Civil procedure code---- notes

Civil procedure code---- notes

+++++++ CIVIL PROCEDURE CODE , 1908 ++++++++++================================================== ================================================================= ===============

Civil procedure code lays down the procedure, which the courts of civil jurisdiction have to follow.The procedural law is framed to provide the courts a uniform and unquestionable procedure to avoid diversity in dealing with civil cases.

The object of the code is clear from its preamble, the code intended to consolidate and amend the laws relating to the procedure of civil courts .

The code, being a general law, in case of conflict between the code and special law, the latter prevails over the former.

It can be concluded that civil procedure code as a civil law describes the formation of civil courts, its procedure, classification, powers and discretion of the judges.

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PLEADING----------------------

Pleadings are statements in writing of each party containing contentions of each party and detail of his case . Pleadijnd is defined in order 6 of the code of civil procedure as plaint or written statement.

PLAINT-------------------

Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedyfrom court for the redressal of his grievances.

WRITTEN STATEMENT-----------------------------------

Written statement is the statement of defence in writing and filed by the defendent, in which he deals with every material fact alleged by the plaintiff in the plaint.Defendant can state any new facts, which he considers to be in his favour, and cn raise legal objections to the merits of the case, prescribed by various lawse.g plea of limitation , plea of estoppel, plea of res-judicata etc.

REJOINDER.--------------------------------

Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the defendant in written statement.

ADDITIONAL WRITTEN STATEMENT.................................................. ......................

It means further answer of the defendant, ( if court permits) which he gives in light of rejoinder.

OBJECT OF PLEADING:-------------------------------------------------------------

The object of pleading is to bring the parties to an issue and purpose of the rules relating to pleading is to prevent the issue beig enlarged. Further that the parties themselves know what are the matters in dispute and what facts they have to prove at the trial.

WHAT SHOULD A PLEADING CONTAIN--------------------------------------------------------------

Every pleading shall contain and contain only, a statement in a concise form of the material facts, n which the party pleading ( plaintiff or defendant) relies for his claim or defence, as the case may be.IT shall not contain, the evidence by which they are to be proved, and it shall, when necessary, be divided into paragraphs, numbered consecutively.Dates, sums and numbers shall be expressed in figures.

General rules of pleading==================================

In civil procedure code order 6 deals with pleadings in general, order 7 deals with plaint, and order 8 deals with the written statement. The following is the summary of the rules comprised in orders 6,7, and 8 of civil procedure code:

1. In pleading state your whole case, in other words set forth in pleading all material facts on which you rely for your claim or defence , as the case may be.

2. In pleading state facts and not the law, if any matter of law is set out inj your opponent's pleading, do not plead to it.

3. In pleading state only the relevents facts on which you rely, and not the evidence by which tose facts are to be proved.

4. In pleading state material facts onlyand ommit immaterial and unnecessary facts, and do not plead to any matter which is not against you.

5.In pleading, state the facts of the case concisely, but with precision.

6. It is not necessary to setout the whole or any part of the document, unless the precise words thereof necessary, it is sufficient to state the effects of document as briefly as possible.

7. It is not necessary to allege any matter of fact which the law presumes in your favour or as to which the burden of proof lies upo your opponent party.

8. The party should not plead conclusion of law in pleading.

9. Legal pleas such as estoppel, limitation and resjudicata or res subjudice etc, may be pleaded in written statement.

10. In cases where the party pleading relies on any mis representation, fraud, breach of trust,wilful default, or undue influence , particulars shall be stated in the pleading.

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ISSUES-------------------------------------------================================================

Issues are points of contest between the parties in a suit . In other words issues are those points raised from the pleadings which se a way for the court for entertaining a case and it brings the court at the right conclusion of justice. The determination of issues has great importance in the trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence to be given. Pleadings constitutes allegations to one-side or the other, and after determination which of the allegations are material for the purpose of the trial and which of them are admitted or denied, issues are framed and on the basis of these issues the parties stand the test of the trial.

The object of settlement of issues is to determine the material points in controversy between the parties.

Issues arises when a material proposition of fact or law affirme by one party and denied by other party.

Issues , whether raised from allegations in the pleadings or from other materials, should not be inconsistent with pleadings, the court is bound to frame the proper issues arising from the pleadings.

FRAMING OF ISSUES:================================================

According to order 14 rule 1, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the written statements, if any, and after such examination of the parties as may appear necesssary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on weich the right decision of the case appears to depend.

If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule 1 , nothing in this rule requires the court to frame and record issues.

OMISSION TO FRAME ISSUES============================

If an issue is not framed in the suit, while an allegation was made in the plaint in-respect of certain facts and challenged in written statement, the court can allow the parties to lead the evidence on such point, and would give its decision without framing that issue.

