
registered post. A postal service is deemed to by effect; (i) When defendant sign
acknowledgement, or (ii) Postal employee endorses, that defendant refuses to take delivery.

3) Service by affixing: When personal service is failed to serve to the summons than summons
may be served by service by affixation. Service by affixation may be served, where the
defendant or his agent or such other person to whom the summons may be served refuses to sign
the acknowledgement or Where the serving officer after using all due and reasonable diligence
cannot find the defendant, than service by affixation can be made due and reasonable diligence is
depend on the facts of each case. The copy of summons should be actually affixed on the outer
door or some conspicuous part of the house where defendant resides, carries on business or
personally works for gain and return the original summons to the court along with a detail of the
circumstances in which the affixation of summons has been made

4) Substituted service: Rule 20 permits the court to only pass an order for substituted service
when it comes to the conclusion that, either the defendant is purposely avoiding the service of
summons or that the summons cannot be served in the ordinary manner then by order of court
the serving officer, a)Can affix the copy of summons on the house or place of work of the
defendant B) Any electronic device of communication c) Publication in newspaper d) beat of
drum in locality where defendant resides e) urgent mail service or public courier service f) any
other manner or mode.

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 13) FRAMING OF ISSUES

Framing of issues is probably the most important part of the civil trial. If a judge correct and
accurate issues, it is it possible to come to the correct decision in the shortest possible time.
Inaccurate issues may kill the valuable time. Order 14 of CPC deals with settlement and
determination of issues. Issues arise when a material proposition of fact or law is affirmed by one
party and denied by the other party to the suit. The main object of framing issues is to ascertain
the real dispute between the parties by narrowing down the area of conflict and determine where
the parties differ. According to rule 1, issues are framed and recorded by the court in the first
hearing after reading the plaint, written statement, examining and hearing of parties and their
pleaders. Under rule 4, Where the Court find that the issues cannot be correctly framed without
the examination of some person not before the Court or without the inspection of some document
not produced in the suit, it may adjourn the framing of the issues to a future day.

The issues may be framed by the Court from all or any of the following materials,

 Allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;
 Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
 The contents of the documents produced by either party.

Order 14 Rule 5, C.P.C. empowers the court to amend issues framed or frame additional issues at
any stage of proceedings and it does not consider that the power must be exercised when
application is made on the other hand it saddles on the Court a duty to exercise power suo moto
“for determining the matters in controversy between the parties” if that was necessary to do so.

Conclusion: At last, it can be said that the issues are very important not only for the parties, but
also for the Court. Parties are required to prove or disprove the issues framed by the court not the
pleading. On the other side, court is also bound to give decision on each framed issue. Therefore,
the Court is not to decide those matters on which no issues have been framed.

14) DISCOVERY &INSPECTION OF DOCUMENTS

Introduction: After the plaint has been filed by the plaintiff and written statement by the
defendant, if the parties feel that proper facts were not disclosed in the suit, either of them can
ask for the documents to obtain proper facts of the case. We need to understand that there are
two types of facts:-

„Facto probanda‟ – the facts which constitute a party‟s case.

„Facto probantia‟ – the facts which will be considered as evidence if proven.Under the procedure
of discovery, only Facto Probanda can be asked by the parties.

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Discovery of documents deals with Order 11 of CPC. Under Civil Procedure Code, 1908
discovery basically means a pre-trial procedural aspect wherein each party is given an
opportunity to obtain evidence from the opposite party or parties. In other words, we can say that
it is a formal process wherein the parties get a chance to exchange information regarding the
witnesses and evidence which will be presented before the court during the trial. The main
purpose of discovery is to make the parties aware of the case that means there shall not be any
ambiguity between parties while the trial is going on. Both the parties shall be clear about the
plaint made and issues thereby.

This procedure is provided to compel the other party to produce documents on which they are
relying on, other than the evidence. When such particulars regarding the case are asked through
questions, then they are termed as interrogatories. And if the other party is requesting
documents then it is the discovery of documents.

a) Interrogatories: Section 30 and Order XI 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‟. Interrogatories shall be confined to the facts. Under
CPC, this is 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. 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.

The objective of the interrogatories are:-

 To determine the nature of the case when it is not clear from the suit filed.
 To make own case stronger by making the other party do admissions.
 To destroy the case of the opponent.

Procedure: The willing party to deliver interrogatories shall apply for leave to the court and
shall submit the proposed interrogatories to the court. 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‟. While deciding the matter the court
shall take into consideration the following points:

 Any offer which may be sought by the party to be interrogated to deliver particulars;
 To make an admission;
 To produce documents associated with the matters in question; or 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.Within 10 days of the service, the affidavit to answer shall be filed

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by the party to whom the interrogatories were administered. If the party fails to comply with
such order of the court:-

 the suit will be dismissed if the party is the plaintiff; and

 If he is the defendant, his defence can be struck off.

Who may administer interrogatories:Any opposite party can apply for an order for allowing
the party to deliver interrogatories to another party/ies in the suit. This means that the plaintiff
can apply for an order from the court to be administered to the defendant. The defendant can also
do the same. In some cases, the plaintiff/ defendant can administer the interrogatories to the co-
plaintiff/ co-defendant.

Against whom interrogatories may be allowed: As per Rule 5 of Order XI, any party to a suit
which can be a Corporation; or Body of persons; 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 officer, against whom interrogatories can be filed. 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 served.

