Code of Civil Procedure Orders and Rules

CODE OF CIVIL PROCEDURE, 1908
THE
FIRST SCHEDULE
[See Section 121]
ORDER_ I
PARTIES TO SUITS
1. Who may be joined as plaintiffs. All persons may be joined in
one suit as plaintiffs in whom any right to relief in respect of or arising out of the
same act or transaction or series of case or transactions is alleged to exist,
whether jointly, severally or in the alternative, where, if such persons brought
separate suits, any common question of law or fact would arise.
Court Decisions
'Party' - Meaning - Parties are the persons whose names appear on the record of
the suit as plaintiffs to or defendants, 2001 SCMR 1680
Corpus Juris Secundum and Ballentine's Law Dictionary ref.
Three agreements were executed between appellant and respondent.
Whether three separate application were required to be file for appointment of
arbitrators. Order I. Rule 1, C.P.C. clearly states that all persons may be Joined in
one suit as plaintiffs in whom any right to relief in respect of or arising out of
same act or transaction or series of acts or transaction is alleged to exist, whether
jointly, severely or in alternative where if such persons brought separate suits,
any common question of law or fact would-arise. PLJ 1998 Lah. 359 = 1998 MLD
1628.
2. Power of Court to order separate trials. Where it appears to the

Court that any joinder of plaintiff may embarrass or delay the trial of the suit, the
Court may put the plaintiffs to their election or order separate trials or make such
other order as may be expedient.
3. Who may be joined as defendants. All persons may be joined as

defendants against whom any right to relief in respect of or arising out of the
same act or transaction or series of acts or transactions is alleged to exist, whether
2 The Code of Civil Procedure, 1908 Contents
jointly, severally or in the alternative, where, if separate suits were brought

against such persons, any common question of law or fact would arise.
Court Decisions
Suing officials by their designation—Where, however, plaintiff was offended
by any act or action of the officials/defendants in their personal capacity, they could be
sued in their personal names—Only persons who could be made parties in the suit under
O.I, R.3, C.P.C. were either the natural or the legal persons, 2001 CLC 701
Necessary party is one without which judicial matter could not be disposed of.
PLJ 2000 Tr.C. (Services) 102.
4. Court may give judgment for or against one or more of joint

parties. Judgment may be given without any amendment: -
(a) for such one or more of the plaintiffs as may be found to be
entitled to relief, for such relief as he or they may be entitled to ;
(b) against such one or more of the defendants as may be found to be
liable, according to their respective liabilities.
5. Defendant need not be interested in all the reliefs claimed. It

shall not be necessary that every defendant shall be interested as to all the relief
claimed in any suit against him.
6. Joinder of parties liable on same contract. The plaintiff may, at

his option, join as parties to the same suit all or any of the persons severally, or
jointly and severally, liable on any one contract, including parties to bills of
exchange, Hundis and promissory notes.
7. When plaintiff in doubt from whom redress is to be sought.

Where the plaintiff is in doubt as, to the person from whom he is entitled to
obtain redress, he may join two or more defendants in order that the question as
to which of the defendants is liable, and to what extent, may be determined as
between all parties.
8. One person may sue or defend on behalf of all in same interest.

(1) Where there are numerous persons having the same interest in-one suit, one
or more of such poisons may, with the permission of the Court, sue or be sued, or
may defend, in such suit, on behalf of or for the benefit of all persons so
interested. But the Court shall in such case give, at the plaintiffs expense, notice
of the institution of the suit for all such persons either by personal service or,
where from the number of persons or any other cause such service is not
Contents Major Acts Civil 3
reasonably practicable, by public advertisement, as the Court in each case may

direct.
(2) Any person on whose behalf or for whose benefit a suit is instituted
or defended under sub-rule (1) may apply to the Court to be made a party to
such suit.
Court Decisions
Non-impleading of necessary party —In suit for possession through partition, one co-
sharer was not impleaded as a party—Judgment and decree passed by Courts below in absence of
non-impleaded co-sharer was defective and such defect being apparent on the face of record,
decree and judgment set aside and case was remanded for decision afresh after impleading co-
sharer in suit and to decide the same within specified period. PLJ 2004 Lah. 71
Representative suit on behalf on numerous persons having common interest.

Omission to seek permission to file suit as representative capacity was not raised in High
Court, therefore, this plea cannot be raised in Supreme court. Contention of. During
pendency of suit and appeal no such objection is shown to have been raised either by
those whom appellants were said to represent or for that matter by any local right holder
or both sets listed in High Court had raised any such objection or challenged
representative capacity of parties before Supreme Court. Defect if any, under Order I
Rule 8 CPC is also fully cured. PLJ. 1997 SC 523 = 1997SCMR 846 =NLR 1997Civil 242.
Permanent injunction. Suit for. Whether suit is bad for having been filed
without permission of court. Suit. on face of it, has not been filed in representative
capacity and cause of action is expressly stated to be that of plaintiffs- Objection cannot
be sustained. PLJ 1994 Kar. 50 = PLD 1994 Kar. 86.
Service of notice of suit by beat of drum covered by expression "public
advertisement". The expression employed to allow service through all possible means of
publicity including proclamation in a newspaper. PLJ 1981 Lah. 161.
9. Misjoinder and non-joinder. No suit shall be defeated by reason

of the misjoinder or non-joinder of parties, and the Court may in every suit deal
with the matter in controversy so far as regards the rights and interests of the
parties actually before it.
Court Decisions
No suit shall fail for non joinder or mis-joinder of parties unless it has caused
gross miscarriage of justice, because no party can be condemned unheared. PLJ 1997
Kar. 76 = 1997 CLC 176 = NLR 1997 Civil 130.
Misjoinder and non-joinder of parties—Effect—Where a necessary party is not

impleaded, the decree may not be binding on such party. PLD 2002 S.C 615
Azad Jammu and Kashmir Interim Constitution. Plea misjoinder or non-

Joinder of parties not raised up to High Court; such plea could not be raised before S.C
for the first time. Even if order of Rev. Authority was challenged in Civil Court, Rev.
Authority could not be impleaded as necessary party in suit. PLJ 1999 SC (AJ & K) 1.
10. Suit in name of wrong plaintiff. (1) Where a suit has been
instituted in the name of the wrong person as plaintiff or where it is doubtful
whether it has been instituted in the name of the right plaintiff, the Court may at
any stage of the suit, if satisfied that the suit has been instituted through a bona
fide mistake, and that it is necessary for the determination of the real matter in
dispute so to do, order any other person to be substituted or added as plaintiff
upon such terms as the Court thinks just.
(2) Court may strike out or add parties. The Court may at any stage
of the proceedings, either upon or without the application of either party, and
Ion such terms as may appear to the Court to be just, order that the name of any
party improperly joined, whether as plaintiff or defendant, be struck out, and
that the name of any person who ought to have been joined, whether as plaintiff
or defendant, or whose presence before the Court may be necessary in order to
enable the Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend
or as the next friend of a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended. Where a
defendant is added, the plaint shall, unless the Court otherwise directs, be
amended in such manner as may be necessary, and amended copies of the
summons and of the plaint shall be served on the new defendant and, if the
Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 'Limitation Act, 1908 (IX of 1908),
section 22, the proceedings against any person added as defendant shall be
deemed to have begun only on the service of the summons.
Court Decisions
Necessary and essential party. Impleading of. Challenge to. Mutation No. 337
was sanctioned at instance of Abdul Rauf in order to provide right of pre-emption to
petitioners against Respondents Nos. 3 & 4 who had purchased land from Abdul Rauf.
Held: Respondents Nos. 3 & 4 were thus interested and aggrieved persons within
meaning of Order II, Rule 10. C.P.C. Held further: Additional Commissioner had rightly
impleaded Respondents Nos. 3 & 4 was a necessary part and his order does not suffer
from any "illegality or irregularity. PLJ 1990 Rev. 95.
Once suit has been instituted, parties can be added only with the leave of the
Court and not otherwise—Power of adding parties, is not a question of initial Jurisdiction
but of Judicial discretion, which has to be exercised having regard to all the facts and
circumstances of the case—High Court seized with appeal, arising out of the suit, is fully
competent to add or strike out name of any person to the suit for a just, fair and effectual
adjudicate of the controversy. PLD 2002 S.C 615
A court is competent to direct joining of two parties, namely, necessary parties
and proper parties. Parties against whom no relief is sought, they cannot be termed as
necessary parties. Similarly only those parties would be treated proper parties whose
presence before a Court is necessary for deciding any issue or all relevant questions in
suit completely and effectively. PLJ 1996 Kar. 583 = 1996 CLC 1009
High Court passing impugned judgment without deciding application Filed by
appellant with regard to their impleadment. Validity. Judgemnt of High Court without
deciding application filed by appellant with regard to their impleadment, could not be
set at naught for the reason that S.C had heard parties in detail on all legal points
involved in the case parties would be put to further inconvenience if case was remanded
to High Court for deciding the same afresh after impleading appellants as party in
constitutional petition. PLJ 1999 SC (AJ&K) 334 = 1999 PLC (C-S.) 1493.
Interveners to be impleaded as defendants. It is a settled law that a party, even
if not a necessary party, is to be impleaded. if it appears that such party is a proper party
and in his absence all issues and questions involved in a suit cannot be effectually and
completely adjudicated and it is not necessary that plaintiff must seek relief against such
proposed defendant. If a suit is to be decreed and by such decree any party is going to be
adversely affected then such party is necessary party and it is essential that it should be
present before court. It is also a settled principle of law that court should avoid
multiplicity of proceedings and shorten litigation. If interveners are not impleaded as
defendants there exists every likelihood that they may file separate' suits to protect their
rights which would amount to promoting litigation and may also result in conflicting
judgments. For purpose of full and fair adjudication of all issues and questions involved
in suit; in order to avoid multiplicity of proceedings; to shorten litigation and to avoid
conflicting judgments, interveners appear to be necessary parties are entitled to be joined
as defendants. PLJ 1998 Kar. 85 = 1998 MLD 9.Scope
Impleading of necessary party—Additional evidence, recording of—Remand of
case to Trial Court for decision afresh—Jurisdiction of High Court in exercise of appellate
jurisdiction—Plaintiff asserted to be the owner of the suit property and in his absence the
property was transferred in the name of the vendor claiming to be the son of the plaintiff-
defendant purchased the property from the vendor and the same was transferred in the
name of the defendant—Plaintiff denied the vendor as his son and filed suit for
cancellation of document and recovery of possession—Vendor was neither impleaded in
the suit nor his statement was recorded as witness—Trial Court dismissed the suit but
High Court in exercise of appellate jurisdiction allowed the appeal, impleaded the
vendor as a party and remanded the case to the Trial Court and suo motu directed the
Trial Court to record additional evidence—Contention of the defendant was that the
High Court should have decided the appeal on the basis of evidence available on record
—Validity—Judicial discretion exercised by the High Court as Appellate Court, in the
present case, was neither unwarranted nor unjustified when valuable proprietary rights
of the plaintiff (who was out of country for a long period) were extinguished without his
consent and permission, it was a fit case for exercise of suo motu jurisdiction by the High
Court—High Court by remanding the suit did not act arbitrarily or without jurisdiction
—S.C repelled the contention of the defendant and declined to set aside judgment and
remand of case for decision afresh—Appeal was disposed of accordingly. PLD 2002 S.C
615
Transposition of parties—Law and principles. PLD 2003 Lah. 544
PLD 1992 SC 811; 1995 SCMR 1748 and 1992 SCMR 1778 ref.
Doctrine of lis pendens. does not preclude transferee pendente lite from being
made a party to pending proceedings on basis of such transfer. Order 22 rule 10 regulates
proceedings of a suit in cases of assignment, creation or devolution of any interest during
pendency of suit. suit may be continued by or against person to or upon whom such
interest has come or devolved. Section 146 CPC provides where any proceedings may be
taken or application made by or against any person, then proceedings may be taken or
application may be made by or against any person claiming under him. Provisions of S.
146 and Order 22 CPC applies equally to appeals. Appellants having purchased suit
property during pendency of appeal. (Hence) appellant, having stepped into shoes of
respondent having purchased suit property during pendency of proceedings was entitled
to be impleaded as respondent in appeal. PLJ 1997 SC 202 = 1997 SCMR 171.
Transposition of party—Scope and purpose—Types of suits, wherein
transposition can be allowed—Effect of transposition on pleadings, character or nature of
suit—Principles. Transposition of party, in legal parlance means to alter or change the
order or position of a party usually opposite from the position earlier held i.e. from
plaintiff to defendant or vice versa as the case may be. Power to transpose a party
emanated from power to add, implead or strike out a party as conferred on Courts under
Rule 10 to Order I, C.P.C. Such powers are exercisable by the Court either suo motu or on
the application of any of the parties to the proceedings. Transposition of parties is
generally allowed liberally by the Court in order to avoid multiplicity of litigation
between the parties to a proceedings and to bring to an end the controversy or lis before
the Court. Generally transposition is allowed in legal proceedings, where parties are
accountable to each other out of the same or same series of transactions which are
subject-matter of suit, like for instance suit for accounts between partners, suit for
administration between the legal heirs, suit between the co-owners/joint owners of the
property or where interest of any party in same group becomes hostile inter se and
becomes common with the interest of opposing parties or where interest of one party
devolved, assumed, assigned or transferred unto another party in the opposite group or
otherwise. Where Court orders transposition of parties either at the motion of any one
party or suo motu it merely places a party on one side to opposite side or allow any party
to interchange or exchange their position with one another, such exercise of transposition
does not affect the pleadings, complexion, character or nature of the suit. Foundation of
the controversy remains the same . PLD 2002 Kar. 542
PLD 1992 SC 590 and 1991 SCMR 515 ref.
Adding of defendant—Failure to issue summons under Form 4 of Appendex
'B'— Effect—Where defendant was added to the suit, summons were required to be
issued as per provisions of O.I, R.10(4), C.P.C. and that too in Form 4 of Appendex 'B',
C.P.C.—Issuance of such summons was the intent of O.37, R.2, C.P.C. 2001 CLC 1065
Changing nature of suit . At time of considering an application under Order 1
Rule 10 CPC Court must not ignore this factor that allowance of application should not
become a cause of changing nature of suit, embarrassing issues of suit because all such
acts are beyond scope of this provision of law. PLJ 1996 Kar. 583 = I99G CLC 1009.
Sale-deed on basis of which petitioner claimed to be owner of property in
question, and on basis of which he claimed to be impleaded in suit had been declared to
be illegal and void by decree of Trial Court on basis of special oath taken by plaintiff with
which petitioner was satisfied and against which he did not file appeal or revision, with
the result that such finding had become final. He could no longer claim to be owner of
property in question, on the basis of said sale-deed. In his application under 0-1. R- 10,
C.P.C. petitioner had suppressed facts about previous litigation, special oath taken by
plaintiff on suggestion of petitioner and said decree passed by Civil Court. No
interference was warranted with judgment of High Court. PLJ 1997SC 1178 = 1997
SCMR 457.
Necessary party. Contention that a person not party to proceedings has right to
appeal, if his interest is adversely affected by judgment or decree. Respondents are
persons to whom plaintiff referred in his plaint as private persons, so they were
necessary to be joined but trial court failed to appreciate said situation and dismissed
their applications but appellate court rightly observed that their presence is necessary
and as such remanded case to trial court for fresh decision after joining private
opponents as party in suit. High Court is satisfied with impugned order and it does not
call for interference. PLJ 1997 Kar. 134 = 1997MLD 1113.
Question of addition of parties is generally not one of initial jurisdiction of Court
but of judicial discretion which has to be exercised in view of facts and circumstances of a
particular case. Wider powers possessed by court do not mean that Courts should start
simultaneous and parallel investigation of controversies particularly in respect of those
points which are neither part of pleadings nor of issues framed by Court. PLJ 1996 Kar.
583 = 1996 CLC 1009.
O.I. R-10 read with S.C Rules, 1980, Order XV Rule 6. Substitution of appellant
by petitioner. Appellant who entered into agreement with respondent and petitioner as
well. has tried to wriggle out. In order to be joined as a party or to he substituted in place
of a party in proceedings, petitioner must show devolution of any right or present
interest in property in dispute. Petitioner's right is contingent and dependant on decision
of appeal. Merely because he is Financially interested in result of litigation, can hardly
afford a ground to be added as a party. Court has discretion to allow any party to be
joined or substituted as a party. In event of dismissal of appeal. petitioner's right is fully
secured as he would be entitled to withdraw amount deposited in court. Petitioner has
no present right in property in dispute and his presence is likely to complicate issues.
PLJ 1996SC 872 = 1996 SCMR 781.
Application for impleading necessary party. It seems undeniable that tenancy
rights are rights in property. In peculiar circumstance of such rights under Evacuee Trust
Property Board, same may even be transferable. As such alleged transferee of those
rights, whatever be worth of same, would surely be necessary or at least proper party in
suit for specific performance, where subject matter of suit are those very tenancy rights.
Plainly, decree in such suit could effect rights of such person or alternatively such person
may be able to frustrate decree in suit upon appearing on scene and agitating his own
claim, which in circumstances could be adverse. These questions need not necessarily be
between parties already arrayed. Where rights in subject matter in suit already stood
assigned or devolved before its institution, assignee or claimant should ordinarily
become relevant. PLJ 1997 Kar. 664 = PLD 1997 Kar. 442 = NLR 1997 Civil 538.
Court is authorised to implead legal heirs of a dead Person. If any of
respondents was dead at time of filing petition, petitioner is competent to cause in title,
names of legal heirs of deceased respondents. Instead of non-suiting petitioners for such
hypertechnical reason court ceased with matter is always empowered to allow
substitution of dead respondents with their legal heirs, provided cause of action is
indivisible. PLJ 1997 Qta 126 = PLD 1997 Qta. 104 = NLR 1997 Rev. 147.
Applications of intervenors for being impleaded as defendants. Object of
Order I Rule 10(2) in empowering court to join or add a party in suit, is aimed at to
enable court, effectually and completely, to adjudicate upon and settle all questions
involved . in suit. Relief of specific performance is an equitable and discretionary one.
Discretion of court is not arbitrary. Intervenors having denied alleged gift in favour of
defendant it will be for latter to prove acquisition of property by her as alleged.
Intervenors being heirs of deceased owner, are not only proper but necessary party to
suit. PLJ 1995 Kar. 191 = PLD 1995 Kar. 210.
Impleadment as party. Rejection of application and dismissal of revision against.
High Court has directed petitioner to file an independent suit for declaration of his title
and for challenging order passed on his back regarding cancellation of his P.T.O. and
P.T.D. Refusal of High Court to implead petitioner as party to suit, is not open to
interference on facts and circumstances of case. PLJ 1995 SC 614 = PLD 1995 SC 642.
Dismissal of application- In view of very admissions of counsel for respondent
that matter involves a disputed question of fact and that decree was passed against some
of respondents only with regard to specific performance, it is held that same cannot be
enforced against present appellant in case he is in actual physical possession, unless he is
joined as a party and given an opportunity to plead his case and bring evidence on
record. Appellant ordered to be joined as one of defendants in suit. PLJ 1995 Kar. 131 =
PLD 1995 Kar. 197.
If a tenant brings some - third person to share premises, status of such third
person is merely of an intervenor who has no locus standi to defend a suit for ejectment
independently of tenant. PLJ 1995 Lah. 219 = NLR 1995 CLJ 475 = 1995 MLD 742.
Suit against dead person : Suit against the only defendant who was dead at the
time of institution of the suit—Nullity in the eyes of law and could not be revived by
impleading the legal heirs of the deceased defendant—Plaintiff, in such a situation,
subject to law, had the option to bring a fresh suit against the heirs on the basis of the
same cause of action- Such rule, however, would not be applicable, where the suit had
been instituted against more than one defendants and one of them was dead at the
relevant time and suit in that situation would not be nullity in totality, but would be
validly instituted against the living defendants, and defective qua the deceased party,
which defect would be curable by the plaintiff, bringing on record the heirs of the
deceased defendants. PLD 2003 Lah. 615
Tenant. Ejectment. Whether appellant was not necessary party to ejectment
proceedings. Inspite of knowledge that rent was not being paid by tenant, respondent
No. 1 did not raise objection for 2 years. He concedes in ejectment application that
respondent No. 2 (tenant) is not l4ing in premises but a lady (appellant) claiming to be
his wife, is occupying same. Appellant was certainly not a total stranger. She was wife of
tenant. She could not be condemned unheard if person who was made respondent, did
not care to appear in court to defend himself. Since it is established that
appellant/intervenor is wife of tenant, admittedly l4ing in demised premises and since
she claims that her husband is un-heard of since 1985, she becomes a necessary party to
eviction proceedings. PLJ 1995 Kar. 37 = 1995 CLC 178.
Whether appellant was necessary and essential party to proceedings. In order to
implead a party to suit under Order I Rule 10 of C.P.C., it has to be determined whether
his presence before court would be necessary to enable court to effectually and
completely adjudicate upon and settle all questions involved in suit. It is well settled that
equitable principles contained in C.P.C. for just and proper conduct of proceedings, are
attracted in proceedings before Rent Controller. Controversy raised by appellant is that
appellant having not transferred ownership rights of his son i.e., respondent No. 1, latter
could not seek ejectment of respondent No. 2 without former's permission. By reason of
compromise entered into between son and father, respondent No. 1 has undoubtedly
acquired status of a landlord within meaning of Section 2(0 of Ordinance. Appellant
having d4ested himself of his right to collect rent of premises or to use it for his own
occupation, cannot be said to be a necessary party to eviction proceedings. PLJ 1995 Kar.
229 = PLD 1995 Kar. 382.
Court is fully empowered to add a party whose presence is necessary to
effectively and completely adjudicate all questions involved in suit. Courts below have
failed to exercise jurisdiction vested in them in not impleading Provincial Government as
a necessary party. It is established taw that an aggrieved person, though not party, can
maintain an appeal. If appeal is filed by Provincial Government, court will have no
option but to accept it and remand case, but as suit is barred by Article 212 of
Constitution, remand would be just an exercise in futility. PLJ 1994 Lah. 1 = 1994 MLD
452.
Transposition of defendant as plaintiff. Contention that object of transposition
of parties is to avoid multiplicity of suits. Defendant No. 1 is owner of property and
plaintiffs being his tenants, were in physical possession. Object of Order I Rule 10(2) of
C.P.C. is to ensure that all necessary and proper parties are before court for proper
adjudication of dispute and paramount consideration is to avoid multiplicity of suits but
it is not only consideration which will weigh with court while dealing with question of
transposition of parties. Object sought to be achieved by transposition of defendant as
plaintiff, is to preserve his constrictive possession. If plaintiffs succeed in establishing
their case. object of defendant would be achieved as a necessary corollary and no
inconvenience is likely to be caused to defendant if he is not transposed as plaintiff. PLJ

1995 Kar. 373 = PLD 1995 Kar. 256.
Impleading a new party in pending suit. Grant of permission to instal petrol
pump or to convert residential plot into commercial plot was although a matter between
person who seeks permission for installation of petrol pump or a person whose plot is to
be allowed to be converted from residential to commercial yet as ultimately newly
impleaded persons were going to be adversely affected by the actions ought by the
petitioner and one way or the other, there would be multiplicity of litigation, they were
the persons whose presence was necessary to effectually and completely adjudicate upon
and settle all points involved in suit. Orders passed by Courts below whereby specified
persons were impleaded in suit were perfectly legal and they were empowered under
0.1, R. 10 C.P.C. to pass such orders. PLJ 2000 Lah. 1112 = 2000 MLD 1809.
Suit for recovery of loan- During pendency of suit predecessor-in-interest of

appellant died and respondent without impleading all legal heirs including appellant got
ex-parte decree. Appellant come to know about said decree when property was put to
auction, therefore, she moved application U/0. 9, R. 13 read with S. 12(2) and O.I. R. 10
CPC which was dismissed and auction was confirmed. Appeal against. Property
belonged to T and appellant was successor-in-interest and plaintiff was bound to bring
her on record after demise of predecessor-in-interesl. She gave an application for
impleadment and also under took tor-making payment to decree-holder. But Court
without rejecting objection of appellant U/0. 2I. R. 58 CPC confirmed auction without
giving reason for same. Scale of justice should not lean to one side and Court is bound to
fulfil legal objections but it has failed to do so. Such an omission makes impugned order
suffer from legal infirmity on its own circumstances and footing U/0. 2I, Rule 89 CPC.
PLJ 1999 Lah. 1148.
High Court ordered dismissal of plaintiffs suit having been field against dead
persons. Validity. High Court had dismissed plaintiffs suit on the ground that three of
defendants were dead before institution of suit and that they failed to file application for
bringing legal representatives on record within 90 days. Application under 0.22. R. 4 of
C.P.C. does not deal with bringing legal representative of deceased defendant on record
who dies before institution of suit. Such case would be governed by 0. 1, R. 10 of C.P.C-
No limitation, has been prescribed for bringing legal representatives of defendant on
record, who had died before institution of suit. Those persons who were dead before
institution of suit and were impleaded as defendants, there legal representative of those
defendants who were dead before institution of suit with regard to their plea of adverse
possession. Findings of High Court whereby plaintiffs, suit was dismissed for
impleading dead persons as defendants were set aside. Plaintiffs would be entitled to
implead legal representatives of those defendants who were dead before institution of
suit, in terms of O-I. R. 10 of C.P.C. PLJ 2000 SC (AJ&K) 216.
Delay : Normally delay is not a factor for seeking amendment but when a new
party is added, held. it is to be deemed that case against new party has been instituted on
date on which party is so added. PLJ 1997 SC (AJK) 86 = 2997 CLC 480.
Impugned order rejecting application for impleadment does not require

interference. P.L.J.1991 Lah. 119.
High Court passing impugned Judgment without deciding application Filed by
appellant with regard to their impleadment. Validity. Judgemnt of High Court without
deciding application filed by appellant with regard to their impleadment, could not be
set at naught for the reason that S.C.had heard parties in detail on all legal points
involved in the case parties would be put to further inconvenience if case was remanded
to High Court for deciding the same afresh after impleading appellants as party in
constitutional petition. P.L.J.1999 SC tAJ&K) 334 = 1999 PLC (CS.) 1493.
No cause is to be defeated by misjoinder or nonjoinder of parties. P.L.J.1996
Lah. 1224 = PLD 1996 Lah. 711.
Declaration as Benami owners and injunction. Suit by petitioners. Suit by
respondents for recovery of rent arrears and ejectment of tenant. Whether
petitioners were necessary or proper parties to suit against tenants. Trial court
rightly gave negative answer. Petitioners had already gone to civil court for
adjudication of their title to property in dispute. They gave no proof of their title to
property in dispute. It was a mere oral asn of his title and for challenging order
peither necessary nor proper parties to civil suit for recovery of rent arrears and
eviction of tenants. Both Revisions dismissed. P.L.J.1995 Lah. 464.
No legal proceedings can be terminated for misjoinder or none – Joinder of parties
PLD 2001 SC 340
Suing officials by their designation - Where, however, plaintiff was offended by
any act or action of the officials/defendants in their personal capacity, they could be
sued in their personal names - Only persons who could be made parties in the suit
under O.I, R.3, C.P.C. were either the natural or the legal persons, 2001 CLC 701
Summary suit - Adding of defendant - Failure to issue summons under Form IV
of Appendix 'B' - Effect - Where defendant was added to the suit, summons were
required to be issued as per provisions of O.I, R.10(4), C.P.C. and that too in Form IV of
Appendix 'B', C.P.C. - Issuance of such summons was the intent of O.XXXVII, R.2, C.P.C.
2001 CLC 1065
Qanun-e-Shahadat, 1984, Art.57- Evidence recorded in one suit and relied upon
by the Trial Court in the other without consolidating both the suits-Effect-Two suits were
pending before' the same Trial Court-Application to consolidate both the suits was filed
by the appellants but the suits were not consolidated-On the basis of ex parte evidence
recorded in the suit in which the appellants were not party, Trial Court decided both the
suits and passed judgment and decree against the appellants-Validity-High Court
directed the Trial Curt to implead the appellants in the other suit and consolidate both
the suits-Judgment and decree passed by the Trial Court were set aside and the case was
remanded for decision afresh. 2002 C L C 1361
Death of a partner of a registered partnership firm- Legal heirs of deceased
partner. Deletion from panel of defendants. Pleadings of parties do not show that State
Bank had filed suit claiming relief against partners of firm from their personal property.
In view of substantive law (Order XXX Rule 4 of CPC) and in absence of a charge on
personal property of a partner of a registered firm, his legal representatives are riot to be
impleaded as defendants on account of his death before or after institution of suit.

P.L.J.1996 Qta. 14 = PLD 1996 Qta. 28.
Impleading of party during pendency of appeal. Whether S. 22 of Limitation
Act, 1908 is applicable to appeals. Is there any analogous provision with respect of
appeal. According to Section 22 of Limitation Act, if party is added to suit which has
already been instituted, then as regards newly added partly suit shall be deemed to have
been instituted when it was so made party. Here in this case, it is not suit but appeal to
which respondent No. 3 was added at instance of appellant after period of limitation.
Order 41, Rule 20 of Civil Procedure Code empowers appellate court to direct that man
who ought to be party in appeal to be made respondent. Rule 10 of Order 1, C.P.C. when
had with Section 107 C.P.C. is applicable also to appeal. Order 1, rule 10 of . C.P.C. which
empowers court to add person as party who ought to have been Joined or whose
presense before court is necessary in order to enable court to adjudicate effectually and
completely upon all questions involved in suit. According to Section 107 C.P.C. appellate
court shall have same powers and to perform same duties as are conferred and imposed
by C.P.C. on courts of original Jurisdiction in respect of suits. By reading these provisions
together, then appellate court can add party to appear, if necessary. Court even
otherwise, has got sufficient powers under S. 151 C.P.C. to add any party to appeal.
Respondent No. 3, has been impleaded when period of limitation has rule out for filing
appeal but that would be of no consequence in view of its subsequent impleadment in
appeal. Provisions of S, 22 of Limitation Act are not applicable to appeals. P.L.J.1997
Pesh. 120 = 1997 CLC 1046 = NLR 1997 Civil 490.
11. Conduct of suit. The Court may give the conduct of the suit to
such person as it deems proper.
12. Appearance of one of several plaintiffs or defendants for

others. (1) Where there are more plaintiffs than one, any one or more of them
may be authorized by any other of them to appear, plead or act for such other, in
any proceeding; and in like manner, where there are more defendants than one,
any one or more of them may be authorized by any other of them to appear,
plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and
shall be filed in Court.
13. Objections as to non-joinder or misjoinder. All objections on the

ground of non-joinder or misjoinder of parties shall be taken at the earliest
possible opportunity and, in all cases where issues are settled, at or before such
settlement, unless the ground of objection has subsequently arisen, and any such
objection not so taken shall be deemed to have been waived.
Contents Major Acts Civil
13
ORDER_ II
FRAME OF SUIT
1. Frame of suit. Every suit shall as far as practicable be framed so as
to afford ground for final decision upon the subjects in dispute and to prevent
further litigation concerning them.
Court Decisions
Appearance through attorney signature on pleadings and verification thereof.
Attorney appointed by plaintiffs was fully authorised to deal with defendants in all
respects. Plaint can be presented by any person. Fresh power of attorney filed on behalf
of plaintiffs duly attested by two witnesses and a Notary Public. So, irregularity . if at all
any. committed at initial stage of suit would not by itself defeat the suit and subsequent
authorization, confirmation and post facto approval of acts done by attorney on behalf of
plaintiffs is valid and lawful. PLJ 1997 Kar. 86 = 1997 CLC 88.
Respondent a validly appointed attorney of appellants, compromise
made by such attorney. Held: Binding on appellants who are liable in matter through
general attorney. PLJ 1996 Labors 631 = 1995 MLD 1899.
2. Suit to include the whole claim. (1) Every suit shall include the
whole of the claim which the plaintiff is entitled to make in respect of the cause
of action; but a plaintiff may relinquish any portion of his claim in order to bring
the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. Where a plaintiff omits to sue in
respect of or intentionally relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. A person entitled to
more than one relief in respect of the same cause of action may sue for all or any
of such relief; but if he omits, except with the leave of the Court, to sue for all
such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation. For the purposes of this rule an obligation and a collateral
security for its performance and successive claims arising under the same
obligation shall be deemed respectively to constitute but one cause of action.
Illustration
A lets a house of B at yearly rent of Rs. 1,200. The rent for the whole of the years
1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A
shall not afterwards sue B for the rent due for 1905 or 1905.
Court Decisions
Scope — Plaintiff filed suit for possession of property, which was resisted by
defendant on pleas of adverse possession, being barred by res judicata and O.II, R.2,
C.P.C.—Defendant also claimed compensation for raising construction over the property
and making improvements—Trial Court decreed the suit, which was upheld in appeal—
Validity—Previous suit was not filed on the basis of same cause of action, which was
dismissed for non-prosecution—As to amount spent on construction and improvements,
except statement of defendant, no other evidence was led—Defendant could not prove
plea of adverse possession as required under law—Findings of Courts below did not
suffer from any illegality such as misreading or non-reading of any material piece of
evidence and as regard res judicata and applicability of O.II, R.2, C.P.C. 2002 SCMR 300
Object—Omission or failure to include any of the reliefs in the plaint operated as

relinquishment of that claim—Party instituting the proceedings had to include all reliefs
flowing from main grievance, otherwise the omission was fatal, and as such, it was
essential for the plaintiff to assert all claimable reliefs concerning the grievance of cause
of action—Any such relief which flowed out of basic grievance if not claimed or omitted,
then such party stood precluded from agitating such reliefs subsequently—Object of
provisions of 0.11, R.2, C.P.C. was to avoid splitting of claim and restrict multiplicity of
litigation in the matter. PLJ 2002 Lah.. 1581+P L D 2001 S.C 325
Relinquishment of claim in earlier suit—Earlier suit was withdrawn without

any permission to file the fresh one on the same cause of action as a result of compromise
effected between the parties out of Court—Plaintiff filed another suit on the same cause
of action and the same was decreed by the Trial Court but High Court dismissed the
same—Plaintiff had agreed to compromise with the defendant and had relinquished his
other claim by filing statement for full and final settlement of his claim and did not
reserve the right to claim compensation for filing the suit, as such his claim was not
allowed by the High Court—Validity—Appeal of the defendant was accepted by the
High Court with sound and cogent reasons and there being no error or irregularity in the
judgment same was not open to exception, PLJ 2002 Lah.. 1581
Bar of suit—Subsequent suit under O.II, R.2, C.P.C. would be barred only if in a
previous suit, a relief which was available in relation to cause of action stated in said suit,
but was not claimed. 2002 SCMR 300
Filing of second suit-- Filing of a subsequent suit on the same cause of action
and for the same relief is barred under the provisions of O.II, R.2, C.P.C. 2002 MLD 507
15
Splitting up a cause of action— Filing of second suit on the same cause of action
against the same parties—Plaintiff on the same cause of action, during the pendency of
suit for declaration, filed another suit for perpetual injunction—Application of the
defendant for rejection of the subsequent plaint was dismissed by both the Courts below
— Validity—Plaintiff could not file a suit on the same cause of action while a previous
suit on the same cause of action was pending—Plaintiff, in view of the embargo placed
by O.II, R.2, C.P.C., had to sue for all the available reliefs in one suit and splitting up a
cause of action was not permissible—Both the Courts below failed to appreciate the
objection raised by the defendant in its correct legal perspective—Orders passed by both
the Courts below were set aside and plaint in the subsequent suit was rejected under O.7,
R.II, C.P.C.—Constitutional petition was allowed accordingly. 2002 MLD 507
'Cause of action'—Connotation—'Cause of action' means every fact that will be

necessary for the plaintiff to prove if traversed in order to support his right to judgment
—Cause of action has nothing to do with the defence set up by the adversary more it
should be confined to nature and character of the relief sought. PLD 2002 Kar. 333
Relinquishment of claim in earlier suit—Earlier suit was withdrawn without
any permission to file the fresh one on the same cause of action as a result of compromise
effected between the parties out of Court—Plaintiff filed another suit on the same cause
of action and the same was decreed by the Trial Court but High Court dismissed the
same—Plaintiff had agreed to compromise with the defendant and had relinquished his
other claim by filing statement for full and final settlement of his claim and did not
reserve the right to claim compensation for filing the suit, as such his claim was not
allowed by the High Court—Validity—Appeal of the defendant was accepted by the
High Court with sound and cogent reasons and there being no error or irregularity in the
judgment same was not open to exception, P L D 2001 S.C 325
Second suit on same cause of action. From averments made by

plaintiff/appellant in relief clauses of plaints filed in two suits that according to plaintiff's
own case. there was only one cause of action. In both suits, he has mentioned that cause
of action arose when plaintiff was re-instated on his post after previous litigation
between parties. In both suits he has claimed compensation for period of his leave and
other compensatory benefits etc. S.C is of the view that cause of action in both suits was
same and plaintiff was not legally competent to file two suits by splitting up his claim.
Neither any reason has been given for filing separate suits nor any permission was
sought from District court in which he had instituted suit in first instance. PLJ 1998 SC
(AJK) 171.
Subsequent suit on different cause of action that had not accrued earlier.
Maintainability. Provision of O.II, R. 2 is against splitting of claim which plaintiff was
entitled to make in respect of cause of action enjoining that whole of his claim in respect
of cause of action should be agitated at one time. Order U, R. 2, however, would not
insist on joinder of all causes of action available to plaintiff in one suit. O.II, R. 2 of C.P-C.
would not therefore, bar subsequent suit on different cause of action or on cause of action
that had not accrued earlier. One test for finding out whether subsequent suit would be a
bar because of earlier suit would be whether claim in subsequent suit was in fact founded
on cause of action distinct from that which was foundation of earlier suit. Plaintiffs
former suit which was for perpetual injunction would not place penalty provisions
enunciated by O.II, R. 2 CPC as hurdle in the way of present suit. PLJ 1999 Lah.. 941 =
PLD 1999 Lah. 340.
Where In absence of relevant material, controversy regarding applicability of