KINDS OF ISSUES:===============================

1-- ISSUES OF FACT:

Issue of fact means any issue, which has not been determined, by a rule of law, but is to be answered, in accordance with the evidence laid before the court.

2-- ISSUES OF LAW

Issue of law means that issue, which is to be answered in accordance with the law, and not in accordance with the facts or evidences that is laid before the court.

According to order 14 rule 2, " where issues both of law and fact arise in the same suit, and the court is of the opinion, that the case or any part thereof may be disposed of on issues of law only, it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of the issues of fact untill after the issue of law have been determined".

MATERIALS FROM WHICH ISSUES MAY BE FRAMED:==================================================

The provision regarding the materials from which issues are framed is found in order 14 rule 3, which provides that " the court may frame issues from any of the following materials :-

1. The court may frame issues from the allegations made on oath by bthe parties, or by any persons present on their behalf or made by the pleaders of such parties.

2. The court may frame issues from the allegations made in the pleadings or in answers to the interrogatories delivered in the suit.

3. The court may frame issues from the contents of the documents produced by either part ".

POWER OF COURT TO AMEND AND STRIKE-OUT ISSUES.================================================== =

The power of the court to amend and striking-out of issues is mentioned in order 14 rule 5, which provides that, " The court may at any time before passing a decree amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. The court may also, at any time before passing a decree, strike-out any issues that appear to it to be wrongly framed or introduced.

ivil Procedure Code

SECTION 9- Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.PLD 1992 Pesh. 87 (D.B.)SECTION 9- Final decision with regards to civil rights ,duty, obligation and status of parties shall be that of civil court.PLD 1995 SC 457SECTION 9; O-7 R-11; BANKING ORDINANCE 1979 Sec 6(1) & (4)- Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction. Courts below correctly found that special banking court had exclusive jurisdiction order unexceptionable .PLD 1992 PESH 87(DB)SECTION 10 & 151- In the absence of consolidation of suits and consolidation proceedings, evidence in one suit could not be read in the other suit.Muzaffar Hussain Vs. Mst. BiviPLD 2012 Lah. 12SECTION 12(2)- Forum of venue-court where in to make application1983 CLC 1948 Lah1986 Law Notes (Lah) 4311986 CLC 1211 LahSECTION 12(2)- Courts which passed the final decree means judgment against which no remedy is available and all remedies, appeals, revisions, review has been exhausted and no remedy is left.- Adjudication means the decision on merits after proper appraisal.PLD 1995 SC 564ALSO SEE 1994 MLD 1441 for different view.- Mere mentioning of words Fraud, misrepresentation and want of jurisdiction in passing judgment and decree were not sufficient specific instances must be given.Abdul Hameed vs. Mehmood2001 SCMR 1316.SECTION 12(2) & 151 C.P.C.Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C. and the same was set aside by Lower Appellate court in exercise of revisional jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C.P.C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate.Muhammad Ismail Versus Rehmat Ali2009 YLR 1265Lahore-High-Court-LahoreSect. 12(2)- Forum: judgments and decrees of trial court were amended by High Court Application under section 12(2) was filed before trial court held that as High Court passed final decrees in view of modification in its review jurisdiction, application u/s 12(2) shall lie in High Court.Muhammad Aslam Vs. Molvi Muhammad Ishaq.2012 SCMR 147

SECTION 20-----O-XLI, R-1Sect. 115- Revision--- Term case decided---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in any case which has been decided---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term case has been used, thus the meaning cannot be restricted only to a final decision of a case---Term case decided is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of case decided---Powers conferred under section 115 C.P.C. cannot be restricted only to the extent of final decision of the case, rather it includes interlocutory orders also against which no appeal is provided.

- Valuation given in plt.200- application for appointment of receiver from to be determined according to value given in the plaint.1995 CLC 1874SECTION 24- Transfer of appeals . appellate court earlier as trial court recorded evidence of some witnesses-had not recorded his own observation-no material order passed- still appeals recalled from him.PLD 1995 Lah 89Sect. 27, O.V, R.6, O.IX, Rs. 6 & 13.- Setting aside exparte decree Purpose of service is that the defendant should be heard, but he cannot be allowed to frustrate proceedings by staying away. Once summons are duly served exparte decree can follow and execution can be levied against defendant because then he becomes judgment debtor. Any irregularity can be disregarded in service, if the court is convinced that the defendant had the knowledge of proceedings.

Usman Punjwani Vs. Ayaz AliPLD 21012 Sindh 78.