Objections to interrogatories: Objections can be raised by the parties on the following

grounds:-

 Questions are scandalous;

 Questions are irrelevant;
 Questions are not exhibited bona fide;
 Matters which are inquired into are not sufficiently material at this stage;
 On the ground of privilege; orany other ground.

Rules as to interrogatories: While replying to the interrogatories, if the opposite party does not
give sufficient answer, or ignore to give an answer, then the party who administered the
interrogatories can apply for an order from the Court for ordering the other party to reply
sufficiently, or reply further as the case may be. The Court shall pass such an order to the other
party after giving them sufficient opportunity to be heard. If the party who fails to reply is the
plaintiff, then the suit can be dismissed for want of prosecution. If the party is the defendant, then
it will be considered that the fact has not been defended.
Setting aside and Striking off Interrogatories can be made on the following grounds (Rule
7):
 Unreasonably or vexatiously exhibited;
 Prolix, Oppressive, Unnecessary or Scandalous.
The Application for setting aside or striking off interrogatories shall be made within 7 days after
service of interrogatories.

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Interrogatories allowed: Interrogatories which are made to be related to “any matters in issue”
can be questioned to another party. By “matter,” it means a question or an issue which is related
to the dispute in the suit. It need not be an issue which arises from the dispute.Interrogatories
shall not be disallowed or discarded merely on the ground that there are other ways to prove the
fact in question. Interrogatories are not the same as pleading. They need not be material facts on
which party will be relying; they can be evidence by which parties want to establish a particular
fact at the trial.
Interrogatories not allowed: Interrogatories are used when the facts laid down in the suit are
not clear. However, under certain circumstances the discovery of the facts cannot be applied if:-
 it constitutes evidence of the opposite party;
 it involves the disclosure of public information or interests;
 It contains any privileged or confidential information.
Interrogatories which are in the nature of fishing or roving enquiries are not allowed. Questions
in the nature of cross-examination shall not be asked. Questions of law are not permitted.
Questions which are not bona fide or irrelevant to the case shall not be asked.

b) 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 as the discovery of
documents. The discovery of documents is covered under the Rule 12-14 Order 11 of the code.
Conditions: While the discovery of documents is being asked, two conditions need to be taken
care of by the court:
 The discovery ordered is necessary for the fair disposal of the suit.
 The discovery will save costs.
Objection against discovery: The party can raise an objection if the documents required to
submit comes under the purview of the privileged documents. However, objecting by filing an
affidavit would not be enough, the party who is objecting also needs to give proper reasoning
behind such objection. The proper reasoning will enable the court to decide the objection raised
by the party. It is open to the court to inspect the documents and check the viability of the
objection raised by the party. Another objection which can be filed is that discovery is not
necessary at this stage of the suit.
Admissibility of document: The documents which are asked under the discovery of documents
are not always admissible in court. The documents may be admissible in the case if they are
relevant to the case and which may have some impact on the issues dealt under the case.
It is true that in a suitable case a defendant may object to the production of a document on the
ground that it relates solely to his title, but if on the other hand, that document may have some
bearing in support of the plaintiff‟s title; such objection cannot be validly raised. It is lawful for

25
the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any suit to
order the production of a document.
Rules as to discovery: The general rules for the discovery of the documents are as follows:
 Any party can get an order from the court for the discovery of the documents or for
inspection of documents.
 It is the discretion of the court to pass such an order.
 The court can use its power any time during the suit, either suo moto or by the application
of the party.
 The court shall not pass an order for the discovery, inspection or production until the
written statement has been filed by the defendant.
 No such order shall be passed if the application is made by the defendant until he has not
filed a written statement.
 Discovery of the document shall not be made if the court is not of the opinion that this
order will lead to fair disposal of the suit or useful for saving cost.
 A party, to whom an order of discovery of documents has been passed, as a general rule,
shall produce all the documents which are under his possession related to the suit.
 If the parties are taking any legal protection under the privileges provided under the code,
then the court shall verify such documents and give the protection.
 Failure to comply or default from the side of the parties to the order for discovery,
production or inspection, can lead to adverse inference on the party.

c) Inspection of Documents: Under Order XI Rule 12-21 of the CPC, the rule for the inspection
of discovery is provided. As per Rule 12 of the code the party can compel other parties to
produce the documents without filing an affidavit to apply to the court, relating to any matter of
question-related to the suit. However, such documents need not be admissible in court unless
they give out some connection in a matter of controversy. As per the Rule 15-19 of Order 11 of
the code, the inspection of documents can be divided into two categories:
 The documents which are referred to in the affidavits or pleadings of the parties.\
 The documents which are not referred to in the pleadings of the party but are in the
power or possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the latter
one.

Privileged documents are:

 Public records;
 Confidential communication;
 Documents which have exclusive evidence of the parties‟ title.

26
Such mentioned privileged documents are protected from the production. So to get benefit from
this privilege and to avoid the risk of repetition, the court can order the parties to produce the
document to the court. And the court can inspect such documents and ascertain the validity of
the claims which were made to make that set of documents underprivileged.

15) ADMISSIONS – ORDER 12

Introduction: Admission basically means the voluntary acknowledgement made by the person
against his own interest. It can be an important piece of evidence against a person. It can either
be in oral, electronic form or documentary in nature. Admissions are different from the
confession which is made under the criminal law. Admission is weaker than confession because
the parties have the right to prove that admission made earlier was false. However, assertions are
different from admission. It can be made in favour of themselves. It can be true or false,
therefore assertions are not considered as an important piece of evidence which can be used
against a person.