Order II, Rule 2, CPC cannot be resolved. Petition was accepted and case remanded to
Trial Court for fresh decision. PLJ 1989 Lah. 228.
Multiple litigation to be avoided without being injustice to anyone. PLJ 1984 Qta.
71.
Principle of Res-judicata. Applicability. Party to suit could not sue for any
portion of claim which it had either omitted to sue or had relinquished in earlier suit.
Such party could not assert its right to sue for such claim at later stage and court would
not grant leave to bring fresh suit for such omitted or relinquished claim. Principle of res-
judicata being mandatory has to be applied against parties and each agreement between
parties could not operate against that principle. Where party in previous suit had right
and option to Lake any ground of attack in respect of any issue framed against him and
he did not exercise such option he would be debarred to bring fresh claim through
subsequent suit. All grounds of resistence that are or were in knowledge of parties must
be urged in defence as against claim set up by other party. PLJ 1999 Pesh. 6 = 1999 MLD
2140.
Rationale behind Rule 2 (1) (2) (3) of Order 11 clearly indicates that Legislature
introduced provisions to control splitting up of claim and to restrict multiplicity of suits.
Petitioner had clearly omitted to sue for recovery of compensation in earlier suit for
specific performance. He could not sue for this relief which he had omitted in earlier
relief. Cause of action for both suits could be joined in one suit and having omitted latter
cause of action, bar of Order II rule 2 C.F.C- was fully attracted. PLJ 1996 SC 678= 1996
SCMR 1047.
Constructive resjudicata. Matter of inheritance from plaintiffs deceased father

was directly and substantially in issue in the former suit between the same parties and
decided. Plaintiff omitted devolution of property in respect of present land in former suit
and thus relinquished her share, therefore, in view of explanation 4 of S. 11 and O.II. R. 2
CPC suit is neither competent nor can be decided. Contention of. Principle of res judicata
precludes piecemeal litigation and hardship and inconvenience resulting from repeated
litigation on the same cause of action are checked. Bar contained in law for seeking
remedy for any legal right under O.II R. 2 and S. 11 CPC was for purpose of, peace and
repose in enjoyment of property by parties whose right in property have been once
17
settled by courts of law and no decree would be granted for disturbing the same. Cause
of action in earlier suit and in subsequent suit being in effect the same judgments and
decrees of courts below decreeing plaintiffs suit. were set aside and plaintiffs suit was
dismissed being hit by principle of res judicata. PLJ 1996 Pesh. 320 = 1996MLD 1409.
Contention that under Order II Rule 2, entire claim has to be included in plaint
and any relief available to plaintiff which had been given up by him in earlier suit,
cannot subsequently be claimed in a fresh suit. There is no cavil with proposition of law
but question is whether claim for relief sought in fresh suit was available to respondent
at time of previous suit. Cause of action in first suit accrued in 1989 when registered
document was non-extant while cause of action in second suit accrued to plaintiff when
said documents were executed and registered subsequently. It cannot be said that second
suit was hit by provisions of Order II Rule 2 of C.P.C. PLJ 1995 Kar. 323 = NLR 1995 CLJ
611= PLD 1995 Kar. 416.
Suit for recovery of loan amount had been decreed and amount of loan was
recovered from defendant. Decree of Court having been executed and total amount
decreed having been recovered, there was no justification to allow amendment of plaint
in that suit and decree the amount over and above the amount already decreed earlier.
Provision of 0.11, R. 2 C.P.C. postulates that if any portion of claim was either omitted or
intentionally relinquished, then plaintiff would not after wards, sue in respect of omitted
portion or relinquished. Decree passed subsequently by Court as a result of amendment
of plaint after execution and fulfillment of decree, being in excess of" jurisdiction and in
sheer violation of O.VI. R. 17 C.P.C. was tainted with illegality and the same was set
aside in circumstances. PLJ 2000 Pesh. 157 = PLD 2000 Pesh. 10.
Cause of action in suit previously filed by plaintiff before Civil Court being
entirely different from one upon which subsequent suit was based, said subsequent suit
was not barred under provisions of O 2 R. 2. C.P.C. or O.23, R. 1(3), C.P.C. PLJ 2000 Kar.
201 = PLD 2000 Kar. 58.
Compromise out of court and withdrawal of suit. Second suit for recovery of
compensation for blockade of money. Whether second suit was barred. Failure or
omission to include any of reliefs operates as relinquishment of such claim. It is
imperative for plaintiff to assert claimable reliefs concerning main grievance or cause of
action. Primary object of Order II Rule 2 is to avoid splitting of claim and restrict
multiplicity of litigation. Instant case relates to compensation for blocking amount due
to respondent from appellant and it could simultaneously be claimed with principal
amount. Order of withdrawal passed by trial court is simple withdrawal without
permission to file fresh suit. Since originally neither compensation or interest was
claimed nor it was claimed while making settlement, therefore, subsequent suit for
compensation regarding blockade of money or interest, thereon, is patently ill-founded.
PLJ 1995 Qta. 34 = 1995 CLC 88.
Suits for perpetual injunction and specific performance for agreement to sell-
Withdrawal of first suit. Application U/0. II R- 2- Dismissal of. Revision against. Earlier
suit was brought when according to agreement, defendant had to receive entire sale
price and then to get sale deed registered, since, the defendant had failed to do so,
plaintiff filed a separate suit for specific performance of contract and got his earlier suit
dismissed as withdrawn. Therefore, provisions of law contained in 0.13 R. 2 not
attracted, neither this law is bar to present suit. Contentions of petitioner misconceived.
Petition dismissed in limine. P.L.J.1999 Lah. 486 = 3998 CLC 1973 = NLR 1999 Civil 1.
O. II, R.2 – Order II, R. 2 of C.P.C—Applicability—civil Procedure Code 1908, having

been excluded to proceedings before Family Court, plea that present case was hit by O.
II, R.2 of C.P.C. was not sustainable – Besides, on the facts and circumstances of present
controversy, principle incorporated in O.II, R.2 C.P.C. was not applicable at all, fresh
cause of action had accrued to petitioner as a result of fresh invasion made on her
vested rights had accrued. P L J 2004 Pesh. 14
3. Joinder of causes of action. (1) Save as otherwise provided,

a plaintiff may unite in the same suit several causes of action against the same
defendant, or the same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same defendant or the
same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, .the jurisdiction of the Court as
regards the suit shall depend on the amount of value of the aggregate subject-
matters at the date of instituting the suit.
4. Only certain claims to be joined for recovery of immovable

property. No cause of action shall, unless with the leave of the Court, be joined
with a suit for the recovery of immovable property, except
19
(a) claims for mesne profits or arrears of rent in respect of the

property, claimed or any part thereof; .
(b) claims for damages for breach of any contract under which the
property or any part thereof is held ; and
(c) claims in which the relief sought is based on the same cause of
action :
Provided that nothing in this rule shall be deemed to prevent any party
in a suit for foreclosure or redemption from asking to be put into possession of
the mortgaged property.
5. Claims by or against executor, administrator or heirs. No claim

by or against an executor, administrator or heir, as such, shall be joined with
claims by or against him personally, unless the last mentioned claims are alleged
to arise with reference to the estate in respect of which the plaintiff or defendant
sues or is sued as executor, administrator jointly with the deceased person whom
he represents.
6. Power of Court to order separate trials. Where it appears to the

Court that any causes of action joined in one suit cannot be conveniently tried or
disposed of together, the Court may order separate trials or make such other
order as may be expedient.
7. Objection as to mis-joinder. All objections on the ground of

misjoinder of causes of action shall be taken at the earliest possible opportunity
and, in all cases where issues are settled, at or before such settlement, unless the
ground of objection has subsequently arisen, and any such objection not so taken
shall be deemed to have been waived.
HIGH COURTS AMENDMENTS

LAHORE
Insert the following as rule 8 :-
8. (1) Where an objection, duly taken, has been allowed by the Court,
the plaintiff shall be permitted to select the cause of action with which he will
proceed, and shall, within a time to be fixed by the Court, amend the plaint by
striking the remaining causes of action.
(2) When the plaintiff has selected the causes of action with which he
will proceed, the Court shall pass an order. giving him time within which to
submit amended plaints for me remaining causes of action and for making up
the Court-fees that may be necessary. Should the plaintiff not comply with the
Court's order, the Court shall proceed as provided in rule 18 of Order VI and as
required by the provisions of the Court-Fees Act. .
N.-W.F.P. AMENDMENTS :-- Same as in Lahore.
21
ORDER_ III
RECOGNIZED AGENTS AND PLEADERS

1. Appearance, etc., may be in person, by recognized agent or by
pleader. Any appearance, application or act in or to any Court, required or
authorized by law to be made or done by a party in such Court, may, except
where otherwise expressly provided by any law for the time being in force, be
made or done by the party in person, or by his recognized agent, or by a pleader
appearing, applying or acting, as the case may be, on his behalf :
Provided that any such appearance shall, if the Court so directs, .be made
by the party in person.
Court Decisions
Appearance : Petition filed by mother of petitioner having no power-of-attorney
attached to petitionSuch power-of-attorney duly executed and attested presented in
Court on day of hearing Petitioner having ratified and confirmed all acts and deeds done
by said attorney-Objection withdrawn by respondent in circumstances. P L D 1985 Lah.
491
Institution of suit on behalf of plaintiff by a person who held no power of
attorney on behalf of such plaintiff---Suit in question, having been incompetently filed
was not maintainable. P L D 1994 Kar. 348
Appeal dismissed for non-prosecution due to absence of appellant and his
counsel. Appellant's plea in support of restoration of appeal was that relevant date being
for arguments, he was neither directed by his counsel nor had instruction from him that
his presence was necessary. Non-appearance of party was Justified in circumstances of
case within terms of O.III, R. 1, C.P.C. P.L.J.1997 Kar. 881 = 1997 CLC 689.
2. Recognized agents. The recognized agents of parties by whom

such appearances, applications and acts may be made or done are :--
(a) persons holding powers-of-attorney, authorizing them to make
and do such appearances, applications and acts on behalf of such
parties ;
(b) persons carrying on trade or business for and in the names of
parties not resident within the local limits of the jurisdiction of the
Court within which limits the appearance, application or act is
made or done, in matters connected with such trade or business
only where no other agent is expressly authorized to make and do

such .appearances, applications and acts.
Court Decisions
Advocate reported no instruction from the party. Means party not interested in
prosecuting the matter. Court was justified in dismissing appeal without notice. Notice
to party is needed if Advocate seeks permission to withdraw from the case. PLJ 199G
SC 1861 = 1996 SCMR 1207.
Withdrawal of petition without permission to institute a fresh one. Filing of fresh

petition. Whether Law of estoppel applies. In all cases of civil nature, petitioner stands
precluded from filing fresh petition for same relief which he has earlier unconditionally
withdrawn. Petitioner was simply allowed to withdraw case and no per-mission was
given, nor sought by him to institute fresh case. Petitioner is thus, precluded from filing
fresh petition under 0. XXIU R. 3, CPC. P.L.J.1999 AJ & K 1.
Power of attorney-Essentials-Power of attorney not authorizing attorney to rile

suit in question-Effect-Power of attorney executed in foreign country had not been
authenticated by any of the Authorities mentioned in Art. 95, Qanun-e-Shahadat, 1984
i.e. Notary Public, any Court, Judge, Magistrate, Pakistan Consul or Vice-Consul-In
addition to such defect, power of attorney did not fulfil requirement, as provided under
Ss.32 & 33, Registration Act, 1908-Power of attorney having not authorized attorney to
file or defend suit in respect of property in question, suit filed on basis of such power of
attorney was not maintainable and was rightly dismissed in circumstances.-[Power of
attorney]. 1995 C L C 1541
Jiwibai v. Ramkuwar Shriniwas Murarka Agarwala AIR 1947 Nag. 17;
Muhammad Afsar Khan and another v. Khadim Hussain and others PLD 1978 SC (AJK)
143; Gul Taj Begum v. Lai Hussain and another PLD 1980 SC (AJ&K) 60 and Qurban
Hussain and 2 others v. Hukam Dad PLD 1984 SC (AJ&K) 157 rel.
PLD 1982 Kar. 72; 1992 CLC 15; PLD 1984 SC 12; PLD 1953 BJ 45; PLD 1966
Dacca 444 and AIR 1963 Raj. 147 ref.
3. Service of process on recognized agent. (1) Processes served on

the recognized agent of a party shall be as effectual as if the same had been
served on the party in person, unless the Court otherwise directs. .
(2) The provisions for the service of process on a party to a suit shall
apply to the service of process on his recognized agent.
4. Appointment of pleader. (1) No pleader shall act for any person

in any Court, unless he had been appointed for the purpose by such person by a
document in writing signed by such person or by his recognized agent or by
23
some other person duly authorised by or under a power-of-attorney to make

such appointment.
(2) Every such appointment shall be filed in Court and shall be
deemed to be in force until determined with the leave of the Court by a writing
signed by the client of the pleader, as the case may be, and filed in Court or until
the client or the pleader dies, or until all proceedings in the suit are ended so far
as regards the client.
(3) For the purposes of sub-rule (2) an application for review of
judgment an application, under section 144 or section 152 of this Code, any
appeal from any decree or order in the suit and any application or act for the
purpose of obtaining copies of documents or return of documents produced or
filed in the suit or of obtaining refund of monies paid into the Court in
connection with the suit shall be deemed to be proceedings in the suit.
(4) The High Court may, by general order, direct that, where the
person by whom a pleader is appointed is unable to writ his name, his mark
upon the document appointing the pleader shall be attested by such person and
in such manner as may be specified by the; order.
(5) No pleader who has been engaged for the purpose of pleading
only shall plead on behalf of any party, unless he has filed in Court a
memorandum of appearance-signed by himself and stating :--
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and.
(c) the name of the person by whom he is authorised to appear :
Provided that nothing in this sub-rule shall apply to any pleader
engaged to plead on behalf of any party by any other pleader who has
been duly appointed to act in Court on behalf of such party.
Court Decisions
Where counsel who had instituted suit/application had presented the same
throughout his preference of function as counsel was not questioned by client,
presumption would be that action of counsel in behalf of his client tantamount to
ratification by client. Provisions regarding presentation of suit/application on being
procedural in nature, non-compliance thereof, could not be intend with extreme penalty.
Such defect being irregularity could be vitiated by providing opportunity to concerned
party to do so. Rules framed in Civil Procedure Code, 1908, however, were made for
advancement of justice and they should not be allowed to defeat ends of justice. Defect if
any could be cured by amending plaint. Courts could, however, take notice of
subsequent events. PLJ 1999 Lah. 53 = 1999 MLD 2202.
Engaging Counsel through attorney. Attorney during course of proceedings

died. Authority of counsel under signatures of attorney of Foreign National would come
to an end on death of that attorney. PLJ 1999 Lah. 548 = 1999 CLC 500 = NLR 1999 Civil
611.
Power of attorney duly signed, in a suit. No separate power-of-attorney was

necessary in favour of counsel who could have filed appeal on basis of power of attorney
presented before trial Court. PLJ 1990 Lah. 203.
Vakalatnama. Discharge. A Vakalatnama /Power/ Memo of appearance of an

advocate is deemed to exist on record until it is terminated with leave of court. An
advocate seeking discharge of his vakalatnama should comply with requirements of Rule
50 of Sindh Chief Court Rules An advocate is not entitled to return case file, whatever
grounds may be, prior to seeking discharge of his vakalatnama from court. PLJ 1996
Kar. 773 = 1996 CLC 1998.
Verification- Plaintiffs in view of objection defective verification of plaint and

power of attorney, submitted fresh power of attorney. Effect. Irregularity, if any
committed at initial stage of suit would not by itself defeat suit any subsequent
authorization, confirmation and post ( facto approval of acts done by attorney on behalf
of plaintiff (principal) would make institution of suit valid and lawful. PLJ 1997 Kar. 940
= 1997 CLC 88.
Subsequent Ratification. Attorney not legally empowered to file appeal. His act
ratified by filing another power of attorney executed subsequently. Defect if any would
stand cured. PLJ 1999 SC (AJ&K) 260.
Ratification by principal need not necessarily be in writing; same can be

inferred from his conduct, similarly, such a ratification can be . made even after expiry of
period of limitation for filing a suit or appeal etc. but would operate retrospectively i.e.,
from date when relevant act was performed. While ascertaining powers of an agent,
intention of principal must be gathered from overall contents of relevant document in
each case and no set formula can be laid down in this regard. PLJ 1999 SC (AJ&.K) 260.
Word 'act' as occurring in R. 4 (1) of 0-I C.P.C.,. An engaged counsel would not
plead unless he had filed in Court, memorandum of appearance signed by himself and
stating names of parties etc., but under proviso to R. 4(5) of O.III, C.P.C., filing in Court
memorandum of appeal or /is was not required, if any counsel was engaged to plead on
behalf of any party by another counsel who had been duly appointed to act m Court on
behalf of such party. Where original counsel had engaged another counsel to plead on
behalf of petitioners in Court without any authority in writing, . withdrawal of
application for amendment moved on behalf of petitioners, presumption would be that
he must have been authorised to do so on behalf original counsel. PLJ 1999 SC 839 = 1998
SCMR 2381.
25
Leave to revoke power of attorney. Leave to withdrawal power of attorney

sought by client was resisted by Advocate on plea that he had still have his balance fee
from client. Application to revoke power of attorney granted. PLJ 1999 Kar. 652 = 1999
CLC 1653.
5. Service of process on pleader. Any process served on the pleader

of any party or left at the office or ordinary residence of such pleader, and
whether the same is for the personal appearance of the party or not, shall be
presumed to be duly communicated-and made known to the party whom the
pleader represents, and, unless the Court otherwise directs all be as effectual for
all purposes as if the same had been given to or served on the party in person.
6. Agent to accept service. (1) Besides the recognized agents

described in rule 2 any person residing within the jurisdiction of the Court may
be appointed an agent to accept service of process.
(2) Appointment to be in writing and to be filed in Court. Such
appointment may be special or general and shall be made by an instrument in
writing signed by principal, and such instrument or, if the appointment is
general, a certified copy thereof shall be filed in Court.
HIGH COURTS AMENDMENTS N.-W.F.P.

In rule 5 add at the end.-' Provided that the pleader is acting and not
merely pleading for the party '.
SINDH
In rule 6, add the following as sub-rule (3) : '(3) The Court may at any stage of a
suit and whether upon application made to it, or of its own motion direct any
party to the suit not having a recognized agent residing within the jurisdiction of
the Court, to appoint within a time to be specified, an agent within the
jurisdiction of the Court to accept service of process on his behalf. To every
appointment made under the sub-rule, the provisions of sub-rule (2) shall be
applicable'.
ORDER_ IV
INSTITUTION OF SUITS
1. Suit to be commenced by plaint. (1) Every suit shall be instituted
by presenting a plaint to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so
far as they are applicable.
Court Decisions
Date of the suit be reckoned from the time when the plaint was presented to the
Court competent to receive it-- Insufficiency or deficiency of court-fee shall not affect the
question of limitation at all--Validity of plaint for the purposes of the Limitation Act is
not dependent on its validity for the purposes of Court Fees Act. 1987 C L C 2428
Order 4, R. 1 read with Order VI, R. 14. A party with forged pleadings and
exhibiting bad faith cannot be considered at par with a party whose case is covered
under Order VI, Rule 14, CPC. PLJ 1991 SC291.
Very strict view on technical plane, of pleadings without regard to substance of
matter resulting in defeat of ends of justice and leading to something genuine litigation
not to be favoured. PLJ 1984 SC 1.
2. Register of suits. The Court shall cause the particulars of every

suit to be entered in a book to be kept for the purpose and called the register of
civil suits. Such entries shall be numbered in every year according to the order in
which the plaints are admitted.
27
ORDER_ V
ISSUE AND SERVICE OR SUMMONS
Issue of Summons
1. Summons. (1) When a suit has been duly instituted a summons
may be issued to the defendant to appear and answer the claim on a day to be
therein specified:
Provided that no such summons shall be issued when the defendant has
appeared at the presentation of the plaint and admitted the plaintiffs' claim.
(2) A defendant, to whom a summons has been issued under sub-rule
(1) may appear :-
(a) in person ; or
(b) by a pleader duly instructed and able to answer all material
questions relating to the suit ; or
(c) by a pleader accompanied by some person able to answer all such
questions.
(3) Every such summons shall be signed by the Judge or such officer
has he appoints, and shall be sealed with the seal of the Court.
2. Copy of statement annexed to summons. Every summons shall

be accompanied by a copy of the plaint or, if so permitted, by a concise
statement.
Court Decisions
Non-accompanying of copy of plaint with summons not fatal to service upon
petitioner as service upon petitioner as service of summons cannot be read as summons
accompanied by copy of plaint. PLJ 1981 Lah. 239.
3. Court may order defendant or plaintiff to appear in person. (1)

Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court on the day
therein specified.
(2) Where the Court sees reason to require, the personal appearance
of the plaintiff on the same day, it shall make an order for such appearance.
4. No party to be ordered to appear in person unless resident

within certain limits. No party shall be ordered to appear in person unless he
resides:--
(a) within the local limits of the Court's ordinary original
jurisdiction; or
(b) without such limits but at a place less than fifty or (where there is
railway or steamer communication or other established public
conveyance for five-sixth of the distance between the place where
he resides and the place where the Court is situate) less than two
hundred miles distance from the Court-house.
5. Summons to be either to settle issues or for final disposal. The

Court shall determine, at the time of issuing the summons, whether it shall be for
the settlement of issues only, or for the final disposal of the suit; and the
summons shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the
summons shall be for the final disposal of the suit.
6. Fixing day for appearance of defendant. The day for the

appearance of the defendant shall be fixed with reference to the current business
of the Court, the place of residence of the defendant and the time necessary for
the service of the summons: and the day shall be so fixed as to allow the
defendant sufficient time to enable him to appear and answer on such day.
7. Summons to order defendant to produce documents relied on

by him. The summons to appear and answer shall order the defendant to
produce all documents in his possession or power upon which he intends to rely
in support of his case.
HIGH COURTS AMENDMENTS LAHORE

Delete present rule and substitute therefore: -'The summons to appear and
answer shall order the defendants to produce all documents in his possession or
power upon which he bases his defence or any claim for set-off and shall further
order that where he relies on any other document (whether in his possession or
power or not) as evidence in support of his defence or claim lor set-off, he shall
enter such document in a list to be added or annexed to the written statement'
8. On issue of summons for final disposal, defendant to be

directed to produce his witnesses. Where the summons is for the final disposal
29
of the suit it shall also direct the defendant to produce, on the day fixed for his
appearance, all witnesses upon whose evidence he intends to rely in support of
his case.
Service of Summons
9. Delivery or transmission of summons for service. (1) Where the

defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the Court
otherwise directs, be delivered or sent to the proper officer to be served by him
or one of his subordinates.
(2) The proper officer may be an office of a Court other than that in
which the suit is instituted, and, where he is such an officer, the summons may
be sent to him by post or in such other manner as the Court may direct.
1
[(3) Unless the Court otherwise directs, the proper officer or an officer
authorised by him in this behalf shall cause the service of summons and return it
to the Court within fifteen days of issues of summons].
Legal Amendments
1. Added by Act XIV of 1994.
10. Mode of service. Service of the summons shall be made by

delivering or tendering a copy thereof signed by the Judge or such officer, as he
appoints in this behalf, and sealed with the seal of the Court.
High-Court Amendment;__ Lahore.
Added the following proviso to rule 10.

Provided that in any case, if the plaintiff so wishes, the Court may serve
the summons in the first instance by registered post (acknowledgement due),
instead of in the mode of service laid down in this rule.' In R. 15 after the words
'where in any suit the defendant cannot be found' insert the words 'or is absent
from his residence'.
N.-W.F.P. Added the following proviso to rule 10.

Provided that in any case the Court in its discretion may attempt to serve
the summons in the first instance by registered post instead of in the mode of
service laid down in this rule; and provided always that should the defendant
not appear in answer to the summons so issued, the Court shall have service
effected in accordance with the provisions of this Order. In Rule 15 for the words
where in any suit the defendant cannot be found' substitute 'Where the
defendant is absent from his usual place of residence.
1
[10-A. Service by post. (1) Simultaneously with the issue of summons
under Rule 9, there shall be sent, unless otherwise ordered by the Court, to the
defendant, by registered post, acknowledgement due, another copy of the
summons singed and sealed in the manner provided in rule 10.
(2) An acknowledgement purporting to be signed by the defendant of
the receipt of the registered communication or endorsement by a postal
employees that the defendant refused to take delivery of the same shall be
deemed by the Court issuing the summons to be prima facie proof of service of
summons.]
Legal Amendments
1. Rule 10-A Inserted by Ordinance XII of 1972.
Court Decisions
Rent Controller issued process through bailiff only and not by Registered Post
A.D simultaneously as required under Order V Rule 10-A. Application for substituted
service was allowed by Rent Controller without applying judicious mind to requirements
of Order V Rule 20. Record does not show that notice was also pasted on Court Notice
Board- Order V Rule 17 requires that notice should be pasted on given address in
presence of some person as witness and service by pasting was not properly affected ia
accordance with law. There was no evidence to show that appellant/tenants were
avoiding service. Rent Controller was not justified to pass ex parte order against
appellants. PLJ 1995 Kar. 41 = NLR 1995 Civil 601 = 1995 CLC 315.
11. Service on several defendants. Save as otherwise prescribed,

where there are more defendants than one, service of the summons shall be
made on each defendant.
12. Service to be on defendant in person when practicable, or on his

agent. Wherever it is practicable, service shall 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.
Court Decisions
Mode of service of notice. Note could be affixed on main gate of house "of
concerned person. Where however, notce was taken to house of concerned person and
31
was denied to be received, it would be deemed to be served upon that person against
whom same had been issued. PLJ 1999 Qta. 1+PLJ 1999 Kar.-649.
13. Service on agent by whom defendant caries on business. (1) In a

suit relating to any business or work against a person who does not reside within
the local limits of the jurisdiction of the Court from which the summons is
issued, service on any manager or agent, who, at the time of service, personally
carries on such business or work for such person within such limits, shall be
deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be
the agent of the owner or character.
14. Service on agent in charge in suits for immovable property.

Where in a suit to obtain relief respecting, or compensation for wrong to
immovable property, service cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it may be made on any
agent of the defendant in charge of the property.
15. Where service may be on male member of defendant's family.

Where in any suit the defendant cannot be found and 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.
Explanation. A servant is not a member of the family within the meaning
of this rule.
16. Persons served to sign acknowledgement. Where the serving

officer delivers or tenders a copy of the summons to the defendant personally, or
to an agent or other person on his behalf, he shall require the signature of the
person to whom the copy is so delivered or tendered to an acknowledgement of
service endorsed on the original summons.
Court Decisions
Summons were not served in accordance with the mode prescribed in C.P.C.—
Effect—No endorsement on the back of the summons indicated as to why defendant was
not served at his home address as given in the plaint and why he was served in the D.C.
Office and who had identified him and in whose presence he was served—Trial Court
before passing ex-parte decree and before ordering ex-parte proceedings had not
examined process server on oath which was mandatory legal requirement—Appellate
Court while disposing of appeal did not examine as to whether trial Court while
proceeding ex-parte had acted in accordance with relevant provisions of law—Appellate
Court treated ex-parte application to be one under S. 12(2) C.P.C. and ignored the fact
that such application could be filed within three years and not within thirty day—Courts
below failed to understand that while computing period of limitation, intervening period
of summer vacations has to be excluded—Judgments and decrees of Courts below were
set aside and case was remanded to trial Court for decision on merits by giving them
opportunity to contest the case. PLJ 2002 Pesh. 151
17. Procedure when defendant refuses to accept service, or cannot

be found. Where the defendant or his agent or such other person as aforesaid
refuses to sign the acknowledgement, or where the serving officer, after using all
due and reasonable diligence, cannot find the defendant, and there is no agent
empowered to accept service of summons on his behalf, nor any other person on
whom service can be made, the serving officer shall affix a copy of the summons
on the outer door or some other conspicious part of the house in which the
defendant ordinarily resides or carries on business or personally works of gain,
and shall then return the original to the Court from which it was issued, with a
report endorsed thereon or annexed thereto stating that he has no affixed the
copy, the circumstances under which he did so, and the name and address of the
person (if any), by whom the house was identified and in whose presence the
copy was affixed.
Court Decisions
Order V Rule 17 requires that notice should be pasted on given address in
presence of some person as witness and service by pasting was not properly affected ia
accordance with law. There was no evidence to show that appellant/tenants were
avoiding service. Rent Controller was not justified to pass ex parte order against
appellants. PLJ 1995 Kar. 41 = NLR 1995 Civil 601 = 1995 CLC 315.
Incomplete report. Report of process server not showing in whose presence

appellants refused to accept service of summons. Process server, even not filing his
affidavit in support of his report. Report of process server being vague in nature, held,
does not amount to legal service of appellants. PLJ 1997 SC (AJK) 20 = 1997 MLD 181.
18. Endorsement of time and manner of service. The serving officer

shall, in all cases in which the summons has been served under rule 16, endorse
or annex, or cause to be endorsed or annexed, on or to the original summons, a
return stating the time when and the manner in which the summons was served,
and the name and address of the person (if any) identifying the person served
and witnessing the delivery or tender of the summons.
Court Decisions
33
Trial Court before passing ex-parte decree and before ordering ex-parte
proceedings had not examined process server on oath which was mandatory legal
requirement—Appellate Court while disposing of appeal did not examine as to whether
trial Court while proceeding ex-parte had acted in accordance with relevant provisions of
law—Appellate Court treated ex-parte application to be one under S. 12(2) C.P.C. and
ignored the fact that such application could be filed within three years and not within
thirty day—Courts below failed to understand that while computing period of limitation,
intervening period of summer vacations has to be excluded—Judgments and decrees of
Courts below were set aside and case was remanded to trial Court for decision on merits
by giving them opportunity to contest the case. PLJ 2002 Pesh. 151
19. Examination of serving officer. Where a summons is returned

under rule 17, the Court shall, if the return under that rule has not been verified
by the affidavit of the serving officer, and may, if it has been so verified, examine
the serving officer on oath, or cause him to be so examined by another Court,
touching his proceedings, and may make such further inquiry in the matter as it
thinks fit and shall either declare that the summons has been duly served or
order such service as it thinks fit.
20. Substituted service. 1[(I) Where the Court is satisfied that there is
reason to believe that the defendant is keeping out of the way for the purpose of
avoiding service, or that for any other reason the summons cannot be served in
the ordinary way, the Court shall order for service of summons by-
(a) affixing a copy of the summons at some conspicuous part of the
house, if any, in which the defendant is known to have last
resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include
telegram, phonogram, telex, fax, radio and television; or
(c) urgent mail service or public courier services ; or
(d) beat of drum in the locality where the defendant resides; or
(e) publication in press; or
(f) any other manner or mode as it may think fit :
Provided that the Court may order the use of all or any of the aforesaid
manners and modes of service simultaneously].
(2) Effect of substituted services. Service substituted by order of the
Court shall be as effectual if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed. Where
service is substituted by order of the Court, the Court shall fix such time for the
appearance of the defendant as the case may require. 2[Which shall not ordinarily
exceed fifteen days].
Legal Amendments
1. Substituted by Act XIV of 1994.
2. Added ibid
Court Decisions
Provisions of O.V. R. 20, Civil Procedure Code, 1908 being mandatory failure to
comply with such requirements would nullify the whole proceedings. PLJ 1999 Kar. 580
= 1999 CLC 342.
Substituted service. Substituted service by affixation of notice under Order V,

Rule 20 C.P.C. can only be directed when in ordinary course such notice/summons
cannot be served or that defendant is deliberately avoiding to receive summons of court
and court as such becomes satisfied that service in ordinary mode cannot be made, can
legitimately order for service through affixation. PLJ 1998 Qta. 49 = 1998 CLC 657.
Where Learned District Judge totally lost of provisions of Order V, rule 20 C.P.C..
He did not come to definite conclusion that respondents were avoiding service" wilfully
and only after observing that respondents could not be served inspite of summons
having been sent through registered letters several time, he opted to proceed for getting
them served through citation. Better course for him would have been first to have
awaited return of process issued in names of respondents and if there was report that
they were not available in given address, ask appellants/defendants to furnish their fresh
and complete address, make further efforts to get their personal service effected in
ordinary manner and then only after satisfying himself and verifying fact that all efforts
made in this behalf for effecting their service in ordinary manner had failed than
substituted service could be resorted to. Another factor which was not taken care of by
Addl. District Judge was that some of respondents were shown as minors by
defendants/respondents themselves in their Memo. of appeal and in case their
g\iardian-a.d-litem failed to .turn up, it was duty of presiding officer to have adverted to
provision of law as contained in Order 32 Rule 3 of C.P.C.. After learned Addl. District
Judge had come to conclusion that plaintiffs/respondents were not turning up inspite of
citation in newspaper, it was necessary for him to have asked appellants to move
application for appointment of fresh guardian-ad-litem but neither appellants moved
such application nor were they so directed nor order in this behalf was so passed by
Addl. District Judge of his own. Appeal.accepted case remitted to Addl. District Judge for
re-hearing of appeal on merits. PLJ 1998 Lah. 413 = PLD 1998 Lah. 118.
21. Service of summons where defendant resides within

jurisdiction of another Court. A summons may be sent by the Court by which it
is issued, whether within or without the Province, either by one of its officers or
35
by post to any Court,,(not being the High Court) having jurisdiction in the place
where the defendant resides.
High-Court Amendment:-SINDH
Insert the following as rule 21-A: -
Rule 21-A. Service of summons by pre-paid post wherever the defendant

may be residing if plaintiff so desires. Where the plaintiff so desires, the Court,
may notwithstanding anything in the foregoing rules and whether the defendant
resides within the jurisdiction of the Court or not cause the summons to be
addressed to the defendant at the place where he is residing and sent to him by
registered post pre-paid acknowledgment, provided, that such place is at a town
or village in (the Provinces and the Capital of the Federation) which is the
headquarters of a district or a recognised subdivision of a district such as a taluk,
or to which the provisions of this rule may, from time to time be extended by a
notification by the Court of the Judicial Commissioner of Sindh published in the
Sindh Official Gazette. An acknowledgment purporting to be signed by the
defendant shall be deemed by the Court issuing the summons to be prima fade
proof of service. It all other cases the Court shall hold such enquiry as it thinks fit
and either declare the summons to have been duly served or order such further
service as may in its opinion be necessary.'
22. 1
[Service within Presidency-town of summons Issued by Courts
outside.]
Legal Amendments
1. Omitted by the A.O., 1949.
23. Duty of Court to which summons is sent. The Court to which a

summons is sent under rule 21 [*****] shall, upon receipt thereof, proceed as if it
had been issued by such Court and shall then return the summons to the Court
of issue, together with the record (if any) of its proceedings with regard thereto.
24. Service on defendant in prison. Where the defendant is confined

in a prison, the summons shall be delivered or sent by post or otherwise to the
officer-in-charge of the prison for service on the defendant.
25. Service where defendant resides out of Pakistan, etc., and has no
agent in Pakistan. Where the defendant resides out of Pakistan and has no agent
in Pakistan empowered to accept service, the summons shall [except in the cases
mentioned in rule 26-A] be addressed to the defendant at the place where he is
residing and sent to him by post, if there is postal communication between such
place and the place where the Court is situate.
26. Service in foreign territory through Political Agent or Court.

Where:
(a) in the exercise of any foreign [or extra-provincial jurisdiction
vested in the Central Government], a Political Agent has been
appointed, or a Court has been established or continued, with
power to serve a summons issued by a Court under this Code in
any-foreign territory in which the defendant resides ; or
the Provincial Government has, by notification in the official Gazette,
declared, [in respect of any Court] situate in any such territory
and not established or continued in the exercise of any such
jurisdiction as aforesaid that service by such Court of any
summons issued under this Code by a Court of the Province shall
be deemed to be valid service; the summons may be sent to such
Political Agent or Court, by post or otherwise, for the purpose of
being served upon the defendant; and, if the Political Agent or
Court returns the summons-with an endorsement signed by such
Political Agent or by the Judge or other Officer of the Court that
the summons has been served on the defendant in manner
hereinbefore directed, such endorsement shall be deemed to be
evidence of service.
[26-A.
1
Service on civil public officer, or on servant of railway
company or local authority, in India. Where the defendant is servant (not
belonging to the military, naval or air forces) of any Government in India, or a
servant of a railway company or local authority in India, the summons together
with a copy of it to be retained by the defendant shall be sent, with a request that
it may be served on the defendant: -
(a). in the case of a defendant serving in connection with the affairs of
the Government of India or a Railway in India, to the Secretary to
the Government of India in the Ministry of Home Affairs ; and
(b) in the case of a defendant serving in connection with the affairs of
any other Government in India, or in the case of a servant of a
local authority in India to the Home Secretary to the Government,
or, as the case may be, to the Home Secretary to the Government
in whose territories the local authority has its jurisdiction.]
37
Legal Amendments
1. Rule 26-A Inserted by the Act of 1950.
27. Service on civil public officer or on servant of railway company

or local authority. Where the defendant is a public officer (not belonging to the
armed forces of Pakistan or is the servant of a railway or local authority, the
Court may, if it appears to it that the summons may be most conveniently so
served, send it for service on thee defendant to the head of the office in which he
is employed, together with a copy to be retained by the defendant.
28. Service on soldiers, sailors or airmen. Where the defendant is a

soldier, sailor or airman, the Court shall send the summons for service to his
commanding officer together with a copy to be retained by the defendant.
29. Duty of person to whom summons is delivered or sent of

service. (1) Where a summons is delivered or sent to any person for service
under rule 24, rule 27 or rule 28, such person shall be bound to serve it, if
possible, and to return it under his signature, with the written acknowledgment
of the defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be
returned to the Court with a full statement of such cause and of the steps taken to
procure service, and such statement shall be deemed to be evidence of non-
service.
30. Substitution of letter for summons. (1) The Court may,

notwithstanding anything hereinbefore contained, substitute for a summons a
letter singed by the Judge or such officer as he may appoint in this behalf, where
the defendant is, in the opinion of the Court, of a rank entitling him to such mark
of consideration.
(2) A letter substituted under sub-rule (1) shall contain the particulars
required to be stated in a summons, and, subject to the provisions of sub-rule (3),
shall be treated in all respects as summons.
(3) A letter so substituted may be sent to the defendant by post or by
a special messenger selected by the Court, or in any other manner which the
Court thinks fit; and where the defendant has an agent empowered to accept
service, the letter may be delivered or sent to such agent.
ORDER_ VI
PLEADINGS GENERALLY
1. Pleading. 'Pleading' shall mean plaint or written statement.
2. Pleading to state material facts and not evidence. Every pleading

shall contain, and contain only, a statement in a concise form of the material facts
on which the party pleading relies for his claim or defence, and the case may be,
but not the evidence by which they are to be proved, and shall, when necessary,
be divided into paragraphs numbered consecutively. Dates, sums and numbers
shall be expressed in figures.
Court Decisions
Material fact—authority to sign plaint is a material fact in terms of O. VI, R. 2,
C.P.C – Validity- Question as to whether person who signed the plaint of the plaintiff
was or was not duly authorized, was a material fact—all facts which, though not
necessary to establish the cause of action or defence, but which the party pleading was
required to prove, at the trial, were also material facts in terms of O.VI, R.2, C.P.C. PLD
2003 Kar. 156
Object of pleadings. Material facts on which party to suit relies should be stated
in concise form without mentioning law. Provisions of O.VI, R. 2 C.P.C. lays down
fundamental principles of pleadings in two modes; one affirmative that pleadings must
contain only material facts on which reliance was placed and the negative that pleading
should not state evidence through which material facts were to be proved. While
material particulars in case of allegation of fraud mis-representation, breach of trust,
wilful default or undue influence must be stated in plaint material facta requiring
evidence need not be stated therein. PLJ 1S99 Pesh. 149 =. 1999 MLD 2670.
A party can't be allowed to lead evidence in respect of plea not taken in
pleadings and even such evidence is brought on record, the same can't be looked into.
PLJ 2000 Lah. 1223.
Material facts to be stated in pleadings : but it does not mean that
evidence through which such material fact is to be proved shall also be stated in
pleadings. PLJ 1998 SC 477.
3. Forms of pleading. The forms in Appendix A when applicable,

and where they are not applicable forms of the like character, as nearly as may
be, shall be used for all pleadings.
39
4. Particulars to be given where necessary. In all cases in which the

party pleading relies on any misrepresentation fraud, breach of trust, wilful
default, or undue influence, and in all other cases in which particulars may be
necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and items of necessary) shall be stated in the pleading.
5. Further and better statement, or particulars. A further and better

statement of the nature of the claim or defence, or further and better particulars
of any matter stated in any pleading, may in all cases be ordered, upon such
terms, as to costs and otherwise, as may be just.
6. Condition precedent. Any condition precedent the performance

or occurrence of which is intended to e contested, shall be distinctly specified in
his pleading by the plaintiff or defendant, as the case may be; and, subject
thereto, an averment of the performance or occurrence of all conditions shall be
implied in his pleading.
7. Departure. No pleading shall, except by way of amendment, raise

any new ground of aim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same.
8. Denial of contract. Where a contract is alleged in any pleading, a

bare denial of the same by the opposite-party shall be construed only as a denial
in fact of the express contract alleged or of the matters of fact from which thee
same may be implied, and not as a denial of the legality or sufficiency in law of
such contract.
9. Effect of document to be stated. Wherever the contents of any

document are material, it shall be sufficient in any leading to state the effect
thereof as briefly as possible, without setting out the whole or any part thereof,
unless the precise words of the document or any part thereof are material.
10. Malice, knowledge, etc. Wherever it is material to allege malice,