SECTIONS 35 & 35-A C.P.C.Ss.35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High Court in its Constitutional jurisdiction can award compensatory costs even in excess of twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also be awarded by High Court in exercise of its inherent powers---Costs including compensatory costs as well as exemplary costs can be imposed by High Court in its Constitutional jurisdiction.Kawas B . AgaVersusCity District Government, Karachi (CDGK) through Nazim-e-Ala2010 PLD 182Karachi-High-Court-SindhSECTION 47- All questions relating to execution discharge or satisfaction of decree arising between the parties to the suit in which the decree was passed would be determined in execution proceedings and not by a separate suit.1995 MLD 1943(entire case law discussed)Ss. 48, 151, O.IX, Rs. 8 & 9.- O.IX Rule-9 is designed for restoration of suit whether in whole or in part dismissed under Rule-8 and it does not speak anything for restoration of application even about an execution petition. But the same principles will apply and applications/petitions can be restored even under inherent powers.

U.B.L. VS. Plastic Pack Pvt. Ltd.2012 CLC 229 Sindh.

SECTIONS 96 & 115- S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation.Mst. Parveen AkhtarVersusMuhammad Adnan2010 C L C 380Lahore High Court, Lahore- S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S. 115, C.P.C. by aggrieved person is 90 days.

- S. 115, proviso I & II---Expression copies of pleadings, documents and orders--- Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis of copy provided by the court---Court which passes the order only has to provide the copy of impugned order.Allah Ditta Versus Lahore Development Authority and 5 others2012 C L CL 271SECTION 115- If the courts below overlooked material facts or reached at an erroneous conclusion, it will be deemed as material irregularity, High Court could reverse such findings.Muhammad Suleman V. Rasheeda Bibi2012 CLC 79 (Lah.)

- S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable sui motu by High Court under S.115, C.P.C.---Principles. The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit.Zahir Hussain and 4 others Versus Bashir Muhammad and 5 others.2012 C L C 377Section 115- Revision case decided terms Suit, judgment, order or decree have not been used in Sect. 115 rather case has been used, thus, meaning cannot be restricted only to a final decision of a case. The term case decided is to be seen in broader sense and may include orders passed which determined only a part of the case.

Muhammad Musa Vs. Hamid Ali.2012 CLC 254 (Baluchistan)

CONVERSION OF WTITS, APPEALS REVISION- Appeal which was found to be incompetent could be treated as revision and vise versa.1991 CLC 853 conversion of revisional petition into a constitutional petition-petitioners request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable.1991 CLC 1768 constitutional petition can be converted into a revision or vise versa if it does not prejudice the right of any party and advance cause of justice instead of frustrating the same.1991 CLC NOTE 101 AT P.82 No limit and bar on high court to convert a revision into a constitutional petition in exercise of its discretion.1991 SCMR 1135 Maintainability of appeal as RFA or RSA-held, proceedings originally instituted as a writ petition cannot be treated as a first or second appeal-proceedings of one kind can ordinarily be treated as proceedings of another kind provided period of limitation does not intervene subject to further qualification that such proceedings should otherwise be competent under provisions sought to be invoked.1988 MLD 1445SECOND APPEAL INTO REVISION- Second appeal brought before high court exhibiting certain features which demonstrated that it fell within scope of interference under sec.115 CPC-high court should in such cases, exercise its jurisdiction under said provision of law-high court, held, should have allowed conversion of said second appeal into revision and then proceeded to see PLD 1987 SC 139 Recalling order of high court-application for-high court converting constitutional petition as rent appeal-application for recalling order of such conversion not bared or support by legal grounds, held, was not maintainable and dismissed in circumstances.1986 MLD 95 Second appeal-revision-objection regarding competence of civil revision not taken up before high court but taken first time in supreme court, held, objection was an afterthought such objection if taken up in high court and found tenable high court could have treated revision as second appeal subject to the satisfaction of other requirements.1985 SCMR 27 Appeal filed under sec.100 not found to be competent prayer on behalf of the appellant for conversion pf appeal into revision upon plea of ignorance of amendment such application belated-held, cannot be accepted.PLD 1984 QUETTA 52 Second appeal against order of Majlis-e- shoora-conversion of appeal into revision question of deficiency of court fee or limitation not involved and prayer bonafide appeal treated as revisionPLD 1984 QUEETA 92 Constitution of Pakistan (1973)- Art.199 read wind military courts (validations of orders)ordinance(1 of 1980),s.2(2) martial law order MLA(Zone c) No.20 and Sindh rented premises ordinance(xvii 0f 1979)S.21 Writ petition-appeal-court, with a view to foster justice, can take appropriate action or adopt prohibited by any provision of law no prohibition in law against conversion of a writ petition into an appeal impugned orders of military Court , during pendency of writ petitions , converted by validation ordinance into orders passed under Sindh rented premises Ordinance subject to right of appeal before High court-conversion of pending writ petitions into appeals-held, in furtherance of justice and to provide fair opportunity to parties before single judge of High Court under section 21 of Sindh Rented Premises Ordinance,1979.PLD 1982 KARACHI 130DUTY OF COURT- Courts are required to do substantial justice-one form of proceedings, in the interest of the justice may be treated as another Revisions, appeals and constitutional petitions have to be treated one or the other, interchangeably, to meet the end of the justice1989 CLC 1949 (KARACHI)1980 CLC 930SECTION 73- Exertion defective not giving particular as under O-21 R-11 but good enough for -purposes of Sec.23.