Kinds of admissions: Under the Code, the admissions are admitted in three ways:-
 By agreement or by notice;
 Actual admissions, oral or by documents;
 The express or implied admissions from the pleadings or by non-traverse by agreement.
Conclusiveness of admission: The admissions are not conclusive in nature. They can be
erroneous or gratuitous. Admissions made can be withdrawn or explained away. It can be proved
wrong. The context of the admission can be made after hearing the pleadings in entirety. Oral
admissions prevail over documentary or records of rights. Even the admission, if made earlier,
can be proved to be collusive or fraudulent. And one more important thing is, if the admissions
are made by the co-defendant then that cannot be used against other defendants.

Notice to admit case: As per Rule 1, any party to the suit can admit the whole or part of the case
of the other side in writing.
Notice to admit facts: As per rule 4, any party in the suit can call the other party to admit facts
of the case by giving them notice which shall not be later than nine days before the day fixed for
the hearing. And the other party if refuses or neglects to admit the facts then within six days after
service of notice or as per the time prescribed by the court shall be informed to the court.
However, the costs of proving such fact or facts shall be paid by the party. Further admissions
shall be used only for the purpose of the suit for which it has been made. It shall not be used
against the party on any other occasion or in favour of any person other than the party giving the
notice.
Judgment on admissions: As per Rule 6 Order 12, Judgment on admissions can be read as-

27
Where admissions are made during:
 Facts or pleading or otherwise;
 May be in oral or in writing;
The court at any stage of the suit on the application of either party without waiting for the
determination of questions by parties can give out judgment as it may think fit, with regard to
such admissions.

16) PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS - ORDER 13

As per Rule 1 of Order13, the parties or their pleaders shall produce the documents at or before
the settlement of disputes. Subject to the provisions of the Code the admission of the documents
are allowed as evidence in the suit when the following particulars are made:
 The number and title of the suit,
 The name of the person producing the document,
 The date on which it was produced, and
 A statement of it having been so admitted;
 The endorsed documents shall be signed by the Judge.
Where the admission of documents in evidence is:
 An entry in a letter-book or a shop book; or
 Other accounts which are in current use, or
 Entry in a public record produced from the public office or by a public officer, or
 An entry in a book or account belonging to a person other than a party on whose behalf
the book or account is produced; under such circumstances, the person can produce a
copy of the document, after the proper examination, comparison and certification as per
Rule 17 of Order VII of the Code.
Further, the documents admitted into evidence shall be part of the record of the suit.
Impounding of documents: The court can order the parties in the suit to produce any
documents or book before the court as per Rule 8 notwithstanding Rule 5 or Rule 7 of Order 13
or Rule 17 of Order 7 of the code. The documents or books impounded by the court shall be in
the custody of an officer of the court, for such period with subject to conditions if required.
Rejection of documents: Rule 3 gives the discretion to the court to reject the documents on the
basis of inadmissibility or irrelevance of the document. The court while rejecting the documents
shall also mention the grounds of such rejection.
Return of documents: If any party to the suit desire to receive backs any of the documents
submitted by him in the suit which is placed on the record is entitled to receive the documents

28
unless it is impounded by the court under Rule 8. The court can return the documents on the
following grounds:-
 Where the suit is one in which an appeal is not allowed, when the suit has been disposed
of, and;
 Where the suit is one in which an appeal is allowed when the Court is satisfied that the
time for preferring an appeal has elapsed and that no appeal has been preferred or if an
appeal has been preferred when the appeal has been disposed of;
 During the pendency of the suit, the party can receive the documents if the following
conditions are fulfilled:
i) The party is substituting the original document with a certified copy from a proper officer
ii) 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.

17) AFFIDAVITS – ORDER 19

Affidavit is a sworn statement made by the person who is aware of the facts and circumstances
which has been taken place. The person who makes and signs is known as „Deponent‟. The
deponent makes sure that the contents are correct and true as per his knowledge and he thereby
concealed no material therefrom. After signing the document, the affidavit must be duly attested
by the Oath Commissioner or Notary appointed by the court of law. The affidavit shall be drafted
as per the provisions of the code. The duty of the Notary/ Oath Commissioners is to ensure that
the signature of the deponent are not forged. Hence, the deponent himself needs to be present
before the Notary/ Oath Commissioner during the attestation of the affidavit.

The affidavit must be paragraphed and numbered. The person making the affidavit (the
deponent) must sign the bottom of each page in the presence of an authorized person, such as a
lawyer. Further, the affidavit must contain the full name, address, occupation and signature of the
person (deponent) making such affidavit and the date & place where such affidavit is made. The
affidavit must contain facts and circumstances known to a person and must not set out the
opinions and beliefs of the deponent. Further, one should avoid referring to facts that are based
on information received from others (known as hearsay evidence). However, if the person is
giving evidence as an expert; for instance, a psychologist then his opinion might be stated in the
affidavit.

The court can reject the affidavit if it is not properly verified and not in conformity with the rules
of the code. At the same time court can also give an opportunity to the party to file the affidavit
properly.