fraudulent intention, knowledge or other condition of the mind of any person, it
shall be sufficient to allege the same as a fact without setting out the
circumstances from which the same is to be inferred.
11. Notice. Wherever it is material to allege notice to any person of

any fact, matter or thing, it shall be sufficient to allege such notice as a fact,
unless the form or the precise terms of such notice, or the circumstances from
which such notice is to be inferred, are material.
12. Implied contract, or relation. Whenever any contract or any

relation between any person is to be implied from a series of letters or
conversations or otherwise from a number of circumstances, it shall be sufficient
to allege such contract or relation as a fact, and to refer generally to such letters,
conversations or circumstances without setting them out in detail. And if in such
case the person so pleading desires to rely in the alternative upon more contracts
or relations than one as to be implied from such circumstances, he may state the
same in the alternative.
13. Presumption of law. Neither party need in any pleading allege

any matter of fact which the law presumes in his favour or as to which the
burden of proof lies upon the other side unless the same has first been
specifically denied (e.g. consideration for a bill of exchange where the plaintiff
sues only on the bill and not for the considerations as a substantive ground of
claim).
14. Pleading to be singed. Every pleading shall be signed by the

party and his pleader (if any): Provided that where a party to pleading is, by
reason of absence or for other good cause, unable to sign the pleading, it may be
signed by any person duly authorized by him to sign the same or to sue or
defend on his behalf.
Court Decisions
Plaint filed by unauthorized person—Maintainability—Authority to sign and
verify plaint on behalf of corporation—proof—Defendant objected to the maintainability
of the suit on the ground that the suit was filed by the person who was not duly
authorized by the plaintiff-corporation—Validity—such fact could only be shown in the
evidence whether the person who signed and verified the plaint was or was not duly
authorised—Said fact was neither pleaded in the plaint nor it was said so in the affidavit
in ex parte proof, therefore, the person who singed the pleadings on behalf of the plaintiff
was not competent to sing and verify the plaint—Suit was not competently instituted and
the same was dismissed in circumstances. PLD 2003 Kar. 156
Failure to sign written statement—Trial Court closed the defence of defendants
for such failure—Appellate Court dismissed the appeal on the ground that neither
defendants signed written statement nor made any request to Trial Court to permit them
to sign the same, thus, no indulgence should have been shown to them and discretion
41
exercised by Trial Court was apt and proper—Validity—Such sort of approach to

determine the lis was not appreciated—Duty of the Court was to do substantial justice—
Defendants had been made to suffer simply on a technical ground—Much time of the
Courts had been wasted on such a very trivial issue, which could have been resolved
simply by passing an order calling upon the defendants to sign their written statement—
S.C set aside the impugned orders and remitted the case to Trial Court for its decision on
merits. PLD 2002 S.C491
15. Verification of pleadings. (1) Save as otherwise provided by any

law for the time being in force, every pleading shall be verified [on oath or
solemn affirmation] at the foot by the party or by one of the parties pleading or
by some other person proved to the satisfaction of the Court to be acquainted
with the facts of the same.
(2) The person verifying shall specify, by reference to the numbered
paragraph of the pleading, what he verifies of his own knowledge and what he
verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall
state the date on which and the place at which it was signed.
Court Decisions
Competency and authority of person filing suit. High Court extended opportunity to
plaintiff to cure illegality and to file fresh plaint after verification, same was filed. This
has fully met objection raised by defendant. Even otherwise, non-compliance of
provisions of Rule 15 & 16 of Order VI C.P.C. is mere technicality and could be cured
even at later stage. PLJ 2000 Kar. 95 = 2000 CLC 1455.
O. VI, Rr. 14, 15 & O. XXIX, R. 1—plaint filed by unauthorized person—Maintainability
—Authority to sign and verify plaint on behalf of corporation—proof—Defendant
objected to the maintainability of the suit on the ground that the suit was filed by the
person who was not duly authorized by the plaintiff-corporation—Validity—such fact
could only be shown in the evidence whether the person who signed and verified the
plaint was or was not duly authorised—Said fact was neither pleaded in the plaint nor it
was said so in the affidavit in ex parte proof, therefore, the person who singed the
pleadings on behalf of the plaintiff was not competent to sing and verify the plaint—Suit
was not competently instituted and the same was dismissed in circumstances. PLD 2003
Kar. 156
16. Striking out pleadings. The Court may at any stage of the
proceedings order to be struck out or amended any matter in any pleading which
may be unnecessary or scandalous or which may tend to prejudice, embarrass or
delay the fair trial of the suit.
17. Amendment of pleadings. The Court may at any stage of the

proceedings allow either party to alter or amend his pleadings in such manner
and on such terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real questions in
controversy between the parties.
Court Decisions
Scope—Amendment can be allowed in the pleadings at Any stage even by the
First and Second Appellate Court, or in revision or even in appeal before the supreme
Court—Where such amendment is allowed the other side must be afforded an
opportunity to meet such amendment which can be provided by permitting to file an
additional written statement to lead further evidence—Where in a suit for pre-emption
an amendment was allowed after lapse of eleven years which had adversely affected the
interest of the other party as the said amendment had changed the status of the plaintiffs
from “co-sharers” to that of “co-owners” and no proper opportunity to lead evidence
was afforded to controvert the claim of preferential right made on the basis of ownership
in the estate, Supreme court converted the petition for leave to appeal into an appeal,
accepted the same and judgment impugned was set aside with the direction that
amended written statement be filed by the other party and necessary evidence be led to
controvert the preferential rights claimed as owners in the estate. PLD 2003 SC 379
Amendment of pleading—Limitation—No limitation is prescribed for making
an amendment, but such amendment by itself is no proof of its truth or correctness—
Amendment having been sought, in the present case, after more than seven years from
the institution of first written statement, delay in making such plea though could not be a
bar by any limitation but the factual aspect thereof could not be ignored and the
inferences which were very strong in the case could not be avoided. PLD 2003 SC 688
Amendment in written statement—Defendants in their written statement

admitted Para. 1 of the plaint as correct—After framing of issues and after recording
evidence of plaintiff case was set for recording evidence of defendants—Defendants after
about five ears of framing of issues and recording evidence of plaintiff filed application
seeking amendment in their written statement—Such application was dismissed by Trial
Court but was allowed in appeal—Validity—Amendment was sought to the effect that
statement in Para. I of written statement as ‘correct’ was result of some oversight and that
it should be allowed to be written as ‘incorrect’ or ‘denied’—Such an amendment which
had militated against earlier stance of defendants was opposed by the plaintiff as the
amendment had the character of converting admission into a denial which had effect of
changing the cope and complexion of controversy—Effect of such amendment would be
not only the total reopening of the matter, but would also require a de novo trial—
Amendment in question was rightly refused by Trial Court and Appellate Court was not
justified to allow the same—Court no doubt could exercise power of amendment in
pleadings liberally, but facts and circumstances of the case and effect of sought for
amendment could not be ignored while exercising said power—Constitutional petition
43
was accepted and order of the appellate Court was declared as of no legal effect. PLD
2003 Lah. 192
Amendment of pleadings -- Suit was filed by proprietary concern in the year

1996— Defendant raised a plea that the suit was not maintainable under O.30, R.10.
C.P.C. and the same was liable to be rejected—Plaintiff sought amendment in plaint—
Validity—Any amendment at such belated stage being hit by the provisions of S.3 of the
Limitation Act, 1908, could not be allowed—Where the suit was not maintainable at the
time of institution, amendment could not be allowed to make the proceedings in the suit
so as to make it maintainable resulting in change of the character of the suit by
introducing new plaintiff for which no application was made by the party—High Court
declined to allow amendment in the plaint—Plaint was rejected in circumstances. PLD
2002 Kar. 315
Applicant sought amendment in the application under S.12(2). C.P.C. to the
effect that the applicant may lead evidence but subject to its admissibility under the law
—Contention of applicant was that since the facts were not elaborately stated in the
original application under S.12(2), C.P.C., therefore, respondents might raise objection
that no evidence could be led regarding these facts, which though were not new facts,
but only amplification or details of the plea of fraud raised in the original application and
if the amendment was allowed the respondents might also have opportunity of meeting
the same and lead evidence in order to do complete justice—Validity—Record showed
that pleas raised in the application seeking amendment were actually the amplification of
the plea of fraud already made in the main petition, therefore, the argument of the
respondents that applicant wanted to set up a case different from the case already made
out was not correct and thus, was repelled—Amendment sought, in fact, was such which
should have been allowed in order to do complete Justice and decide the controversy
arising between (he parties conclusively and effectively, 2001 SCMR 1984
Petitioner having already made certain important concessions in written
statement and permission to amend plaint bound to nullify effect of those admissions-
Plea regarding transaction not amounting to sale but to retransfer of land, held, would
completely change complexion of defence-Concurrent decision of Courts below,
disallowing amendment upheld. 1979CLC573
P L D 1956 Lah. 614 and A I R 1921 P C 50 distinguished. P L D 1960 Lah.. 975 ref.
Only question involved in this case was as to whether High Court was legally
competent to allow amendment of plaint when revision petition "was filed by appellants
against decision on issue of partial pre-emption by trial court. There was no order passed
by trial Court one way or other with regard to amendment of plaint- High Court had no
jurisdiction to assume role of trial court and allow amendment of plaint. PLJ 1996 SC
(AJK) 335 = 1996 MLD 1959.
Order of A.D.J. allowing amendment in plaint, would not fall under catagory of
"case decided". Therefore, High Court is not competent to entertain revision application
against such order. PLJ 2000 Pesh. 13.
Rules of procedure are framed to advance cause of administration of justice.

Held: It is wrong to suggest that an amendment relevant to issues in controversy cannot
be allowed at stage of second appeal. PLJ 1990 AJK 11.
Application made for amendment of written reply. Allowed by Trial Court
Appellate Court disallowing amendment holding that power of amendment under
O.VI. R. 17 extends to pleadings only and not to written reply. Held: District Judge
wholly misconstrued la and totally ignored general power of amendment vesting in a
Civil Court under Section 153, C.P.C. PLJ 1988 SC 116.
Where Amendment sought had not effect of changing nature of suit or

substitution of a new or different cause of action. Only consequential relief of possession
sought to be added. Held: Impugned order is violative of well-established principles laid
down by superior Courts. PLJ 1988 Lah. 294.
If an ancillary or incidental relief can be granted on the basis of evidence on the

record the formal amendment in the plaint for inclusion of such a relief can be allowed
by the court at any stage—Dispute, in the present case, related to the character of the
transaction and the witnesses produced by the plaintiff had state that the defendants in
the suit were in possessing of the land as mortgagee whereas the evidence of the
defendants was that they having purchased the land were in its possession as owner—
Interpretation of a document being a mixed question of law and fact, the disputed
document, in the present case, was a registered document which could conveniently be
interpreted in the light fo evidence available on record for determination of the true
character of transaction and therefore, in the given situation, it was not at all necessary to
remand the case for framing of a specific issue—Controversial question relating to the
character of the transaction also being question of law and fact could be decided on the
present record without recording any further evidence and the omission of seeking
consequential relief of possession, could be removed by granting permission for
amendment in the plaint even in appeal- Omission of prayer of ancillary or consequential
relief in the suit was a curable defect and would not materially affect the suit and the
plaintiff in case of success in the suit could take necessary steps for redemption of the
mortgage through a separate suit under West Pakistan Redemption and Restitution of
Mortgaged Land Act, 1964 as the case may be. PLD 2003 SC 271
O.VI R. 17 permits the court to allow either party to alter or amend his pleadings
in such a manner and on such terms as may be just and this permission can be granted at
any stage of the proceedings. This provision vests a court with jurisdiction to allow
amendment of the pleadings before it but does not vest a court with jurisdiction to
disturb or take away finality given to a particular order by S. 1050). PLJ 1996 Lah. 1446 =
1996 MLD 553.
No doubt amendment of pleadings can be allowed at any stage and delay in

itself is no ground to refuse an application for amendment unless it is likely to cause
injustice to any party. A party is not at liberty to sleep over and raise attack according to
schedule suiting its own requirements. Before condoning a delay and especially
45
inordinate delay, it must be ensured that same may not destroy rights of other party. In
this case, petitioners categorically denied availability of cause of action and they claimed
adverse possession in their written statement. Petitioners could lead evidence on these
issues and having failed to do so, they cannot be allowed to supplement their evidence or
to Hll any lacuna by amendment to written statement. PLJ 1994 Lah. 232 = 1994 CLC
955.
Application seeking amendment of plaint has rightly been dismissed in view of

law laid down by S.C that in old pre-emption suits filed, under Punjab Pre-emption Act,
1913, a pre-emptor cannot be allowed to add plea of Talabs as grant of such permission
would result in encouraging litigants to tell lies and hence, take false pleas before a court
of law. PLJ 1995 Lah. 96 = 1995 CLC 1209.
Amendment allowed by trial court but set aside by Additional District Judge, in
revision. Amendment of plaint did not fail within meaning of "case decided", therefore,
very revision before Additional District Judge was not proper. In this case, very title of
plaintiff being in dispute, he would be debarred from bringing a suit in future, for such
declaration under principle of constructive res-judicata as well as under Order II Rule 2
ofC.P.C. Trial court had rightly allowed amendment. Petition accepted and order of trial
court restored. PLJ 1995 Pesh. 1 = 1994 MLD 2332.
Suit for recovery. Deccree to the extent of Rs. 8,000 passed in compromise.
Default in payment of installments. Execution petition filed. Decree Holder's application
for amendment of execution petition accepted. Appellants/ judgment debtor's contention
is that petition could have been amended uptil time it was registered but thereafter it
could neither be amended nor additional amount be claimed. The provisions of rules 11
to 14 and 17 of Order 20I, C.P.C. being - not applicable, mere appearance of words
amended and amendment in clauses 2 and 3 of rule 17 does not make it applicable to
case and Execution Court has exercised jurisdiction vested in it. in accordance with law
and facts. Argument that execution petition cannot be amended subsequently, is
misconceived. PLJ 1995 Lah. 240 = PLD 1995 Lah. 95.
Plaintiffs subsequent application for amendment of his plaint introducing therein

prayer for possession was dismissed by Trial Court as also by the High Court. Validity.
Courts below had dismissed amendment sought on the ground that the same would
change nature of suit and was sought after considerable delay from the date of objection
raised by defendant in -his written statement that possession of land was with him.
Validity. Conversion of declaratory suit to suit for possession would not change-nature
of suit in substance, in as much. as basically plaintiffs intend to annul gift deed and by
amendment they were seeking additional relief of possession. Amendment could not be
disallowed merely because that was being sought after expiry of period of four years.
Orders of Courts below disallowing amendment of plaint were set aside and plaintiffs
were directed to amend their respective plaints on payment of specified costs. PLJ2000
SC (AJ&K) 237.
Plaintiff had filed declaratory suit with consequential relief of possession

alleging that gift deed in question was got executed by defendant fraudulently. Plaintiff
in his application for amendment was seeking cancellation of sale-deed in question, on
the ground that respondent had got executed such document for consideration of
specified amount out of which he had paid more than half of such specified price. Courts
below had found that amendment sought to be introduced would change complexion of
suit and would also change its cause of action. Perusal of contents of plaint originally
framed and amendment application would show that facts which plaintiff was seeking
to introduce by way of amendment were tantamount to introduce altogether a different
case from the one which he had originally set up in his plaint. Documentary evidence is
to be produced before first hearing of suit or the same must be included in list of
documents which party to suit intends to produce in evidence to support bis plea.
Plaintiff by seeking amendment not only wants to introduce altogether a different case,
but he seeks to bring on record sale deed which was of doubtful authenticity. Order
passed by trial Court and confirmed by High Court refusing amendment to plaintiff does
not suffer from any legal infirmity. PLJ2000 SC (AJ & K) 281.
Petitioner seeks to substitute his prayer from declaration to possession which

could not be denied on ground of delay and since the nature of suit would also be not
changed, because relief of possession being ancillary to decree of cancellation of sale
deed. Moreover, cause of action will remain same. Question as to whether possession
was taken over from tenant of petitioner before filing of suit shall be determined at trial.
Trial Court did proceed with ' material irregularity amounting to illegality in disallowing
amendment. PLJ 1999 Lah. 847.
Amendment in written statement. Amendment sought by defendant (petitioner)
in written' statement if allowed would change complexion of plea taken by him in
written statement. Plaintiff who had successfully established his case before trial Court
by producing evidence in support of his claim would have to once again establish his
title over property in question, in as much as if amendment was allowed then case has to
be remanded to trial Court- Amendment cannot be permitted in pleadings if the same
amounts to cause prejudice- Plaintiff having succeed from trial Court to High Court,
amendment in written statement if allowed would deprive him from affirmative findings
recorded in his favour. PLJ 2000 SC 1837.
Application to amend written statement. District Judge heard arguments on

application only and he was to announce orders on application only. Appeal was to be
decided afterwards. He was not supposed to dispose of appeal first which was to result
in dismissal of application having been rendered infructuous. Appeal has apparently
been dismissed without hearing arguments and order does not stand to any valid reason.
Case remanded for decision of appeal. PLJ 1994 Pesh. 8 = PLD 1994 Pesh. 17.
47
Amendment in pleadings at revisional stage. Reasonable amendment in

pleadings can be allowed where the same were necessary for purpose of determining real
questions in controversy irrespective of delay in asking for such relief in order to achieve
ends of complete justice provided proposed amendment would not altogether change
character of suit and does not introduce entirely new cause of action. Proposed
amendment in specific para substituting figure of "41 acres" for "51 acres" can be safely
allowed without any hesitation as sufficient evidence had already been placed on record
and no prejudice was likely to he caused to any of the partiesi Even counsel for
contesting respondent has conceded to such extent- Proposed paragraph intended to be
added in plaint has elaborated case precisely pleaded in plaint narrating background of
grant of land in favour of ancestor of petitioner and its legality and validity, therefore, in
view of the fact that oral and documentary evidence having already been adduced by
parties, such elaboration of earlier pleading would advance cause of justice and suppress
mischief and same as not likely to prejudice defence of respondent, therefore, contents, of
proposed paragraph except its grounds which were argumentative in nature, were
allowed to be incorporated in plaint. Such point could be decided without further oral
evidence. Order of remand passed by Board of Rev. having been specifically and
expressly assailed and impugned in plaint it would not be just and proper to assail such
order of remand at such belated stage of proceedings. Delay in asking for proposed
amendment was neither fatal nor of much consequence. Nature of suit inspite of
proposed amendments, would remain un-changed and un-altered and there would be no
change in the character of suit. Application for amendment was allowed to the extent
mentioned in the order of Court. PLJ 1999 Kar. 852 = 1999 MLD 2968.
Amendment in prayer clause of plaint. Trial Court and Appellate Court did not
allow petitioner (plaintiff) to make amendment in prayer clause of plaint. Validity. Main
dispute between parties was regarding excavation of well in his land while he had been
restrained by respondents only on basis of earlier agreement about which petitioner
through his evidence had brought on record that the same had become un-enforceable
and invalid against petitioner, in as much as, such agreement had not been implemented
in tetter and spirit by other share-holders. Appellate Court had allowed petitioner to
challenge validity of said agreement by a separate suit, therefore, in order to curtail
unnecessary litigation between parties, it would be appropriate to allow petitioner to
make amendment as prayed for in his application for amendment of plaint. Petitioner
was thus, allowed to amend prayer clause seeking nullification of agreement while
respondent would be allowed to file amended written statement, if they so desire. Trial
Court was directed to frame relevant issue regarding amended version and to record
evidence thereon and then decide the case in accordance with law. PLJ 2000 Qta. 103 =
2000 MLD 1919.
Application in forma pauperis. Amendment sought in schedule of application.

Trial Court disallowing amendment in such application. Effect. Amendment in schedule
of application pertaining to property was being sought by petitioner without there being
any objection from the other side. Trial Court ought to have allowed such amendment
before f9ing case for decision whether application in forma pauperis was to be allowed or
rejected in terms of O.2017I C.P.C.. Trial Court was directed to allow amendment as
refusal would be illogical and incorrect. Case was remanded to trial Court to proceed
further with application in forma pauperis in accordance with law. PLJ 2000 Lah. 887 =
2000 CLC 1442.
18. Failure to amend after order. If a party who has obtained an order
for leave to amend does not amend accordingly within the time limited for that
purpose by the order, or if no time is thereby limited then within fourteen days
from the date of the order, he shall not be permitted to amend after the
expiration of such limited time as aforesaid or of such fourteen days, as the case
may be, unless the time is extended by the Court.
49
ORDER _VII
PLAINT
1. Particulars to be contained in plaint. The plaint shall contain the

following particulars :--
(a) the name of the Court in which the suit is brought :
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so
far as they can be ascertained;
(d ) where the plaintiff or the defendant is a minor or a person of
unsound mind a statement y to that effect ;
(e) the facts constituting the cause of action and when it arose ;
(f) the facts showing that the Court has jurisdiction ;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion
of his claim, the amount so allowed or relinquished; and'
(i) a statement of the value of the subject-matter of the suit for the
purposes of jurisdiction and of Court-fees so far as the case
admits.
Court Decisions
Some relief not claimed in plaint. Effect. Where some relief had not been
claimed m plaint, suit, could not be dismissed. Proper course would be to direct plaintiff
to amend plaint and pay requisite court fee. Party to litigation could be given relief to
which the same was found entitled, no matter the same had not been specifically
claimed. PLJ 1999 Lah. 12.
Statement of the value of the subject-matter and Court-fees - Unless required

amount of court-fee chargeable on document (which term includes plaint also) as was
indicated in schedules, was not paid, it shall not be taken to be of any validity-Such rule
however, does not lead to a necessary corollary that the plaint which was not adequately
stamped was not a 'proper plaint' at all in the eyes -of law and further that for the
limitation purposes suit shall be deemed to have been instituted only when proper and
required court-fee was paid on it. 1987 C L C 2428
P L D 1984 SC 289 ref.
In order to determine proper court fee payable on plaint in a particular suit.

correct principle was that plaint as a whole should be looked at and it was substance of
plaint and not its ostensible form which really mattered for determination of court-fee.
2000 M L D 1611
Plaintiff in his suit had sought a declaration to the effect that he was owner in
possession of suit land and also that gift deed and the sale-deed in favour of respondents
were illegal, ineffective and inoperative against his rights-Said relief flew from
declaration itself-Suit filed by plaintiff fell under S.7(4)(c) of Court Fees Act, 1870 read
with Sched. II, Art. 17(iii) of said Act. 2000 M L D 1611
PLD 1985 SC (AJ&K) 1; PLD 1991 Azad J&K 66 and PLD 1981 SC' (AJ&K) 55 ref.
Value of suit for purpose of court-fee does not bring a suit within the jurisdiction of the
Court where the subject-matter of the suit exceeds its pecuniary limits of jurisdiction.
2002 C L C 1382
PLD 1972 Kar. 251; PLD 1959 Kar. 802; PLD 1964 Kar. 386 and PLD 1971 Kar. 682 ref.
Failure to raise objection to valuation-Effect-If no objection was taken to
valuation stated in plaint, same, held: could not subsequently be assailed-Defendants not
filing written statement within ninety days prescribed for the purpose would be deemed
to have not raised such objection-Where no objection was taken td valuation mentioned
in plaint, same would determine forum of appeal. 1986 M L D 1182
1920 L L J 300; 1980 C L C 589; 132 P R 1894 p. 500; P L D 1961 S C.349; P L D 1980 Lah.
471; P L D 1981 S C (A J & K 55); A I R 1920 Lah. 112 and,AIR 1915 Lah. 185 ref.,
2. In money suits. Where the plaintiff seeks the recovery of money

the plaint shall state the precise amount claimed;
but where the plaintiff sues for mesne profits, or for an amount which
will be found due to him on taking unsettled accounts between him and the
defendant, the plaint shall state approximately the amount sued for.
3. Where the subject-matter of the suit is immovable property.

Where the subject-matter of the suit is immovable property, the plaint shall
contain a description of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a record of settlement of
survey, the plaint shall specify such boundaries or numbers.
Court Decisions
Inconsistency between description by boundaries and by areas. Where there is
any dispute, or inconsistency between area and boundaries in a document and if
boundaries are definite then it is boundaries which are to prevail. PLJ 2000 Lah. 1223.
Denial in a written statement. Denial in a written statement should be specific

.and not evasive. Where an allegation of fact in a plaint is not denied specifically or by
necessary implication it shall be taken to be admitted except against a person under
disability. PLJ 1996 Kar. 1039 = PLD 1996 Kar. 475.
51
4. When plaintiff sues as representative. Where the plaintiff sues in

representative character the plaint shall show not only has an actual existing
interest in the subject-matter, but that he has taken the steps (if any) necessary to
enable him to institute a suit concerning it.
5. Defendant's interest and liability to be shown. The plaint shall

show that the defendant is or claims to be interested in the subject-matter, and
that he is liable to be called upon to answer the demand.
Court Decisions
Any statement recorded by Judge during course of inspection is of no
evidentiary value unless person whose statement was recorded was subjected to cross-
examination or opposite party had opportunity .to do so. This principle is equally
applicable on question of admitting plaint as a piece of evidence. PLJ 1996 Karahci 874
= 1997 CLC 152.
6. Grounds of exemption from limitation law. Where the suit is

instituted after the expiration of the period prescribed by the law of limitation,
the plaint shall show the ground upon which exemption from such law is
claimed.
7. Relief to be specifically stated. Every plaint shall state

specifically the relief which the plaintiff claims either simply or in the alternative,
and it shall not be necessary to ask for general or other relief which may always
be given as the Court may thing just to the same extent as if it had been asked
for. And the same rule shall apply to any relief claimed by the defendant in his
written statement.
8. Relief founded on separate grounds. Where the plaintiff seeks

relief in respect of several distinct claims or causes of action founded upon
separate and distinct grounds, they shall be stated as far as may be separately
and distinctly.
9. Procedure of admitting plaint; Concise statement. 1[(I) The

plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if
any) which he has produced alongwith it.]
(l A) The plaintiff shall present with his plaint :-
(a) as many copies on plain paper of the plaint was' there are
defendants, plus two extra copies, unless the Court, by reason of
the length of the plaint or the number of the defendant's or for any
other sufficient reason, permits him to present a like number of
concise statements of the nature of the claim made, or of the relief
claimed in the suit, in which case he shall present such
statements ; and
(b) draft forms of summons and fees for the service thereof.
(2) Where the plaintiff sues, or the defendant or any of the defendants
is sued, in a representative capacity, such statements shall show in what capacity
the plaintiff or defendant sues or is sued.
(3) The plaintiff may be leave of the Court, amend such statements so
as to make them correspond with the plaint.
(4) The chief ministerial officer of the Court shall sign such list and
copies or statements if, on examination, he finds them to be correct.
Legal Amendments
Subs. by ordinance XII of 1972.
10. Return of plaint. (1) The plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit should have been
instituted.
(2) Procedure on returning plaint. On returning a plaint the Judge
shall endorse thereon the date of its presentation and return, the name of the
party presenting it, and a brief statement of the reasons for returning it.
Court Decisions
Return of plaint by Trial Court for presentation before proper Court after
decree in suit--Trial Court having become functus officio after decreeing the suit, could
not have returned plaint. 1997 C L C 768
Person aggrieved against such decree could have availed remedy of appeal and
revision--Trial Court in earlier round of litigation itself could not have directed return of
plaint without expressly recalling decree in question, which was not done--Order of
return of plaint was, thus, without jurisdiction--Suit originally valued, however, was
within jurisdiction of Trial Court in first round of litigation--Valuation of the original suit
as determined under S.3, Suits Valuation Act, 1887, for purposes of jurisdiction would be
the determining factor and not market value or sale price of subject-matter of suit--First
Trial Court's view that parties having agreed that pre-emption amount be fixed at
specified amount, therefore, Court lacked jurisdiction was incorrect--Plaintiff being
successful pre-emptor and he alone being not responsible for the events which took place
after the decree, was entitled to equity--Plaintiffs failure to deposit decretal amount in
53
first round of litigation (due to subsequent return of plaint to him) being due to the act of
Court, he would be entitled to extension of time-- 1995 M L D 737
1994 SCMR 2039 and PLD 1958 SC 104 rel.
Question of dowry at time of institution of suit was admittedly to be tried by
Civil Court and not by Family Court as relevant schedule under Family Court Act was
not amended by then. There is no doubt that matter was treated from very beginning as
Civil suit and not as family case though Ahlmad had given it wrong number. Since
matter in issue in respect of territorial jurisdiction had been resolved and decided in
favour of respondent/ plaintiff. therefore, there was no need to frame issue on that
controversy while trying main suit nor there was any need to give fresh finding on that
point. In fact matter had been settled in respect of territorial jurisdiction, same court
could not have jurisdiction to re-open controversy and to give finding contrary to its
order passed earlier, whereby it had assumed jurisdiction at Lah.. There is no patent or
latent legal flow, irregularity or illegality in order passed by learned Addl, District Judge,
Lah.- Petition being meritless is accordingly dismissed. PLJ 1999 Lah. 1062.
Return of plaint—Courses open to plaintiff to be adopted after return of plaint

elaborated. PLD 2003 Kar. 284
Presentation of a second plaint. Whether can be treated as continuation of old
proceedings or should be considered a fresh proceeding. Presentation of second plaint to
Court having jurisdiction after return of the same under Order 7, Rule 10 CPC by earlier
Court having no jurisdiction is not to be treated as continuance of old proceedings and
that its presentation to Court of proper jurisdiction should be considered to be a fresh
proceeding for all intent and purposes. First plaint was returned to plaintiff under Rule
119 of SC CR (OS) for a period of 15 days to remove defects. But same was not presented
within time given by office. Plaintiff neither pleaded in this suit nor at relevant time had
made any request to concerned officer for extention of time. On earlier plaint, office had
noted objection of delay in filing suit which was not answered in subsequent , plaint.
Thus, same objection was repeated by office of High Court. Keeping in view
circumstances and conduct of plaintiff High Court inclined to hold that plaint filed on
6.11.1995 is a fresh suit and cannot be treated as continuation of previous plaint filed on
22.11.1994. PLJ 1998 Kar. 632 = PLD 1998 Kar. 250.
Jurisdiction. Provision of O.41, R. 24, C.P.C. empowered Appellate Court to

pronounce judgment on issues not determined by Trial Court if sufficient evidence was
on record instead of remanding the same for re-trial. Order 41, R. 24 C.P.C., however,
was restricted to appeals against decrees and was not applicable to appeals against
orders. There being no finding on any of issues apart from question of jurisdiction by
Trial Court, Appellate Court was not empowered under any provision of C.P.C. to
adjudicate upon those issues. Issue of jurisdiction, however, having been decided by
Trial Court finding of 'Appellate Court on that issue that Civil Court was possessed of
jurisdiction, was correct. Judgment and decree of Appellate Court relating to decision on
merits was set aside and suit was remanded to Trial Court for decision on all issues. PLJ
1997 Peashawar 198 = 1997 CLC 477.
Pecuniary limits of jurisdiction of Civil Courts—Decision of the matter beyond

pecuniary jurisdiction—Validity—Where Trial Court had come to the conclusion that the
suit was wrongly filed before the Court as the same was beyond its pecuniary
jurisdiction, the Court should have returned the plaint under O.7, R.10, C.P.C. to the
applicant for its presentation before the competent Court having pecuniary jurisdiction in
the matter rather than to dismiss the same—Suit was dismissed by the Court on merits
which had no jurisdiction in the matter—Lower Appellate Court had rightly observed
that the Trial Court should have returned the plaint—Judgment passed by the Lower
Appellate Court did not suffer from any illegality or infirmity—, 2001 MLD 1154
Return of appeal for want of pecuniary jurisdiction. Leave to appeal was
granted to consider; that in absence of specific provision in C.P.C. for directing return of
appeal for want of pecuniary jurisdiction in First Appellate Court, whether provisions of
S. 107(2) alongwith 0. 7, R. 10 C.P.C. apply; that in the event of applicability of provision,
of 0. 7, R. 10 C.P.C, to the return of appeal, whether the party rece4ing the return of plaint
was obliged to refile the self same memorandum of appeal before proper Court of
competent jurisdiction; whether, after the return of memorandum of appeal by the First
Appellate Court, institution of amended memorandum of appeal alongwith the returned
memorandum of appeal suffer from irregularity in law affecting merits of case or was a
curable irregularity under S. 99 of C.P.C.; and whether decree sheet carrying valuation of
Rs. 25.000/- could bonafide be taken to the Court of appeal from the decree itself and not
the judgment with reference to S. 96 and 0- 41. R. 1 of C.P.C- was competent. PLJ 2001
SC 248 = PLD 2001 SC 355.
11. Rejection of plaint. The plaint shall be rejected in the following

cases: -
(a) where it does not disclose a cause of action ;
(b) where the relief claimed is under-valued, and the plaintiff, on
being required by the Court to correct the valuation within a time
to be fixed by the Court, fails to do so ;
(c) where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so ; and
(d) where the suit appears from the statement in the plaint to be
barred by any law.
Court Decisions
Rejection of plaint – Parties as well as the property involved were same
in the present suit and in the two suits filed in the past which were dismissed up
55
to the Supreme court—Present suit being third in number, plaintiff having failed
to succeed in earlier rounds attempted to succeed through the third round of
litigation—Plaint of the plaintiff, in circumstances, was rightly rejected under O.
VII, R. 11, C.P.C. PLD 2003 SC 484
Clauses (b) & (c) of O.VII, R.11, C.P.C., not applicable to High Courts.
PLD 2003 Kar. 284
Plaint could have been rejected if suit was barred under any law—Courts
below in the present case had not mentioned the law under which suit of
plaintiff was barred—Mere non-registration of lease deed would not debar
plaintiff to seek remedy of possession under S. 8 of Specific Relief Act, 1877. PLD
2003 Lah. 204
Technicalities : Technicalities should not be allowed to come in the way
of justice – Efforts should be made to provide substantial justice to parties before
Court—Requirement of law is that incompetent suit should be buried at its
inception, if same on its face is not maintainable. PLD 2003 Kar. 466
Application for rejection of plaint on the ground that the same had not
been filed by a proper person as the alleged power-of-attorney given by the
plaintiff, a foreign company, had not been attested and executed before the
Pakistan Embassy in the said country and that the Board of Directors had not
passed a resolution authorizing the person to institute the suit—Validity—points
raised in the application were disputed facts needs proof of foreign law or of any
existing agreement had to be brought on record only through evidence—
Application under O.VII, R.11, C.P.C being not maintainable in circumstances
was dismissed. PLD 2003 Kar. 420
Scope. It appears from language of a rule-11 of Order 7 that it requires
that an incompetent suit should be laid at rest at the earliest moment so that no
further time is wasted over what is bound to collapse as not being permitted by
law. A suit may be specifically barred by law and, in such an event, matter
would come under express terms of clause (d) of Rule-11 of Order 7 of Code. But,
even in a case where suit is not permitted by necessary implication of law in
sense that positive prohibition can be spelt out of legal provisions. Court has
inherent jurisdiction to reject plaint. This really amounts to saying Order 7, Rule
11 is not exhaustive. PLJ 1996 Lah. 1098 = PLD 1995 Lah. 344.
Consideration of application under O. 7, r. 11--Court for such
purpose, held, to confine itself to averments in plaint: P L D 1980 Kar. 492 P L D
1954 Sind 70 and P L D 1970 Kar. 548 ref.
Senior Civil Judge did not apply his mind and disposed of case by
rejecting plaint in a cursory manner. Though order under O.VII R. 11 CPC is
termed as decree and is appealable, but by not appealing before District Judge,
petitioners could not afterwards be debarred from assailing that order in

constitutional petition in peculiar circumstances of case. They were in fact,
neither heard by Civil court nor before Collector during acquisition proceedings.
Respondents played double game. They got compulsory acquisition proceedings
before collector stopped through an application to Commissioner, on ground of
pendency of Civil suit and got plaint of Civil suit rejected on ground of
compulsory acquisition proceedings before collector. It is duty of court before
issuing process, to determine as to whether plaint should be returned under O.7
R. 10 or rejected under O.7 R. 11 of CPC if such a case is made out. Neither plaint
could be rejected in Civil suit of petitioners nor collector could stop proceedings
for compulsory acquisition of property. PLJ 1996 Pesh. 243 = 1997 CLC 21.
Plaint did not disclose any cause of action and suit merited
dismissal. Law can be pressed into service only when a bare reading of plaint
reflects lack of cause of action or relief claimed is under valued or where relief
claimed is properly valued, but plaint written upon paper insufficiently stamped
or where suit appears from statement in plaint to be barred by any law. There is
no illegality, irregularity, misreading or non-reading of evidence to warrant
interference in findings of courts below. PLJ 1996 Lah. 471 = 1997 MLD 21.
Plaintiff having not appealed from judgment and decree passed
against him by a competent Court of law, is legally estopped from raising same
issue by way of fresh suit which on face of it neither maintainable nor lawfully
constituted. Secondly he cannot maintain a suit for declaration in respect of
documents of transfer at a belated stage of 29 years. He has no cause of action to
bring this suit. Plaintiff is unlawfully and malafidely circumventing right and
interest of contesting defendants upheld and approved at the level of Supreme
Court. He has not come with dean hands. Plaint rejected. PLJ 1997 Kar. 197 =
1997 MLD 900.
Extent. Civil Court while considering application under O.7, R. 11
C.P.C. can reject plaint while considering material available in plaint within
purview of aforesaid provision. Suit cannot be dismissed under O.7, R. 11 C.P.C.
PLJ 1999 Lah. 1630 = 1999 CLC 1396.
Purpose :-- Purpose of enactment of Order 7, Rule 11 of CPC is to
provide safe-guard against vexatious claim and to -maintain writ of court. Power
under aforesaid provision of law can only be exercised in suit where question of
limitation is being raised and suit is found barred by limitation on face of it. Suit
was filed ailer 145 days of registration of disputed deed. Delay in filing suit was
not only apparent, but also admitted by submitting application for condonation
of delay. Plaintiff/petitioner has not only failed to mention time, place and
informer but has brought suit much after required time limit. Trial court has
rightly rejected suit and appellate Court has also correctly and rightly
57
maintained in appeal. There is no reason to interfere in findings arrived at by