SECTION 100- Concurrent finding of fact to be reversed when important points ignored and evidence misread.PLD 1994 SC 326SECTION 115- No period prescribed for filing should be filed within 90 days failing which discretion might not be exercised in petitioners favour on grant of unreasonable delay.1995 SCMR 69- Scope of revisional power is vest corresponds to remedy of certiorari.1995 SCMR 69- Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material irregularity.1995 SCMR 105- High Courts power of Judicial Review under Art.199 is assumable to its jurisdiction under Sect.115 CPC except in two aspects (i) abuse or (ii) excess of power which are well recognized grounds of intervention under Art.1991995 SCMR 105.SECTION 115:Civil Laws (Reforms) Act XIV 1994; Civil Laws (Reforms) Act XDXIII 1993.

- Revision can be filed either H.C. or Distt. Court powers of H.C. not withdrawn byAct XIV of 1994.PLD 1995 Lah. 31.SECTION 144 C.P.C.Court must remedy injury or wrong done to a party because of order of court---Procedure was provided under S. 144 C.P.C., while power to order restitution was inherent in court and should be exercised whenever justice demanded---Present was not a case of restoration of possession but of restitution of possession because order of revenue authority regarding dispossession was set aside by appellate authority declaring the same to be illegal and without jurisdiction.Parvaiz Versus Muhammad Ramzan2009 CLC 513Lahore-High-Court-LahoreSECTION 150 O-39 R-2 (3).- Breach of injunction Business of the Court granting the injunction transferred to another court Latter Court can entertain petition.- Transfer Includes transfer of business under Civil Courts Act. The word transfer in Sec.150 is not inapplicable to a case where the District Judge fixed the jurisdiction of the Court under the Civil Courts Act and transferred the whole of the business within a certain area to it.AIR 1923 Madras 92.SECTION 151.- Inherent powers withdrawal of suit on bonafide mistake on account of similarity in the names of defendants in two suits suit to be restored under inherent powers which can be exercised when the provisions of CPC are not in conflict.PLD 1995 Kar. 282.SECTION 151 & 115.- Order passed u/s 151 CPC revision competent when court has failed to exercise its inherent jurisdiction or where order impugned was perverse or illegal.1995 CLC 1939.Appellate & Revisional Jurisdiction DistinctionRevision is:

(i) Where Court has exercised jurisdiction not vested in it. (ii) Where Court has not exercised jurisdiction vested in it. (iii) or has acted in exercise of its jurisdiction illegally or with material irregularity.

In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in appeal only not in revision.Appeal & Revision are different species, appeal is continuation of original suit and has wide scope while Revision is limited to some illegality, material irregularity or jurisdictional defect.Abdul Razzak v. Lal Bux2012 CLC 4 (Sindh) (DB).- Revision is not a matter of right and cannot be equated with right of appeal which is a substantive right.PLD 1996 Kar. 68 O R D E R SO-1 R-10- Misdescription of parties not fatal can be corrected by court at any time.1986 CLC 2987PLD 1985 SC 438PLD 1988 Kar. 362AIR 1933 B200PLD 1976 Lah. 269PLJ 1975 1016O-1 R-10- Public at large already impleaded in application for grant of succession certificate any body could assist trial court even without making application.1995 CLC 1553O-1 R-10- Necessary party not impleaded technicalities cannot be allowed to unsuit a party on technical grounds case remanded for impleading.1995 SCMR 1748O-3 R-1 & 2; O-6 R-1; O-6 R-14 &15; O-7 R-10; O-29 R-1; O-33 R-3.- Defective signing or presentation or plaint by person not holding power of attorney no violation irregularity curable.PLD 1973 Lah. Note 33 P-41.

O-3, R-2 & SEC.96.- Plea of minority not raised in written statement. It can be raised and decided at appellate stage it is duty of the court to apply such law even through plea has not been raised.1995 CLC 175 (Lah).