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False affidavit: A false affidavit is one in which a person deliberately swears false and frivolous
statements to be true, correct and accurate in an affidavit and signs it, in order to deceive and
mislead the Court. This causes inordinate delay in proceedings and is a clear misuse of the
judicial process. Filing of false affidavit is an offence of perjury under the provisions of the
Pakistan Penal Code. It is a criminal offence under Section 191,193 & 199 of PPC, 1860 to make
false affidavit in one‟s pleadings or filing false affidavit or false document in evidence before
court of law. Further, criminal contempt of court proceedings can be initiated against the person
filing false affidavit.
As per section 193 of the PPC: A person who intentionally gives false evidence or fabricates
false evidence during a judicial proceeding, he shall be punished with seven years of
imprisonment and fine;

18) ADJOURNMENT – ORDER 17

The term adjourn, in layman‟s term, means to postpone or to discontinue. The CPC does not
define the term but, however it means the proceedings of the court in the suit which the court is
hearing at that present time are adjourned. It means that the court does not hear that specific
matter anymore for that day but the proceedings keep going on and the court moves on to other
cases to be heard on that day.
General Procedure of Adjournment: Order 17 of CPC deals with the situations when
adjournment can occur and the procedure to be followed by the court during the adjournment of
a hearing. Rule 1 of the Order empowers the court to adjourn a hearing in a suit if a party seeking
adjournment shows the court that there is sufficient reason for the adjournment.
 The party to the suit must move the motion of adjournment before the court. It means that
when the hearing in a suit commences, the party seeking adjournment of the hearing shall
request the court to adjourn the hearing for that day. The court has the discretion to
adjourn the hearing which means that the court can choose not to adjourn the hearing and
proceed normally. However, the court cannot suo motu adjourn a case unless either of the
parties or their pleaders make a request.

 The court shall fix another date for hearing in the suit and announce the date before the
parties after passing the adjournment order. Further, while fixing the date of the next
hearing, the court shall also pass an order with respect to costs that need to be borne
because of the postponement of the hearing.

 The rule 2 of this order empowers the court to dispose of the suit if the parties failed to
appear on day foxed for hearing by any mode mentioned under order 9 (Ex-parte).

 Rule 3 states that if a person who was supposed to give evidence in the case on the date
fixed for his/her evidence, fails to give evidence and fails to appear its witnesses, the
court may proceed to decide the suit forthwith.
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 19) WITHDRAWAL &ADJUSTMENT OF SUIT- ORDER 23
Introduction: Whenever we institute a suit in the court, but after the institution of the suit if our
mind changed, then what will be the option for us, can we withdraw our suit or not, if yes then
under which provisions or procedure. The answer is yes, we can withdraw the suit under the
Code of Civil Procedure 1973. Order 23 of the Code provides the provision for the withdraw of
the suit. Withdrawal of the suit or abandonment of claim are two types
 Withdrawal of the suit without permission or leave of the court means (absolute
withdrawal)
 Withdrawal of the Suit or part of the claim with permission of the court means (qualified
withdrawal)
i) Withdrawal without leave of Court: Rule 1(1) of the order provides for withdrawal of the suit
without leave of the court. Under this order, the plaintiff may abandon his suit or part of his
claim against all or any of the defendants without the leave of the court, at any time after the
institution of the suit. It is the absolute and unqualified right and the court cannot refuse
permission to withdraw a suit and compel the plaintiff to proceed with it unless any vested right
comes into existence before such prayer is made. A suit withdraws by the plaintiff, without any
leave or permission of the court, he cannot institute fresh suit in respect of the same subject
matter.
ii)Withdrawal with leave of court: Under Rule 2, if the court is satisfied that a suit must fail by
the reason of some formal defect, or there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter of a suit or part of the claim, it may grant permission
to withdraw such suit or part on such terms as it thinks fit. It is the discretionary power of the
court. Where the plaintiff withdraws the suit with the permission of the court, then he can
institutes a fresh suit the same subject matter.

Withdrawal by one of the plaintiffs: In case of more than two plaintiffs in a suit cannot be
withdrawn without the consent of all the plaintiffs. One plaintiff may only withdraw from the
suit to the extent of his own interest in it.
Limitation: In case of withdrawal, the law of limitation will apply in the same as if the suit has
not been filed at all.

20) APPEARANCE OF PARTIES- ORDER 9

The Code provides the provisions under Order 9 with regard to the appearance and non-
appearance of the parties and their consequences. It also provides the remedy for setting aside an
order of dismissal of the suit and also the setting aside of an ex-parte decree passed against the
defendant. The word appearance means an appearance in person or through advocate for