both Courts below. Petition dismissed. PLJ 1998 Pesh. 260 = 1999MLD1506.
Essentials. Where Court on perusal of plaint conies to conclusion
that averments made in plaint, if presumed true, plaintiff would get relief
sought, such plaint cannot be rejected for absence of cause of action. Where
defendant seeks rejection of plaint for non-disclosure of cause of action, he has to
show that even if allegations in plaint were presumed to be true, plaintiff was not
entitled to any relief. For purpose of determination whether plaint discloses
cause of action. Court has to presume that every allegation made in plaint was
true. Power to reject plaint under O.7, R. 11 C.P.C. must be exercised only if
Court comes to conclusion that even if all allegations were proved, plaintiff
would not be entitled to any relief whatsoever. PLJ 2000 Qta. 23 = PLD 2000 Qta.
61.
Determination as to rejection of plaint in terms of O.7 R. 11, C.P-C.
was required to be undertaken with reference to plaint and annexures thereof,
alone. Consideration of disputed or unadmitted material' outside plaint would
necessarily require evidence, therefore, same would not be considered while
exercising jurisdiction under O.7, R. 11, C.P.C-. Idea behind such jurisdiction was
to nip in the bud and to bury still born suit at its inception, which was eventually
bound to collapse and to avoid wastage of time of Court. To allow such
proceeding to continue would result in abuse of process of Court. PLJ 1997 Kar.
861 = I997MLD2444.
Requirements-In absence of determination of valuation of suit for
purposes of court-fee, held, neither provisions of S.10(ii) of Court Fees Act, 1870
nor that of O.7, R.11, Civil Procedure Code, 1908, under which plaint could be
rejected for non-payment of proper court-fee, would be attracted. 1986 M L D
534
1980 C. L C 186 ref.
Cause Of Action :-- Cause of action not available. Duty of Court. It is
settled law that provisions of Order 7, Rule-4 are not exhaustive. Incompetent
suit which is abuse of process of law is to be hurried at early stage. PLJ 1998 Kar.
350 = 1998 MLD 641.
Application for rejection of plaint on point of maintainability. Plaint is
silent as'to what were terms and conditions of deposit of amount with BCCI. at
London, what is date of deposit and who deposited amount on behalf of plaintiff
and who was its beneficiary etc.. Plaintiff was not able to demonstrate that any
cause of action was accrued within jurisdiction of High Court. No cause of action
is available to plaintiff, as regards territorial jurisdiction to file a claim at Kar. for
recovery of £200,000/- deposited at London, A plaintiff can seek declaration
regarding his right to any legal character or with respect to any right as to
property claimed by him. He has also to show that he apprehends infringement
of his legal status, whereas plaintiff is seeking declaration that transfer of
management of BCCI to defendant No. 1 and its subsequent merger with
defendant No. 3 and 4 be declared unlawful. He furthers seeks to declare that
defendants No. 1 and 2 are neither legal successors of former BCCI in Pakistan
nor entitled to receive and recover any of assets/money pertaining to former
BCCI, which does not fall within any of legal characters or status of plaintiff
which is a body corporate and cannot maintain suit. Suit being incompetent,
patently time barred and barred for want of jurisdiction and without cause of
action. Plaint rejected. PLJ 1998 Kar. 20 = 1998 CLC 165.
It appears that all courts including learned Judge of High Court,
dismissed suit of plaintiff either under clause (a) or clause (d) of Rule 11 of Order
7. Under Order 7 Rule 11, if a plaint does not disclose a cause of action or suit
appears to be barred by any law, at most plaint can be rejected but suit cannot be
dismissed. Plaint does disclose a cause of action and suit does not appear to be
barred by any law from statement of facts made in plaint. Prayer of plaintiff for
grant of interim injunction was rejected on account of material consideration in
mind of courts below that jurisdiction of Civil Court was barred and cardinal
principles of prima facie case, balance of convenience and irreparable loss have
been overlooked. Appeal accepted and case remanded to trial Court for
proceeding afresh in accordance with law. PLJ 1996 SC (AJK) 17= 1995 CLC
1982.
It is inherent and mandatory duty of courts to examine plaint at an early
stage and to see whether it is barred by any law. If no perusal of plaint, it-
appears that suit is barred then plaint can be rejected even in absence of any
application. PLJ 2996 Kar. &36 = 1996 MLD 76.
A suit can be rejected under O. VII R.11 CPC if the same does not
disclose a cause of action for which the plaintiff is not only to allege the bundle of
facts but is also required to show that not only the right has been infringed buts
rights to seek a relief was in existence. The provisions of Order 7 R. 7 are not
exhaustive. Therefore, if at any stage, it appears to the court that the suit is
incompetent, the parties to the suit are at liberty to draw the court's attention to
the same by way of an application and the court can decide the matter under 0. 7
R. 11 as the policy of law is that the incompetent suits should be laid at rest at the
earliest moment so that no further time is wasted over what his bound to
collapse as not being permitted bylaw. PLJ 1997 AJK 104 = PLD 3997AJ&K11 =
1997 Law Notes 778.
Petitioners are claiming , Property on account of possession whereas
property in dispute never vested in custodian or formed part of compensation
59
pol, therefore, question of its transfer to petitioners or anybody else did not arise.
If looked from this angle petitioners have no locus standi to file Civil suits.
Principles involved in rejection of plaint are two-fold. In first place, it
contemplates that a still-born suit should be properly hurried at its inception, so
that no further time is consumed in a fruitless litigation, secondly it gives
plaintiff a chance to retrace his steps, at earliest possible moment, so that, if
permissible under law, he may file a properly constituted case. PLJ 1997 Lah.
452 = 1997CLC578 = 1997 Law Notes 191.
But Court should not have rejected plaint when a specific and definite
allegation of fraud was levelled by appellant but should have enquired into
question of fraud. PLJ 1997 Kar. 965 = 1997 CLC 1260.
Defendant want rejection of plaint for non-disclosure of cause of action
has to show that even if allegations in plaint are presumed to be true, plaintiff
was not entitled to any relief. PLJ 1997 SC (AJK) 314 = 1997MLD 2952.
If after perusing plaint, comes to conclusion that averments made in
plaint, if presumed true, plaintiff may get relief sought, plaint cannot be rejected
for absence of cause of action. PLJ 1997 SC (AJK) 314 = . 1997 MLD 2952.
Notice :-- Plaint rejected for want of notice under Article 131 of the
K.D.A- Order, 1957. It has not been alleged by plaintiff whether acceptance of the
offer by defendant was outside its scope and authority. Defendant has acted
under, and in furtherance of K-D.A Order, 1957 and Rules and Regulations
framed thereunder. Therefore compliance of Article 131 was mandatory. PLJ
1996 Karwhi 836 1997 MLD 76.
A Civil Court is fully competent to consider legal objection on
maintainability of a suit raised by any party even without moving a proper
application, provided an opportunity is extended to such party who may be
effected in case of rejection of plaint and Civil court can suo moto reject a plaint
under 0. 7 R". 11 CPC after extending opportunity of hearing to plaintiff. PLJ
1996 Kar. 394 = 1996 MLD 593.
In case of rejection of plaint, plaintiff would not be precluded from
bringing fresh suit but dismissal operates as a bar to any further suit. In order to
ascertain cause of action, it is incumbent upon court to apply its mind to
averments of facts made in plaint and conclude as to whether presuming
averments to be true, it can grant relief to plaintiff or not. If court is satisfied that
on such presumption, relief can be allowed it shall not reject plaint by invoking
provisions of Order VII Rule 11 of C.P.C. PLJ 1996 SC (AJK) 17 = 1995 CLC
1982.
Barred by Law :-- Suit would not be deemed to be barred by law, for in
order to reject plaint under O.7, R.ll, C.P.C. contents of plaint were required to be
accepted on their face value. Without taking into consideration merits of

contentions which might prejudice cause of parties, application for rejection of
plaint was dismissed with observation that issue on point of limitation should be
framed alongwith issues of facts. PLJ 1997 Kamchi 871 = 1996 CLC 628.
Suit filed by plaintiff wherein he had sought declaration against order
passed by Rent Controller that finding of relationship of landlord and tenant was
illegal, inoperative, misconceived and void, was hit by provisions of S. 15(5),
West Pakistan Urban Rent Restriction Ordinance, 1959 and plaint of suit ought to
have been rejected in terms of O.7, R. 11, C.P.C.. Suit being specifically barred
under S. 15(5) of the Ordinance, plaint, was liable to be rejected. PLJ 1997 Kar.
1035 = 1997 CLC 1109 = NLR 1997 Civil 647
Where right exists, remedy is provided by law. Proceedings relating to
pre-emption suits pending during 1st August, 1986 till 26th March, 1991, cannot
be left in, an inchoate state. Interpretation must be favouring to evolve procedure
for final determination of controversy between parties, to attain finality. Plaint of
respondent discloses cause of action, relief claimed is not under valued. Orders
of rejection of plaint by trial and appellate Courts were devoid of lawful
authority as such rightly set aside by High Court. PLJ 1997 SC 1764 = PLD 1997
SC 366 = NLR 1997 Civil 391.
Barred by law and barred by limitation. Bar of limitation is traceable to
Limitation Act, therefore, it goes without saying that expression barred by any
law includes law of limitation. PLJ 2001 SC 380
Arbitration Procedings :-- All defendants were neither residents nor
working for gain within Province to which jurisdiction of said High Court
extended. Addresses of defendants in plaint related to N.W.F.P- Parties in
agreement had agreed to refer their dispute to sole arbitrator or to his nominee
who also resided outside jurisdiction of High Court at Kar.. Effect. High Court at
Kar., thus. Had no jurisdiction to entertain application for setting aside award.
Civil Court at Pesh. would be competent to entertain such suit/ application.
Provisions of O.7. R. 11, C.P.C. being not exhaustive, any incompetent suit must
be buried at initial stage in order to save defendants from hardship and rigours
of protracted trial. High Court at Kar., thus, had no jurisdiction, therefore,
provisions of Ss. 31(2) & 32, Arbitration Act, 1940 were fully attracted, whereby
plaint was liable to be rejected. PLJ 1999 Kar. 80. = 1998 CLC 1408.
Obtaining of mine for raising coal on royalty basis. Installation of new
machinery. Differences arising of between new (partners) owners and
respondents. Arbitration agreement thereof. Award entitling respondents to
receive Rs. 28 lac from new owner without making it "Rule of Court". Another
Arbitration Agreement between appellant and respondent. Award announced by
sole arbitrator behind back of - appellant. Application for making it as "Rule of
61
Court" without mentioning of previous Award. Objections against. Award was

made "Rule of Court". Appeal and Revision against. Whether Revision petition
can be filed for setting aside an Award, appeal would be competent u/S. 39(1)
(vi) of Arbitration Act, and for purpose of examining validity of a Decree, as no
specific provision has been in corporated, therefore, revision would be only
remedy available to judgment Debtor. PLJ 1998 Qta. 252 = 1998 CLC 1684.
Foreign Arbitration Award. Whether a suit possible/ maintainable in
Pakistan. Sections 32 and 33 of Arbitration Act provides that an Arbitration
agreement or award shall he contested only by an application and not by a suit.
Suit is therefore premature and plaint has been rightly rejected under Order 7
Rule 11 CPC, as being barred under law of Arbitration. Appellant's in order to
forestall enforcement of Award filed on plea that Foreign Award is no applicable
in Pakistan under Arbitration Act,, 1940. Suit of plaintiffs/appellants is, however,
clearly not maintainable for want of jurisdiction and on account of legal bar even
though award was made at Liverpool U.K. PLJ 1996 Kar. 767 = 1996 CLC 1812.
Court Fees and suit Valuation :-- Value of suit for purpose of court-fee
assessed by the appellant/plaintiff had been changed by Trial Court-Effect-
Where the valuation of the suit fixed by the plaintiff had been changed by Trial
Court valuation for appeal would be the one fixed by the Trial Court. 1999 M L
D 985
Dismissal of appeal due to deficient Court-fee-Appellate Court did not
allow at least one opportunity to appellant to make good deficiency in Court-fee-
Legality of-Appellants being consciously aware of decree for specified amount
having been passed against them, should have filed their memorandum of
appeal with Court-fee sufficient to cover the amount decreed; yet in view of rule
laid down by S.C in Siddique Khan's case reported as PLD 1984 SC 289,
Appellate Court should have allowed at least one opportunity to appellants to
make good the deficiency--Appellant, having not been afforded such
opportunity were entitled to the remand of their appeal for the grant of one
opportunity at least-Judgment of High Court was set aside, appeal was
remanded to Appellate Court for disposal regarding question of Court-fee, in
accordance with S.C judgment reported as PLD 1984 SC 289 and further disposal
of appeal thereafter as required by law. 1990 S C M R 1723
P L D 1984 SC 157 and P L D 1984 S C 289 rel.
Rejection of plaint for deficiency of court-fee in absence of determination
of valuation of suit for purposes of court-fee, held, would not be warranted-High
Court, in exercise of appellate jurisdiction would set aside such order of rejection
of plaint-Suit was decreed on payment of purchase money and plaintiff directed
to make good deficiency of court-fee within specified time failing which plaint
would be deemed to have been rejected. 1986 M L D 534
Payment of court-fee-Legal objection as to late payment of court-fee by
plaintiff, held, would be open to parties. 1986 C L C 123
Trial Court refusing obligatory adjournment to make deficiency in
court.fee, held, would be acting illegally and such order would not be sustainable
—High Court in exercise of appellate jurisdiction, set aside order of refusal to
grant obligatory adjournment with direction to Trial Court on remand of case to
decide question of pecuniary competency /incompetency afresh in accordance
with law, keeping in view failure of defendant to file written statement within
statutory period. 1986 M L D 1182
In order to determine proper court fee payable on plaint in a particular
suit. correct principle was that plaint as a whole should be looked at and it was
substance of plaint and not its ostensible form which really mattered for
determination of court-fee. 2000 M L D 1611
Plaintiff in his suit had sought a declaration to the effect that he was
owner in possession of suit land and also that gift deed and the sale-deed in
favour of respondents were illegal, ineffective and inoperative against his rights-
Said relief flew from declaration itself-Suit filed by plaintiff fell under S.7(4)(c) of
Court Fees Act, 1870 read with Sched. II, Art. 17(iii) of said Act. 2000 M L D 1611
Ordinarily plaint or memo. of appeal, held, would be treated alike for
purposes of taxing court-fee-Where there was some deficiency in court-fee in
plaint or in memo of appeal, obligatory adjournment would have to be given to
supply same. 1986 M L D 1182
P L I) 1984 S C 289 rel.
Provisions of S. 107 operates amongst others, as main link between
provisions of O. 7, r. 11(b)(c) & O. 41, r. 3, C. P. C. P L D 1984 S.C 289
Plaint and memo randum of appeal can be treated at par in procedural
respects in accordance with enabling and very wide-Provisions of S. 107(2), C. P.
C. No exception in that respect justified-Order 41, r. 3, C. P. C. to be read with
other relevant provisions of C. P. C. regarding drawing up of proceedings of
"plaint" as applicable to appeal-Expression "here in before" used in O 41, r. 3, C.
P. C. used in a wider sense as relatable to O. 41, rr. 1 & 2 which would be
attracted by reference to S. 107(2), C. P. C.-Order 7, r. 11(b), (c) applicable to
plaints as also to memorandum of appeals-Order 41, r. 3, C. P. C., held, not
exhaustive in that behalf.
Plaint, held, is a plaint even if not properly stamped. P L D 1984 S.C 289
Failure of supply of proper court-fees in context of Court Fees Act, 1870
and S. 149 and O. 7, r. 11(c), C. P. C. can at best be equated with non prosecution
and not with non-institution or presentation of matter/ document nor with bar
63
of limitation-Considerations in this behalf for exercise of discretion under Ss. 148

& 149, C. P. C. and relevant provisions of Court Fees Act, 1870 should be
different from those under S. 5, Limitation Act, 1908-Held, when considering
options for exercise of discretion for grant of time for supply of deficiency in
court-fees considerations relevant to bar of limitation riot to be taken into
account.- P L D 1984 S.C 289
The failure to supply proper court-fee in the context of the Court Fees Act
and section 149. and Order 7, rule 11(c), C. P. C. can at best be equated with non-
prosecution and not with non-institution or presentation of the
matter/document nor with the bar of limitation. Accordingly, considerations in
that behalf for exercise of discretion under sections 148, 149, and the relevant
provisions of Court Fees Act should be different from those under section 5 of
the Limitation Act, which in any case does not apply to the suits. To apply the
latter to the former cannot be justified on any rule of interpretation.
When considering the options for exercise of discretion for grant of time
for supply of deficiency in the court-fee, considerations relevant to bar of
limitation shall not be taken into account. P L D 1984 S.C 289
P L D 1983 S C 227 and P L D 1984 S C 157 re-affirmed
Enabling provisions of O. 7, r. 11(b)(c), held, applicable to appeals. P L D
1984 S.C 289
Order of Court to make good such deficiency-Word "contumacy" in
context used in general dictionary sense and not as a word of art-Plaintiff, if
allowed time to supply deficiency in court-fees under O. 7, . r. 11(c) as a matter of
course and obligation and plaintiff fails to do so, and asks for more time without
some justification that would amount to his being obstinate and stubborn in
ignoring or defying requirement and authority of law-Repetition of such conduct
by plaintiff amounts to contumacy. P L D 1984 S.C 289 P L D 1981 Lah. 261
approved.
Mala fide,-"Mala fide" equated with "malice in fact", nature and
connotation whereof would depend upon circumstances of each case and
situation vis-a-vis personal. motive involved-Thing done in bad faith against
another party concerned in a lis that can partake of "wrongful loss" or "wrongful
gain" but if none of other parties to lis was involved and such act was regarding
revenue of State, then that will not ordinarily reflect on lis between parties
directly. P L D 1984 S.C 289 P L D 1974 S C 151 ref.
Plaintiff being guilty of contumacy and acting in positive mala fides
manner in regard to deficient court-fee may be refused discretion of Court under
S. 149, C. P. C.-Court on discovery of an omission/error in valuation or
deficiency in court-fee, shall acting under O. 7, r. 11(b), (c) allow time to plaintiff
to make correction and supply deficiency and plaint in that case, shall be deemed
to have validly been filed on date of original presentation notwithstanding fact
that court-fee was supplied after expiry of period of limitation-Plaintiff, if guilty
of contumacy or commits positive act of mala fides, plaintiff could be, held,
disentitled to further exercise. P L D 1984 S.C 289
Deficiency, making up of - It is not lawful to reject a plaint under Order
7, rule 11(c), C.P.C. without first granting time to the plaintiff to supply the
deficient court-fee. Order 7, rule 11 is in a way a penal provision and shall be
construed strictly so as not to be resorted to unless the conditions for exercise of
such drastic power are satisfied. In the clause relevant here namely (c) it is
provided that the plaint shall be rejected thereunder only when after the grant of
requisite time the plaintiff has failed to supply the required/specified court-fee.
Thus, it is mandatory and obligatory for the Court to grant time under clause (c).
The question of discretion does not arise. And it is so whether the occasion arises
at the very institution of the plaint of at a later stage.
If as afore-explained .time is to. be allowed as an obligation under Order
7, rule 11(c), then the question arises as to how the 'discretion' element in section
149, C. P. C. or for that matter section 28, Court Fees Act can be interjected in it. It
cannot be. P L D 1984 S.C 289 P L D 1979 S C 821 clarified.
Time, if granted as a discretionary measure, party concerned will not get
advantage mentioned in second part of S. 149, C. P. C., but if time is granted
under O. 7, r 11(c) party will not lose that advantage-Time when granted under
O. Vlt, r. 11(c) same is granted nevertheless for supply of deficient court-fees,
which being main object of S. 149, C.P.C., therefore, advantages under S. 149 will
be available to beneficiary of exercise of power under O. 7, r. l1(c), C. P. C. P L D
1984 S.C 289 P L D 1970 S C 37 ; 1972 S C M R 179 P L D 1979 S C 821 ref.
Court must first grant time to make up deficiency -Party failing to
comply-Court can reject plaint at any stage of suit or receive fee afterwards. 1980
C L C 1124
Appellate Court have powers to grant time to pay requisite court. fee on
memorandum of appeal-Power of granting time no doubt discretionary, yet
discretionary powers not to be exercised in an arbitrary manner so as to deprive
a litigant of his valuable right. 1980 C L C 1124
Discretion vested in Courts to reject a suit or a memorandum of appeal
for failure to make up deficiency in court-fees-Not to be exercised arbitrarily or
in a fanciful manner but in a judicious manner keeping in view all circumstances
of case, so as to advance ends of justice and period originally granted for making
up deficiency may if necessary be extended in interest of justice.- 1980 C L C 1124
Change of law effected by Punjab Finance Act, 1973, S. 8 was of only
regulatory and procedural type and no one has a vested right in any particular
65
procedure-Court-fee leviable on first appeal in such case to be calculated in

accordance with Punjab Finance Act, 1973 and not law which prevailed at time of
filing of suit at a tine earlier to said amendment Court-fees paid at time of filing
suit, held, deficient for appeal in circumstances. P L D 1984 S.C 289
Plaintiff did not appeal against Trial Court's order directing him to pay
proper court-fee, but filing appeal against rejection of plaint--Effect--Order of
Court directing plaintiff to pay proper court-fee was not appealable; apart from it
plaintiff had option to postpone challenge to said order till a final order viz. of
rejection of plaint had been passed against him--Plaintiff, under provision of S.
1051), Civil Procedure Code, while preferring appeal against rejection of plaint
could call in question legality of order directing him to pay proper court-fee--
Finding of Courts below that order of Trial Court directing plaintiff to pay
proper court-fee having not been challenged had become final, was erroneous;'
Courts below should have considered plaintiffs assertion that he had paid proper
amount of court-fee. 1992 S C M R 1306
Plaintiff in appeal against rejection of plaint could call in question legality
of order directing him to pay proper court-fee. 1992 S C M R 1306
Trial Court prior to making final judgment and decree in favour of pre-
emptor did not determine court-fee payable by pre-emptor/plaintiff and it was
for first time while deciding suit that court-fee was quantified and suit was
decreed in favour of pre-emptor subject to making up of deficiency in court-fee
up to specified date-Plaintiff, being entitled to grant of opportunity to make up
deficiency in court-fee, no fault, held, could be found with judgment of Trial
Court granting time to plaintiff to make up deficiency in court-fee. 1989 M L D
394 P L D 1984 S C 289 ref.
Trial Court proceeded Illegally if reject plaint without determining
Court-fee and granting time to plaintiff to make up deficiency. PLJ 1989 Lah. 332.
Payment after stipulated period. Whether plaint was to be
rejected. Court must first determine with exactitude amount of Court-fee payable
on a document filed before it and give opportunity to litigant to make good
deficient Court-fee within a given time and if default takes place, it can then have
recourse to punitive provisions of Order 7, Rule 1Kb) & (c) of C.P.C. In this case,
there was no such determination and consequent requisition ever made by Trial
Court. Held: Plaintiff was neither negligent nor contumacious in matter of
payment of Court-fee and could not be visited with penalty for rejection of his
plaint on that score. PLJ 1991 Lah. 458
Effect on limitation-Mere non-payment of court-fee by plaintiff within
period of limitation or making up deficiency in court-fee after expiry of
limitation, held, would not render suit of plaintiff otherwise instituted within
time, to be time-barred unless plaintiff had first been asked by Court to pay
definite amount of court-fee by a specified date and he had defaulted to comply
with that order. 1988 C L C 1311 P L D 1984 S C 289 ref.
Limitation to be saved in cases which law requires the Court to allow
plaintiff to correct valuation of relief claimed in suit which must necessarily
entail making up deficiency in stamp paper affixed on plaint-Time to be
automatically enlarged in cases in which Court has discretion to grant time to
pay whole or part of court-fee prescribed-Plaintiff when required to correct
valuation of relief claimed in suit, shall further be required to supply requisite
stamp paper and on compliance, that shall have same force and effect as if such
fee had been paid in first instance. P L D 1984 S.C 289 P L D 1970 S C 37
reiterated.
Partial rejection of plaint, held. was not contemplated by law. 1986 C L C
126 AIR 1931 Mad. 175; P L D 1977 Kar. 256; 1979 C L C 742 and A I R 1962 Pat.
189 rel.
Order appealed against pertaining to partial rejection of plaint by Civil
Judge-Order illegal on face of it and not warranted by law-Where a cause of
action disclosed in plaint, plaintiff, held, had a right to have a fair trial of his case,
to produce evidence and have a judicial opinion of Court on merits of his cause--
Plaint can only be rejected when allegation made in plaint, when accepted in
mode and form, does not entitle him to a relief-Summary guillotining of Civil
proceedings, held further, could hardly be approved-Order passed by Civil
Judge partially rejecting plaint set aside and case remanded for decision afresh in
accordance with law. 1986 C L C 126 1979 C L C 570; 1980 S C M R 314; P L D
1973 Kar. 653; P L D 1979 Lah. 865; P L D 1982 Lah. 716 and 1981 S C M R 993 ref.
Consideration of application under O. 7, r. 11--Court for such purpose,
held, to confine itself to averments in plaint: P L D 1980 Kar. 492
Diplomatic and Privileges Councillors Act, Petitioner being diplomatic
Mission claiming immunity from legal action. Entitlement of petitioner to claim
immunity. Extent. Perusal of provision of S. 86-A, C.P.C. would show that unless
its requirement was fulfilled no suit could be brought against a mission on the
plea of exemption to general provision of law on the subject. Parties having not
disputed their status, cannot confine themselves to provisions of Slate Immunity
Ordinance 1981 and Diplomat Privileges Councillors Act, 1972. British High
Commission being a mission as defined under Diplomat Privileges Act. 1972 and
respondent being Member of the Staff of Mission breach of contract of service if
any, between petitioner and respondent cannot be adjudicated by Courts in
Pakistan due to availability of immunity to petitioner from Civil, Criminal and
administrative jurisdiction of Courts in Pakistan as per dictates of S. 4 of
Diplomat Privileges Councillors Act, 1972. Fact that respondent having filed
67
written statement would be deemed to have submitted to jurisdiction of Court

was devoid of force in the light of S. 4(3)(B) of State Immunity Ordinance, 1981.
Petitioner before filing. written statement had filed application under O. 7 R. 11
C.P.C.. therefore, filing of written statement under direction of Court which
contained preliminary objection regarding maintainability of suit neither
intervened in the proceedings nor would be deemed to have submitted to
jurisdiction of Court in Pakistan. Petitioner's application for rejection of plaint in
terms of O.7. R. 11 C.P.C. was allowed and plaint in suit for damages filed by
respondent was rejected in circumstances. PLJ 2000 Lah. 1974.
Appellate Court setting aside an order of Trial Court rejecting a plaint
and remitting case to Trial Court for disposal in accordance with law. Such order
of Appellate Court is not an order under O.41, R. 23 and is not appealable under
O.XLUI, R. 1(4). PLJ 1977 Kar. 454.
Appeal. Rejection. Had petitioners made payment of deficient Court
fees, memorandum of appeal would have been validated retrospectively from
date on which it had been so filed. Insufficiently stamped memorandum of
appeal does not become a memorandum of appeal and is just a piece of paper.
Appeal was, therefore, liable to be dismissed on account of failure of petitioners
to make payment of court fees. PLJ 1996 Lah. 957 = 1996 MLD 1074.
Port Authority is authorised to issue notice for determination of
lease on ground of breach of any covenant of lease. By averments made in plaint,
respondents had admitted that they have committed breach of conversant by
sub-letting and parting with portion of leased plot in contravention of lease
agreement, Estate Manager was competent to issue notice under Section 3 of Kar.
Port Trust Act. Notice to respondent under Section 3 of Act is under provisions
of Port Authorities Lands and Buildings (Recovery of Possession) Ordinance,
1962 and jurisdiction of Civil court is barred. PLJ 1995 Kar. 194 = PLD 1995 Kar.
192.
At hearing of revision, respondent No. 2 owned filing of revision
and submitted that he had authorised respondent No. 3 for its filing. Board of
Rev. was possessed of revisional jurisdiction and it cannot be successfully
asserted that it acted without " jurisdiction. Even otherwise, jurisdiction of Civil
court appears to be expressly barred in Section 26 of Ordinance. Even if not
expressly ousted, jurisdiction of Civil court was impliedly barred. Since
jurisdiction did not exist in Civil court, it rightly refrained to proceed further by
rejecting plaint. Justice having already been done between parties, it shall not be
equitable to interfere for upsetting decision of M.B.R. given years ago. PLJ 1994
Lah. 367 = 1994 MLD 1513.
Plaint, rejection of. Appeal against. Deficiency in Court-fee.

Order of Trial Court cannot be construed to have been passed under Order 7,
Rule ll(c). It is obligatory under this provision to determine Court-fee and then
require plaintiff to make up deficiency within a time to be fixed by Court. This
course has not been resorted to by learned Trial Court. PLJ 1988 Lahore 193.
Suit was filed without first giving notice to defendant/Authority
under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be
filed against defendant/Authority except after expiry of s9ty days' written notice
delivered to or left at the Office of Authority, suit filed by plaintiff was not
maintainable. Mandatory provision of law having not been complied with plaint
was rejected especially when plaintiff had not come up before Court with clean
hands and had no cause of action against defendant/ Authority. PLJ 2000 Kar.
251 = PLD 2000 Kar. 161.
Natural justice. Principles of. Rejection of plaint for showing no cause of
action and for lack of jurisdiction of Court. Plaintiffs having not returned
agricultural loan, they were served notice under Ss. 81 & 82, West Pakistan Land
Rev. Act, 1967 for recovery of loan amount. Trial Court's order of rejection of
plaint was affirmed by Appellate Court. Status. Plaintiffs were admittedly not
associated with proceedings or enquiry which was undertaken for determining
as to whether any amount was due and recoverable as arrears of land Rev..
Deprivation of plaintiffs of opportunity of being heard by appropriate Authority.
before passing adverse order against them would amount to violation of
principle of natural justice and could be equated with violation of fundamental
right. Finding of two Courts below, however, that Civil Court had no jurisdiction
to entertain and adjudicate upon suits in question did not require to interfered
with, yet their finding ordering rejection of plaint c.ould not be sustained and
same was modified to the effect that plaints filed by plaintiffs were to be
returned to them for filing in appropriate Court, having jurisdiction to entertain
and adjudicate upon issues and disputes involved therein. PLJ 1998 Kar. 687 =
1998 CLC 790.
12. Procedure on rejecting plaint. Where a plaint is rejected the Judge

shall record an order to that effect with the reasons for such order.
13. Where rejection of plaint does not preclude presentation of

fresh plaint. The rejection of the plaint on any of the grounds hereinbefore
mentioned shall not of its own force preclude the plaintiff from presenting a
fresh plaint in respect of the same cause of action.
69
14. Production of document on which plaintiff sues. (1) Where a

plaintiff sues upon a document in his possession or power, he shall produce it in
Court when the plaint is presented, and shall at the same time deliver the
document or a copy thereof to be filed with the plaint.
(2) List of other documents. Where he relies on any other documents
(whether in his possession or power or not) as evidence in support of his claim,
he shall enter such documents in a list to be added or annexed to the plaint.
15. Statement in case of documents not in plaintiff's possession or

power. Where any such document is not in the possession or power of the
plaintiff, he shall, if possible, state in whose possession or power it is.
16. Suits on lost negotiable instruments. Where the suit is founded

upon a negotiable instrument, and it is proved that the instrument is lost, and an
indemnity is given by the plaintiff, to the satisfaction of the Court against the
claims of any other person upon such instrument, the Court may pass such
decree as it would have passed if the plaintiff had produced the instrument in
Court when the plaint was presented and had at the same time delivered a copy
of the instrument to be filed with the plaint.
17. Production of shop-book. (1) Save in so far as is otherwise

provided by the Bankers' Books Evidence Act, 1891, where the document or
which the plaintiff sues is an entry in a shop-book or other account in his
possession or power, the plaintiff shall produce the book or account at the time
of filing the plaint, together with a copy of the entry on which he relies.
(2) Original entry to be marked and returned. The Court, or such
officer as it appoints in this behalf, shall forthwith marks the document for the
purpose of identification; and after examining the comparing the copy with the
original, shall, if it is found correct, certify it to be so and return the book to the
plaintiff and cause the copy to be filed.
18. Inadmissibility of document not produced when plaint filed. (1)

A document which ought to be produced in Court by the plaintiff when the
plaint is presented or to be entered in the list to be added or annexed to the
plaint, and which is not produced or entered accordingly, shall not, without the
leave of the Court, be received on his behalf at the hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-
examination of the defendant's witnesses, or in answer to any case set up by the
defendant or handed to a witness merely to refresh his memory.
Court Decisions
Production of documents at subsequent stage. Discretion of Court. Provision of
O.7, R.8(1) postulates that any document which ought to be produced in Court by
plaintiff with plaint was to be presented and if the same was not so produced, such
document would not be received in evidence without leave of the Court. Discretion has,
thus. been given to Court to receive document at subsequent stage even under R. 18(1) 0.
7, C.P.C- Sub-Rule(2) of R. 18 however, seems to be exception to general rule which
provides that nothing therein would apply to documents, which were to be produced in
answer to any case set up by defendant. Plea of wa4er having been raised by defendants
in their written statement plaintiff had no reason to produce relevant document to
relevant plea of wa4er along with the plaint. High Court under S. 155 C-P.C. can suo-
motu correct illegal exercise of jurisdiction by Court below. S.C also has inherent powers
under O.43. Rr. 1 to 5 S.C Rules to do complete justice. Order passed by Trial Court
declining to admit documents on behalf of plaintiffs, was thus, illegal exercise of
jurisdiction which has to be set at naught. PLJ 2000 SC (AJ&K) 161 = PLD SC (AJ&K) 38.
19. Address to be filed with plaint. (1) Every plaint or original

petition shall be accompanied by a proceeding giving an address at which
service of notice, summons or other process may be made on the plaintiff or
petitioner.
(2) Plaintiffs or petitioners subsequently added shall immediately on
being so added file a proceeding of this nature.
(3) The address filed under this rule shall be entered in the Register of
suits maintained under Order IV, rule 2.
20. Nature of address to be filed. An address for service field under

the preceding rule shall be within the local limits of the District Court within
which the suit or petition is filed, or of the District within which the party
ordinarily resides.
21. Consequence of failure to file address. Where a plaintiff or

petitioner fails to file an address of service, he shall be liable to have his suit
dismissed or his petition rejected by the Court suo moto or any party may apply
for an order to that effect, and the Court may make such order as it thinks just.
22. Procedure when party not found at the place of address. (1)
Where a party is not found at the address given by him for service and no agent
or adult male member of his family on whom a notice, summons or other process
can be served is present, a copy of the notice, summons or other process shall be
fixed to the outer door of the house.
71
(2) If, on the date fixed, such party is not present, another date shall
be fixed and a copy of the notice, summons or other process shall sent to said
address by registered post, and such service shall be deemed to be as effectual as
if the notice, summons or other process had been personally served.
23. Service on pleader. Where a party engages as pleader, notices,

summons or other processes for service on him shall be served in the manner
prescribed by Order III, rule 5, unless the Court directs service at the address for
service given by the party.
24. Change of address. A party who desires to change the address for
service given by him as aforesaid shall file a verified petition* and the Court may
direct the amendment of the record accordingly. Notice of such petition shall be
given to such other parties to the suit as the Court may deem it necessary to
inform, and may be either served upon the pleaders for such parties or be sent to
them by registered post, as the Court thinks fit.
25. Service by other modes. Nothing in these rules shall prevent the
Court from directing the service of a notice, summons or other process in any
other manner, if, for any reasons, it thinks fit to do so.
26. List of legal representatives of plaintiff. (1) In every suit of the

nature referred to in rule 3, Order XXII, the plaint shall be accompanied by a
statement giving: -
(a) the names and addresses of the persons who, in the event of the
death of the plaintiff, may be made a party as his legal
representatives ;
(b) the name and address of the person who, in the event of the death
of the plaintiff, shall intimate such fact to the Court, furnish the
Court with the names particulars and addresses of the legal
representatives of the plaint to be made a party.
(2) A plaintiff may at any time :--
(a) file in the Court an amended list, of his presumptive legal
representatives ;
(b) nominate another person, in the place of the. person nominated
under clause (b) of sub-rule (1), for the purpose of that clause.
(3) A nomination made under cause (b) of sub-rule (1) shall, unless
varied under clause (b) of sub-rule (2), remain in force throughout the pendency
of the suit and any proceedings arising therefrom, including appeal, revision and
review.
HIGH COURTS AMENDMENTS :--LAHORE

R. 2. In the second para. of rule 2 after 'defendant' insert :-- 'or for
movables in the possession of the defendant, or of debts of which the value he
cannot, after the exercise of reasonable diligence, estimate', and after the word
'amount' where it last occurs, insert 'or value'.
R. 17. Add the following Explanation after 0. 7, R. 17, sub-rule (2);

'Explanation. When a shop-book or other account written in a language
other than English or the language of the Court is produced with a translation or
transliteration of the relevant entry, the party producing it shall not be required
to present a separate affidavit as to the correctness of the translation or
transliteration, but shall add a certificate on the document itself that it is a full
and true translation or transliteration of the original entry, and no examination
or comparison by the ministerial officer shall be required except by a special
order of the Court'. Add the following rules: -
19. Every plaint or original petition shall be accompanied by a

proceeding giving an address at which service of notice, summons or other
process may be made on the plaintiff or petitioner. Plaintiff or petitioners
subsequently added shall, immediately on being so added, file a proceeding of
this nature.
20. An address for service filed under the preceding rule shall be
within the local limits of the District Court within which the suit or petition is
filed, or of the District Court within which the party ordinarily resides, if within
the limits of the territorial jurisdiction of the Lahore High Court.
21. Where a plaintiff or petitioner fails to file an address for service,

he shall be liable to have his suit dismissed or his petition rejected by the Court
suo moto or any party may apply for an order to that effect, and the Court may
make such order as it thinks just.
22. Where a party is not found at the address given by him for service
and no agent or adult male member of his family on whom a notice, summons or
other process can be served is present, a copy of the notice, summons or other
process shall be affixed to the outer door of the house. If on the date fixed such
party is not present another date shall be fixed and a copy of the notice,
73
summons or other process shall be sent to the registered address by registered

post, and such service shall be deemed to be as effectual as if the notice,
summons or other process had been personally served.
23. Where a party engages a pleader, notices, summons or other

processes for service on him shall be served in the manner prescribed by 0. 3, R.
5, unless the Court directs service at the address for service given by the party.
24. A party who desires to change the address for service given by
him as aforesaid shall file a verified petition, and Court may direct the
amendment of the record accordingly. Notice of such petition shall be given to
such other parties to the suit as the Court may deem it necessary to inform, and
may be either served upon the pleaders for such parties or be sent to them by
registered post, as the Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing the
service of a notice, summons or other process in any other manner, if for any
reasons, it thinks fit to do so (24-11-1927).
N.-W.F.P.
In the second paragraph of rule 2 after the word 'defendant' insert 'or for
movables in the possession of the defendant, or for debts of which the value he
cannot after the exercise of reasonable diligence, estimate' and after the word
'amount' where it last occurs insert 'or value'.
R. 14. Add to sub-rule (2) of rule 14 the words 'and shall also produce
such document as are in his possession or power'.
Add to following new rules 19-22.
19. Same as rule 19 in Lahore.
20. Same as R. 20 in Lahore, except that for the words 'of the
territorial jurisdiction of the High Court of Judicature at Lahore' occur the words
'of the North-West Frontier Province'.
21. Same as R. 21 in Lahore.
22. Same as R. 24 in Lahore.