O-4, R-1.- Omission to comply with requirements of present action can be cured if in good faith.AIR 1931 All. 507.O-6, R-1.- Pleadings of parties would not control or govern applications of correct law to establish or prove facts.1992 SCMR 417.- Deviation from pleadings no application for amendment of plaint as to correct the facts plaintiff could not take advantage of legal principle that admission contrary to record was not binding. No evidence could be lead contrary to pleadings.PLD 1995 Lah. 113.O-6, R-2.- Where a claim never made in pleadings no amount of evidence could be looked into in poof of such facts.1995 CLC 1906O-6, R-2 & 4.- Facts not stated in pleadings evidence lead to prove such facts will be simply ignored.1995 MLD 1714.O-6, R-14 & 15; O-4, R-1.- Absence of signature, verification or presentation does not affect jurisdiction of court.AIR 1931 All. 507.- Want of verification pleadings not void irregularity no affect on merits.AIR 1932 Lah. 28.AIR (36) 1949 All. 499.- Can be amended even after limitation.AIR 1961 Bomb. 292.- Omission to sign by one of joint plaintiffs.PLD 1978 Q.45.O-6, R-17.- If the case is fixed for arguments on application under O-6 R-17 and the suit is dismissed for default, only such application can be dismissed for default and not the main suit.PLD 1969 SC 270CLC 1986 1441CLC 1986 2153.O-6, R-17.- Relief of possession being consequential to suit for declaration, amending plaint to include possession allowed.1995 SCMR 69.O.VI R.14 & O.XXIX R.1- Signing & Verification of pleadings of a company Company Secretary Director or any principal officer can sign & verify pleadings Board Resolution not necessary just court has to be satisfied that an authorized person has signed/verified the pleadings.Provisions of Or.VI Rules 14 & 15 and provisions of O.XXIX Rule 1 are neither contradictory nor exclusive of each other rather complimentary to each other.Punjab Agri Development & Supplies Corp. Vs. U.B.L.PLD 2012 Lah. 61.O. VII R.1(e)- Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause.Ch. Muhammad Siddiq vs. Faiz MaiPLD 2012 S.C. 211O. VII R.11- The word shall means that it is mandatory and the court must reject plaint if court finds any of the four clauses applicable to the plaint. Only contents of plaint to be seen but court not bound to accept them discretion to biased judiciously.Haji Abdul Karim Vs. Florida Builders.PLD 2012 S.C. 247O. VII R.11, SECTIONS 2(2)(9)11.- Rejection of plaint and dismissal of suit distinction enumerated.Haji Abdul Karim V. M/S Florida Builders.PLD 2012 S.C. 247See also PLD 2008 S.C. 371O-7, R-11 & S.149 Art.185(3) of Constitution.

- Trial Court on the ratio of Siddiq Khans case (PLD 1984 SC 289) determined the exact amount of court fee and deficiency made interference declined.1995 SCMR 911.O-7, R-10.

- Court lacking jurisdiction over subject matter of suit bound to return plaint instead of sending to Distt. Court for transfer to competent court.- Power of transfer flows out of valid institution of suit where court to which plaint presented had no jurisdiction, pecuniary or territorial, suit cannot be deemed to be validly instituted.1989 CLC 1405 (Lah)AIR 1938 Sindh 124PLD 1973 Lah. 394.- Its scope wide to cover a case in which by legislation situation arises after filing of suit.AIR 1938 Oudh 224PLD 1973 Note 83 (D.B)- Appellate Civil Court reaching conclusion that revenue court had no jurisdiction, it was bound to return plaint.PLD 1985 Quretta 54.AIR 1934 Lah. 233.O-7, R-11.- Duty of court to examine plaint at any time without application.PLD 1977 Kar. 747.O-7 R-11.- On basis of averments in plaint not on basis of defence.PLD 1966 (W.P) lah. 1050.O-7 R-11; BANKING ORD. 1979 SEC.7 & 13.- It is defect of presentation of plaint in first instance in a wrong court which attractsO-7 R-10.1984 CLC 1401 Kar.- Rejection of plaint barred by any law court to examine averments as in the plaint not inquiry needed assume averments to be correct.1984 CLC Kar. 513.- Court can take into consideration material other than contents of plaint.1992 MLD 225 (Lah).O-7, R-11.- Rejection of plaint & dismissal of suit distinction.- Plaint not disclosing cause of action proper way is to allow amendment order rejecting plaint was set aside & case remanded.1995 CLC 1982.- While applying provisions of O.VII, R.11 C.P.C., Court was not entitled to look into the grounds of defence, other documents and written statement. Only the contents of the plaint are to be perused.Ch. Nazir Ahmad Vs. Ali AhmadPLD 2012 Lahore 18 (D.B)- Suit for damages by a welfare society/association claim of damages for mental torture, agony and distress Plaint was rejected.PLD 2012 Sindh 29O-9, R-4; SEC.151, 115.- Restoration of revision dismissed for non prosecution petitioner has to explain the absence of all concerned including his own as well as his counsel.PLD 1995 Lah. 31.- Case should not be dismissed for default in early hours of the day.PLD 1966 Lah. 356.- While dismissing for non-appearance exigency of lawyers has to be seen.PLD 1966 SC 461,467.- Taking harsh view while dismissing in default.PLD 1955 F.C. 178.- Decision should be on merits.PLD 1965 SC 651 at P.655.O-9, R-8.- Dismissal of suit for non appearance of plaintiff plea of misconception of actual date plaintiffs counsel did not appear as witness hence dairy or brief not produced plaintiff did not stand to gain anything by being negligent carelessness of a counsel in failing to appear in the absence of his client has often been condoned immovable property of considerable value involved case was remanded for decision on merits.1993 CLC 1313 (Lah).