31
conducting a case in the court. So, the appearance may be by a party himself in person or by an
advocate or by a party in person along with his advocate.
Appearance of the parties: Rule 1 of the Order 9 of CPC requires the parties to the suit to
present in the court in person or by their pleader on the day fixed in the summons for the
defendant to appear. While Rule 12 says that where the plaintiff or defendant, who has been
ordered to present in person, does not appear in person or show sufficient cause for non-
appearance, the court may, dismiss the suit if he is the plaintiff, or proceed ex-parte if he is the
defendant.
Effect where neither party appears: Rule 3 provides that where neither plaintiff nor the
defendant appears when the suit is called out for hearing, the court may dismiss it. Rule 4
provides that dismissal of the suit under Rule 3 does not bar a fresh suit in respect of the same
cause of action.
Effect where only plaintiff appears: Rule 6 provides that where the plaintiff appears and the
defendant does not appear, the plaintiff has to prove the service of summons on the defendant
and if it is proved, the court may proceed ex parte against the defendant and may pass a decree in
favour of the plaintiff, if the plaintiff proves his case.
Remedies: If an ex-parte decree is passed against the defendant then the defendant may apply for
setting aside the ex parte decree under Rule 13 Order 9 of CPC.
Where only defendant appears: Rule 8 provides that where the defendant appears and the
plaintiff does not appear, and the defendant does not admit the plaintiff‟s claim, wholly or partly,
the court shall pass an order dismissing the suit. But rule 8 enacts that if the defendant admits the
plaintiff‟s claim as a whole or a part of it, the court will pass a decree against the defendant upon
such admissions and dismiss the suit for the rest of the claim.
Remedies: If a suit is dismissed under Rule 8 then the plaintiff has two remedies to revive his
dismissed suit, which are as follows:-
 Filing a fresh suit before the competent court, if the suit is not barred by law; and
 The plaintiff may file a petition under Rule 4 of the Order 9 to set aside the order of the
dismissal of the suit

Conclusion: Hence, appearance and non-appearance of the parties have a great impact on the
civil proceeding. It is the duty of the parties to appear before the court at the time fixed by the
court to appear and helps the court to settle the dispute; otherwise, the absent party may suffer
and not entitled to get justice.

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 21) SET-OFF- ORDER 8 RULE 6 OF CPC
Introduction: Under order 8 of the code a defendant files a written statement in reply of the
plaint of the plaintiff, in this if any situation arises where the plaintiff files a suit of recovery of
money from the defendant, but at same time defendant also has some debt on the plaintiff, in this
case, the defendant may claim for the set off the amount against the plaintiff recoverable by him.
For the setting off the amount, the defendant has to state the fact in the written statement filed by
him. Provisions regarding the set-off have defined under Order 8 Rule 6 of CPC.
Meaning: Set-off means a claim by the defendant against the plaintiff or a plea in defence
available to the defendant. It is a cross-claim between the parties to the suit regarding their
recovery of money. It is the destruction of the debts of which two persons are reciprocally
debtors to one other. As the case may be where there are mutual debts between the parties
(plaintiff and defendant), one debt may be settled against the other. For example; Naveed sues
Mehtab on a bill of exchange for Rs.1000. Mehtab holds a judgment against Naveed for Rs.
3000. The two claims being both definite and ascertain, pecuniary demands may be set-off.
Essential conditions: A defendant may claim a set-off if he satisfied the conditions follow as
under-
 The suit must relate to recovery of money;
 The sum of money must be ascertained or definite;
 Above said sum must be recoverable legally;
 The sum of money must be recoverable by the defendant or by all the defendants, in case
of more than one defendants;
 It must be recoverable from the plaintiff by the defendant;
 It must not exceed the pecuniary limits of the court in which the suit is brought;

Effect of set-off: In the claim of set-off, there are two suits, one by the plaintiff, and the other by
the defendant against the plaintiff, they are tried together, no separate suit is necessary. In such a
case, when the defendant claims set-off, he will stand in the position of the plaintiff in regard to
the amount claimed by him. In such case, if the plaintiff doesn‟t appear and his suit is dismissed
for default, or he withdraws his suit, etc. it does not affect the claim of the defendant for set-off
and a decree may be passed by the court in favour of the defendant if he is able to prove his
claim.

22) NECESSARY & PROPER PARTIES

Provisions regarding the necessary and proper parties are provided Order 1 provides provisions
about the party to the suit. In this Order provisions are provided regarding the joining of the
parties as a plaintiff and defendants, representative suit, non-joinder, and misjoinder, suit in
name of the wrong plaintiff, the appearance of one of several plaintiffs or defendant for others,
objection as to non- joinder or misjoinder, etc.

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Distinction between necessary and proper party: There are some distinctions between the
necessary party and proper party, which are as follows:-
 Necessary party is one whose presence is indispensable to the constitution of the suit,
whereas, in case of a proper party, it is not so.
 A necessary party is without whom no effective order can be passed, whereas, A proper
party is one, in whose absence an effective order can be passed.
However, like Necessary party, the presence of a proper party is also necessary for complete and
final decisions on the question involved in the preceding. His presence, however, enables the
Court to adjudicate more "effectively and completely". There are some example of the necessary
party and proper party:-
Necessary parties:
 In a suit for partition, all sharers are necessary party,
 In a suit for the declaration to set aside public auction, purchase of property in a
public auction is a necessary party,
 In an action against selection and appointment by an authority, candidates who are
selected and appointed are directly affected and, therefore, they are necessary parties.
Proper parties:-
 In a suit for possession, by a landlord against his tenant, a sub-tenant is only a proper
party,
 In a suit for partition, by a son against their father, grandsons are proper parties to the
suit,
 In a land acquisition proceedings, the local authority for whose benefit land in sought
to be acquired by the Government is a proper party.
It may, however, be noted that where several persons are involved in a suit, it is not always
necessary that all of them should be joined as a plaintiff or as a defendant. Rule 8 of order 1
applies to such suits and it is sufficient if some of them are joined as defendants or plaintiffs, as
the case may be.
Conclusion: At last, we can say that, for determining a party, whether, it is a necessary or proper
party to the suit, then, first of all, we should see that whose presence is indispensable for the
constitution of the suit or whose is not, second, we can say that without whom can, an effective
order, be passed or not, it is a test for determining a party whether it is a necessary or proper
party.