SINDH
R. 9. In sub-rule (1) of rule 9 for the words 'and if the plaint is
admitted... present such statements' substitute the following: - 'and shall present
alongwith the plaint as many copies of it on plain paper as there are defendants;
on application made the Court may by reason of the length of the plaint or the
number of the defendants or for any other sufficient reason accept instead a like
number of concise statement of the nature of the claim made, or of the relief
claimed in the suit, presented alongwith the plaint. Add the following new rules
19-26. :--
19. Address to be filed with plaint or original petition. Every plaint

or original petition shall be accompanied by a memorandum in writing giving an
address at which service of notice, or summons or other process may be made on
the plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall,
immediately on being so added, file a memorandum in writing of this nature.
20. Nature of address to be filed. An address for service filed under

the preceding rule shall be within the local limits of the District Court within
which the suit or petition is filed, or if cannot conveniently give an address as
aforesaid, at a place where a party ordinarily resides.
21. Consequences of failure to file address. Where a plaintiff or

petitioner fails to file an address for service, he shall be liable to have his suit
dismissed or his petitioner rejected by the Court suo moto or any party may
apply for an order to that effect, and the Court may make such order as it thinks
just.
22. Procedure when party not found at the place of address. Where a
party is not found at the address given by him for service and no agent or adult
male member of his family on whom a notice or process can be served is present,
a copy of the notice or process shall be affixed to the outer door of the house If on
the date fixed such party is not present another date shall be fixed and a copy of
the notice, summons or other process shall be sent to the address supplied by
that party by registered post pre-paid of acknowledgment (which pre-payment
shall be made within one month from the date originally fixed for a hearing) and
such service shall be deemed to be as effectual as if the notice or process had
been personally served.
75
23. Service of notice on pleaders. Where party engages a pleader,

notice or process on him shall be served in the manner prescribed by Order 3,
rule 5, unless the Court directs service at the address for service given by the
party.
24. Change of address. A party who desires to change the address for
service given by him as aforesaid shall file a fresh memorandum in writing to
this effect and the Court may direct the amendment of the record accordingly.
Notice of such memorandum shall be given to such other parties to the suit as
the Court may deem it necessary to inform, and may be served either upon the
pleaders for such parties or be sent to them by registered post, as the Court
thinks fit.
25. Rules not binding on Court. Nothing in these rules shall prevent
the Court from directing the service of a notice or process in any other manner, if
for any reasons, it thinks fit to do so.
26. Applicability to notice under Order 21, rule 22. Nothing in the
rules shall apply to the notice prescribed by Order 21, rule 22.
ORDER_VIII
WRITTEN STATEMENT AND SET-OFF

1. Written statement. The defendant may, and, if so required by the
Court, shall, at or before the first hearing or within such time as the Court may
permit, present a written statement of his defence:
1
[Provided that the period allowed for filing the written statement shall
not ordinarily exceed [thirty] days].
Legal Amendments
1. Inserted by Ordinance XII of 1972.
Court Decisions
Object—Trial Court is required under the law to pass such an order keeping in
view facts of the case as pleaded in the plaint which should clearly indicate whether the
Court requires a written statement so that the controversies arising from the pleadings
can be decided effectively and finally. PLD 2002 S.C630
1987 SCMR 1365 and 1991 SCMR 2527 ref.
Written statement, non-filing of—Penal consequences—Penal consequences of
pronouncement of judgment against a defendant would follow when he fails to file
written statement when so required by the Court—Such provisions of O.8, C.P.C. being
penal in nature would have to be strictly construed/applied— Whenever reasonable
doubt would arise regarding its interpretation or implementation, the same would have
to be resolved in favour of the victim of their application—Requirements of O.8, R.10,
C.P.C. would have to be established like those of O.17, R.3, C.P.C. which are similarly
penal in nature. PLD 2002 S.C630
1987 SCMR 1365 ref.
Expression 'no further opportunity would be granted by it to file written

statement' as used by Court in its order— Effect—Such expression used by the Court
was sufficient to disclose its intention that the Court had required the defendant to file
written statement. PLD 2002 S.C630
PLD 1994 SC 874 ref.
Expression 'last opportunity to file written statement' or 'no further

opportunity would be granted', non-using of such expression by the Trial Court—
Effect—Where no such expression was used by the Trial Court, the rules laid down in
77
Hakumat Bibi and Azad Hussain does reported as PLD 1987 SC 22 and PLD 1994 SC 874,
respectively were not attracted in circumstances. PLD 2002 S.C630
PLD 1987 SC 22 and PLD 1994 SC. 874 distinguished.
Extension of time to file written statement—Striking off defence—Time given

for filing of written statement ordinarily would not exceed thirty days, but no penalty
had been prescribed in case of failure on the part of defendant—Trial Court was vested
with discretion as well as jurisdiction to extend time to file written statement—Defence of
defendant for non-filing of written statement could only be struck off when defendant
who, by order of Court, was required to file written statement, had failed to comply with
the same. 2001 M L D 746
1987 SCMR 1365 ref.
Failure to raise objection to valuation..Effect..If no objection was taken to

valuation stated in plaint, same, held: could not subsequently be assailed..Defendants not
filing written statement within ninety days prescribed for the purpose would be deemed
to have not raised such objection..Where no objection was taken td valuation mentioned
in plaint, same would determine forum of appeal. 1986 M L D 1182
1920 L L J 300; 1980 C L C 589; 132 P R 1894 p. 500; P L D 1961 S C.349; P L D 1980 Lah.
48; P L D 1981 S C (A J & K 55); A I R 1920 Lah. 112 and AIR 1915 Lah. 185 ref.,
Plea raised by defendant—Defence plea based on factual aspect, howsoever,

plausible was of no significance and value, without supportive and corroborative
evidence—Plea raised by the defendant was not proved in circumstances. 2002 CLC 96
2. New facts must be specially pleaded. The defendant must raise

by his pleading all matters, which show the suit not to be maintainable, or that
the transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite-party by surprise,
or would raise issues of fact not arising out of the plaint, as, for instance fraud,
limitation, release, payment, performance or fact showing illegality.
3. Denial to be specific. It shall not be sufficient for a defendant in

his written statement to deny generally the grounds alleged by the plaintiff, but
the defendant must deal specifically with each allegation of the fact of which he
does not admit the truth except damages.
Court decisions
Judgment on admission—Non-denial of a document in written statement would
not amount to admission of liability of claim, which otherwise required settlement
through documentary evidence. PLD 2003 Kar. 253
Suit for settlement of accounts by Airline Company against its Sales Agent—
Plaintiff alleged in the plaint that statement of accounts issued by defendant showing
amount of sale proceeds of airline tickets was annexed therewith—High court
considering reply in written statement as evasive partly decreed the suit to the extent of
amount shown in such statement—Validity—Defendant in written statement had denied
plaintiff’s claim—Non-commenting upon such statement of account in written statement
would not constitute admission of defendant nor any inference of the nature could be
drawn to believe something for which law required proof through leading evidence by
parties nor same could be treated as admission of liability by defendant—Both parties
had filed suits against each other and accounts were yet to be settled—Such statement, in
circumstances, having come from custody of defendant, even though not specifically
disputed, would not constitute an admission. PLD 2003 Kar. 253
Non-denial of a fact in written statement could not be construed as admission
and that two to be equated as “unequivocal”, “clear” and “unambiguous”. PLD 2003
Kar. 253
Kar. 253Written statement--Issues raised would have to be related to averments made in
pleadings--Absence of specific objection in written statement--No amount of evidence
produced could be considered unless a fact was pleaded specifically, evidence in support
thereof could not be adduced . 1985 C L C 432
Specific denial.Absence of.Borrower firm getting loan against security of goods
stored in godown.Godowns under control and supervision of plaintiff Bank..Firm
throughout, pleading (in written statement and cross.plaint) security being destroyed
due to negligence and breach of duty committed by Bank but nowhere stating Bank not
entitled to recover amount due to these reasons.Firm voluntarily giving adjustment of Rs.
1,35,525.87 to Bank.Held, in fact of admission, plea raised by firm as to Bank being not
entitled to recover amount, not tenable. 1983 C L C 428
4. Evasive denial. Where a defendant denies an allegation of fact in

the plaint, he must not do so evasively, but answer the point of substance. Thus,
if it is alleged that he received a certain sum of money, it shall not be sufficient to
deny that he received that particular amount, but he must deny that sum or any
part thereof, or else set out how much he received. And if an allegation is made
with diverse circumstances, it shall not be sufficient to deny it alongwith those
circumstances.
Court Decisions
79
construed as admission and that two to be equated as “unequivocal”,
“clear” and “unambiguous”. PLD 2003 Kar. 253
5. Specific denial. Every allegation of fact in the plaints if not denied
specifically or by necessary implication, or stated to be not admitted in the
pleading of the defendant, shall be taken to be admitted except as against a
person under disability:
Provided that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission.
Court Decisions
Judgment on admission—Non-denial of a document in written statement would
not amount to admission of liability of claim, which otherwise required settlement
through documentary evidence. PLD 2003 Kar. 253
Kar. 253
Kar. 253
Whether admission made in written statement could be allowed to resile while
making amendment in written statement. No doubt admissions were made by defendant
about rights of plaintiff and entitlement to allot land in question. But subsequently, it
transpired that they have no right to allot this land to plaintiff. This is a subsequent
development. However, right and entitlement of defendant to allot suit property to
plaintiff have been specifically raised and challenged in joint written statement filed by
defendants. Plaintiff is not seeking any relief against defendant. Admissions made by
respondents are of no help to plaintiff Even if this application is allowed no prejudice
would be caused to plaintiff. PLJ 1996 Kar. 845 = 1996MLD1924.
6. Particulars of set-off to be given in written statement. (1) Where

in suit for the recovery of money the defendant claims to set-off against the
plaintiff's demand any ascertained sum of money legally recoverable by him
from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
Court, and both parties fill the same character as they fill in the plaintiff's suit,
the defendant may, at the first hearing of the suit, but not afterwards unless
permitted by the Court, present a written statement containing the particulars of
the debt sought to be set-off.
(2) Effect of set-off. The written statement shall have the same effect
as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment
in respect both of the original claim and of the set-off; but this shall note effect
the lien, upon the amount decreed, of any pleader in respect of the costs payable
to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a
written statement in a answer to a claim of set-off.
Illustrations
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary
legatee. B dies and D takes out administration to B's effects. C pays Rs. 1,000 as surety for
D; then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy,
for neither C nor D fills the same character with respect to the legacy as they fill with
respect to the payment of the Rs. 1,000.
(b) A dies intestate and in debt to B. C takes out administration to A's
effects ad B buys parts of the effects from C. In a suit for the purchase money by C
against B, the latter cannot set-off the debt against the price, for C fills two different
characters, one as the vender to B, in which he sues B, and the other as representative to
A.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected
to insure B's goods and is liable to him in compensation which he claims to set-off. The
amount nor being ascertained cannot be set-off.
(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A
for Rs. 1,000. The two claims being both definite pecuniary demands may be set-off.
e) A sues B for compensation on account of trespass. B holds a promissory
note for Rs. 1,000, from A and claims to set-off that amount against any sum that A may
recover in the suit. B may do so, for, as soon as A recovers, both sums are definite
pecuniary demands.
81
(f) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A
alone.
(g) A sues B and C for Rs. 1,000 B cannot set-off a debt due to him alone by
A.
(h) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C
surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the
debt of Rs. 1,000.
Court Decisions
Plea of set-off—Counter-declaratory decree — Appellate Court, while
dismissing the suit, awarded a decree in favour of defendant on the basis of his
counterclaim made in written statement—-Validity—Claim of set-off under O.8, R.6,
C.P.C. and under doctrine of equitable set-off was available to defendant, but his claim
for a counter-declaratory decree was not tenable in law—Counter-declaratory decree did
not fall within the ambit of set-off, therefore, it could only be a counterclaim—Assuming
that counter-declaratory decree could be awarded in favour of defendant, then plaintiffs
were acquired to be put to notice and a written statement in the form of replication by
plaintiffs to the claim of defendant was required to be obtained by Trial Court—Failure
to call for a replication and failure to provide proper opportunity on such score, had
caused prejudice to plaintiff, which was a material irregularity—High Court accepted the
revision petition, set aside the judgments and decrees of Courts below and remanded the
case to Trial Court for its decision afresh after allowing the plaintiff an opportunity to file
replication as a written statement to counterclaim of defendant and allowing the parties
to produce additional evidence, 2002 CLC 1029
Counter-claim in written statement—Nature of set-off—Provisions for setting

up a counterclaim are not available in C.P.C.— Nature of set-off has been defined in O.8,
R.6, C.P.C. which is provided as weapon of defence for balancing the claim of plaintiff
and that too in a money suit. 2002 CLC 1029
PLD 1983 SC 5 ref.
Doctrine of equitable set-off—declaratory decree under the garb of

counterclaim is not covered by the doctrine of equitable set-off, which permits the
defendant on equitable consideration to raise a plea of set-off even in respect of
unascertained sum of money, but the basic principle remains that it has to be a claim of
money to balance the claim of plaintiff. 2002 CLC 1029
PLD 1983 SC 5 ref.
7. Defence or set-off founded on separate grounds. Where the

defendant relies upon several distinct grounds of defence or set-off founded
upon separate and distinct facts they shall be stated, as far as may be, separately
and distinctly.
8. New ground of defence. Any ground of defence which has arisen

after the institution of the suit or the presentation of a written, statement
claiming a set-off may be raised by the defendant or plaintiff as the case may be,
in his written statement.
9. Subsequent pleadings. No pleading subsequent to the written

statement of a defendant other than by way of defence to a set-off shall be
presented except by the leave of the Court and upon such terms as the Court
thinks fit, but the Court may at any time require a written statement or
additional written statement from any of the parties and fix a time for presenting
the same.
10. Procedure when party fails to present written statement called

for by Court. Where any party from whom a written statement is so required
fails to present .the same within the time fixed by Court, the Court may
pronounce judgment against him, or make such order in relation. to the suit as it
thinks fit.
Court Decisions
Discretion of Trial Court—Even if the provisions of O.8, R.10, C.P.C. are
attracted, the Trial Court is not bound to pass order for closing defence of defendant, for
it confers discretion on the Court to pass order as envisaged by O.8, R.10, C.P.C.—
Whenever the law confers on any Court discretion to make an order, the same has to be
exercised on application of judicial mind based on relevant considerations, in just and
proper manner to advance the cause of justice and not whimsically and arbitrarily. PLD
2002 S.C630
Time given for filing of written statement ordinarily would not exceed thirty
days, but no penalty had been prescribed in case of failure on the part of defendant—
Trial Court was vested with discretion as well as jurisdiction to extend time to file
written statement—Defence of defendant for non-filing of written statement could only
be struck off when defendant who, by order of Court, was required to file written
statement, had failed to comply with the same. 2001 M L D 746
It should always be absolutely clear from proceedings that written statement on
account of which penalty is sought to be imposed was "required", by Court. It was
neither as of right (Rule 1) nor as a result" of permission (Rule 9). Use of word "required"
is not without tigniGcance. It does not permit a routine order without application of
mind to "requirement" and/or need. Therefore, it is essential that whenever a written
statement is to be made subject to penal Rule 10, there should be proof on record that
Court had "required" it by application of mind to need and that too in a speaking order.
Without same, many innocent parties would be trapped in a technicality without fully
realising implications. PLJ 2001 SC 1215 = 2001 SCMR 1001
83
Penal consequences of pronouncement of judgment against a defendant would

follow when he fails to file written statement when so required by the Court—Such
provisions of O.8, C.P.C. being penal in nature would have to be strictly
construed/applied— Whenever reasonable doubt would arise regarding its
interpretation or implementation, the same would have to be resolved in favour of the
victim of their application—Requirements of O.8, R.10, C.P.C. would have to be
established like those of O.17, R.3, C.P.C. which are similarly penal in nature. PLD 2002
S.C630
Though Rule 10 of Order 8 gives powers to court to announce judgment even

without recording evidence once party fails to fue written statement, but consensus is
otherwise and it has consistently been held that failure to fUe written statement though
deprives defendant to file it at a subsequent stage but proceedings in suit are to continue
ex parts in which, short of filing written statement, defendant can nevertheless
participate and can even cross examine plaintiff's witnesses. PLJ 1994 Pesh. 45 (DB) =
PLD 1994 Pesh. 161.
On petitioners' failure to submit his written statement, respondent's suit for

possession with mense profits were decreed without recording evidence or making any
reference to the documents filed alongwith the plaint. Decree remained intact in appeal.
If an order is to be passed under Order 8, Rule 10, CPC, the Court has to look into the
averments of the party and see if his claim is based on some footing or not. Order Vin,
Rule 10 does not stipulate that whatever relief has been demanded, has to be granted
even if not proved from facts and circumstances of case. Claim for possession with mense
profits could ordinarily be granted, if plaintiff had proved it either through oral or
documentary evidence. In either case, evidence has to be brought on record. Only order
passed on the basis of some oral or documentary evidence could be said a judicious
order. Civil Judge has passed a slipshod and mechanical order, which was set aside. PLJ
2000 Lah. 2402.
None-supplying of copy of plaint is not a ground for non-filing of written

statement—Defendant, however, having not been provided sufficient opportunity for
filing of written statement, order in question debarring defendant to file written
statement was set aside—One opportunity was provided to defendant to file his written
statement ruling which Court would be empowered to pass appropriate order under the
law. PLJ 2002 Lah.. 1845
PLD 2001 Lah.. 143 ref
Closing of defence—Order closing defence under O.8, R.10, C.P.C. passed by

Trial Court was upheld by High Court—Respondents/judgment-debtors could not be
permitted to reopen issues in appeal against preliminary decree, they could either
challenge order or could await for final decision—Defendants having opted to challenge
order of closing right of filing written statement in High Court and remaining
unsuccessful defendants could not again attack same at the time of appeal against final
decree. 2002 MLD 879
11. Address for service. (1) Every party, whether original added or
substituted, who appears in any suit or other proceeding, shall, on or before the
date fixed in the summons, notice or other process served on him, file in Court a
proceeding stating his address for service.
(2) Such address shall be entered in the Register of suits to be
maintained under Order IV, rule 2.
(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be to
addresses for service filed under this rule.
12. Consequence of failure to file address. (1) Where a party fails to

file an address for service as provided in the preceding rule, he shall be liable to
have his defence, if any, struck out and to be placed in the same position as if he
had not defended.
(2) The Court may pass an order under sub-rule (1) suo moto or on
the application of any party.
13. List of legal representatives of defendant. (1) In every suit of the

nature referred to in rule 4, Order XXII, the written statement shall be
accompanied by a statement giving: -
(a) the names and addresses of the persons who, in the event of the
death of the defendant, may be made a party as his legal
representatives ;
(b) the name and address of the person, who in the event of the death
of the defendant, shall intimate such fact to the Court, furnish the
Court with the names, particulars and addresses of the legal
representatives of the defendant and make an application for the
legal representatives to be made a party;
(2) A defendant may at any time ;
(a) file in the Court an amended list of his presumptive legal
representatives ; and
(b) nominate another person in the place of the person nominated
under clause (b) of sub-rule (1), for the purposes of that clause.
(3) A nomination made under clause (b) of sub-rule (1) shall unless
varied under clause (b) of sub-rule (2), remain in force throughout the pendency
of the suit and any proceedings arising therefrom including appeal, revision or
review.
85

The following be added to rule 1: 'and with such written statement, or if there is no
written statement, at the first hearing shall produce in Court all documents in his
possession or power on which he bases his defence or any claim for set-off.'
(2) Where he relies on any other documents as evidence in support of
his defence or claim for set-off he shall enter such documents in a list to be added
or annexed to the written statement, or where there is no written statement to be
presented at the first hearing. If no such list is so annexed or presented, the
defendant shall be allowed a further period of ten days to file this list .of
documents.
(3) A document which ought to be entered in the list referred to in
sub-clause (2) but which has not been so entered, shall not, without the leave of
the Court, be received in evidence on the defendant's behalf at the hearing of the
suit.
(4) Nothing in this rule shall apply to documents produced for cross-examination
of plaintiff's witnesses or headed to a witness merely to refresh his memory.'
Add the following rules:
11. Every party whether original, added or substituted, who appears

in any suit or other proceedings shall on or before the date fixed in the summons,
notice or other process served on him as the date of hearing, file in Court a
proceeding statement his address for service; and if he fails to do so, he shall be
liable to have his defence, if any, struck out and to be placed in the same position
as if he had not defended. In this respect the Court may act suo motii or on the
application of any party for an order to such effect and the Court may make such
order as it thinks just.
12. Rules 20, 22, 23, 24 and 25 of 0. 7 shall apply so far as may be, to
address for service filed under the preceding rule. (24-11.1927)
SINDH
Add the following rules

11. Every party whether original, added or substituted, who appears
in any suit or other proceedings shall on or before the date fixed in the summons
or notice served on him, as the date of hearing, file in Court, as a memorandum
in writing stating his address for service and if he fails to do he shall be liable to
have his defence, if any, struck out and to be placed in the same position as if he
had not defended. In this respect the Court may act suo motu on the application
of any party for an order to such effect, and the Court may make such order as it
thinks just :
Provided that this rule shall not apply to a defendant who has not filed a
written statement, but who is examined by the Court under S. 7 of the Dekhan
Agriculturist's Relief Act, 1879, or otherwise, or in any case where the Court
permits the address for service to be given by a party on a date later than that
specified in this rule.
12. Rules 20, 22, 23, 24, 25 and 26 of 0. 7, shall apply so 'far as may be,
to addresses for service filed under the last preceding rule.
N.-W.F.P.
Add the following as sub-rule (2) of rule 1: 'The defendant at the time of
presenting written statement shall, where he relies on any documents (whether
in his possession or not), enter such documents in a list and produce these
documents which are in his possession or power.'
11. Every party, whether original, added or substituted, who intends

to appear and defend any suit or original petition shall on or before the date
fixed in the summons or notice served on him as the date of hearing, file in Court
a proceeding stating his defence, if any, struck out and be placed in the same
position as if he had not defended. In this respect the Court may act suo motu or
on the application or any party for an order to such effect, and the Court may
make such order as it thinks just.
12. Rules 20 and 22 of 0. 7, shall apply, so far as may be, to addresses

for service, filed under the preceding rule.
87
ORDER _IX
APPEARANCE OF PARTIES AND CONSEQUENCE

OF NON-APPEARANCE
1. Parties to appear on day fixed in summons for defendant to
appear and answer. On the day fixed in the summons for the defendant to
appear and answer, the parties shall be in attendance at the Court house in
person or by their respective pleaders, and the suit Shall then be heard unless the
hearing is adjourned to a future day fixed by the Court
2. Dismissal of suit where summons not served in consequence of

plaintiff's failure to pay costs. Where on the day so fixed it is found that the
summons has not been served upon the defendant in consequence of the plaintiff
to pay the Court-fee or postal charges (if any) chargeable for such service, the
Court may make an order that the suit be dismissed:
Provided that no such order shall be made although the summons has
not been served upon the defendant, if on the day fixed for him to appear and
answer he attends in person or by agent when he is allowed to appear by agent.
3. Where neither party appears, suit to be dismissed. Where neither

party appears when the suit is called on for hearing, the Court may make an
order that the suit be dismissed.
Court Decisions
Only application to be Dismissed, If Suit was not Fixed for hearing :-- Trial
Court dismissed entire suit for no prosecution., when only application under O.39, Rr.1 &
2, C.P.C. was fixed for hearing—High Court had treated the dismissal order. as an order
under O.9, R.8, C.P.C., whereas nowhere in it was mentioned that defendants or any one
of them was present at the time of its passing . Order 9, R.8, C.P.C., could be invoked,
where only defendant appeared—Plaintiffs case was covered by O.9, R.3, C.P,C., and not
by R.8 thereof. Only application under O.39, Rr.1 & 2, C.P.C. could be dismissed by
order, and not the suit, which was not called for hearing on such date. 2002 SCMR 798
4. Plaintiff may bring fresh suit or suit or Court may restore suit to
file. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to
the law of limitation) bring a fresh suit; or he may apply of an order to set the
dismissal aside, and if he satisfies the Court that there was sufficient cause for his
not paying the Court-fee and postal charges (if any) required within the time
fixed before the issue for the summons, or for his non-appearance, as the case
may be, the Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with suit.
5. Dismissal of suit where plaintiff after summons returned

unserved, fails for three months to apply for fresh summons. (1) Where, after a
summons has been issued to the defendant, or to one of several defendants and
returned unserved, the plaintiff fails, for a period of three months from the date
of the returned made to the Court by the officer ordinarily certifying to the Court
returns made by the serving officers, to apply for the issue of a fresh summons
the Court shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the Court that :
(a) he has failed after using his best endeavours to discover the
residence of the defendant who has not been served ; or
(b) such defendant is avoiding service of process ; or
(c) there is any other sufficient cause for extending the time, in which
case the Court may extend the time for making such application
for such period as it -thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation)
bring a fresh suit.
6. Procedure when only plaintiff appears: When summons duly

served : When summons not duly served: When summons served but not in
due time. (1) Where the plaintiff appears and the defendant does not appear
when the suit is called on for hearing, then :
(a) if it is proved that the summons was duly served, the Court may
proceed ex pate [and pass decree without recording evidence];
(b) if it is not proved that the summons was duly served, the Court
shall direct a second summons to be issued and served on the
defendant;
(c) if it is proved that the summons was served on the defendant, but
not in sufficient time to enable him to appear and answer on the
day fixed in the summons, the Court shall postpone the hearing of
the suit to a future day to be fixed by the Court and shall direct
.notice of such day to be given to the defendant.
89
(2) Where it is owing to the plaintiff's default that the summons was
not duly served or was not served in sufficient time, the Court shall order the
plaintiff to pay the costs occasioned by the postponement.
Court Decisions
Ex Parte decree—Swearing of affidavit in ex parte proof—Failure to verify
contents of affidavits—Suit for recovery of money was filed and ex parte proceedings
were initiated against the defendant—Plaintiff in proof of his case produced affidavit in
evidence—Deponent had neither stated in the affidavit that the statement of accounts or
any document was prepared by him—Entries made in the proforma/statement were not
stated in the affidavit to be true and correct—Even the deponent had not stated on oath
that the contents of the affidavit in evidence were true and correct to the best of his
knowledge and belief—Effect—Neither such affidavit were admissible in evidence—
Plaintiff failed to adduce any evidence with regard to the liability of the defendants—Suit
was dismissed in circumstances. PLD 2003 Kar. 156
7. Procedure where defendant appears on day of adjourned

hearing assigns good cause for previous non-appearance. Where the Court has
adjourned (he hearing of the suit ex parte, and the defendant at or before such
hearing, appears and assigns good cause for his previous non-appearance, he
may upon such terms as the Court directs as to costs or otherwise, be heard in
answer to the suit as if he had appeared on the day fixed for his appearance.
Court Decisions
Dismissal of application for restoration of suit which had been dismissed for
non-prosecution-Suit pertained to year 1986 and inspite of expiry of ten years plaintiffs
had failed to adduce evidence—Plaintiffs were given many opportunities to bring
evidence on record but they had failed to avail the same--Thereafter, plaintiff and his
counsel remained absent without any intimation to Court when impugned order was
passed-No plausible explanation was brought to the notice of Court as to the reason for
absence of plaintiff and his counsel on the date when suit was dismissed—Order of trial
Court was affirmed by Appellate Court in dismissing application for restoration of suit
would not call for interference in revisional jurisdiction of High Court. PLJ 2002 Kar. 37
PLD 1987 SC 139; PLD 1975 SC 678 and PLJ 1986 Lah.. 222 ref.
8. Procedure where defendant-only appears. Where the defendant

appears and the plaintiff does not appear when the suit is called on for hearing,
the Court shall make an order that the suit be dismissed, unless the defendant
admits the claim, or part thereof, in which case the Court shall pass a decree
against the defendant upon such admission and, where part only of the claim has
been admitted, shall dismiss the suit so far as it relates to the remainder.
Court Decisions
Applicability — Where only defendant appeared, O.9, R. 8, C.P.C. could be
invoked. 2002 SCMR 798
Trial Court dismissed entire suit for no prosecution on 16-4-1996, when only
application under O.39, Rr.1 & 2, C.P.C. was fixed for hearing—Application under O.9,
R.9, C.P.C., made by plaintiff for setting aside such order was also dismissed—Plaintiff
then filed fresh suit on same facts and for same relief—Trial Court on defendants'
application under O.7, R.11, C.P.C. rejected the plaint holding the suit being hit by the
principle of res judicata—Appeal filed by plaintiff met the same fate as well as the
revision before High Court—Validity—High Court had treated the dismissal order dated
16-4-1996 as an order under O.9, R.8, C.P.C., whereas nowhere in it was mentioned that
defendants or any one of them was present at the time of its passing—Order 9, R.8,
C.P.C., could be invoked, where only defendant appeared—Plaintiffs case was covered
by O.9, R.3, C.P,C., and not by R.8 thereof—Upon admission of defendant about plaintiffs
claims, decree could be passed under O.9.R.8, C.P.C., either in full or in part to the extent
of admission—Since O.9, R.8 had been incorrectly applied—R.9 barring fresh suit could
not be invoked—Only application under O.39, Rr.1 & 2, C.P.C. could be dismissed by
order, dated 16-4-1996 and not the suit, which was not called for hearing on such date—
Dismissal of earlier suit was against the provisions of O.9, C.P.C.—Issues raised in earlier
suit had not been heard and finally decided, thus, dismissal of subsequent suit under
O.VI, R.11, C.P.C. was not sustainable as the principle of 'res judicata' was not attracted to
it—S.Caccepted appeal, set aside impugned orders/judgments passed by Courts below
and restored the earlier suit to its original position and directed the Trial Court to decide
it on merits according to law. 2002 SCMR 798
Application Procedings :-- Application for making award as rule of Court. Role
of Arbitrator is to settle dispute between parties amicably by avoiding all types of
technicalities of procedural law. to provide a domestic forum for speedy disposal of
disputes. It is admitted fact that parties have entered appearance before lower Court and
there was no occasion for arbitrator to be present or prosecute conflict. O. 9 Rule 9 CPC
provides restoration of suit dismissed in default if applicant satisfies Court that there
was sufficient causes for his non – appearance when suit was called on for hearing.
Power to restore is discretionary and this discretion is judicial. Arbitrator was under
impression that he was neither legally bound nor even to peruse application U/S. 14 of
Act, 1940 and this impression was legally correct, sound and amount to sufficient cause
for restoration of application. PLJ 2000 Lah. 446.
When Counsel busy in another Court :-- Dismissal of plaint's suit for default of
appearance-Application for restoration under O. 9, r. 9-Determination of "'sufficient
cause"-Matter within discretion of Court to be exercised judicially in relation to all
circumstances of case-Counsel arriving late having been busy in High Court-Held in
circumstances of case, sufficient cause for restoration. P L D 1966 S.C 461
9. Decree against plaintiff by default bars fresh suit. (1) Where a

suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded
91
from brining a fresh suit in respect of the same cause of action, but he may apply
for an order to set the dismissal aside, and if he satisfies the Court that there was
sufficient cause for his non-appearance when the suit was called on for hearing,
the Court shall make an order setting aside the dismissal upon such terms as to
costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the
suit.
(2) No order shall be made under this rule unless notice of the
application has been served on the opposite-party.
(3) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908),
shall apply to applications under sub-rule (1).]
Court Decisions
Dismissal of plaint's suit for default of appearance-Application for restoration
under O. 9, r. 9-Determination of "'sufficient cause"-Matter within discretion of Court to
be exercised judicially in relation to all circumstances of case-Counsel arriving late
having been busy in High Court-Held in circumstances of case, sufficient cause for
restoration. P L D 1966 S.C 461
Dismissal of suit for want of evidence—Trial Court, while refusing to grant

adjournment to plaintiff dismissed suit on 22-3-1999 for want of evidence—Plaintiff filed
application under O.9, R.9, C.P.C. for recalling the order, which was dismissed being not
maintainable—Plaintiffs appeal under O.43, R.1 C.P.C was also dismissed on the ground
that suit was dismissed for want of evidence, against which the only remedy was to file
regular appeal and not miscellaneous appeal—Contention was that order of Trial Court
squarely fell within scope of O.17, R.2, C.P.C. against which miscellaneous appeal was
maintainable—Validity—Trial Court on 11-3-1999 after framing issues adjourned the
proceedings to 22-3-1999 with direction to parties to file their list of
witnesses/documents within 7 days—Neither such adjournment was granted on
plaintiffs request nor Trial Court while dismissing suit had touched merits of the case,
thus, it was not an order within purview of O.17, R.3, C.P.C., but it could be in substance
an order under O.17, R.2, C.P.C. hence it was not a decree against which no appeal was
required to be filed under S.96, C.P.C.—Plaintiffs application under O.9, R.13, C.P.C was
competent, which was illegally dismissed by Trial Court—Both the impugned orders
were illegal and had resulted in grave miscarriage of justice, as such were amenable to
revisional Jurisdiction of High Court—Impugned orders were set aside and case was
remanded to Trial Court for its decision in accordance with law. 2002 CLC 71
PLD 1981 SC 474; PLD 1985 Pesh. 91 and 1984 CLC 2893 ref.
10. Procedure in case of non-attendance of one or more of several

plaintiffs. Where there are more plaintiffs than one and one or more of them
appear, and the others do not appear, the Court may, at the instance of the
plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if
all the plaintiffs had appeared, or make such order as it thinks fit. -
11. Procedure in case of non-attendance of one or more of several

defendants. Where there are more defendants than one and one or more of them
appear, arid the others do not appear, the suit shall proceed, and the Court shall
at the time of pronouncing judgment, make such order as it thinks fit with
respect to the defendants who do not appear.
12. Consequence of non-attendance, without sufficient cause

shown, of party, ordered to appear in person. Where a plaintiff or defendant,
who has been ordered to appear in person, does not appear in person, or show
sufficient cause to the satisfaction of the Court for failing so to appear, he shall be
subject to all the provisions of the foregoing rules applicable to plaintiffs and
defendants respectively, who do not appear.
Setting aside Decrees Ex Porte
13. Setting aside decree ex parte against defendant. (1) In any case in
which a decree is passed ex parte against a defendant he may apply to the Court
by which the decree was passed for an order to set it aside; and if he satisfies the
Court that the summons was not duly served, or that he was prevented by any
sufficient cause from appearing when the suit was called on for hearing, the
Court shall make an order setting aside the decree as against him upon such
terms to costs, payment into Court or otherwise as it thinks fit, and shall appoint
a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set
aside as against such defendant only it may be set aside against all or any of the
other defendants also:
Provided further that no decree passed ex parte shall be set aside merely
on the ground of any irregularity in the service of summons, if the Court is
satisfied for reason to be recorded, that the defendant had knowledge of the date
of hearing in sufficient time to appear on that date and answer the claim.]
(2) The provision of section 5 of the Limitation Act, 1908 (IX of 1908),
shall apply to applications under sub-rule (1).]
Court Decisions
Setting aside ex-parte decree. Limitation period. When would be governed
under Art. 161 or Art. 181 of Limitation Act. Date initially fixed by court being not date
initially fixed upon institution of suit for service of summons on petitioners, who. failed
93
to appear and consequently ex parte decree, limitation period of 30 days provided, in

Art. 161 of Limitation Act, would not be applicable rather period of limitation prescribed
in Art. 181 of Limitation .Act, 1908 would apply which provides three years period for
application under Order, 9 Rule 13 C.P.C. seeking for setting aside ex parte decree, to be
reckoned from date when right to apply accrues. PLJ 1998 Qta. 49 = 1998 CLC 657.
Instead of framing issue on controversial point i.e., whether or not there was
sufficient cause for setting aside ex-parte decree and thereafter examining evidence of
parties, trial Court after hearing counsel came to conclusion that there was no sufficient
cause for setting aside ex-parte decree. Same view was taken by Appellate Court while
dismissing appeal. Important questions having been raised touching jurisdiction of Court
and also that absence of defendant was not wilful or intentional trial Court should have
framed issue to settle such controversy but it did not do so and proceeded to dismiss
petition for setting aside, ex parte decree although affidavit was attached in support of
contents thereof, though there was no -such counter affidavit by plaintiff with his reply
filed to contest petition forgetting aside ex ^ parte decree. Even, otherwise, Court acted in
haste in disposing of suit ex-parte on same day without examining any evidence in proof
of claim made in suit itself. Law also requires that case should be decided on merits for
which parties should be given chance. No such chance was however, provided to
contesting party in present case. Impugned order passed by Courts below being
arbitrary, capricious and illegal was set aside. Sufficient ground was provided in terms of
affidavit attached with application for setting aside ex-parte decree to set aside the same.
While setting aside ex parte decree, case was remanded to trial Court for trial in
accordance with law. PLJ 1999 Lah. 1758 = 1999 CLC 1377.
14. No decree to be set aside without notice to opposite party. No

decree shall be set aside on any such application as aforesaid unless notice
thereof has been served on the opposite-party.

LAHORE
To sub-rule (1), of rule 9 add the following proviso:

'Provided that the plaintiff shall not be precluded from bringing another
suit for redemption of mortgage, although a former suit may have been
dismissed for default.' .
N.-W.F.P.
Add the following proviso to sub-rule (1) of rule 9:
'Provided that the plaintiff shall not be precluded from bringing another
suit for redemption of mortgage, although a former suit may have been
dismissed for default.'
Add following farther proviso to sub-rule (1), rule 13 :
'Provided further that no decree passed ex parte shall be set aside merely
on the ground of an irregularity in the service of summons, if the Court is
satisfied for reasons to be recorded that the defendant had knowledge of the date
of hearing in sufficient time to appear on that date and answer the claim.'
SINDH
Add the, following further proviso to sub-rule (1) of rule 13: -
'Provided also that a decree passed exparte shall not in the absence of
good cause be set aside on the ground merely of irregularity in the service of the
summons unless upon the facts provided the Court is satisfied that the defendant
did not have notice of the date of hearing in sufficient time to appear and answer
the plaintiff's claim.'
95
ORDER_ X
EXAMINATION OF PARTIES BY THE COURT

1. Ascertainment whether allegations in pleadings are admitted or
denied. At the first hearing of the suit the Court shall ascertain from each party
or his pleader whether he admits or denies such allegations of fact as are made in
the plaint or written statement (if any) of the opposite-party, and as are not
expressly or by necessary implication admitted or denied by the party against
whom thy are made. The Court shall recorded such admissions and denies.
2. Oral examination of party or companion of party. At the first

hearing of the suit, or at any subsequent hearing, any party appearing in person
or present in Court, or any person able to answer any material questions relating
to the suit by whom such party or his pleader is accompanied, [shall] be
examined orally by the Court; and the Court may, if it thinks fit, put in the course
of such examination questions suggested by either party.
Court Decisions
Oral examination of Party. Purchaser has not specifically stated in his
application as what are material questions upon which examination of defendant is
required which is necessary for purpose of ascertaining real matter in controversy.
Neither he has pointed out any specific contradictions and ambiguity in affidavits of
estate agent and in affidavit" of owner. If such applications are granted, this will amount
to holding of mini trial within a full-fledged trial. PLJ 199G Kar. 801 = 1996CLC1758.
3. Substance of examination to be written. The substance of the

examination shall be reduced to writing by the Judge, and shall form part of the
record.
4. Consequence of refusal or inability of Pleader to answer. (1)

Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to answer
any material question relating to the suit which the Court is of opinion that the
party whom he represents ought to answer and is likely to be able to answer if
interrogated in person, .the Court may postpone the hearing of the suit to a
future day and direct that such party shall appearing person on each such day.
(2) If such party fails without lawful excuse to appear in person on
the day so appointed, the Court may pronounce judgment against him, or make
such order in relation to the suit as it thinks fit.
Court Decisions
Where it had not been established, beyond reasonable doubt, that all the
necessary conditions contained in O. X, R. 4(1), C.P.C. stood satisfied in the case, order
passed by the Trial Court and restored by the High Court could not sustain. 1991 SCMR
2530; PLJ 1991 SC 550.
97
ORDER _XI
DISCOVERY AND INSPECTION

1. Discovery by interrogatories. In any suit the plaintiff or
defendant by leave of the Court may deliver, interrogatories in writing for the
examination of the opposite-parties or any one or more of such parties, and such
interrogatories when delivered shall have a note at the foot thereof stating which
of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories
to the same party without an order for that purposes:
Provided also that interrogatories which do not relate to any matters in
question in the suit shall be deemed irrelevant, notwithstanding that they might
be admissible on the oral cross-examination of a witness.
2. Particular interrogatories to be submitted. On an application for

leave to deliver interrogatories, the particular interrogatories proposed to be
delivered shall be submitted to the Court. In deciding upon such application, the
Court shall take into account any offer, which may be made by the party sought
to be interrogated to deliver particulars, or to make admissions or to produce
documents relating to the matters in question, or any of them, and leave shall be
given as to such only of the interrogatories submitted as the Court shall consider
necessary either for disposing fairly of the suit or for saving costs.
3. Costs of interrogatories. In adjusting the costs of the suit inquiry

shall at the instance of any party be made into the propriety of exhibiting such
interrogatories, and if it is the opinion of the taxing officer or of the Court, either
with or without an application for inquiry, that such interrogatories, have been
exhibited unreasonably, vexatiously or at improper length, the costs occasioned
by the said interrogatories and the answers shall be paid in any event by the
party in fault.
4. Form of interrogatories. Interrogatories shall be in Form No. 2 in

Appendix C, with such variation as circumstances may require.
5. Corporation. Where any party to a suit is corporation or a body of

persons, whether incorporated or not, empowered by law to sue or be sued,
whether in its own name or in the name of any officer or other person, any
opposite party may apply for an order allowing him to deliver interrogatories to
any member or officer of such corporation or body, and an order may be made
accordingly.
6. Objections to interrogatories by answer. Any objection to

answering any interrogatory on the ground that it is scandalous or irrelevant or
not exhibited bona fide for the purpose of the suit, or that the matters inquired
into are not sufficient material at the stage, or on any other ground, may be taken
in the affidavit in answer.
7. Setting aside and striking out interrogatories. Any

interrogatories may be set side on the ground that they have been exhibited
unreasonably or vexatiously, or struck out on the ground that they are prolix,
oppressive, unnecessary or scandalous; and any application for this purpose may
be made within seven days after service of the interrogatories.
8. Affidavit in answer, filing. Interrogatories shall be answered by

affidavit to be filed within ten days, or within such other time as the Court may
allow.
9. Form of affidavit in answer. An affidavit in answer to
interrogatories shall be in Form No. 3 in Appendix C, with such variations as
circumstances may require.
10. No exception to be taken. No exception shall be taken to any

affidavit in answer, but the sufficiency or otherwise of any such affidavit
objected to as insufficient shall be determined by the Court.
11. Order to answer or answers further. Where any person

interrogated omits to answer or answers unsufficiently, the party interrogating
may apply to the Court for an order requiring him to answer, or to answer
further, as the case may be. And an order may be made requiring him to answer
or answers further, either by affidavit or by viva voce examination, as the Court
may direct.
12. Application for discovery of documents. Any party may, without

filing any affidavit, apply tot eh Court for an order direction any other party to
any suit to make discovery on oath of the documents which are or have been in
99
his possession or power, relating to any matter in question therein. On the

hearing of such application the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at that stage of the
suit, or make such order, either generally or limited to certain classes of
documents, as may, in its discretion, be thought fit:
Provided that discovery shall not be ordered when and so far as the
Court shall be of opinion that it is not necessary either for disposing fairly of the
suit or for saving costs.
13. Affidavit of documents. The affidavit to be made by a party

against whom such order as is mentioned in the last preceding rule has been
made, shall specify which (if any) of the documents therein mentioned he objects
to produce, and it shall be in Form No. 5 in Appendix C, with such variations as
circumstances may require.
14. Production of documents. It shall be lawful for the Court, at any

time during the pendency of any suit, to order the production by any party
thereto upon oath of such of the documents in his possession or power, relating
to any matter in question in such suit as the Court shall think right; and the
Court may deal with such documents, when produced, in such manner as shall
appear just.
15. Inspection of documents referred to in pleadings or affidavits.