O. XII R.11.- Incompetent suit should be buried as soon as possible if incompetence is based on any express or implied embargo under any law Sometimes, suit may not be specifically barred by law in express terms Trial court should reject suit under Inherent Powers, The condition of only reading the averment of the plaint and nothing else is applicable when O.VII Rule-11 is to be applied and not under inherent powers.

Ilyas Ahmad Vs. Muhammad Munir etc.PLD 2012 Sindh 92.O. XII R.16.- Judgment on Admission plaintiff upon application can move for judgment on admission whether relating to who suit or partially, likewise, defendant can also move for dismissal of suit wholly or partially However, if admission is only by one of the defendants only it will have no bearing on the others case.

Tanvir Ahmad Vs. Malir Development AuthorityPLD 2012 Sindh 66

O.XIII, R.1.- Plaintiffs after closing of oral evidence seeking permission to produce documents not appended due to inadvertence - documents sought to be produced were not even relied upon under O.XIII R.1. The situation does not fall under inadvertence no good cause has been shown.

Nasrullah Khan Vs. Mst. Bashiran Bibi2012 CLC 234 Lah.

O-14, R-2.- Issue of limitation being mixed question of law and fact, in case of suit for dissolution of partnership and rendition of accounts suit cannot be dismissed on preliminary issue case was rightly remanded by High Court.PLD 1995 SC 629.O.18 R.18 C.P.C.- Report of local inspector on the basis of which judgment and decree was reversed not challenged at any stage Leave to appeal refused.Islam Din v. Sarfraz Hussain2001 SCMR 1225O-19, SECT.30, O-18 AFFIDAVITS.- Affidavit can only be considered when filed on direction of court.- In affidavit information obtained from others I am informed and add and verily believe it to be true.PLD 1995 Lah. 98.O-20 R-14 (i) & O-23 R-3.- Suit for preemption decreed by consent in application for compromise no time fixed for payment of preemption money trial court fixed for payment of preemption money trial court fixed one months time Held court while passing preemption decree under O-20, R-14 was required to specify date for deposit of money. Failure to deposit by preemptor suit was rightly dismissed.1995 SCMR 1426.O-21, R-1.- Mode of paying money in satisfaction of decree decree holder would certify such payment upon legal notice from executing court.PLD 1995 Lah. 107.O-21, R-2(i)- Adjustment/satisfaction of decree in whole or in part outside court judgment debtor is required to certify such adjustment to court within 90 days from time of adjustment.PLD 1995 SC AJ&K 83O-21, R-11- Defect or non verification of execution petition not fatal, application not void merely irregularity not affecting merits of case.PLD 1984 AJ&K 57.- Date of previous execution petition not mentioned- defect not materialAIR 19924 CAI 398

O-21, R-58, 59 & 62- In case of objection petition to attachment, investigation to claims must be conducted by the court, No separate suit for same.PLD 1990 LAH 4 (DB)O-21, R- 94- No stamp duty on sale certificate issued by court under O-21 R- 94 CPC in favour successful auction purchaser sale certificate only to be registered with the sub- registrar.1995 CLC 1922 KARO-22, R-3, 4 & 12- Execution petition failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4.Execution will not abate.PLD A.Z.J.&K. 57O-37, R-2- Even if suit not based on negotiable instruments i.e. bill of exchange, hundi, promissory note, Special court obliged to follow summary procedure of O-37 CPC on all suits before it including suits based on mortgages of all kinds on statement of accounts.PLD 1995 SC 362O-37, R-3- Suit based on promissory notes for recovery of amount claimed against defendant in summary manner, dispute could not be referred to arbitrator in terms of the agreement.1995 CLC 10240-37, R-3 Art.185(3) 0f Constitution .- Defendant was allowed loan on furnishing Bank guarantee equal to suit amount Revision to the extent of bank guarantor remained unsuccessful. Keeping in view defence raised in application for leave and law laid down in Fine Textile Mills VS Haji Umar (PLD 1963 SC 163) appeal was accepted-order of H.C and trials court as to bank guarantor set aside defendant was prepared to offer any solvent security to satisfaction of court-leave defend granted on furnishing any solvent security to satisfaction of trial court . 1995 SCMR 925