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 23) MIS-JOINDER & NON JOINDER & ORDER 1 RULE 10
A civil suit is where a party files a plaint in the court of law for claiming rights or to solve a
dispute or to adjudicate on issue. And the suit is always between two parties, plaintiff and the
defendant. There after the question of necessary and non-necessary parties is to be determined.
The necessary parties are those who should be present, in order to make the decree or order and
also the relief sought is to be enforced them effectively. In case of failing to add the necessary
parties, the court may dismiss the suit since there won‟t be any good on adjudicating without the
necessary parties and the relief won‟t bind on any rather lost in vein. However the non-necessary
parties are those added for irrelevant purposes and hence; no relief or claim can been made on
them. However the necessary parties should be there in a suit and the concept of misjoinder and
non-joinder always rest upon the necessary parties. Joinder means adding a party to the suit
irrespective of necessary or non- necessary parties.

Mis-joinder & Non-joinder

i) When mistakenly a party was added to the suit is misjoinder. That means when a party was
added but he doesn‟t have to do anything with the present issue then it considered to be
misjoinder. When a party is necessary to the suit and he was not added to the suit, then it is a
non-joinder.
ii) In case of misjoinder the court should not dismiss the suit rather; may order in such kind as
the order not bind on the misjoined party and the relief should be sought only upon the respective
necessary party. When the court found about the non-Joinder of the party who are necessity to
the suit, and adjudicating on such matter without them is a matter of waste, then the court can
dismiss the suit, or may order the plaintiff to add the necessary parties or may add the party on
their own.

Striking out, adding or substituting parties (Order 1 Rule 10)

Introduction:Where a suit has been instituted in the name of the wrong plaintiff, the court may at
any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake,
order any other person to be substituted or added as plaintiff upon such terms as the court thinks
just. Rule 10 of the Order 1 of the CPC deals with the provision relating the suit in the name of
the wrong plaintiff.
Adding or substituting plaintiffs:After the filing of the suit an application for addition and
substation of the plaintiff can be made, if the plaintiff discovers the following;
 That he cannot get the relief he seeks without joining some other person also as a
plaintiff; or
 Where it is found that some other person and not the original plaintiff to entitle to the
relief as prayed for.

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Illustration: C, the agent of A, under a bona fide mistake files a suit against B in his own name.
The court can substitute the name of principal A for that of the original plaintiff C. Such an
amendment may be allowed by the court at any stage of the suit or even at the appellate stage
and upon such terms and conditions as it thinks just. No person can be added as a plaintiff
without his consent.
Striking out or adding parties: Sub-rule (2) of Rule 10 empowers the court to add any person
as a party to the suit on either of the two grounds:
 Such a person ought to have been joined as a plaintiff or a defendant, and is not so joined;
or
 Without his presence, the question involved in the suit cannot be completely decided.
Effect: Where any person is added as a defendant in the suit, as regards him, the suit shall be
deemed to have been instituted from the date; he is joined as a party (Rule 10(5). According to
Rule 10 (4) where a defendant is added, the plaint shall be amended and the amended copies of
the summons and the plaint must be served on the new defendant.

24) SUMMARY SUIT- ORDER 37

Introduction: Summary suit or summary procedure is provided under order XXXVII of the
Code of Civil Procedure, 1908. The summary suit is a unique legal procedure used for enforcing
a right in an efficacious manner as the courts pass judgement without hearing the defence. While
this prima facie would appear to be violated of the cardinal principle of natural justice, Audi
Alteram Partem, nobody should be condemned unheard, this procedure is only used in cases
where the defendant has no defence and is applicable to only limited subject matters.

Object: The object underlying the summary procedure is to ensure an expeditious hearing and
disposal of the suit and to prevent unreasonable obstruction by the defendant who has no defence
or a frivolous and vexatious defence and to assist expeditious disposal of cases.

Scope and extent of applicability: A summary suit can be instituted in High Courts, District
Courts or Civil Courts, and any other court notified by the High Court. High Courts can restrict,
enlarge or vary the categories of suits to be brought under this order.

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 Difference between Summary Suit and Regular Suit

No Summary Suit Regular Suit (Regular Suit)

1) In Summary Suit the defendant is not

entitled as a matter of right to defend the
suit. Defendant has to obtain the leave of
the Court and if he does not apply for such
leave within the prescribed period or if
Court refused such leave, the plaintiff gets
a decree in his favor.
In Regular (Regular Suit) Suit, a
defendant is entitled to defend the suit as a
matter of right and no leave to be obtained
from Court to defend.

2) Summary suit can be filed only for two

categories of Suits-
(1) Suit upon Bill of Exchange, Hundies, Ordinary suit (Regular Suit) can be filed
Promissory Notes and for any purpose, It is not restricted to any
particular category of the suits
(2) To Recover debt, Liquidated demand in
money payable by the defendant on written
Contract, and on Guarantee.