Every party to a-suit shall be entitled at any time to give notice to any other
party, in whose pleadings or affidavits reference is made to any document, to
produce such document for the inspection of the party giving such notice, or his
pleader, and to permit him or them to take copies thereof; and any party not
complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless he shall satisfy Court that
such document relates only to his own title, he being defendant to the suit, or
that he had some other cause or excuse which the Court shall deem sufficient for
not complying with such notice, in which case the Court may allow the same to
be put tin evidence on such terms as to costs and otherwise as the Court shall
think fit.
16. Notice- to produce. Notice to any party to produce any

documents referred to in his pleading or affidavits shall be in Form No. 7 in
Appendix C, with such variations as circumstances may require.
100 The Code of Civil Procedure, 1908
Contents
17. Time for inspection when notice given. the party to whom such
notice is given shall, within ten days from the receipt of such notice, deliver to
the party giving the same a notice stating a time within three days from the
delivery thereof at which the documents, or such of them as he does not object to
produce, may be inspected at the office of this pleading, or in the case of bankers'
book or other books of account or books in constant use for the purposes of any
trade or business, at their usual place of custody, and stating which (if any) of the
documents he objects to produce, and on what ground. Such notice shall be in
Form No. 8 in Appendix C, with such variations as circumstances may require.
18. Order for inspection. (1) Where the party served with notice
under rule 14 omits to give such notice of time for inspection or objects to give
inspection, or offers inspection elsewhere than at the office of his pleader, the
Court may, on the application of the party desiring it, make an order for
inspection in such place and in such manner as it may think fit:
Provided that the order shall not be made when and so far as the Court shall be
of opinion that it is not necessary either for disposing fairly of the suit or for
saving costs.
(2) Any application to inspect documents except such as are referred
to in the pleading, particulars or affidavits of the party against whom the
application is made or disclosed in his affidavit of documents, shall be founded
upon an, affidavit showing of what documents' inspection is sought, that the
party applying is entitled to inspect them and that they are in the possession or
power of the other party. The Court shall not make such order for inspection of
such' documents when and so far as the Court shall be of opinion that it is not
necessary either for disposing fairly of the suit or for saving costs.
19. Verified copies. (1) Where inspection of any business books is

applied for, the Court may, if it thinks fit, instead of ordering inspection of the
original books, order a copy of any entries therein to be furnished, and verified
by the affidavit of some person who has examined the copy with the original
entries, and such affidavit shall state whether or not there are in the original book
any and what erasures, interlineations or alterations:
Provided that, notwithstanding that such copy has been supplied, the
Court may order inspection of the book from which the copy was made.
(2) Where on an application for an order for inspection privilege is
claimed for any document, it shall be lawful for the Court to inspect the
document for the purpose of deciding as to the validity of the claim of privilege.
101
(3) The Court may, on the application of any party to a suit at any
time, and whether an affidavit of documents shall or shall not have already been
ordered or made, make an order requiring any other party to state, by affidavit
whether any one or more specific documents, to be specified in the application, is
or are, or have at any time been, in his possession or power; and, if not then in
his possession, when he parted with the same and what has become thereof.
Such application shall be made on an affidavit stating that in the belief of the
deponent that party against whom the application is made has, or has at some
time had, in his possession or power the document or documents specified in the
application and that they relate to the matters in question in the suit, or of some
of them.
20. Premature discovery. Where the party from whom discovery of

any kind or inspection is sought objects to the same, or any part thereof, the
Court may, if satisfied that the right to the discovery or inspection sought
depends on the determination of any issue or question in dispute in the suit, or
that for any other reason it is desirable that any issue or question in dispute in
the suit should be determined before deciding upon the right to the discovery or
inspection, order that such issue or question be determined first, and reserve the
question as to the discover or inspection.
21. Non-compliance with order for discovery. Where any party fails
to comply with any order to answer interrogatories, or for discovery or
inspection of documents, he shall, if a plaintiff, be liable to have his suit
dismissed for want of prosecution and, if a defendant, -to have his defence, if
any, struck out, and to be placed in the same position as if he had not defended
and the party interrogating or seeking discovery or inspection may apply to the
Court for an order to that effect and an order may be made accordingly.
Court Decisions
Purpose of O.XI. R. 21. C.P.C.. Purpose of Order XI, Rule 21, C.P.C. with regard
to discovery of documents on oath is to compel the opposing party to disclose all
documents that he relies on so that the other side is not surprised later. It also serves to
nip the evil in bud, as it were. inasmuch as frivolous proceedings can be summarily
disposed of at an early stage. But since the penalty for non-compliance with this
provision is so stringent, it is necessary that the penal provision must be strictly
construed and the party concerned must be non-suited only if the above mentioned
ingredients are fully met. The tenor of law is such that it contemplates,. purposeful
avoidance or refusal by the party concerned to file the affidavit of documents with mala
fide motives. If thus, mere technicality regarding the discovery, not being in accordance
Contents
with a certain format, is allowed to non-suit a party, it will be travesty of justice. PLJ 1999
Kar. 583 = 1999 CLC 356.
Provisions of O.XI, R. 21, C.P.C. are penal in nature. It is settled that provisions
of Order XI, Rule 21, C.P-C. being penal in nature, these are to be strictly construed. For
this provision to be applicable, it is necessary that:
(1) There should be a specific Order of the Court for filing of affidavit of
documents.
(2) The defaulting party wilfully fails to comply with the order. PLJ 1999
Kar. 583 = 1999 CLC 356.
22. Using answers to interrogatories at trial. Any party may, at the

trial of a suit, use in evidence any one or more of the answers or any part of an
answer of the opposite party to interrogatories without putting in the others or
the while of such answer.
Provided always that in such case the Court may look at the whole of the
answers, and if it shall be of opinion that any others of them arc so connected
with those put in that the last-mentioned answers ought not to be used without
them, it may direct them to be put in:
23. Order to apply to minors. This order shall apply to minor

plaintiffs and defendants, and to the next-friends and guardians for the suit of
persons under disability.
103
ORDER _XII
ADMISSIONS
1. Notice of admission of case. Any party to a suit may give notice,
by his pleading or otherwise in writing, that he admits the truth of the whole or
any part of the case of any other party.
2. Notice to admit documents. Either party may call upon the other
party to admit any document, saving all just exception, and in case of refusal or
neglect to admit, after such notice, the costs of proving any such document shall
be paid by the party so neglecting or refusing, whatever the result of the suit may
be, unless the Court otherwise directs; and no costs of proving any document
shall be allowed unless such notice, is given, except where omission to give the
notice is, in the opinion of the Court, a saving of expense.
3. Form of notice. A notice to admit document shall be in Form No.

9 in Appendix C, with such variations as circumstances may require.
4. Notice to admit facts. Any party may, by notice in writing, at any

time not later than nine days before the day fixed for the hearing call on any
other party to admit, for the purposes of the suit only, any specific fact or facts
mentioned in such notice. And in case of refusal or neglect for admit the same
within six days after service of such notice, or within such further time as may be
allowed by the Court, the costs of proving such facts shall be paid by the party so
neglecting or refusing, whatever the result of the suit may be, unless the Court
otherwise directs:
Provided that any admission made in pursuance of such notice is to be
deemed to be made only for the purposes so the particular suit, and not as an
admission to be used against the party on any other occasion or in favour of any
person other than the party giving the notice:
Provided also that the Court may at any time allow any party to amend
or withdraw any admission so made on such terms as may be just.
Contents
5. Form of admission. A notice to admit facts shall be in Form No.

10 in Appendix C, and admissions of facts shall be in Form No. 11 in Appendix
C, with such variations as circumstances may require.
Court Decisions
O. XII R. 6 Provides a summary and speedy remedy in cases where admission is
made by defendant in pleading or outside, but in order to attract this provision it is
necessary that admission should be unequivocal, clear, unconditional and unambiguous.
PLJ 1996 SO 1176 = 1996SCMR696.
Provisions of Order XII, R. 6. envisage passing of judgment at any stage
during pendency of suit. Held further. Defendant having admitted part of claim,
judgment to extent of admission passed without prejudice to right of plaintiff to proceed
with his further claim. PLJ 1988 Kar. 100.
Since defendants in several miscellaneous applications, moved from time to time

admitted that they have no objection to completion of sale, suit of plaintiff was entitled to
be decreed under O.XII R. 6. PLJ 1996 Kar. 1039 = PLD 1996 Kar. 475
Qualified admission by respondent. Whether court ought to have decree suit.

Whole contention of appellant is dependent on oral admission of Managing Director of
respondent and office notings. Office noting is an inter-departmental communication.and
would not form basis of confession and it by itself would not amount to conceding claim
of plaintiff. Oral statement made by respondent is a qualified statement as is apparent
from written statement filed on same day. Defendants were allowed to file written
statement on payment of cost of Rs. 2.000/- which was received by appellant, but present
application under Order XII Rule 6 was made before defendants were allowed to file
written statement Admission under Order XII Rule 6 has to be an unequ4ocal admission
which can amount to estoppel against party making it. PLJ 1995 Kar. 106 = 1995 MLD
273.
Power of Court. It is discretionary with court to decree claim on basis of

admission of defendant in pleading. But such discretion should be in judicial manner and
is not a matter of right. PLJ 1996 SC 1176
6. Judgment on admissions. Any party may, a any stage of a suit,

where admissions of fact have been made, either on the pleadings, or otherwise,
apply to the Court for such judgment or order as upon such admissions he may
be entitled to, without waiting for the determination of any other question
between the parties; and the Courts may upon such application make such order,
or give such judgment, as the Court may think just.
Court Decisions
105
Essential conditions—Admission of a party should not merely be confined to

the figure claimed, but should also include liability to pay. PLD 2003 Kar. 253
Non-denial of a document in written statement would not amount to admission
of liability of claim, which otherwise required settlement through documentary evidence.
PLD 2003 Kar. 253
Judgment on admission—Non-denial of a fact in written statement could not be
construed as admission and that two to be equated as “unequivocal”, “clear” and
“unambiguous”. PLD 2003 Kar. 253
Kar. 253
7. Affidavit of signature. An affidavit of the pleader or his clerk, of

the due signature of any admissions made in pursuance of any notice to admit
documents or facts, shall be sufficient evidence ot such admissions, if evidence
thereof is required.
8. Notice to produce documents. Notice to produce documents shall

be in Form No. 12 in Appendix C, with such variations as circumstances may
require. An affidavit of the pleader, or his clerk, of the service of notice to
produce, and of the time when it was served, with a copy of the notice to
produce, shall in all cases be sufficient evidence of the service of the notice, and
of the time when it was served.
9. Costs. If a notice to admit or produce specified documents which

are not necessary, the costs occasioned thereby shall be borne by the party giving
such notice.
Contents
107
ORDER_XIII
PRODUCTION, IMPOUNDING AND RETURN OF

DOCUMENTS
1. Documentary evidence to be produced at first hearing. (1) The
parties or their pleaders shall produce, at the first hearing of the suit, all the
documentary evidence of every description in their possession or power, on
which they intend to rely, and which has not already been filed in Court, and all
documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced: Provided that
they are accompanied by an accurate list thereof prepared in such form as the
High Court directs.
(3) On production of documents under this rule, the Court may call
upon the parties to admit or deny the documentary produced in the Court and
record their admission or, as the case may be, denial.
Court Decisions
Additional evidence, production of—Party requesting for production of
additional evidence had not satisfactory answer as to why the documents to be produced
as additional evidence were not relied under O. VIII read with O. VII, R. 14, C.P.C as
every party in a suit was required to mention the documentary evidence which it would
like to produce in evidence in support of its case so that the adverse party had sufficient
notice—Effect—Unsuccessful party in a suit was not to be granted opportunity to fill up
weaker parts of its case by producing additional evidence to the prejudice of the other
party. PLD 2003 SC 849
Document placed on record of Trial court—Neither same tendered in evidence
nor proved nor any reference to them was made in judgments by Trial Court and
Appellate Court—Held, such documents were inherently inadmissible in evidence and
could not be validly considered as a legal piece of evidence without independent proof.
PLD 2003 SC 410
Filling in lacunas in the case of the party intending to produce additional
evidence—Validity—By way of producing expert’s report as additional evidence, the
party intended to fill in the gap in the case which could not be permitted as it would
amount to allowing a party to derive benefit out of its own follies—Additional evidence
was not allowed in circumstances. PLD 2003 Kar. 148
Contents
Document not produced in evidence, but available on record—Evidentiary value

—Such document could be looked into/considered by Court to meet the ends of justice,
particularly when reference to same had been made by a witness and his deposition had
not been subjected to cross-examination. PLD 2003 Lah. 255
Documents not produced with pleadings. Application for permission to
produce documents on file contains no explanation as to why documents were not
produced at earlier stage. Omission on part of petitioner has occurred on account of
improper legal advice and bad drafting of application. An omission or negligence of
counsel, cannot be a good cause to penalise party or to allow defeat of ends of justice.
Documents sought to be produced in evidence, being genuine and having come from
proper custody, their authenticity is beyond doubt. Documents allowed to be produced
subject to costs. PLJ 1994 HN C Page 13.
Whether additional evidence can be produced after closing of evidence. Statutes

are to be interpreted with due regard to their objects. Object of O.XIC R. 2 was to exclude
forged documents and to expedite trial and not to exclude genuine documents. If there be
no doubt as to authenticity of a document and if at same time its admission were not in
any way to delay trial of a suit. Words of Rule 2 should not be allowed to bar its
production. PLJ 1996 Lah. 1492 = 1996MLD1158.
Not-exhibited document :-- No objection was raised by defendants that copy of

doccument was inadmissible as having not been exhibited or formally tendered in
evidence— Objection was not raised even in memorandum of appeal filed in the High
Court—Document in question, cannot be excluded from evidence merely because same
was not exhibited--Non-exhibiting of document which was otherwise admissible in
evidence was merely irregularity and would not render such document as inadmissible
in evidence--Attested copy of public document was admissible in evidence even without
formally proving the same. PLJ 2002 SC (AJK) 52
2. Effect of non-production of documents. No documentary

evidence in the possession or power of any part which should have been but has
not been produced in accordance with the requirements of rule I shall be
received at any subsequent stage of the proceedings unless good cause is shown
to the satisfaction of the Court for the non-production thereof; and the Court
receiving any such evidence shall record the reasons for so doing.
Court Decisions
Trial Court declined to allow documents on ground that good cause had not
been shown to its satisfaction for non-production of documents. Order of trial Court was
maintained by Appellate Court. High Court dismissed revision against judgment of
Appellate Court. Validity. Order of trial Court duly affirmed by Appellate Court in
declining to allow production of documentary evidence at that belated stage was not
109
exceptionable on any ground whatsoever. Courts below had come to definite conclusion
that bedrock of plaintiffs case i.e., execution of impugned agreement to sell and payment
of sale consideration to deceased had not been proved. Findings of courts below being
findings of fact could not be interfered with by Supreme Court. Leave to appeal was
refused in circumstances. PLJ 1999 SO 1093 = 1999 SCMR 951.
Filling in lacunas in the case of the party intending to produce additional
evidence—Validity—By way of producing expert’s report as additional evidence, the
party intended to fill in the gap in the case which could not be permitted as it would
amount to allowing a party to derive benefit out of its own follies—Additional evidence
was not allowed in circumstances. PLD 2003 Kar. 148
Document not produced in evidence, but available on record—Evidentiary value
—Such document could be looked into/considered by Court to meet the ends of justice,
particularly when reference to same had been made by a witness and his deposition had
not been subjected to cross-examination. PLD 2003 Lah. 255
3. Rejection of irrelevant or inadmissible documents. The Court

may at any stage of the suit reject any document which it considers irrelevant or
otherwise inadmissible, recording the grounds of such rejection.
Court Decisions
Exhibiting photo copy instead of original document without obtaining leave
from Trial court to lead secondary evidence after proof of loss or destruction of original
one—Effect—Presumption would be that had same been produced in court, same would
have been unfavorable to plaintiff—Plaintiff, held, was guilty of withholding best
available primary evidence. PLD 2003 SC 410
4. Endorsements on documents admitted in evidence. (1) Subject to

the provisions of the next following sub-rule, there shall be endorsed on every
document which has been admitted in evidence the following particulars,
namely:
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted; and the endorsement
shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book account or
record, and a copy thereof has been substituted for the original under the next
following rule, the particulars aforesaid shall be endorsed on the copy and the
endorsement thereon shall be signed or initialed by the Judge.
Court Decisions
Exhibiting photo copy instead of original document without obtaining leave
from Trial court to lead secondary evidence after proof of loss or destruction of original
Contents
one—Effect—Presumption would be that had same been produced in court, same would
have been unfavorable to plaintiff—Plaintiff, held, was guilty of withholding best
available primary evidence. PLD 2003 SC 410
5. Endorsements-on copies of admitted entries in books, accounts

and record. (1) Save in so far as is otherwise provided by the Bankers' Books
Evidence Act, 1891, where a document admitted in evidence in the suit is an
entry in a letter-book or a shop book or other account in current use, the party on
whose behalf the book or account is produced may furnish a copy of the entry. .
(2) Where such a document is an entry in a public record produced
from a public .officer 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, the Court may require a copy of the entry to be furnished:- .
(a) where the record, book or account is produced on behalf of a
party, then by that party,
(b) where the record, book or .account is produced in obedience to an
order of the Court acting of its own motion, then by either of any
party.
(3) Where a copy of an entry is furnished under the foregoing
provisions of this rule, the Court shall after causing the copy to be examined,
compared and certified in manner mentioned in rule 17 of Order VII, mark the
entry and cause the book, account or record in which it occurs to be returned to
the person producing it.
6. Endorsements on documents rejected as inadmissible in

evidence. Where a document relied on as evidence by either party is considered
by the Court to be admissible in evidence, there shall be endorsed thereon the
particulars mentioned in clauses (a), (b) and (c) of rule 4, sub-rule (1), together
with a statement of its having been rejected, and the endorsement shall be signed
or initialed by the Judge.
7. Recording of admitted and return of rejected documents. (1)

Every document which has been admitted in evidence, or copy thereof where a
copy has been substituted for the original under rule 5, shall form part of the
record of the suit.
(2) Documents, not admitted in evidence shall not form part of the
record and shall be returned to the persons respectively producing them.
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8. Court may order any document to be impounded.

Notwithstanding anything contained in rule 5 or rule 7 of this Order or in rule 17
Order VII, the Court may, if it sees sufficient cause, direct any document or book
produced before it in any suit to be impounded and kept in the custody of an
officer of the Court, for such period and subject to such conditions as the Court
thinks fit. .
9. Return of admitted documents. (1) Any person-whether a party

to the suit or not desirous of receiving back any document produced by him in
the suit and placed on the record shall, unless the documents is impounded
under rule 8, be entitled to receive back the same-
(a) where the suit is one in which an appeal is not allowed, when the
suit has-been disposed of, and
(b) 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 :
Provided that a documentary may be returned at any time earlier than
that prescribed by this rule if the person applying therefor delivers to the proper
officer a certified copy to be substituted for the original and undertakes to
produce the original if required to do so:
Provided also that no document shall be returned which, by force of the
decree, has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall
be given by the person receiving it.
10. Court may send for papers from its own records or from other
Courts. (1) The Court may of its own motion, and may in its discretion upon the
application of any of the parties to a suit, send for, either from its own records or
from ay other Court, the record of any other suit or proceedings, and inspect the
same.
(2) Every application made under this rule shall (unless the Court
otherwise directs) be supported by an affidavit showing how the record is
material to the suit in which the application is made, and that the application
cannot without unreasonable delay or expense obtain a duly authenticated copy
of the record or of such portion thereof as the applicant requires, or that the
production of the original is necessary for the purposes of justice.
Contents
(3) Nothing contained in this rule shall be deemed to enable the

Court to use in evidence any document which under the law of evidence would
be inadmissible in the suit.
11. Provisions as to documents applied to material objects. The

provisions herein contained, as to documents shall, so far as may be apply to all
other material objects produced as evidence.

LAHORE
To sub-rule (1) of rule 9 add the following further proviso:

'Provided further that the cost of such certified copy shall be recoverable as a fine
from the party at whose instance the original document has been produced'.
(24.11.1927).
N.-W.F.P.
The following rule is substituted :
'All documentary evidence shall be produced by the parties or their
pleaders in the method and at the time prescribed in Orders 7 and 8 : provided
that after the settlement of issues the Court may fix a date not being more than 30
days after such settlement, within which the parties may present supplementary
lists of documents on which they rely.
ORDER XIV
SETTLEMENT OF ISSUES AND DETERMINATION OF

SUIT ON ISSUES OF LAW OR ON ISSUES AGREED UPON
1. Framing of issues. (1) Issues arise when a material proposition of
fact or law is affirmed by the one party and denied by the other.
(2) 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.
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(3) Each material proposition affirmed by one party and denied by

the other shall form the subject of a distinct issue.
(4) Issues are of two kinds : (1) issues of fact, (b) issues of law.
(5) 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 necessary, 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 which the right decision of the case appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues
where the defendant at the first hearing of the suit makes no defence.
Court Decisions
Framing of issues—If, on a question of fact, a specific issue required to be
framed in the light of the pleadings of the parties was not framed but the parties had
produced evidence on the controversial question of fact, the decision could be legally
rendered on such question without framing the issue. PLD 2003 SC 271
Where the pleadings of the parties related to a controversial question of fact and
the parties had led evidence in support of their respective stance and decision on such
question could be rendered in the light of evidence available on record, the framing of
separate issue and recording of further evidence in the matter was not an essential
requirement of law for rendering decision. PLD 2003 SC 271
Revision before High Court – Concurrent findings of Court below—Improper
framing of issues—Record of the case revealed that foundation of concurrent findings by
the Courts below was the admission of appellants concerning alleged removal of various
household articles but a careful examination of the contents of the written statement
would reveal that the claim of respondents was repudiated, which aspect of the matter
escaped notice of the courts below and resulted in serious miscarriage of justice—Record
also showed that the pleadings were never perused with diligent application of mind by
the Trial Court and the proper issues clinching the controversy could not be framed and
resultantly the parties failed to substantiate their respective claims by adducting credible
evidence as the issues framed by the Trial Court were ambiguous and vague—Trial
Court itself was not clear as to which party had to discharge the onus of the issues
framed—Provisions of O. XIV, R. 5 C.P.C were ignored completely by the Trial Court
while framing the issues as a result whereof controversy regarding removal of household
articles could not be resolved—Where an issue, though in terms covering the main
question in the cause, could not sufficiently direct the attention of the parties to the main
questions of fact, necessary to be decide, the parties might have been prevented from
adducing evidence, or fresh issue might be directed to try the principal question of fact—
Duty of raising issues under C.P.C rested on the Court and it would be unsafe to
presume from the failure of the court and it would be unsafe to presume from the failure
of the Court to raise the necessary issues bound to prove—Supreme court, in
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circumstances, accepted the appeal, judgments of Trial court and Appellate court to
commence the proceedings afresh after framing proper issues by strictly following the
provisions as contained in O. XIV, C.P.C and after perusing the pleadings vigilantly. PLD
2003 SC 184
Framing of issues. Where respondents (plaintiffs) in body of plaint and

prayer clause had specifically asserted title over property on basis of adverse possession
for period beyond 60 years, Court was bound to frame issue on adverse possession. High
Court thus, fallen in serious error about law and facts by interfering with judgments of
two Courts below on the ground that issue regarding adverse possession could not have
been framed. Finding of High Court regarding defect in framing issues was, thus, not
tenable. PLJ 1997 SC 2084 = 1997 SCMR 1849.
Framing additional issues and production of secondary evidence. Every

material proposition affirmed by one party and denied by the other has to be subject of
distinct issue in terms of R. 1 of O.14 C.P.C.. R. 5 of 0. 14 empowers Court to amend
issues, frame additional issues, necessary for determining matter in controversy, at any
time before passing of decree. Where proper issues were not framed Court must ensure
that those issues were amended as additional issues were framed before conclusion of
trial, so that any prejudice to parties be avoided. Additional issues, framed by Trail Court
covered material controversies raised in pleadings and need conclusive decision from
Court. Absence of distinct issue on each and every material controversy, was likely to
create un-necessary complication and prejudice to either side which has been rightly
taken care of by trial Court. Petitioner expressed inability to produce document which
according to respondent was in his possession. Whether or not document would have
any evidentiary value on merit, would be considered by Court at final adjudication of
case. Original document being not available, while existence thereof, was not in issue,
only course available to Court was to allow secondary evidence and in doing so, no error
of jurisdiction was committed. PLJ 2000 Lah. 1219.
Onus of an issue in civil cases does not remain fixed permanently—the moment
some evidence is placed on record by one party, then onus shifts on other side, who
would fail, if remained unable to rebut same. PLD 2003 Azad J & K 25
2. Issues of law and of fact. Where issues both of law and of fact
arise in the same suit, and the Court is of opinion that the case or any part thereof
may be disposed of on the 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
until after the issues of law have been determined.
Court Decisions
115
It is discretion of court to settle preliminary issues of law only if it is of opinion

that entire suit can be disposed of on hearing of such issues. If court is of opinion that it
would be necessary to proceed with issues of facts also, then it may settle issues arising
out of pleadings and proceed to record evidence if necessary and to give final
adjudication. PLJ 1995 Kar. 323 = NLR 1995 CLJ 611 = PLD 1995 Kar. 416.
Whether partnership had been dissolved or not, was a question of fact and issue
of limitation was linked therewith. Trial court should not have framed issue of limitation
only and decided suit by recording finding thereon. Issue of limitation was not an issue
of pure law because it involved m9ed question of fact and law. It deserved to be
remanded for fresh decision. There is nothing wrong with decision of High Court. PLJ
1995 SC GG7 = PLD 1995 SC 639.
3. Materials from which issues may be framed. The Court

may frame the issues from all or any of the following materials: -
(a) allegations made on oath by the parties, or by any persons present
on their behalf, or made by the pleaders of such parties ;
(b) allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
(c) the contents of documents produced by either party.
Court Decisions
Issues raised would have to be related to averments made in pleadings--Absence
of specific objection in written statement--No amount of evidence produced could be
considered unless a fact was pleaded specifically, evidence in support thereof could not
be adduced . 1985 C L C 432
4. Court may examine witnesses or documents before framing

issues. Where the Court is of opinion 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, and may (subject to any law for the time
being in force) compel the attendance of any person or the production of any
document by the person in whose possession or power it is by summons or other
process.
5. Power to amend and strike out issues. (1) The Court may at any
time before passing a decree amend the issues or frame additional issues on such
terms as it thinks fit, and all such amendments or additional issues as may be
Contents
necessary for determining the matters in controversy between the parties shall be
so made or framed.
(2) 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.
Court Decisions
Contention that it was duty of court to frame proper issues and failure of
appellant to raise any objection during trial, was of no consequence. Although it is duty
of court to frame proper issues arising out of pleadings of parties, but this does not
relieve parties of their obligation to ensure that proper issues are framed. A party which
does not raise any objection at proper stage, before trial court, cannot be heard to urge
any such ground before appellate court. PLJ 1994 Note 19 dtp. 11.
6. Questions of fact or law may by agreement be stated in form of

issues. Where the parties to a suit are agreed as to the question of fact or of law
to be decided between them they may state the same in the form of an issue, and
enter into an agreement in writing that, upon the finding of the Court in the
affirmative or the negative of such issues:
(a) a sum of money specified in the agreement or to be ascertained by
the Court, or in such manner as the Court may direct, shall be
paid by one of the parties to the other of them, or that one of them
be declared entitled to some right or subject to some liability
specified in the agreement;
(b) some property specified in the agreement and in dispute in the
suit shall be delivered by one of the parties to the other of them, or
as that other may direct; or
(c) one or more of the parties shall do or abstain from doing some
particular act specified in the agreement and relating to the matter
in dispute.
7. Court, if satisfied that agreement was executed in good faith,

may pronounce judgment. Where the Court is satisfied, after making such
inquiry as it deems proper: -
(a) that the agreement was duly executed by the parties;
(b) that they have a substantial interest in the decision of such
question as aforesaid; and
(c) that the same is fit to be tried and decided, it shall proceed to
record and try the issue and state its finding or decision thereon in
the same manner as if the issue had been framed by the Court ;
and shall, upon the finding or decision on such issue, pronounce
117
judgment according to the terms of the agreement and, upon the

judgment so pronounced, a decree shall follow.
Contents
ORDER _XV
DISPOSAL OF THE SUIT AT FIRST HEARING
1. Parties not at issue. Where at the first hearing of a suit it appears

that the parties are not at issue on any question of law or fact; the Court may at
once pronounce judgment.
2. One of several defendants not at issue. Where there are more

defendants than one, and one of the defendants is not at issue with the plaintiff
on any question of law or fact, the Court may at once pronounce Judgment for or
against such defendant and the suit shall proceed only against the other
defendants.
3. Parties at issue. (1) Where the parties are at issue on some

question of law or of fact, and issuer have been framed by the Court as
hereinbefore provided if the Court is satisfied that no further argument or
evidence than the parties can at once adduce is required upon such of the issues
as may be sufficient for the decision of the suit and that no injustice will result
from proceeding with the suit forthwith, the Court may proceed to determine
such issues, and if, the finding thereon is sufficient for the decision, may
pronounce judgment accordingly, whether the summon has been issued for the
settlement of issues only or for the final disposal of the suit :
Provided that where the summons has been issued for settlement of
issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for decision, the Court shall
postpone the further-hearing of the suit, and shall fix a day for production of
such further evidence, or for such further argument as the case requires.
Court Decisions
Preliminary issues. Court granted hearing of preliminary legal issues as provided under
Order XV, Rule-3 C.P.C. which provides that when parties are at issues on some legal question
which issue have been framed by Court, and if court is satisfied that no further arguments or
evidence is required upon such preliminary issues, court may proceed to determine such issues. If
order attains finality, no objection is admissible. PLJ 1996 Kar. 868 = 1997 CLC 187.
119
4. Failure to produce evidence. Where, the summons has been

issued for the final disposal of the suit and either party fails without sufficient
cause to produce the evidence on which he relies, the Court may at once
pronounce judgment, or may, if it thinks fit, after framing and recording issues
adjourn the suit for the production of such evidence as may be necessary for its
decision upon such issues.
Contents
ORDER_XVI
SUMMONING AND ATTENDANCE OF WITNESSES

I. Summons to attend to give evidence or produce documents. (1)
Not later than seven days after the settlement of issues, the parties shall present
in Court a list of witnesses whom they propose to-call either to give evidence or
to produce documents.
(2) A party shall not be permitted to call witnesses other than those
contained in the said list except with the permission of the Court and after
showing good cause for the omission of the said witnesses from the list; and if
the Court grants such permission, it shall record reasons for so doing.
(3) On application to the Court or such officer as it appoints in this
behalf, the parties may obtain summons for persons whose attendance is
required in Court:
Provided that no summons shall be issued for service on a person under
rule 8 unless an application in the behalf is made not later than fourteen days
prior to the date fixed for the hearing of the suit and the necessary expenses for
the summoning of such person are deposited.
Court Decisions
Rule l (i) not intended to trap litigant for closing his evidence. Error or
inadvertent omission of Trial Court corrected under Secs. 153.151.CPC PLJ 1979 Lah.
410:
Defendant should have been allowed opportunity to examine second attesting

witness. Order of Civil Judge declining to allow defendant to bring registered document
on record, is not proper. PLJ1990 Kar. 270.
List of witnesses. Delay in filing of. Whether list could be cancelled under
Order XVI Ride 1 of C.P.C.. Provisions of C.P.C. are not applicable in rent proceedings
under Regulation n of 1945. Senior Civil Judge was not competent to cancel list of
witnesses under Order XVI Rule 1 of C.P.C.. Case remanded to trial Court to proceed on
merits. PLJ 1994 Qta. 83 -PLD 1994 Qta. 42 = NLR 1994 Civil 663.
Non-production of document in evidence. Court below held that document was

in possession of defendant who was proceeded against ex-parte. This is no justification
121
for its non production because plaintiff and trial court were not helpless in this behalf.
Plaintiff could have moved trial court for orders to said defendant to produce document
or summoned him for production of document and even trial court could have itself
directed said defendant to produce General Power of Attorney. This becomes clear if
reference is made to S. 30, O.XVI, Rr. 1, 6 & 7 C.P.C. and in case of failure, trial court
should have resorted to penal provisions compelling him to produce document. This
amounts to exercise of jurisdiction in vacation which is not permissible in taw. It was
legally not possible to hold that alleged general power of attorney was forged and
fabricated document when alleged general attorney, is son-in-law and nephew of
respondent/plaintiff. PLJ 1995 Lah. 309 = PLD 1995 Lah. 321.
2. Expenses of witness to be paid into Court on applying for

summons. (1) The party applying for a summons shall, before the summons is
granted and within a period to be fixed, pay into Court such a sum of money as
appears to the Court to be sufficient to defray the travelling and other expenses
of the persons summoned in passing to and from the Court in which he is
required to attend, and for one day's attendance.
(2) Experts. In determining the amount payable under this rule, the
Court may, in the case of any person summoned to give evidence as an expert,
allow reasonable remuneration for the time occupied both in giving evidence
and in performing any work of an expert character necessary for the case.
(3) Scale of expenses. Where the Court is subordinate to a High
Court, regard shall be had, in fixing the scale of such expenses, to any rules made
in that behalf.
3. Tender of expenses of witness. The sum so paid into Court shall

be tendered to the person summoned at the time of serving the summons, if it
can be served personally.
4. Procedure where insufficient sum paid in. (1) Where it appears

to the Court or to such Officer as it appoints in this behalf that the sum paid into
Court is not sufficient to cover such expenses or reasonable remuneration, the
Court may direct such further sum to be paid to the person summoned as
appears to be necessary on that account, and in case of default in payment, may
order such sum to be levied by attachment and sale of the movable property of
the party obtaining the summons; or the Court may discharge the person
summoned without requiring him to give evidence; or may both order such levy
and discharge such person as aforesaid.
(2) Expenses of witnesses detained more than one day. Where it is
necessary to detain the person summoned for a longer period than one day, the
Contents
Court may, from time to time, order the party at whose instance he was
summoned to pay into Court such sum as is sufficient to defray the expenses of
his detention for such further period, and in default of such deposit being made,
may order such sum to be levied by attachment and sale of the movable property
of such party; or the Court may discharge the person summoned without
requiring him to give evidence; or may both order such levy and discharge such
person as aforesaid.
5. Time, place and purpose of attendance to be specified in

summons. Every summons for the attendance of a person to give evidence or to
produce a document shall specify the time and place at which he is required to
attend, and also whether his attendance is required for the purpose of giving
evidence or to produce a document, or for both purposes; and any particular
document, which the person summoned is called on to produce, shall be
described in the summons with reasonable accuracy.
6. Summons to produce document. Any person may be summoned

to produce a document, without being summoned to g've evidence; and any
person summoned merely to produce a document shall be deemed to have
complied with the summons if he causes such document to be produced instead
of attending personally to produce the same.
7. Power to require persons present in Court to give evidence or

produce document. Any person present in Court may be required by the Court
to give evidence or to produce any document then and there in his possession or
power.
7A. Service of summons by parties. (1) Except, where it appears to the

Court that a summons under this Order should be served by the Court in the
same manner as a summons to a defendant, the Court shall make over for service
all summonses under this Order to the party applying therefor.
(2) The service shall be effected by or on behalf of such party by
delivering or tendering to the witness in person a copy thereof signed by the
Judge or such officer as he appoints in this behalf and sealed with the seal of the
Court.
(3) Rules 16 and 18 of Order V shall apply to summons personally
served under this rule, as though the person effecting service were a serving
officer.
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8. Service of summons by Court. Every summons under this Order,

not being a summons made over to a party for service under rule 7A of this
Order, shall be served as nearly as may be in the same manner as a summons to a
defendant, and the rules in Order V as to proof of service shall apply thereto.
9. Time for serving summons. Service shall in all cases be made a

sufficient time before the time specified in the summons for the attendance of the
person summoned, to allow him a reasonable time for preparation and for
travelling to the place at which his attendance is required.
10. Procedure where witness fails to a comply with summons. (1)

Where a person to whom a summons has been issued either to attend to give
evidence or to produce a document fails to attend or to produce the document in
compliance with such summons, the Court shall, if the certificate of the serving
officer has not been verified by affidavit, and may, if it has been so verified,
examine the serving-officer on oath or cause him to be so examined by another
Court, touching the service or non-service of the summons.
(2) Where the Court sees reason to believe that such evidence or
production is material and that such person has, without lawful excuse, failed to
attend or to produce the document in compliance with such summons or has
intentionally avoided service, it may issue a proclamation requiring him to
attend to give evidence or to produce the document at a time and place to be
named therein; and a copy of such proclamation shall be affixed on the outer
door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation or at any
time afterwards, the Court may, in its discretion, issue a warrant, either with or
without bail, for the arrest of such person, and may make an order for the
attachment of his property to such amount as it thinks fit, not exceeding the
amount of the costs of attachment and of any fine which may be imposed under
rule 12:
Provided that no Court of Small Causes shall make an order for the attachment
of immovable property.
Court Decisions
Appellants had complied with obligation cast upon them by paying process fee
and getting summons issued to said witnesses and they cannot be penalised by. closing
their side if summonses were not served. A further opportunity should have been
allowed to appellant to get summons for attendance of said witnesses repeated or
Contents
warrants, bailable or non-bailable issued under Order XVI, Rule 10, CPC. PLJ 1990 Kar.
279.
It is duty of Court to proceed against defaulting witness u/r, 10. Suit cannot be
dismissed after closure of plaintiffs evidence for non-appearance of witness who is a
Government servant. NLR 1988 SCJ 429; 1988 SCMR 1167; PLJ 1988 SC 27 L.
11. If witness appears, attachment may be withdrawn. Where, at any

time after the attachment of his property, such person appears and satisfies the
Court: -
(a) that he did not without lawful excuse, fail to comply with the
summons or intentionally avoided service; and
(b) where he has failed to attend at the time and place named in a
proclamation issued under the last preceding rule, that he had no
notice of such proclamation in time to attend, the Court shall
direct that the property be released from attachment and shall
make such order as to the costs of the attachment as it thinks fit.
12. Procedure if witness fails to appear. The Court may, where 'such
person does not appear, or appears but fails so to satisfy the Court, impose upon
him such fine not exceeding [two thousand rupees] as it thinks fit, having regard
to his condition in life and all the circumstances of the case, and may order his
property, or any part thereof, to be attached under rule 10, to be sold for the
purpose of satisfying all costs of such attachment, together with the amount of
the said fine, if any :
Provided that, if the person whose attendance is required pays into Court
the costs and fine aforesaid the Court shall order the property to be released from
attachment.
13. Mode of attachment. The provisions with regard to the

attachment and sale of property in the execution of a decree shall, so far as they
are applicable, be deemed to apply to any attachment and sale under this Order
as if the person whose property is so attached were a judgment-debtor.
14. Court may of its own accord summon as witnesses strangers to

suit. Subject to the provisions of this Code as to attendance and appearance and
to any law for the time being in force, where the Court at any time thinks it
necessary to examine any person other than a party to the suit and not called as a
witness by a party to the suit, the Court may, of its own motion, cause such
125
person to be summoned as a witness to give evidence, or to produce any

document in his possession, on a day to be appointed and may examine him- as a
witness or require him to produce such document.
Court Decisions
Court witness. When to be called by court. Provisions as to Court witness are
provided in Rule 14 of Order XVI of CPC whereby it has been provided that where court
at any stage thinks it necessary to examine any person other than party to suit and not
called as witness by party to suit, court may of its own motion call upon such person to
be summoned as witness to give evidence or to produce any document in his possession,
on a day to be appointed and may examine him as witness or require him to produce
document. Bare reading of above said rule would show that Court witness can be
summoned only when court thinks it necessary and particularly when he has not been
called as witness by party to suiL In instant case, Local Commissioner was called as
witness by respondents, therefore, there was no occasion for court to examine him as
court witness. Special Procedure having been provided in Sub-section (2) of Rule 10 of
Order 26 in case of Local Commissioner, Procedure of Rule 14 of O.XV3 as to
examination of witness was not required to be adhered to. PLJ 1996 Lah. 1089 =
1996CLCS80.
15. Duty of persons summoned to give evidence or produce

document. Subject as last aforesaid, whoever is summoned to appear and give
evidence in a suit shall attend at the time and place named in the summons for
that purpose, and whoever is summoned to produce a document shall either
attend to produce it, or cause it be produced, at such time and place.
16. When they may depart. (1) A person so summoned and attending
shall, unless the Court otherwise directs, attend at each hearing until the suit has
been disposed of.
(2) On the application of either party and the payment through the
Court of all necessary expenses (if any), the Court may require any person so
summoned and attending to furnish security to attend at the next or any other
hearing or until the suit is disposed of and, in default of his furnishing such
security, may order him to be detained in the civil prison.
17. Application of rules 10 to 13. The provisions of rules 10 to 13

shall, so far as they are applicable, be deemed to apply to any person who
'having attended in compliance with a summons departs, without lawful excuse,
in contravention of rule 16.
Contents
18. Procedure where witness apprehended cannot give evidence or

produce document. Where any person arrested under a warrant is brought
before the Court in custody and cannot, owing to the absence of the parties or
any of them, give the evidence or produce the document which he hat been
summoned to give or produce, the Court may require him to give reasonable bail
or other security for his appearance at such time and place as it thinks fit, and, on
such bail or security being given, may release him and, in default of his giving
such bail or security may order him to be detained in the civil prison.
19. No witness to be ordered to attend in person unless resident

within certain limits. A person shall not be asked by a Court to attend in person
to give evidence unless he resides at any place in Pakistan.
20. Consequence of refusal of party to give evidence when called on

by Court. Where any party to a suit present in Court refuses, without lawful
excuse, when required by the Court, to give evidence or to produce any
document' then and there in his possession or power, the Court may pronounce
judgment against him or make such order in relation to the suit as it thinks fit.
21. Rules as to witnesses to apply to parties summoned. Where any

party to suit is required to give evidence or to produce a document, the
provisions as to witnesses shall apply to him so far as they are applicable.