ORDER 37- Object & spirit of O -37 neither unislamic nor inequitable.PLD 1993 LAH 224- Object to secure ends of justice-claim based on negotiable instruments no need to prove consideration if execution of notice not denied.PLD 1993 LAH 244 H.N (h)ORDER 37 RULE 1& 2- Suit shall be decreed where failure of appearance or omission to apply for leave However, where leave is refused plaintiff has to prove his case.PLD 1987 LHO 101ORDER 37 RULE 1&2- Leave to defendant refused even when following pleas raised on confirmation slips defendants signature forged suit barred from last deposit beyond 3 years mortgage deed relating to different loan from different branch penal interest wrongly claimed- blank pronote fraud by bank.PLD 1990 LAH 99- Leave refused even on following pleas: signatures obtained on blank documents, statement of A/C incorrect , letters of guarantee not properly stamped, promotes contain exorbitant interest against islam etc.PLD 1989 KAR 371ORDER 37- RULE 2- Suit in summary jurisdiction for refund of security from defendant leave not sought within 10 days application dismissed-suit decreed defendants claim that plaintiff had embezzled large sum of money and had filed suit for recovery of same of no avail to defendant because he has still to established that plaintiff embezzled money refund of security till defendants suit is decided.1995 SCMR 45O. XXXVII R. 2 & 3Limitation Act (IX of 1908) Sect. 5- Suit for recovery based on Promisory Note delay in filing leave application on the ground that trial court was on leave for nine days due to Winter holidays held delay of every single day has to be explained sufficiently, otherwise, the object of summary proceedings will be defeated. Furthermore, only Presiding Officer happened to be on leave while office remained open for filing/institution during this period. Petition for leave is time barred as delay not sufficiently explained.Muhammad Naeem V. Muhammad Javed Iqbal2012 CLC 175 (Peshawar).ORDER 37- RULE 3- Guarantors claimed that they had claimed denial of liabilities by several letters , and notice to bank it was duty of bank to deny and controvet same no such step taken by bank-silence of bank would seriously reflect adversely, leave granted.1994 CLC 1404 KARORDER 37- RULE 3- Leave was granted subject to depositing amount in question in court or bank-challenged this order in writ validity in condition - no current valuation of mortgaged property available on record nor plaintiffs claimed its depreciation petition converted into appeal and the same was allowed to the extent that defendant would deposit cash of specified amount for defending suit within 20 days.1994 SCMR 512ORDER 37- RULE 3- Leave- according to banks own record value of pledged stock Rs.800,000/- and mortgaged land about 400,000/- at the time pledge/mortgage-value of land must have arisen manifold-claim amount adequately secured- without additional security unconditional leave to be granted.1989 MLD 1090 LAHORDER 37- RULE 3- Imposing condition on leave discretionary must be exercised in judicial and reasonable manner.1983 CLC 2828 LAHORDER 37- RULE 3- Conditions for leave-depositing half money in cash or furnishing bank guarantee harsh-may furnish security instead.1992 CLC 1705 LAH (Malik Qayyum)ORDER 37 RULE 3- Leave. Court must , prime facie, find from application and affidavit , that there is reasonable material making incumbent on plaintiff, to prove consideration , or there exists a plausible defence , or some specific question of fact or lae requiring investigation.PLD 1963 SC 1681975 SCMR 3981973 SCMR 100ORDER 37- RULE 3- Case decided- does not mean decision of the entire suit it may relate to the decision of interlocutory matter- old view has been abounded vide AIR 1943 LAH 65.1992 SCMR 718 at page 725(E)ORDER 37- RULE-3- Suit decreed against principal debater while unconditional leave granted to guarantor suit to continue as bank had the legitimate right against the guarantor.1992 SCMR 718 at page 724 para (9)PLD 1978 KAR 263ORDER 37 RULE 3- Leave for guarantor guarantor not issued any negotiable instrument to warrant summary proceedings-guarantee indemnity bonds not negotiable instruments Summary procedure not applicable.1992 SCMR 718 HN (B) AT P 724 para 9ORDER 37 RULE 3- Court can grant or refuse leave but same must be sought within 10 days of services-in case of failure or refusal by court, court can summarily decree suit and averment in plaint to be deemed admitted by defendant