3) In case of Summary Suits, After decree the

Court may, under special circumstances,
set aside the decree, and if necessary stay In ordinary suit (Regular Suit), the Decree
or set aside execution, and may give leave cannot be set aside by trial Court except
to the defendant to appear to the summons on the grounds of review.
and to defend the suit, if it seems
reasonable to the court so to do, and on
such points as the Court thinks fit

4) In Summary suit, the defendant must prove In ordinary Suit (Regular Suit) Time
his fact Within 10 Days Limit is 30 Days for filing a written
Statement

5) For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the court with
sufficient cause for his non-appearance. In summary suits, the ex parte decree may be set aside if
the defendant shows special circumstances.

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 SPECIAL CIRCUMSTANCES V. SUFFICIENT CAUSE
The reasons offered by the defendant to explain the special circumstances should be such that he
had no possibility of appearing before the Court on a relevant day. For instance, there was a
strike and all the buses were withdrawn and there was no other mode of transport. This may
constitute “special circumstances”. But if the defendant were to plead that he missed the bus he
wanted to board and consequently he could not appear before the Court. It may constitute a
„sufficient cause‟, but not a „special circumstance‟. Thus a „special circumstance‟ would take
with it a ‟cause‟ or „reason‟, which prevents a person in such a way that it is almost impossible
for him to attend the Court or to perform certain acts which he is required to do. Thus the
„reason‟ or ‟cause‟ found in “special circumstances” is stricter or more stringent than in
“sufficient cause” and depends on the facts of each case.

PROCEDURES
After institution of a summary suit, the defendant is required to be served with a copy of the
plaint and summons in the prescribed form. Within 10 days of service of summons, the
defendant has to enter an appearance. If the defendant enters an appearance, the plaintiff shall
serve on the defendant a summons for judgment. Within 10 days of service of such summons, the
defendant has to apply for leave to defend the suit. Leave to defend may be granted to him
unconditionally or upon such terms as may appear to the Court or Judge to be just. If the
defendant has not applied for leave to defend, or if such an application has been made and
refused, the plaintiff becomes entitled to the judgment forthwith. If the conditions on which leave
was granted are not complied with by the defendant then also the plaintiff becomes entitled to
judgment forthwith. Sub-rule (7) of Order 37 provides that save as provided by that order the
procedure in summary suits shall be the same as the procedure in suits instituted in an ordinary
manner.
Conclusion: The summary procedure prevents unreasonable obstructions by the defendant who
has no defence. It assists expeditious disposal of cases. Unless the defendant is able to
demonstrate that he has a substantial defence in his case, the plaintiff is entitled to a judgment
forthwith. In the event of ex parte decree in summary suit, the defendant is required to show
more strict and stringent causes. This ensures that ex parte decree is not set aside in an ordinary
manner. The summary procedure is generally resorted to in a class of cases where speedy
decisions are desirable in the interest of commercial transactions. Summary suits are easier to
establish for the plaintiff and tougher for the defendant to defend than ordinary suits. By and
large, the summary procedure ensures that the defendant does not prolong the litigation and
prevent the plaintiff from obtaining a decree by raising untenable and frivolous defences.

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 25) INTERPLEADER SUIT
Sec 88 CPC, opens the contents of the concept of Interpleader suit, which are as following:
Where more than one parties have adverse claim over the common subject matter, against
another person (having some stake), then such person may institute the suit of interpleader
against all the claimants.

Subject Matter of Suit: For the purpose of subject matter, we may include dome debt, sum of
money, or any other kind of property.

Besides the person who set up the interpleader suit shall have:

i. No interest in the subject matter of the suit, except the charges and costs which he has
born.

ii. The knowledge of the rightful claimant.

iii. The will to deliver or pay the subject matter to the rightful claimant.

Object of Suit: The interpleader suit is filed, in order to obtain a decision as to the rightful
claimant to whom delivery of subject matter is to be made, and obtaining of indemnity to the
plaintiff of the inter pleader suit.

 The stakeholder basically also bring this suit to avoid the multiplicity of liability upon him.

 The person who brings such a suit is called under the civil law a “Concursus”.

 Interpleader suits can be traced from the earlier periods of Common Law, but the same
became an equitable remedy, rather the legal one.

What shall the plaint of interpleader suit state in it?

O 35 R 1, states that in addition to the necessary contents, the plain of interpleader suit shall
state in it the following:
i. That the plaintiff having no interest in the subject matter of the suit, except the charges
and costs he has sustained.

ii. That all the defendants had made claims against the plaintiff severally regarding the
subject matter of the suit.

iii. That there is no collusion between the plaintiff and any of the defendants.

39
Court as custodian of things claimed in the interpleader suit.
In this suit the plaintiff shall hand over the custody of the subject matter to the court in
which the suit has been filed. Here a question arises as how the court shall take care of
the subject matter of the suit, whether it shall make attachment of the subject matter and
appoint receiver to it, or where the subject is of perishable nature then what procedure
shall be adopted?
Interpleader suit exception to Principles of Res-Sub- Judice.
Where any defendant of interpleader action had previously instituted a suit against the
Concursus, regarding the same subject matter, then the suit filed by the defendant shall be
stayed upon the information given by the court in which the interpleader suit has been
filed.
Costs of Defendant how paid?
If a defendant‟s suit has been stayed due to the institution of interpleader suit, then his
cost for filing his suit shall be paid along with the costs incurred during the interpleader
suit.
Procedure in interpleader suits.
O 35 R 4 determines the following procedure to be adopted when the interpleader suit has
been filed:
i. When all the parties interpleaded have made their representation in the court, then
court may, as it thinks fit, either relieve the plaintiff from his liability or may retain all
the parties for disposal of justice.

ii. Where the admission of the parties or other evidence enables the court too adjudicate
regarding the title of the subject matter of the suit, then it shall adjudicate
accordingly.

iii. Where the admission of parties do not enable the court to adjudicate so then:

It may frame issue/s as it thinks fit and conduct the trial in ordinary manner.
It may direct that any defendant of the suit be made plaintiff, in lieu of or in addition
to the original plaintiff, and then try the suit in ordinary way.
Bar to institute interpleader suit.
i. O 35 R 5 CPC, states certain persons are barred from instituting the interpleader suit as:
Agent against their principals and Tenant against his Landlord.

ii. Proviso of Sec 88, bars interpleader action where the right of all parties can be decided
properly in a previously instituted suit.