LAHORE
Add the following proviso to 0. XVI, R. 1:

'Provided that no party who has begun to call his witnesses shall be
entitled to obtain process to enforce the attendance of any witness against whom
process has not previously issued, or to produce any witness not named in a list,
which must be filed in Court on or before the date on which the hearing of
evidence on his behalf commences and before the actual commencement of the
hearing of such evidence without an order of the Court made in writing and
stating the reasons thereof'. [15.10.1932]
R. 2. Add the following as an Exception to R. 2 (1) :

'Exception: When applying for a summons for any of its own officers.
Government will be exempt from the operation of clause (1)' .[9.1.1919].
127
R. 3. For rule 3, substitute the following: --

'3. (1) The sum paid into a Court shall, except in the case of a Government
servant, be tendered to the person summoned at the time of serving the
summons if it can be served personally.
(2) When the person summoned is a Government servant, the sum so
paid into Court shall be credited to Government.
Exception: (1) In case in which Government servants have to give
evidence at a Court situate not more than five miles from their headquarters,
actual travelling expenses incurred by them may, when the Court considers it
necessary, be paid them.
Exception: (2) Government servant, whose salary does not exceed Rs. 10
per mensem may receive his expenses from the Court.'[19.1.1919].
R. 4. After the word 'summoned' where it occurs first in rule 4(1) insert: -
R. 14A. Add Rule 14-A: -
'14-A. When a witness is summoned by the Court of its own motion,

under Order XVI, rule 14, his diet money shall be paid by such party or parties as
the Court may, in its discretion, direct. When diet money, etc. are not deposited,
payment shall, be made out of contingencies and an order passed for recovery
from any property of the party concerned and executed under Section 36 of the
Code'. [3.6.1945].
R. 16. Add the following sub-rule (3) to rule 16.

(3) In the absence of the Presiding Officer the powers conferred by sub-
rule (2) may be exercised by the Senior Subordinate Judge of the First Class
exercising jurisdiction at the headquarters of the District, or by any Judge or
Court-official nominated by him for the purpose :
Provided that a Court Official nominated for the purpose, shall not order
a person, who fails to furnish security as may be required by sub-rule (2) to be
detained in prison, but shall refer the case immediately to the Presiding Officer
on his return.' [25.7.1931].
N.-W.F.P.
Substitute the following for R. 1 :--
1. (1) On such date the Court may appoint and not later than 30 days after
the settlement of issues, the parties shall present in Court a list of witnesses
whom they propose to call either to give evidence or to produce documents.
Contents
(2) They shall not be permitted to call witnesses other than those
contained in the said list, except with the permission of the Court and after
showing good cause for the omission of the said witnesses from the list; the
Court granting such permission shall record reasons for so doing.
(3) On application to the Court or such officer as it appoints in this behalf
the parties may obtain summons for persons whose attendance is required in
Court.'
R. 8. Add the following provisos to rule 8 :
'Provided that such summons shall ordinarily be made over for service to
the party calling the witnesses, and his affidavit shall be considered sufficient
proof of service :
Provided further that he shall for sufficient reasons, be entitled to apply
to the Court to have the summonses served through its agency.'
SINDH
Insert the following as proviso to sub-rule (1) of rule 1 :
'Provided that where Government or a public officer being a party to a
suit or proceeding as such officer supported by Government in the litigation
applies for a summons to any public officer to whom the Civil Service
Regulations apply to give evidence of fact which have come to his knowledge, or
of matters with which to deal as public officer, or to produce any document from
public records, the Government or the aforesaid officer shall not be required to
pay sum of money on account of the travelling and other expenses of such
witness.'
Add the following as rule 1-A :-

'IA. the Court may, on the application of any party for summons for the
attendance of any person as a witness, permit that service of such summons shall
be effected by the party.'
Insert following as proviso in R. 3 :
'Provided that where the witness is a public officer to whom the Civil
Service Regulation apply and is summoned to give evidence of facts which have
come to his notice, or of facts with which he has had to deal in his official
capacity, or to produce a document from the public record, sum payable by the
party obtaining the summons on account of his traveling and other expenses
shall not be tendered to him. "
129
Contents
ORDER_XVII
ADJOURNMENTS
1. Court may grant time and adjourn hearing. (1) The Court may, if
sufficient cause is shown, at any stage of the suit grant time to the parties or to
any of them, and may from time to time adjourn the hearing of the suit.
(2) Costs of adjournment. In every such case the Court shall fix a day
for the further hearing of the suit, any may make such order as it thinks fit with
respect to the costs occasioned by the adjournment:
Provided that, when the hearing of evidence has once begun, the hearing
of the suit shall be continued for day to day until all the witnesses in attendance
have been examined, unless the Court finds the adjournment of the hearing
beyond the following day to be necessary for reasons to be recorded.
Court Decisions
Adjournment without sufficient cause—Dismissal of suit-- Many opportunities
were given to the plaintiff to produce his evidence but he failed to produce the same
despite the fact that 17 adjournments were sought by him—Trial Court after giving
warning to the plaintiff, dismissed the suit under O. XVII, R.3, C.P.C – Contention of the
plaintiff was that the Trial Court had to proceed under O. XVII, R. 1(3), C.P.C – Validity
—Trial Court was not debarred even under O. XVII, R. 1(3), C.P.C for dismissing the suit
after it had been made impossible for the court by the defaulting party to proceed with
the matter by failing to bring any material on record—Suit was rightly dismissed by Trial
court in circumstances. PLD 2003 Pesh. 60
Conditional order passed by Court for adjournment of Constitutional petition

subject to payment of Cost. Cost, not paid by petitioner on adjourned date of hearing- No
further proceedings could be taken in the case. Court, however, proceeded to examined
case in interest of justice and fair play by passing conditional order. PLJ 1999 Lah. 316.
One adjournment to defendants for adducing evidence was conducive to cause

of justice. In view of nature of decree and amount involved, it was no justice to have
declined adjournment. Appeal accepted and case remanded for fresh decision but
defendants burdened with costs of Rs. 2000/-. PLJ 1988 Lah. 234.
2. Procedure if parties fail to appear on day fixed. Where, on any

day to which the hearing of the suit is adjourned, the parties or any of them fail
131
to appear, the Court may proceed to dispose of the suit in one of the modes
directed in that behalf by Order or make such other order as it thinks fit.
Court Decisions
Non-prosecution. Whether it can be dismissed and whether submission of
arguments is not necessary after evidence of parties has been recorded or not. Hearing of
arguments is not enjoined on court by CPC. All that it requires is that if parties or their
counsel want to address arguments, court has to give them an opportunity to do so, but
hearing of arguments is not essential before disposing of case. In case where entire
evidence has been recorded and case is. posted only for hearing of arguments, case
should not be dismissed but adjourned or decided on merits. Consensus of judicial
opinion appears to being favour of view that if it is possible for a court to base a decision
on merits upon material already brought on record, it should proceed under Rule 3 and
not Rule 2. This appears also to be sound on principle. Every party who has instituted a
cause or matter in a court has a right to have his case decided on merits- A dismissal for
non-prosecution should, therefore, be an exception and not a rule. PLJ 1998 Kar. 469 =
1998 CLC 1383.
Appeal against order under O. 17, R. 2, C.P.C. does not lie; appropriate
remedy is to seek redress under O.9, R.9 or 13, C.P.C. as the case may be. 2002 CLC 71
1999 SCMR 105 rel.
3. Court may proceed notwithstanding either party fails to produce

evidence, etc.Where any party to a suit whom time has been granted fails to
produce his evidence, or to cause the attendance of his witnesses, or to perform
any other act necessary to the further progress of the suit, for which time has
been allowed, the Court may, notwithstanding such default, proceed to decide
the suit forthwith.
Court Decisions
Dismissal of suit-- Many opportunities were given to the plaintiff to produce
his evidence but he failed to produce the same despite the fact that 17 adjournments were
sought by him—Trial Court after giving warning to the plaintiff, dismissed the suit
under O. XVII, R.3, C.P.C – Contention of the plaintiff was that the Trial Court had to
proceed under O. XVII, R. 1(3), C.P.C – Validity—Trial Court was not debarred even
under O. XVII, R. 1(3), C.P.C for dismissing the suit after it had been made impossible for
the court by the defaulting party to proceed with the matter by failing to bring any
material on record—Suit was rightly dismissed by Trial court in circumstances. PLD 2003
Pesh. 60
Closing of evidence—Negligence of Plaintiffs—Plaintiffs were not only
negligent in producing their evidence but had not cared about the last chances provided
and warnings given to them to proceed under O. XVII, R.3, C.P.C—Effect—Trial court
Contents
had rightly passed order of closing the evidence of plaintiffs in circumstances. PLD 2003
Pesh 60
Despite having been given 17 adjournments for production of evidence, plaintiffs
failed to produce their evidence over a period of four years—Trial Court dismissed the
suit for non-production of evidence and appeal was dismissed by Appellate Court—
Validity—Plaintiffs had made it impossible for the Trial Court to make further progress
with the suit—Trial Court had no other option but to close their evidence and dismiss the
suit—No illegality or material irregularity was found by High Court in concurrent
findings of the Courts of competent jurisdiction—Revision was dismissed in limine. PLD
2003 Pesh. 60
Application :-- The predominant factors requisite for the application of rule 3 in
contradistinction with rule 2 of Order 17, C.P.C. would be as follows:-- (1) The case must
have been adjourned or time granted on the request of a party. . (2) The purpose of
granting time/adjournment to the party shall be: (i) to produce his evidence, (ii) to call
the attendance of his witnesses, or (iii) to perform any other act necessary to further
progress of the suit. (3) The party to whom adjournment/time was granted
defaulted/failed to perform the act(s) for which the adjournment/ time was granted. (4)
There shall be some material on record and the Court shall proceed to decide the suit
forthwith on the basis of such material. (5) Such decision shall be made within a
reasonable time if not on that very day. (6) All these conditions shall co-exist and absence
of any of these conditions shall exclude the applicability of this rule and in that event in
case of default the case may fall within the domain of rule 2 of Order 17, C.P.C. 2002 CLC
71
PLD 1971 SC 434; PLD 1991 SC 1109 and PLD 1963 (W.P.) Kar. 356 ref.
Under Order 17, Rule 3, CPC. Court providing any party to produce his evidence
or to cause attendance of his witnesses or to perform any other act necessary for progress
of suit for which time was allowed, if he fails to produce evidence or to perform that act
for which time was allowed, may proceed to decide suit forthwith. Term "decide
forthwith", refers to decision within reasonable time under circumstances and Court may
decide suit on same day. It may also be mentioned that decision should be on merits.
Application of above Rule is in nature of exception to general provisions contained in
Rule 2 which applies to Cases where adjournment is generally granted not for specific
purpose, while this rule applies where adjournment is granted for any of purposes
mentioned in the Rule. Other distinction is that rule 2 of Order 17. CPC, applies where
parly fails to appear at the hearing but Rule 3 even applies where party is present but has
committed any of defaults mentioned in the Rule. There may be some cases to which
both rules 2 and 3 are applicable. In such matters, Court should proceed under Rule 2
instead of Rule 3. i.e. either adjourn or proceed under Order 9 C.P.C. which is lesser
penalty. PLJ 1996 AJK 140 = 1996 CLC 1897.
Civil Judge hurriedly closed evidence of petitioner but slept over matter
for a long time and decided it after 8 months of hearing of arguments. Normal period for
announcing judgment after hearing arguments is 3 months and if not done so. arguments
133
are to be heard afresh. Case remanded to Civil Judge for deciding it after hearing
arguments again. PLJ 1989 Lah. 372.
Impression of Trial Court that after closing appellant's side. suit must
necessarily be dismissed, is totally ill founded. PLJ 1990 Quelta 58.
Where Order 17. R. 3 was correctly applied :-- Where Order 17. R. 3 was
correctly applied and there is no reason to interfere with concurrent finding of two
Courts. PLJ 1989 Pesh. 71.
Scope. In order to penalize party so as to close its evidence, resort can be made to
provisions of Order 17 Rule 3 C.P.C. if party contumaciously fails to produce its
evidence. PLJ 1997 Lah. 1405 = 1998 CLC 110 = Law Notes 1997 (Lah.) 909.
Closure of evidence. Proceedings before Rent Controller for evidence of

petitioner/ tenant remained pending for almost three years before evidence was closed
after giving warning on one date that it be treated as last opportunity and yet on another
date that tenant shall examine his evidence at his own responsibility. It appears that no
heed to those warnings of Rent Controller was paid and matter was handled casually by
petitioner/tenant without any care and caution. Even now while arguing case, it has not
been pointed out as to what evidence is intended to be produced before Rent Controller.
Learned counsel for petitioner/tenant was of view that if opportunity is given, then
whatever evidence would be available, shall be produced before Rent Controller. It is
hardly good reason to set aside impugned order of Tribunals below, which have been
passed after taking into account entire history of case. Petitioner/tenant was given
sufficient opportunity to examine evidence but it failed to do so. PLJ 1999 Lah. 446 = 1998
MLD 934.
Petitioner having been given numerous opportunities with a warning by giving

him last opportunity to adduce his evidence, but nothing was done by him and as such
provisions contained in O.XIII R. 3 CPC were invoked to close his evidence. A litigant
should be vigilant while conducting a case. Facts clearly reveal that petitioner was not
only idolent but also negligent to examine his evidence at trial. Orders passed by Courts
below do not suffer from any latent or patent legal defect so as to call for interference by
High Court in its Constitutional jurisdiction. PLJ 2000 Lah. 433.
Petitioners submitted an application for production of additional witness on

18.2.96 who had not been cited as witness in list of witnesses, which was accepted by trial
court on 3.10.1996 and case was adjourned for remaining evidence of plaintiff/petitioners
but on next date they failed to produce their evidence. On 16.10.1996 final opportunity
was given to plaintiff-petitioners to produce their evidence, despite that they failed to
produce their evidence. Conduct of petitioners show that they were least interested to
pursue their case rather they used to apply delaying tactics to prolong litigation. In facts
and circumstances of case teamed trial court has rightly applied provision of 0- 17 R. 3
Contents
and learned Addl. District Judge has also properly maintained findings of trial Court.
Petition dismissed in limine. PLJ 1998 Pesh. 191 = 1999 CLC 2045.
Petitioner (defendant) while arguing his case could not point out what
illegality had been committed by Family Court in closing his evidence after having
afforded him few apportunities. Family cases were meant to be decided as early as
possible and dragging of case fixed for hearing and where last opportunity had already
been afforded, was not justifiable. Even otherwise arguments in present case are yet to be
heard and judgment and decree of Family Court was still expected which given parties
right to file appeal and to challenge impugned orders there. In writ petition on such like
matters. Court has to see whether any patent illegality was attached to order impugned.
No illegality having been pointed out in impugned order, writ petition was devoid of
merit and was dismissed in circumstances. PLJ 2000 Lah. 1621.
Summoned Wittness :-- It is well settled law that, where a witness has
been summoned by a party and said witness fails to appear in Court despite service,
Court has to take coercive measure against him to ensure his attendance and party
summoning witness, could not be penalized. Trial Court has violated law laid down by
S.C as a result of which, impugned order is rendered illegal. PLJ 1994 Lah. 211 = PLD
1994 Lah. 374.
Evidence already on record :-- Trial Court while dismissing suit of plaintiff
under O.17. R. 3. C.P.C. failed to advent to evidence already on record. Trial Court could
not dismiss suit without considering evidence on record. Judgment and decree passed by
Trial Court was nullity in eyes of law. PLJ 1999 SC 208 = 1998 SCMR 2296.
Date given by ministerial staff :-- Number of opportunities were given to

plaintiff to produce evidence while defendant was given only two opportunities; on first
date transport was not available while on second date Court was on leave. Date on which
defence was struck off was given by ministerial staff of Court which had no authority to
direct parties to do or not to do certain act. Case was adjourned on many dates after
striking off defence when final judgment and decree was passed. Course adopted by trial
Court was in violation of provision of O.17 R. 3 C.P.C.. Court while striking off defence of
parties was required to pass judgment and decree on basis of material available on record
and such judgment and decree must be passed forthwith-Judgments and decrees passed
by Courts below being violation of provisions of O.17, R. 3 C.P.C. PLJ 1999 Lah. 1633 =
1999 CLC 1297.
Closing of petitioners evidence for non-production of evidence on adjourned

date. Adjournment was necessitated due to circumstance beyond the control of parties.
Court on such adjourned date was, thus, not legally bound/justified to invoke provisions
of O.17, R. 3 C.P.C. for dosing petitioners evidence for their non-appearance. Court could
have dismissed suit for non-prosecution under provisions of O.17, R. 2 C.P.C. read with
O.DC, R. 8 C.P.C. or made such other order as it throught fit Petitioners, having brought
their evidence on previous date, they should have been granted one more opportunity to
135
produce their evidence. Order of closing of evidence being illegal and suffering from
material illegality was set aside and case was remanded for giving one opportunity to
petitioners for production of their evidence and thereafter, proceeding with case in
accordance with law. PLJ 1999 Lah. 444 = 1999 MLD 2267.
Dismissal of suit for non -production of evidence and non-presence of

plaintiff on specified date. Validity of such order was challenged whereupon Appellate
Court remanded case to Trial Court to proceed with the same according to law.
Defendants, challenged competency of appeal and claimed that same should have been
dismissed as incompetent. Competency of appeal could not be challenged particularly
when mis-application of O.17, R. 3 C.P.C. could only be set aside and corrective order
could be made by remanding case for parties so that their dispute ba settled on merits.
Hyper-technicalities, however, could not be allowed to throttle true facts nor those could
be used as guillotine to non-suit any party to deprive it of its valuable legal rights for
adjudication of matters on merits. Corrective jurisdiction always vests in Appellate Court
which can undo any wrong made by Court subordinate to it. Order in question, being
utterly bad in the eyes of law and having been passed under misconceived interpretation
of legal provisions, party concerned could not be allowed to be judicially prejudiced.
Question of limitation was also correctly dealt with by Appellate Court by stating clear
reasons therein for which there was no answer even at revisional stage before High
Court. There appeared to be no patent or latent illegality with impugned. PLJ 1999 Lah.
1622.
Application for restoration. Evidence in case had still to be recorded. Suit had
been dismissed due to absence of plaintiffs. Mode adopted by learned Judge for
disposal of suit was one contemplated by Rule 8 o f Order IX Said order
cannot be considered to have been passed under Rule 3 of Order 17 but
should be taken to be covered by rule 2 of Order 17 read with Rule 8 of
Order IX C.P.C. and therefore application is maintainable. PLJ 1994 Kar. 53 = PLD
1993 Kar. 771
Dismissal of suit for want of evidence—Trial Court, while refusing to grant

adjournment to plaintiff dismissed suit on 22-3-1999 for want of evidence—Plaintiff filed
application under O.9, R.9, C.P.C. for recalling the order, which was dismissed being not
maintainable—Plaintiffs appeal under O.43, R.1 C.P.C was also dismissed on the ground
that suit was dismissed for want of evidence, against which the only remedy was to file
regular appeal and not miscellaneous appeal—Contention was that order of Trial Court
squarely fell within scope of O.17, R.2, C.P.C. against which miscellaneous appeal was
maintainable—Validity—Trial Court on 11-3-1999 after framing issues adjourned the
proceedings to 22-3-1999 with direction to parties to file their list of
witnesses/documents within 7 days—Neither such adjournment was granted on
plaintiffs request nor Trial Court while dismissing suit had touched merits of the case,
thus, it was not an order within purview of O.17, R.3, C.P.C., but it could be in substance
Contents
an order under O.17, R.2, C.P.C. hence it was not a decree against which no appeal was
required to be filed under S.96, C.P.C.—Plaintiffs application under O.9, R.13, C.P.C was
competent, which was illegally dismissed by Trial Court—Both the impugned orders
were illegal and had resulted in grave miscarriage of justice, as such were amenable to
revisional Jurisdiction of High Court—Impugned orders were set aside and case was
remanded to Trial Court for its decision in accordance with law. 2002 CLC 71
PLD 1981 SC 474; PLD 1985 Pesh. 91 and 1984 CLC 2893 ref.
Absence of petitioners on date of hearing. Power to close evidence and passing

of ex parte decree. Conduct of petitioners show their indolence particularly not
contacting their counsel within period of one year commencing from date of ex parte
decree. It is established preposition of law that law favours vigilants and not indolents.
Petitioners also did not apply for condonation of delay in trial Court. Apparently their
application for setting aside ex parte decree was barred by time under Art. 14 of
Limitation Act Under provisions of 0. 17. Rr. 2 & 3. Court can competently pass ex parte
decree due to absence of petitioners. In absence of application for condonation of delay
there was no room left, for trial court but to dismiss their application for setting aside ex
parte decree. PLJ 1998 Pesh. 14 = PLD 1998 Pesh. 43.
4. Appearance of parties on the day next after holiday. Where a suit

or proceedings is set down for day which is a holiday, the parties thereto shall
appear in the Court on the day next following that day, or, when two or more
successive days, are holidays, on the day next following the last of such
successive days, and the Court may then either proceed with the suit on such
day, or some other day thereafter.
5. Appearance of parties on the day when the Presiding Officer is

absent. When on any day the Presiding Officer of the Court is absent by reason
of illness or any other cause, the parties to the suit or proceeding set down for
that day (notwithstanding the knowledge that the Presiding Officer would be
absent) shall appear in the Court house on that day and the ministerial Officer of
the Court authorized in that behalf shall hand over to the parties slips of paper
specifying the other day fixed for proceeding with the suit or proceeding and
signed by him.
HIGH COURT AMENDMENTS LAHORE
(i) For rule 1 add the following as sub-rule :-

(3) Where sufficient cause is not shown for the grant of an
adjournment under sub-rule (1) the Court shall proceed with the suit forthwith.'
137
(ii) To rule 1(1) before the words 'the Court' add the words 'subject to
the provisions of Order XXIII, rule 3.' [21.7.1937].
Contents
ORDER_XVIII
HEARING OF THE SUIT AND EXAMINATION OF

WITNESSES
1. Right to begin. The plaintiff has the right to begin unless the
defendant admits the facts alleged by the plaintiff and contends that either in
point of law or on some additional facts alleged by the defendant the plaintiff is
not entitled to any part of the relief he seeks, in which case the defendant has the
right to begin.
2. Statement and production of evidence. (1) On the day fixed for

the hearing of the suit or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in
support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence
(if any) and may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
Court Decisions
Where parties or their counsel want to address arguments. Trial Court has to
give them opportunity to do so, but hearing of arguments before disposing of case is not
essential. PLJ 1997 Lah. 1043 = 1996 CLC 2016.
Dismissal for non-prosecution at arguments stage. Not warranted.District

Court in such circumstances had correctly exercised vested suo motu. revisional
jurisdiction under S. 115(2), C.P.C.. Trial Court on failure of counsel of parties to address
arguments had dismissed suit for non-prosecution ignoring fact that evidence of parties
in suit had already been concluded. Provisions of 0.18, R. 2, C.P.C. would not necessarily
require advancing of arguments- Parties, however, if so desired, could advance
arguments and Court in that case would afford them opportunity to do so, but hearing of
arguments before disposing of case was not a legal requirement. Order of remand passed
by District Court was affirmed in circumstances. PLJ 1998 Kar. 742 = 1998 CLC 1128.
Death of defendants after concluding of evidence but before hearing of

arguments. If arguments were not heard before judgment was passed, hearing of case
139
would, for purpose of O.22, R. 6. C.P.C. be deemed to have been concluded with the
conclusion of evidence of parties. PLJ 1997 Lah. 1043 = 1996 CLC 2016.
3. Evidence where several issues. Where there are several issues,

the burden of proving some of which lies on the other party the party beginning
may at his option, produce his evidence on those issues or reserve it by way of
answer to the evidence produced by the other party, and, in the latter case, the
party beginning may produce evidence on those issues after the other party has
produced all his evidence, and the other party may then reply specially on the
evidence so produced by the party beginning, but the party beginning will then
be entitled to reply generally on the whole case.
Court Decisions
Where Respondent had reserved right to produce evidence in rebuttal of
petitioner's evidence. He , after petitioners had produced evidence, had a right to adduce
evidence in rebuttal. Petitioners did not take timely steps to avoid burden of proving that
suit was time barred. Statement under challenge was not recorded subject to objection of
petitioners for which they are themselves to blame of all what has been done in regard to
examination and re-examination of P.W. I. Procedure adopted by learned Civil Judge
was in consonance with Provisions of rule 3 of Order 18 of C.P.C. PLJ 1996 SC 675 = 1996
S.CMR 351.
4. Witnesses to b examined in open Court. The evidence of the

witnesses in attendance shall be taken orally in open Court in the presence and
under the personal direction and superintendence of the Judge.
5. How evidence shall be taken in appealable cases. In cases in

which an appeal is allowed the evidence of each witness shall be taken down in
writing, in the language of the Court, by or in the presence and under the
personal direction and superintendence of the Judge, not ordinarily in the form
of question and answer, but in that of a narrative and, when completed, shall be
read over in the presence of the Judge and of the witness, and the Judge shall, if
necessary, correct the same, and shall sign it.
6. When deposition to be interpreted. Where the evidence is taken

down in language different from that in which it is given, and the witness does
not understand the language in which it is taken down, the evidence as taken
down in writing shall be interpreted to him in the language in which it is given.
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7. Evidence under section 138. Evidence taken down under section

138 shall be in the form prescribed by rule 5 and shall be read over and signed
and, as occasion may require, interpreted and corrected as if it were evidence
taken down under that rule.
8. Memorandum when evidence not taken down by Judge. Where

the evidence is not taken down in writing by the Judge, ,he shall be bound, as the
examination of each witness proceeds to make a memorandum of the substance
of what each witness deposes, and such memorandum shall be written and
signed by the Judge and shall form part of the record.
9. When evidence may be taken in English. Where English is not

the language of the Court, but all the parties to the suit who appear in person,
and the pleaders of such as appear by pleaders do not object to have such
evidence as is given in English taken down in English, the Judge may so taken it
down.
10. Any particular question and answer may be taken down. The
Court may, of its own motion or on the application of any party or his pleader,
taken down any particular question and answer, or any objection to any
question, if there appear to be any special reason for so doing.
11. Questions objected to and allowed by Court. Where any

question put to a witness is objected to by a party or his pleader, and the Court
allows the same to be put, the Judge shall take down the question, the answer,
the objection and the name of the person making it, together with the decision of
the Court thereon.
12. Remarks on demeanour of witnesses. The Court may record such

remarks as it thinks material respecting the demeanour of any witness while
under examination.
13. Memorandum of evidence in unappealable case. In cases in

which an appeal is not allowed, it shall not be necessary take down the evidence
of the witnesses in writing at length; but the Judge as the examination of each
witness proceeds, shall make a memorandum of the substance of what he
deposes, and such memorandum shall be written, and signed by the Judge and
form part of the record.
141
14. Judge unable to make such memorandum to record reasons of

his inability. (1) Where the Judge is unable to make a memorandum as required
by this Order, be shall cause the reason of such inability to be recorded, and shall
cause the memorandum to be made in writing from his dictation in open Court.
(2) Every memorandum so made shall form part of the record.
15. Power to deal with evidence taken before another Judge. (1)
Where a Judge is prevented by death, transfer or other cause for concluding the
trial of a suit, his successor may deal with any evidence or memorandum taken
down or made under foregoing rules as if such evidence or memorandum had
been taken down or made by him or under his direction under the said rules and
may proceed with the suit from the stage at which his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable,
be deemed to apply t8 evidence taken in a suit transferred under section 24.
16. Power to examine witness immediately. (1) Where a witness is

about to leave the jurisdiction of the Court, or other sufficient cause is shown to
the satisfaction of the Court why his evidence should be taken immediately the
Court may, upon the application of any party or of the witness, at any time after
the institution of the suit, take the evidence of such witness in manner
hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of
the parties, such notice as the Court thinks sufficient, of the day fixed for the
examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness and, if he
admits it to be correct, shall be signed by him and the Judge shall, if necessary,
correct the same, and shall sign it, and it may then by read at any hearing of the
suit.
17. Court may recall and examine witness. The Court may at any
stage of a suit recall any witness who has been examined and may (subject to the
law of evidence for the time being in force) put such questions to him as the
Court thinks fit.
Court Decisions
Calling of Court witness. Argument that court was within its competence to
recall witness/Local Commissioner under 0.18, R. 17, suffice it to say that provisions of
said rule are also not attracted because of there being special procedure as provided
under sub-rule (2) of Rule 10 of Order 26. It is common knowledge that where special
Contents
procedure is provided, it always over rides general principle as same cannot be invoked
in preference to special procedure. PLJ 1996 Lah. 1089 = 1996 CLC 580.
Whether recalling of attesting witnesses of notice of Talb-e-Ishhad only vested in

court or whether a party to lis can also file and maintain an application for recalling of
witnesses. It is now a forgone conclusion that party to lis can also file application under
0. 18 R. 17 CPC and in appropriate cases witnesses can be recalled on motion of a party to
proceedings. Scope of examination of witnesses on their being recall as conferred by
Court under 0-18 R. 17 CPC was enlarged by invoking inherent powers of Court under
section 151 CPC, thereby allowing that a witness may be examined, cross examined and
re-examined. Producing a witness and recalling a witness are two different concepts and
independent of each other. Decision of one would not fore-close decision in other nor the
same can be equated with each other to hold that general principle of res judicata would
be applicable. Petitioner was allowed to examine attesting witnesses of notice Talb-e-
lshhad to prove the same. PLJ 1998 Lah. 307 = 1998 CLC 393 = NLR 1998 Civil 205.
18. Power of Court to inspect. The Court may at any stage of a suit
inspect any property or thing concerning which any question may arise.
Court Decisions
Object and scope—Power of inspection of inspection of property is discretionary
and in peculiar circumstances the inspection of location may be necessary and helpful in
deciding a case, but in should not be substituted as an evidence, which otherwise is
required to be produced by a party. PLD 2003 Kar. 148
Contents of report of official assignee whether part of judicial record—
Dispute was with regard to the stage of construction carried on the spot and to ascertain
the same, the Trial Court appointed official Assignee to inspect the sit—Official Assignee,
on the direction of the Trial Court engaged a professional architect for the specific
purpose—Reference submitted by the Official Assignee in the Trial Court included report
of the architect—Plea raised by the party was that the report of architect filed with the
reference of the Official Assignee was a piece of evidence – Validity—Such report of
architect submitted along with the reference did neither form part of any judicial
proceedings nor the same was carried out for the purpose of resolving controversy in the
main suit—Assignee’s reference having come for consideration by the Trial Court and an
issue to that effect was framed, the purpose of carrying out the and an issue to that effect
was framed, the purpose of carrying out the inspection was achieved—Plea raised by the
party was repelled in circumstances. PLD 2003 Kar. 148
Local inspection—Failure to file objection to inspection note—Suit by the
respondent was dismissed by Trial Court—Lower Appellate Court inspected the
disputed site personally in presence of the parties and allowed the appeal on the basis of
the inspection note—Judgment of the Lower Appellate Court was assailed before High
Court in revision and the same was also dismissed—Validity—Correctness of the
143
inspection note which formed basis for reversing the judgment and decree of Trial Court
had not been challenged at any stage—Both on legal and factual side, the appellate and
revisional forums had appropriately exercised jurisdiction vested in them—No
substantial reasons appearing from the record which might warrant interference in the
concurrent findings of the Courts below—Leave to appeal was refused, 2001 SCMR 1225
HIGH COURT AMENDMENTS

LAHORE
Insert the following Explanations to rule 2: --
'Explanation I. Nothing in this rule shall affect the jurisdiction of the
Court of its own accord or on the application of any party, for reasons to be
recorded in writing, to direct any party to examine any witness at any stage.
Explanation II. The expression 'witness' in Explanation I shall include any party
as his own witness'. [9.6.1942].
Substitute the following for Rule 8: Where the evidence is not taken down
in writing by the Judge, he shall be bound, as the examination of each witness
proceeds, to make a memorandum of the substance of what each witness
deposes, in his own hand or from his dictation in open Court and such
memorandum shall be signed by the Judge and shall form part of the record.
[4.7.1942].
Substitute the following for Rule 13: --In cases in which an appeal is not
allowed, it shall not be necessary to take down the evidence of the witnesses in
writing at length; but the Judge, as the examination of each witnesses proceeds
shall make a memorandum of the substance of what he deposes in his own hand
or from his dictation in open Court, and such memorandum shall be singed by
the Judge and shall form part of the record. [11.1.1951].
Contents
ORDER_XIX
AFFIDAVITS
1. Power to order any point to be proved by affidavit. Any Court
may at any time for sufficient reason order that any particular fact or facts may
be proved by affidavit, or that the affidavit of any witness may be read at the
hearing, on such conditions as the Court thinks reasonable :
Provided that where it appears to the Court that either party bona fide
desires the production of a witness for cross-examination, and that such witness
can be produced, an order shall not be made authorizing the evidence of such
witness to be given by affidavit.
2. Power to order attendance of deponent for cross examination. (1)

Upon any application evidence may be given by affidavit, but the Court may, at
the instance of either party, order the attendance for cross-examination of the
deponent.
(2) Such attendance shall be in Court, unless the deponent is
exempted from personal appearance in Court, or the Court otherwise directs.
3. Matters to which affidavits shall be confined. (1) Affidavits shall

be confined to such facts as the deponent is able of his own knowledge to prove,
except on interlocutory applications, on which statements of his belief may be
admitted; provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth
matters of hearsay argumentative matter or copies of or extracts from
documents, shall (unless the Court otherwise directs) be paid by the party filing
the same.
ORDER_XX
145
JUDGMENT AND DECREE

1. Judgment when pronounced. (1) On completion of evidence, the
Court shall fix a date, not exceeding fifteen days, for hearing of arguments of
parties.
(2) The Court shall, after the case has been heard, pronounce
judgment in open Court, either at once or on some future day not exceeding
thirty days, for which due notice shall be given to the parties or their Advocates.
Court Decisions
Provisions directory in nature :-- Rule 1(2) of O.20, C.P.C. is in the nature of
guiding principle for the Courts to which C.P.C. is made applicable and must be kept in
mind while reserving a case for judgment—Question as to what will be the reasonable
period for pronouncing judgment in a particular case will depend on the facts of each
case and the legal points involved therein—No general principle of universal application
can be laid down—Where no prejudice was caused to the party by reason of delay in
pronouncement of the judgment, contention that the High Court announced the
judgment after more than five months in violation of O.20, R.1(2), C.P.C. was
inconsequential having no material bearing on the merits of the case. Once the arguments
are concluded before a Court of law, it is expected that judgment must be announced
within a reasonable period and without unnecessary delay. No doubt, Order 20, rule 1(2),
C.P.C stipulates that the Court shall, after the case has been heard, pronounce judgment
in open Court, either at once or on some future day not exceeding thirty days, for which
due notice shall be given to the parties or their Advocates, the fact remains that provision
on the face of it, is directory in nature as it does not provide for consequences in case it is
not strictly adhered to. It is in the nature of a guiding principle for Court to which C.P.C.
is made applicable. The rule must be kept in mind while reserving a case for judgment.
The question as to what will be reasonable period for pronouncing Judgment in a
particular case will depend on the facts of each case and the legal points involved therein.
No general principle of universal application can be laid down. No prejudice has been
caused to the petitioners in the present case by reason of delay in pronouncement of the
impugned judgment and the rule is merely directory, the contention that High Court
announced the judgment after more than five months in violation of Order 20. rule 1(2),
C.P.C. is inconsequential having no material bearing on the merits of the case. Even
under Constitutional dispensation, the case in hand is covered by Article 254 of the
Constitution, No inflexible rule of law prescribing a period can be laid down for the
pronouncement of a judgment after conclusion of the arguments. It would always be just
and proper to pronounce the judgment within a reasonable period after notice to the
parties. Merely because of delay in pronouncement of judgment, decision itself is not
vitiated. PLD 2002 S.C823
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1989 SCMR 1473; 1997 SCMR 1590; PLD 1968 Lah.. 1311; 1979 CLC 114; PLD 1985 Kar. 95
and PLD 1987 SC (AJ&K) 21 ref.
2. Power to pronounce judgment written by Judge's predecessor. A