where defendant failed to seek leave within 10 days court justified to pass decree defendant estopped from subsequently saying he had not been properly served and no copy of plaint annexed with summonsPLD 1993 LAH 224 HN(C)ORDER 37 RULE 3&4- Leave granted on certain conditions conditions not fulfilled leave not operative- defendant not applying for leave court ampowed to decree suit taking averments o plaint as admitted.PLD 1984 KAR 127EXPARTE SEETING ASIDE O-37,R-4 &O-IX,R-13- Exparte decree under o-37 cannot be set aside under o-9 R-1. it has to be within four corners of O-37 R -4.PLD 1984 KAR 127ORDER 37- RULE 4- There is wide power of court to set aside exparte decree u/o 38 R-4-only embargo is special circumstances-circumstances beside being good cause or sufficient cause have to be of special nature.PLD 1984 KAR 127PLD 1993 LAH 244ORDER 37-RULE 4- Order sought to be set aside consent order no special circumstances made out application dismissed.PLD 1984 KAR 127(SUIT FOR DAMEGES)O-37 (scope)- Suit for damages outside the purview of order 37 CPC.1992 CLC 1913 KAR at 1915-A- Directors hold fiduciary relationship qua the company.PLD 1992 SC 276O-38, R-5- Attachment before judgment, application as well as reply must be supported by affidavit-reply not supported by affidavit contents application deemed not converted.1995 MLD 1707 LAHO-39, R-1- Plaintiff himself showing monetary compensation adequate relief-not entitled to discretionary relief of specific performance.PLD 1977 KAR 191- No attempt made to show balance of convenience on side of the plaintiff- loss found to be assessable in money-injunction not granted.PLD 1979 KAR 668O-39, R-1 & 2, R-2(2)- Court while granting temporary injunction can impose conditions-these conditions are not to be either similar to security or the conditions may be imposed u/s 151 or sec. 94 CPC and reference of such provisions should be clearly made.PLD 1995 LAH 117O-39 R-1 &2 (3);O-41 R-5; Contempt of Court Act Sec 3- Stay order and injunction distinction injunction is not effected unless it is communicated stay is operative the moment it is issued.PLD 1949 LAH 100 (F.B)1974 SCMR 509PLD 1978 KAR 152O-39, R-1 & 2- Entitlement to grant interim injunction in the absence of any determination of amount due as distinguished from amount claimed petitioner entitled to interim injunction.1995 CLC 1877O-39 R-2 (3)- Punishment for disobedience under O-39 R-2(3) can only be determined and awarded by the court which had ordered the issuance of the injunction and not by a court to which the suit has been transferred.AIR 1914 Calcutta 815O-39 R-2 SEC.150 OF CPC- Breach of injunction business of the court granting the injunction transferring to another court later court can entertain petition.- Transfer-includes transfer of business under civil courts Act. The word transfer in Sec 150 is not applicable to a case where the District judge fixed the jurisdiction of court under the civil courts act and transferred the whole of the business within a certain area of it.AIR 1923 Madras 92O-39 R-2 (3)- Civil courts have no jurisdiction to take action against a person not party to suit. However, high court has such jurisdiction.1988 CLC 1370 LAHPLD 1964 Daaca 276PLD 1975 LAH 126O-39 R-2(3)- No person is bound to obey a direction which is unlawful nor can he be held liable for refusing to obey itPLD 1975 LAH 126O-39, R-2(3) read withW.P Land Revenue act sec .81&Constitution Art.204;187, contempt of court act 1976 sec.6.

- Contempt against public servants who discharge their official duties and pass order adversely affecting the right of one party was disapproved and condemned by Supreme Court.- Stay/injunction must be clear leaving no room for ambiguity.- Govt. officials should not be summoned in contempt proceedings when they are not the main party in the suit.

PLD 1995 SC 572O-39, R-4-A- No successive stay orders can be issued.1984 CLC 2048 KAR- Payment of govt. dues - stay orders stay granted by high court till disposal of petition-order to that extent would be read as contemplating disposal of the petition with six months.1989 CLC 1160O-41, R-27- Addl. Evidence cannot be to fill up lacuna in the case can be read only when(i) requested by court (ii) for proper adjudication.1995 CLC 1889

O.XIII, R.1 & 2.- It is mandatory for the parties to file all documents at the first date of hearing. Discretion in Rule 2 is subject to condition of good cause

Muhammad Musa Vs. Hamid Ali2012 CLC 254 (Baluchistan)