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How the plaintiff shall be provided with costs in interpleader suits.
The original plaintiff of interpleader suit shall be provided with costs and charges, which are
born by him for the subject matter of suit, by giving him a charge upon the same , or through any
other effectual means.

26) A SUIT ON BEHALF OF MINOR

Order 32 of the Civil Procedure Code (CPC) deals with Suits by or against Minors and
Persons of Unsound Mind. The main object behind the enactment of Order XXXII is the
protection of the interests of minors and persons of unsound mind and a minor or unsound mind
is represented by a qualified person to act on his behalf. Through this order a minor may sue or
be sued through his next friend. A minor is defined u/s 3 of Pakistan Majority Act, 1870 that is a
person who has not completed the age of eighteen years.
Every suit on behalf of a minor shall be instituted in his name by his next friend. The term „next
friend‟ means „to stand as a representative for the person who is not in a position to stand for
their own‟ like minor, unsound, disabled etc. The Title of the suit shall be like this
Ahmed, a minor, by his next friend Jamal Khan Versus Haw Nawaz
Every miscellaneous application shall also be filed by next friend on behalf of minor.
Where a suit is instituted by a minor without a next friend, the court on application of defendant
or suo motu may take the suit off, after giving an opportunity.
Qualification of Next Friend: Every person who is sound mind and has attained the age of
majority may act on behalf of Minor. However, the interest of next friend shall not be adverse to
that of minor. Further where interest of next friend of minor is adverse to that of minor or where
he is connected with a defendant whose interest is adverse to minor or he fails to do his duty or
departs from Pakistan then upon application on behalf of minor, the court may if satisfied order
the removal of next friend.
Agreement or compromise by next friend
Subject to the permission of Court, a guardian or next friend of minor can enter into an
agreement or compromise on behalf of minor with reference to the suit. Rule 7 of Order 32
states that No next friend or guardian shall enter into any agreement or compromise on behalf of
a minor without the leave of the Court. If any such agreement or compromise made without
leave of court shall be voidable against all parties other than the Minor. In simple words this rule
prohibits any agreement or compromise without the express leave of court. The valid procedure
is, first an application be made for leave to compromise/agreement, on which the leave of court
should be obtained and thereafter the guardian or next friend should enter into the compromise.

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Purpose behind this rule is to protect the minor from any compromise made outside the court and
that might affect the interest of minor. This rule should be read with section 147 of CPC that
states, “ In all suits to which any person under disability is a party, any consent or agreement is
given or made with express leave of court by the next friend or guardian for the suit, shall have
same force and effect as such person were under no disability”.

27) SUIT BY PAUPER

The literal meaning of Pauper is indigent person/Very poor Person. Rule 1 of Order 33 of CPC
provides its technical meaning. A person is said to be “Pauper ”
a) When plaint fee is prescribed by law: Any person who has no sufficient means to pay the court
fees prescribed by the law for the plaint in suit.
b) Where fee is not prescribed: He has not entitled to property worth 1000 rupees other than
subject matter of suit or necessary wearing-apparel.
Object of Order 33: In Pakistan, there are so many people, who are poor and not able to get
two-time food. So in these situations, how can we expect that they are able to get the justice from
the court without money, hence this order provides an equal opportunity before the law and
equality before the law all the citizens of Pakistan. Order 33 provides the procedure for filing of
suit by an indigent person. It empowers the persons who are not able to pay Court fees to
institutes suits without payment of requisite Court fees.
Procedure: A pauper application is an instrument consisting of an application for leave to sue as
a pauper and a plaint. Every such application shall contain the following particulars
a) The particulars required in regard to Plains in suit
b) Of any movable or immovable property belonging to the applicant with estimate value
thereof, and
c) Signature and verification
Applicant should present the application to the court in person unless he is exempted from
appearing in court. The court may if thinks fit examine the applicant or his agent regarding
merits of claim and property of the applicant.
Rejection of application: Further rule-5 specifies the grounds on which a leave to sue
application shall be rejected by the Court.
1. If the application is not framed and presented prescribed manner; or
2. If the applicant is not a pauper; or
3. If the applicant has disposed of any property fraudulently in order to get permission to sue as a
pauper within two months before the presentation of the application; or

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4. If the applicant has entered into an agreement with reference to the subject matter of the
proposed suit under which another person has obtained interest in such subject matter.
Where court sees no reason to reject the application then, court may grant the permission and
such application shall be numbered and registered and shall be treated as plaint in suit and
proceed the litigation in the ordinary manner.
Note: An order rejecting an application to sue as a Pauper is appealable.

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