Judge may pronounce a judgment written but not pronounced by his
predecessor.
3. `Judgment to be signed. The judgment shall be dated and signed

by the Judge in open Court at the time of pronouncing it and, when once signed
shall not afterwards be altered or added to, save as provided by section 152 or on
review.
Court Decisions
Judgment to be signed—Sending of the files to the office of the Court was a
ministerial act and it could not be determinative of the date of signing the judgment. PLD
2003 Lah. 646
judgment must contain a concise statement fo the case, the points needing
determination in the light of the facts pleaded by the parties and the decision of the Court
alongwith the reasons in support of such decision. PLD 2003 SC (AJ&K) 1
4. Judgments of Small Cause Courts. (1) Judgments of a Court of

Small Causes need not contain more than the points for determination and the
decision thereon.
(2) Judgments of other Courts. Judgments of other Courts shall
contain a concise statement of the case, the points for determination the decision
thereon, and the reasons for such decision.
Court Decisions
It is a cardinal principle of justice that justice should not only be done but should
be seen to have been done. Reasoning is also necessary to satisfy this most important
principle of dispensation of justice. Court acts with material irregularity and illegality if it
tails to record reasons in support of its conclusions. Accumulative effect of S. 2(9), Order
20 Rule 4 and Order 41 Rule 31 CPC would be that decision by a court to be termed as
judgment must be based on reasons and failure to comply with this requirement would
render judgment nullity -and ' unsustainable. PLJ 1998 Lah. 401 = PLD 1998
judgment must contain a concise statement fo the case, the points needing
determination in the light of the facts pleaded by the parties and the decision of the Court
alongwith the reasons in support of such decision. PLD 2003 SC (AJ&K) 1
5. Court to state its decision on each issue. In suits in which issues

have been framed, the Court shall state its finding or decision, with the reasons
therefor, upon each separate issue, unless the finding upon any one or more of
the issues in is sufficient for the decision of the suit.
147
Court Decisions
Decision on each issue--Provision of O.20, R. 5, C.P.C. requiring Court to state
its decision on each issue was applicable to original Court while deciding Civil suit--
Appellate Court was not required to record its finding issue-wise--Appellate Court
would deal with all those issues which were material for disposal of controversy
excepting those abandoned by appellant-Appellate Court recording its findings on all
points raised before it; without discussing issues separately, could not be deemed to have
committed any illegality or error. 1998 C L C 27
1991 SCMR 1816 ref.
Trial Court while decreeing Plaintiffs suit did not give its findings on each issue
in terms of O.20 R. 5 CPC, therefore, judgment and decree of Trial Court was liable to be
set aside on that sole ground. PLJ 1996 Pesh. 307 = 1996 MLD 1389.
Judgments and decrees whether by trial Court or Appellate Court must be given
in accordance with periphery prescribed by C.P.C. and if that .was not followed,
judgment and decree would become illegal. Order, 20 of C.P.C. speaks of the manner in
which judgment .has to be pronounced, the way same is to be attested and signed. Court
has to express as to how it appreciated evidence adduced by parties and came to
conclusion on logical basis. Judgment need not necessarily deal with all the matters in
issue in suit but it has to determine those issues, decision whereof would have the effect
of adjudicating all matters in controversy, resulting in final disposal of suit. One essential
element of judgment is statement of grounds for decision. Final judgment would
determine principal matter in question conclusively. Such judgment being judgment in
personam should fully determine parties rights and judge was required to have used all
his skills and to highlight each and every point under controversy and his own reasons
for agreeing with either of parties or those points. Provision of O.20, R. 5 C.P.C. would
reflect that judgment should contain finding on all issues separately unless parties do not
rely upon an issue. Provisions of O.41 C.P.C. provide for methodology of filing of appeal
and prescribes form in which memorandum of appeal is to be drawn and presented
before Court, it also speaks of grounds which are to be taken in appeal. Rule, 31 of O.41
C.P.C. provides how a judgment is to be written and what are to be its contents. Where
any judgment offends provisions of C.F.C- same would not be acceptable in law and has
to be set aside. Two Courts below having not decided case issue wise, same were set
aside with direction to decide the same afresh in accordance with law. PLJ 2000 Lah. 610.
O. XX, Rr. 3, 4(2) &5—judgment—judgment must contain a concise statement fo the case,
the points needing determination in the light of the facts pleaded by the parties and the
decision of the Court alongwith the reasons in support of such decision. PLD 2003 SC
(AJ&K) 1
Failure to state points for determination—Non-mentioning of evidence on
record in judgment passed by Appellate Court—Appellate Court in exercise of appellate
jurisdiction set aside the judgment and decree passed by the Trial Court resultantly suit
filed by the plaintiff was decreed—Plea raised by the defendants was that the Appellate
Contents
Court without independent exercise to review the evidence on record decided the matter
against them—Validity—Judgment passed by Appellate Court should state the points for
determination, its decision thereon and reasons for its decision—Appellate Court was
required to give its decision with regard to each point which should be self-explanatory,
illuminative and in nature of a speaking order—Trial Court and Appellate Court were
duty-bound to consider and discuss the evidence of both the parties satisfactorily so that
it might be visible that the Courts below had applied their mind and that they had based
their findings on proper appraisal of evidence on record—-Where the Appellate Court
had not referred to the evidence of the parties and had disposed of the issues in a cursory
and slipshod manner, the judgment passed by the Court was liable to be reversed in
revision as the same was not in consonance with the requirements of O.20, R.5, C.P.C.
read with O.41, R.31. C.P.C 2002 CLC 427
1993 CLC 109; 1992 CLC 435; 1983 CLC 2281; 1994 CLC 2189 and 1991 CLC 1499 ref.
6. Contents of decree. (1) The decree shall agree with the judgment;
it shall contain the number of the suit, the names and descriptions of the parties,
and particulars of claim, and shall specify clearly the relief granted or other
determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit,
and by whom or out of what property and in what properties such costs are to be
paid.
(3) The Court may direct that the costs payable to one party by the
other shall be set-off against any sum which is admitted or found to be due from
the former to the latter.
Court Decisions
Decree drawn by Court must not be vague leaving parties to guess about
decision of Court or to ascertain its terms from some other document--Decree must be
precise, deliberate and couched in legal terminology; it must conform to requirements of
O.20, R.6, C.P.C. 1998 C L C 27
It was pleaded by plaintiff that vendor proceeded to sell plot to defendant No. 2
during subsistence of agreement to sell in his favour while defendant No. 2 inspite of
notice of agreement purchased same, therefore, he had prayed for settmg aside of sale
deed. Appellate Court did not advert to legal question as to whether appellant was
purchaser for consideration without notice of previous agreement to sell or not ? District
Judge accepted appeal on sole ground that he would prefer registered sale deed over
mere agreement to sell. Sale deed could not be preferred in view of provisions of Section
27(b) of Specific Relief Act. It is clear from judgment of Addl. District Judge that he even
did not go through Judgment of Trial Court and precedents referred to by him otherwise
it was not possible to record findings. He has failed to decide appeal by speaking
judgment. He has neither referred to evidence nor arguments nor issues in clear violation
of provisions of Order 41 and 20 C.P.C.. Learned Addl. District Judge has neither noted
149
points argued before him by parties nor disposal of issues with reference to evidence.
None of issues framed by trial court was given up by either of parties, therefore, he was
under obligation to decide all .issues. Judgement rendered by Addl. District Judge is not
adjudication in eye of law. Impugned Judgment/decree would be deemed pending on
file of District Judge who shall decide afresh in accordance with law. PLJ 1998 Lah. 1062
= 1999 CLC 62.
7. Date of decree. The decree shall bear date the day on which the
judgment was pronounced, and, when the Judge has satisfied himself that the
decree has been drawn up in accordance with the judgment, he shall sign the
decree.
8. Procedure where Judge has vacated office before signing decree.

Where a Judge has vacated office after pronouncing judgment but without
singing the decree, a decree drawn up in accordance with such judgment may be
signed by his successor or, if the Court has ceased to exist, by the Judge of any
Court to which such Court was subordinate.
9. Decree for recovery of immovable property. Where the subject-

matter of the suit is immovable property, the decree shall contain a description of
such property sufficient to identify the same and where such property can be
identified by boundaries or by numbers in a record of settlement or survey, the
decree shall specify such boundaries or numbers.
10. Decree for delivery of movable property. Where the suit is for
movable property, and the decree is for the delivery of such property, the decree
shall also state the amount of money to be paid as an alternative if delivery
cannot be had.
11. Decree may direct payment by instalments. (1) Where in so far

as a decree is for the payment of money, the Court may for any sufficient reason
at the time of passing the decree order that payment of the amount decreed shall
be postponed or shall be made by instalments, with or without interest,
notwithstanding anything contained in the contract under which the money is
payable.
(2) Order, after decree, for payment by instalments. After the passing of
any such decree the Court may, on the application of the judgment-debtor and
with the consent of the decree-holder, order that payment of the amount decreed
shall be postponed or shall be made by instalments on such terms as to the
Contents
payment of interest, the attachment of the property of the judgment-debtor, or

the taking of security from him, or otherwise, as it thinks fit.
12. Decree for possession and mesne profits. (1) Where a suit is for
the recovery of possession of immovable property and for- rent or mesne profits
the Court may pass a decree:
(a) for the possession of the property ;
(b) for the rent or mesne profits which have accrued on the property
during a period prior to the institution of the suit or directing an
inquiry as to such rent or mesne profits ;
(c) directing an inquiry as to rent or mesne profits from the
institution of the suit until :-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor
with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree,
whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final
decree in respect of the rent or mesne profits shall be passed in accordance with
the result of such inquiry.
13. Decree in administration suit. (1) Where a suit is for an account

of any property and for its due administration under the decree of the Court, the
Court shall, before passing the final decree, pass a preliminary decree, ordering
such accounts and inquiries to be taken and made, and giving such there
directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased
person, if such property proves to be insufficient for the payment in full of his
debts and liabilities, the same rules shall be observed as to the respective rights
of secured and unsecured creditors and as to debts and liabilities provable, and
as to the valuation of annuities and future and contingent liabilities respectively,
as may be in force for the time being, within the local limits of the Court in which
the administration suit is pending with respect to the estate of persons adjudged
or declared insolvent; and all persons who in any such case would be entitled to
be paid out of such property, may come in under the preliminary decree, and
make such claims against the same as they may respectively be entitled to by
virtue of this Code.
Court Decisions
151
Administration suit—Sale of property after passing preliminary decree—

Reference of official Assignee for accepting highest bid was not objected to by defendant
—Trial Court, through order dated 1-8-2001, allowed defendant either to bring matching
offer given by auction-purchaser or purchase property by depositing half amount of such
offer within specified time, otherwise offer of auction-purchaser would be absolute—
Defendant failed to deposit such amount and his application for extension of time was
dismissed—Trial court accepted reference to official Assignee dated 22-11-2002 seeking
permission for paying to parties their admitted shares—Contention of defendant was
that Trial Court had accepted reference dated 22-11-2002 without notice to him—Validity
—Defendant had not filed appeal against order dated 1-8-2000—Sale in favour of
auction-purchaser had become absolute on defendant’s failure to bring matching offer or
deposit share of plaintiffs—Sale had been confirmed long ago—Trial Court had to
distribute sale price between the parties in accordance with their shares, for which
official Assignee had been granted permission through reference dated 22-11-2002—No
right to defendant having been affected by such reference there was no need of any
notice to him—High Court dismissed appeal. PLD 2003 Kar. 463
14. Decree in pre-emption suit. (1) Where the Court decrees a claim
to pre-emption in respect of a particular sale of property and the purchase-
money has not been paid into Court, the decree shall: --
(a) specify a day on or before which the purchase-money shall be so
paid, and
(b) direct that on payment into Court of such purchase-money,
together with the costs of (if any) decreed against the plaintiff, on
or before the day referred to in clause (a), the defendant shall
deliver possession of the property to the plaintiff whose title
thereto shall be deemed to have accrued from the date of such
payment, but that, if the purchase-money and the costs (if any) are
not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-
emption, the decree shall direct, -
(a) if and in so far as the claims decreed are equal in decree, that the
claim of each pre-emptor complying with the provisions of sub-
rule (1) shall take effect in respect of a proportionate share of the
property including any proportionate share in respect of which
the claim of any pre-emptor failing to comply with the said
provisions would, but for such default, have taken effect; and
(b) if any in so far as the claim decreed are different in decree, that the
claim of the inferior pre-emptor shall not take effect unless and
Contents
until the superior pre-emptor has failed to comply with the said
provisions.
15. Decree in suit for dissolution of partnership. Where a suit is for

the dissolution of a partnership or the taking of partnership accounts, the Courts,
before passing a final decree, may pass a preliminary decree declaring the
proportionate shares of the parties, fixing the day on which the partnership shall
stand dissolved or be deemed to have been dissolved, and directing such
accounts to be taken, and other acts to be done, as it thinks fit.
16. Decree in suit for account between principal and agent. In a suit
for an account of pecuniary transactions between a principal and an agent, and in
any other suit not hereinbefore provided for where it is necessary, in order to
ascertain the amount of money due to or from any party, that an account should
be taken the Court shall, before passing its final decree, pass a preliminary decree
directing such account to be taken as it thinks fit.
17. Special directions as to accounts. The Court may either by the

decree directing an account to be taken of by any subsequent order give special
directions with regard to the mode in which the account is to be taken or
vouched and in particular may direct that in taking the account books of account
in which the accounts in question have been kept shall be taken as prima facie
evidence of the truth of the matters therein contained with liberty to the parties
interested to take such objection thereto as they may be advised.
18. Decree in suit for partition of property or separate possession of

a share therein.Where the Court passes a decree for the partition of property or
for the separate possession of a share therein, then: -
(1) if and insofar as the decree relate to an estate assessed to the
payment of revenue to the Government, the decree shall declare the rights of the
several parties interested in the property, but shall direct such partition or
separation to be made by the Collector or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with such declaration and
with the provisions of section 54 ;
(2) if and insofar as such decree relates to any other immovable
property or to movable property, the Court may, if partition or separation cannot
be conveniently made without further inquiry, pass a preliminary decree
declaring the rights of the several parties interested in the property and giving
such further directions as may be required.
153
Court Decisions
Partition of inherited land—Both parties filed objections against report of Local
Commissioner, but Trial Court without deciding same proceeded to order auction of
property—Course adopted by Trial Court was untenable in law—Court after considering
objections, in light of evidence was expected to determine if property could be
partitioned and if not whether same could be auctioned and also as to what were
accounts—Court had to grant relief in matter of recovery, settlement and adjustment of
rent and income of joint property, but all those important aspects of the matter were not
attended to by Trial Court which mechanically passed the final decree—Final decree, in
circumstances, suffered from legal infirmity and could not sustain. 2002 MLD 879
19. Decree when set-off is allowed. (1) Where the defendant has been
allowed a set-off against the claim of the plaintiff, the decree shall state what
amount is due to the plaintiff and what amount is due to the defendant, and shall
be for the recovery of any sum which appears to be due to either party.
(2) Appeal from decree relating to set-off. Any decree passed in a suit in
which a set-off is claimed shall be subject to the same provisions in respect of
appeal to which it would have been subject if no set-off had been claimed.
(3) The provisions of this rule shall apply whether set-off is
admissible under rule 6 of Order VIII or otherwise.
20. Certified copies of judgment and decree to be furnished.

Certified copies of the judgment and decree shall be furnished to the parties on
application to the Court, and at their expense.

LAHORE
Add rule 1A as follows: --
'(I A) In addition to the particulars mentioned is clause (1), the decree shall
contain the addresses of the plaintiff and the defendants as given in Order VII,
Rule 19 and Order VIII, Rule 11, or as subsequently altered under Order VII,
Rule 24, and Order VIII, Rue 12, respectively'.
SINDH
In sub-rule (2) of rule 11 : For the words 'and with the consent of the decree-
holder' substitute die words 'and after notice to the decree-holder.
Contents
ORDER_XXI
EXECUTION OF DECREES AND ORDERS
Payment under decree

1. Modes of paying money under decree. (1) All money payable
under a decree shall be paid as follows, namely
(a) into the Court whose duty it is to execute the decree [through a
bank or by postal money-order or evidence by writing signed by
the decree-holder or his authorized agent]
(b) out of Court to the decree-holder ; or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule (1),
notice of such payment shall be given to the decree-holder.
Court Decisions
Scope—Suit for damages- Award of interest under S. 34, C.P.C from the date of
institution of the suit till the date of realization of amount is discretionary with the Curt
and cannot be claimed as of right – Interest for the period prior to the institution of the
suit can only be claimed and awarded it is permitted by the substantive law or it is
specified in writing or in the demand notice but no such interest prior to the period of
suit under S. 34, C.P.C can be granted in a decree passed in the suit for damages in
absence of the substantive law or if not specified in any form—Decree, in suit for
damages, having been passed with interest in terms of S. 34, C.P.C the decree-holder
would be entitled to the interest from the date of the suit – PLD 2003 SC 290
if a notice is not given to the decree-Holder regarding the deposit of the decretal
amount in court, the decree-holder can justifiably demand the interest as the deposit of
the decretal amount in the Court without notice is not payment of the amount to the
decree-holder in terms of O.XXI, R.I, C.P.C – PLD 2003 SC 290
Interest on compensation awarded by way of seeking amendment in the decree
under S. 152, C.P.C claim for—Dismissal of such application—Validity—Referee Court
had awarded to petitioner compensation with 15% compulsory acquisition charges—
Petitioner against non-grant of interest had neither filed appeal not filed cross-objection
in appeal filed by Land Acquisition Collector against judgment of Referee Court—
Petitioner had made such application one year after dismissal of such appeal—Referee
Court or appellate court Had consciously and deliberately not granted interest—Where
decree was silent with respect to payment of interest, then same under S. 34(2), C.P.C
155
would be deemed to have been refused by Court—petitioner could not be given claimed
interest at such belated stage nor judgment/decree for grant of interest could be
amended under S. 152, C.P.C – High Court dismissed revision petition in circumstances.
PLD 2003 Pesh. 66
Payment made out of court, without certificate of Court, Appellnts contention is
that 'since the objection petition was pending and was adjourned on request of parties,
the executing court should not have dismissed it summary but should have passed a
speaking order. Respondent's plea is that objection petition was dismissed for want of
production of evidence and that payment should have been certified from the court as
laid under Order 21 Rules 1 and 2. Any payment made in manner not provided in rule 1
or adjustment made in writing cannot be recognised by executing court.. PLJ 1995 Lah.
226 = PLD 1995 Lah. 107.
2. Payment out of Court to decree-holder. (1) Where any money

payable under a decree of any kind is paid out of Court, or the decree is
otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the
decree-holder shall certify such payment or adjustment to the Court whose duty
it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment
or adjustment, and apply to the Court to issue a notice to the decree-holder to
show cause, on a day to be fixed by the Court, why such payment or adjustment
should not be recorded as certified; and if, after service of such notice, the decree-
holder holder fails to show-cause why the payment or adjustment should not be
recorded as certified, the Court shall record the same accordingly.
(3) Any payment not made in the manner provided in rule 1 or any
adjustment not made in writing shall not be recognized by the Court executing
the decree.
Court Decisions
Adjustment of decree out of Court. Omission to inform executing Court. It is a
accepted rule of law that information of adjustment or satisfaction of decree, out of court,
is to be furnished to executing court which has to recognise certification made by the
decree-holder. An omission to certify adjustment within statutory period, renders-
question of adjustment invalid in eye of law and it is'in complete departure from
mandatory provisions of Rule 2 of Order 21 CPC. PLJ 1994 A JK 25 = PLD 1994 AJ & K
18.
Whether payment made out of court, without certificate of Court, could
be adjusted towards execution of decree. Appellnts contention is that 'since the objection
petition was pending and was adjourned on request of parties, the executing court
should not have dismissed it summary but should have passed a speaking order.
Respondent's plea is that objection petition was dismissed for want of production of
Contents
evidence and that payment should have been certified from the court as laid under Order
21 Rules 1 and 2. Any payment made in manner not provided in rule 1 or adjustment npt
made in writing cannot be recognised by executing court. Objection petition was not
competent. PLJ 1995 Lah. 226 = PLD 1995 Lah. 107
Execution of compromise decree—Executing Court was not powerless to cater
for a situation where parties entered into an agreement relating to subject-matter of
decree or as to such decree's satisfaction or adjustment— Would be illogical and
unreasonable to shelve an Executing Court as powerless—Legislature in its supreme
wisdom had well provided for such eventualities and cases in provisions of R.2, O.21.
C.P.C.—Parties under O.21, R.2, C.P.C. had been allowed option to adjust their respective
rights and liabilities under a decree mutually by payment or adjustment, either wholly or
partially and out of Court or in Court, in terms of R.2(1), O.21, C.P.C. PLD 2002 Lah.. 268
S. 34—Interest, ward of—Essentials—discretion of Court—Scope—Suit for damages-
Award of interest under S. 34, C.P.C from the date of institution of the suit till the date of
realization of amount is discretionary with the Curt and cannot be claimed as of right –
Interest for the period prior to the institution of the suit can only be claimed and awarded
it is permitted by the substantive law or it is specified in writing or in the demand notice
but no such interest prior to the period of suit under S. 34, C.P.C can be granted in a
decree passed in the suit for damages in absence of the substantive law or if not specified
in any form—Decree, in suit for damages, having been passed with interest in terms of S.
34, C.P.C the decree-holder would be entitled to the interest from the date of the suit –
Principles. PLD 2003 SC 290
Discretion of Court—if a notice is not given to the decree-Holder regarding the

deposit of the decretal amount in court, the decree-holder can justifiably demand the
interest as the deposit of the decretal amount in the Court without notice is not payment
of the amount to the decree-holder in terms of O.XXI, R.I, C.P.C – Principles. PLD 2003
SC 290
Referee Court had awarded to petitioner compensation with 15% compulsory
acquisition charges—Petitioner against non-grant of interest had neither filed appeal not
filed cross-objection in appeal filed by Land Acquisition Collector against judgment of
Referee Court—Petitioner had made such application one year after dismissal of such
appeal—Referee Court or appellate court Had consciously and deliberately not granted
interest—Where decree was silent with respect to payment of interest, then same under
S. 34(2), C.P.C would be deemed to have been refused by Court—petitioner could not be
given claimed interest at such belated stage nor judgment/decree for grant of interest
could be amended under S. 152, C.P.C – High Court dismissed revision petition in
circumstances. PLD 2003 Pesh. 66
Payment of decretal amount outside Court. Trial Court in decreeing plaintiffs suit had
directed him to deposit decretal amount in Court by specified date and in case of his failure to do
the same. rival pre-emptor was required to deposit the entire amount and his suit would be
deemed to have been decreed to the extent of entire land. Plaintiff (petitioner) did not deposit
decretal amount in Court, as per direction of Court, instead he claimed to have paid the amount to
157
vendee (judgment debtor) out of Court. Rival pre-emptor having deposited entire amount in Court,
his decree to the extent of entire land was executed. Validity. Provision of O.20, R. 14 C.P.C
contains special provision with regard to payment of purchase money in pre-emption decrees.
There were separate mode of payment of pre-emption money by pre-emptor to vendee as
distinguished from payment of money by judgment debtor to decree-holder. Provision of O.21, R. 2
C.P.C. relates to payment to decree holder and not to judgment debtor while pre-emption amount
would be payable by decree-holder to judgment debtor. Plaintiff having paid money to judgment
debtor out side Cou-rt, h.is case would, not be covered by provision of O.21. R. 2 C-P.C- Trial
Court's direction to deposit decretal amount in Court by specified date having not been complied
with, decree of rival pre-emptor who had deposited entire sale amount as per director of Court was
rightly executed by Courts betow. PLJ 2000 Lah. 1880 = 2000 CLC 575.
Courts executing Decrees

3. Lands situate in more than one jurisdiction. Where immovable
property forms one estate or tenure situate within the local limits of the
jurisdiction of two or more Courts, anyone of such Courts may attach and sell the
entire estate or tenure.
4. Mode of transfer. 1[Transfer to Court of Small Causes] Omitted .
Legal Amendments
Omitted by the A. 0., 1949.
5. Mode of transfer. Where the Court to which a decree is to be sent

for execution is o situate within the same district as the Court which passed such
decree, such Court shall send the same directly to the former Court. But, where
the Court to which the decree is to be sent for execution is situate in a different
district, the Court which passed it shall send it to the District Court of the district
in which the decree is to be executed.
6. Procedure where Court desires that its own decree shall be

executed by another Court. The Court sending a decree for execution shall send:
(a) a copy of the decree ;
(b) a certificate setting forth that satisfaction of the decree has not
been obtained by execution within the jurisdiction of the Court by
which it was passed, or where the decree has been executed in
part the extent to which satisfaction has been obtained and what
part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such
order has been made, a certificate to that effect.
Contents
7. Court receiving copies of decree, etc., to file same without proof.

The Court to which a decree is so sent shall cause such copies and certificates to
be filed, without any further proof or the decree of order for execution, or of the
copies thereof, unless the Court, for any special reasons to be recorded under the
hand of the Judge, requires such proof.
8. Execution of decree or order by Court to which it is sent. Where

such copies are so filed, the decree or order may, if the Court to which it is sent is
the District Court, be executed by such Court or be transferred for execution to
any subordinate Court of competent jurisdiction.
9. Execution by High Court of decree transferred by other Court.

Where the Court to which the decree is sent for execution is a High Court, the
decree shall be executed by such Court in the same manner as if it has been
passed by such Court in the exercise of its ordinary original civil jurisdiction.
Application for Execution

10. Application for execution. Where the holder of a decree desires to
execute it, he shall apply to the Court which passed the decree or to the officer (if
any) appointed in this behalf, or if the decree has been sent under the provisions
hereinbefore contained to another Court then to such Court or to the proper
officer thereof.
Court Decisions
Execution of decree. Judgement-debtors were directed to deposit decretal
amount according to their share out of total decretal amount. Validity. Any one of
decree-holders could recover entire decretal amount from any one of judgment-debtors.
Where claim of decree-holder was based on acknowledgement receipt jointly executed
by judgment-debtors, debt and liability would be incurred jointly and liability of each
would be for whole amount under S. 43, of Act, 1872. Finding of Trial Court being legally
_ erroneous. Debt having been jointly incurred, liability of each judgment-debtor was for
whole amount. PLJ 1997 Kar. 905 = 1997 CLC 1339.
Warrant of arrest was issued univer 0. 21 R. 35 CPC. Trial Court ordered
decree holder, to file application under 0. 21, R. 32 CPC which was tiled-Warrant of
possession and arrest. Issuance of. Revision against. Dismissal of. Writ against.
Revisional court has rightly held that execution proceedings did not suffer from any
illegality. Execution petition under 0- 21 R. 10 CPC was rightly filed by decree holder and
wrong direction was given by trial court to file application under 0. 21, R. 32 CPC, If it is
found that impugned Judgment passed by executing court and that of revisional court, is
not illegal or Corum non judice. Constitutional petition in such cases will be
159
incompetent. There is no substance to interfere in concurrent findings of lower courts.

PLJ 1998 Lah. 1679 = PLD 1998 Lah. 488 = NLR 1999 Civil 93.
Objection petition had been filed in reference to execution application of decree-
holder—Contents of objection petition and relief claimed therein clearly showed that
same was within purview of O. XXI, R. 90, C.P.C – Executing courts was duty bound to
have considered contents of objection petition and by applying relevant provisions
should have decided matter on merits, rather knocking out judgment-debtor on technical
ground—Dismissal of objection petition on ground of maintainability could not be
sustained—High court set aside impugned order with directions to lower court to decide
objection petition considering same to have been under O. XXI, R. 90, C.P.C. PLD 2003
Lah. 421
11. Oral application. (1) Where a decree is for the payment of money
the Court may, on the oral application of the decree-holder at the time of the
passing of the decree, order immediate execution thereof by the arrest of the
judgment-debtor, prior to the preparation of a warrant of he is within the
precincts of the Court.
(2) Written application. Save as otherwise provided by sub-rule (1),
every application for the execution of a decree shall be in writing, signed and
verified by the applicant or by some other person proved to the satisfaction of
the Court to be acquainted with the facts of the case, and shall contain in a
tabular form the following particulars namely:
(a) the number of the suit ;
(b) the names of the parties ;
(c) the date of the decree ;
(d) whether any appeal has been preferred from the decree ;
(e) whether any, and (if any), what, payment or other adjustment of
the matter in controversy has been made between the parties
subsequently to the decree ;
(f) whether any, and (if any), what, previous applications have been
made for the execution of the decree, the dales of such
applications and their results ;
(g) the amount with interest (if any), due upon the decree, or other
relief granted thereby, together with particulars of any cross-
decree, whether passed before or after the date of the decree
sought to be executed ;
(h) the amount of the costs (if any) awarded ;
(i) the name of the person against whom execution of the decree is
sought ; and
(j) the mode in which the assistance of the Court is required, whether
Contents
(i) by the delivery of any property specifically decreed ;

(ii) by the attachment and sale, or by the sale without
attachment, of any property ;
(iii) by the arrest and detention in prison of any person ;
(iv) by the appointment of a receiver ;
(v) otherwise, as the nature of the relief granted may require.
The Court to which an application is made under sub-rule (2) may require
the applicant to produce a certified copy of the decree.
12. Application for attachment of movable property not in

judgment-debtor's possession. Where an application is made for the attachment
of any movable property belonging to a judgment-debtor but not in his
possession, the decree-holder shall annex the application an inventory of the
property to be attached, containing a reasonably accurate description of the
same.
13. Application for attachment of immovable property to contain

certain particulars.Where an application is made for the attachment of any
immovable property belonging to a judgment-debtor, it shall contain at the foot: -
(a) a description of such property sufficient to identify the same and,
in case such property can be identified by boundaries or numbers
in a record of settlement or survey, a specification of such
boundaries or numbers; and
(b) a specification of the judgment-debtor's share or interest in such
property to the best of the belief of the applicant, and so far as he
has been able to ascertain the same.
14. Power to require certified extract from Collector's register in

certain cases. Where an application is made for the attachment of any land which
is registered in the office of the Collector, the Court may require the applicant to
produce a certified extract from the register of such office, specifying the persons
registered as proprietors of, or as possessing any transferable interest in, the land
or its revenue, or as liable to pay revenue for the land, and the shares of the
registered proprietors.
15. Application for execution by joint decree-holder. (1) Where a

decree has been passed jointly in favour of more persons than one, any one or
more of such persons may, unless the decree imposes any condition to the
161
contrary, apply for the execution of the whole decree for the benefit of them all,
or, where any of them has died, for the benefit of the survivors and the legal
representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be
executed on an application made under this rule, it shall make such order as it
deems necessary for protecting the interest of the persons who have not joined in
the application.
Court Decisions
Joint decree. Executing court having not been informed of satisfaction or
adjustment of decree, out of court, within limitation, appellant is competent to apply for
execution of decree as a whole, and executing court is enjoined to carry on execution
proceedings in accordance with law. PLJ 1994 AJK25 = PLD 1994 AJ & K 18.
Joint decree for possession. Execution of. Whether execution of decree could be
sought by one of decree-holders. In joint decree for immovable property, all decree
holders or some of them'or any one of them was eligible to move for execution of whole
decree for benefit of all decree-holders. PLJ 1994 AJK 25 = PLD 1994 AJ & K 18.
16. Application for execution by transferee of decree. Where a

decree or, if a decree has been passed jointly in favour of two or more persons,
the interest of any decree-holder in the decree is transferred by assignment in
writing or by operation of law, the transferee may apply for execution of the
decree to the Court which passed it; and the decree may be executed in the same
manner and subject to the same condition as if the application were made by
such decree-holder:
Provided that, where the decree, or such interest as aforesaid, has been
transferred by assignment, notice of such application shall be given to the
transferor and the judgment-debtor, an the decree shall not be executed until the
Court had heard their objections (if any) to its execution:
Provided also that, where a decree for the payment of money against two
or more persons has been transferred to one of them, it shall not be executed
against the others.
17. Procedure on receiving application for execution of decree. (1)

On receiving an application for the execution of a decree as provided by rule 11,
sub-rule (2), the Court shall ascertain whether such of the requirements of rules
11 to 14 as may be applicable to the case have been complied with; and, if they
have not been complied with, the Court may reject the application, or may allow
the defect to be remedied then and there or within a time to be fixed by it.
Contents
(2) Where an application is amended under the provisions of sub-rule

(1), it shall be deemed to have been an application in accordance with law and
presented on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or
initialled by the Judge.
(4) When the application is admitted, the Court shall enter in the
proper register a note of the application and the date on which it was made, and
shall, subject to the provisions hereinafter contained, order execution of the
decree according to the nature of the application :
Provided that, in the case of decree for the payment of money, the value
of the property attached shall, as nearly as may be, correspond with the amount
due under the decree.
18. Execution in case of cross-decrees. (1) Where applications are

made to a Court for the execution of cross-decrees in separate suits for the
payment of two sums of money passed between the same parties and capable of
execution at the same time by such Court then :-
(a) if the two sums are equal, satisfaction shall be entered upon both
decrees; and
(b) if the two sums are unequal, execution may be taken out only by
the holder of the decree for the larger sum and for so .much only
as remains after deducting the smaller sum, and satisfaction for
the smaller sum shall be entered on the decree for the larger sum
as well as satisfaction of the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an
assignee of one of the decrees and as well in respect of judgment-debts due by
the original assignor as in respect ol judgment-debts due by the assignee himself.
(3) This rule shall not be deemed to apply unless :--
(a) the decree-holder in one of the suits in which the decrees have
been made is the judgment-debtor in the other and each party fills
the same character in both suits ; and
(b) the sums due under the decree are definite.
(4) The holder of a decree passed against several persons jointly and
severally may treat as a cross-decree in relation to a decree passed against him
singly in favour of one or more of such persons.
Illustrations
(a) A holds a decree against B for Rs. 1,000.5 holds a decree against/I for the
163
payment of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat
his decree as a cross-decree under this rule.
(b) A and B, co-plaintiffs, obtain a decree, for Rs. 1,000 against C, and C
obtains a decree for Rs. 1,000 against B. C cannot treat his decree as cross-decree under
this rule.
(c) A obtains a decree against B of Rs. 1,000. C who is a trustee for B, obtains
a decree on behalf of B against A for Rs. 1,000. B cannot treat C's decree as a cross-decree
under this rule.
(d) A.B, C, D and E are jointly and severally liable for Rs. 1,000 under a
decree obtained by F. A obtains a decree for Rs. 100 against F singly and applies for
execution to the Court in which the joint decree is being executed. F may treat his joint
decree as a cross-decree under this rule.
19. Execution in case of cross-claim under same decree. Where

application is made to a Court for the execution of a decree under which two
parties are entitled to recover sums of money for each other then: --
(a) if the two sums are equal, satisfaction for both shall be entered
upon the decree; and
(b) if the two sums are unequal, execution may be taken out only by
the party entitled to the larger sum and for so much only as remains after
deducting the smaller sum, and satisfaction for the smaller sum shall be entered
upon the decree.
20. Cross-decrees and cross-claims in mortgage suits. The provisions

contained in rules 18 and 19 shall apply to decrees for sale in enforcement of a
mortgage or charge.
21. Simultaneous execution. The Court may, in its discretion, refuse

execution at the same time against the person and property of the judgment-
debtor.
22. Notice to show cause against execution in certain cases. (1)

Where an application for execution is made:-
(a) more than one year after the date of the decree, or
(b) against the legal representative of a party to the decree, or where
an application is made for execution of a decree filed under the
provisions of section 44A the Court executing the decree shall
issue a notice to the person against whom executions is applied
for requiring him to show cause, on a date to be fixed, why the
decree should not be executed against him:
Contents
Provided that no such notice shall be necessary in consequence of more

than one year having elapse between the date of the decree and the application
for execution if the application is made within one year from the date of the last
order against the against whom execution is applied for, made on any previous
application for execution, or in consequence of the application being made
against the legal representative of the judgment-debtor, if upon a previous
application for execution against the same person the Court has ordered
execution to issue against him.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the
Court from issuing any process in execution of a decree without issuing the
notice thereby prescribed, if, for reasons to be recorded, it considers that the issue
of such notice would cause unreasonable delay or would defeat the ends of
justice.
23. Procedure after issue of notice. (1) Where the person to whom
notice is issued under the last preceding rule does not appear or does not show
cause to the satisfaction of the Court why the decree should not be executed, the
Court shall order the decree to be executed.
2). Where such person offers any objection to execution of the decree,
the Court shall consider such objection and make such order as it thinks fit.
23-A. Deposit of decretal amount, etc. An objection by the judgment-

debtor to the execution of a decree shall not be considered by the Court unless:-
(a) in the case of a decree for the payment of money, he either
deposits the decretal amount in Court or furnishes security for its
payment; and
(b) in the case of any other decree, he furnishes security for the due
performance of decree.
Court Decisions
Deposit of decretal amount—Objection to the execution—Furnishing of security
by the objector—Necessity—Provisions of O. XXI, R. 23-A, C.P.C do not apply to foreign
decrees or judgments sought to be executed under S. 44-A, C.P.C – Mere non-furnishing
of security would not bar the entertainment of objections to execution. PLD 2003 Kar. 382
A foreign judgment/ decree can be assailed on any of grounds mentioned in
clause (a), to (f) of section 13 C.P.C. whereas subsection (3) imposes an obligation on part
of District Judge executing a foreign decree to refuse execution of the same if it is shown
own its satisfaction that decree falls within any of the exceptions specified in above
clauses. Object of Section 44-A C.P.C. seems to be to facilitate execution of a foreign
decree in Pakistan by assuming by virtue of fiction of law as it is had been passed by
165
District Court in Pakistan, in-stead of compelling foreign decree holder to file a suit on a
foreign judgment. Subjection (3)'of section 44-A is a provisions of substantive law
whereas Rule 23-A of order 21 C.P.C. is a procedural law. therefore in case of any
inconsistency, former shall prevail over latter. PLJ 1997 SC 1219 = 1997SCMR323 = 1997
Law Notes 497.
Process for Execution
24. Process for execution. (1) When the preliminary measures (if any)
required by the foregoing rule have been taken, the Court shall, unless it sees
cause to the contrary, issue its process for the execution of the decree.
(2) Every such process shall bear date the day on which it is issued,
and shall be signed by the Judge or such of officer as the Court may appoint in
this behalf, and shall be sealed with the seal of the Court and delivered to the
proper officer to be^ executed.
(3) In every such process a day shall be specified on or before which it
shall be executed.
25. Endorsement on process. (1) The officer entrusted with the

execution of the process shall endorse thereon the day on, and the manner in,
which it was executed, and, if the latest day specified in the process for the return
thereof has been exceeded, the reason of the delay, or, if it was not executed, the
reason why it was not executed, and shall return the process with such
endorsement to the Court.
(2) Where the endorsement is to the effect that such officer is unable
to execute the process, the Court shall, examine him touching his alleged
inability, and, may if it thinks fit, summons and examine witnesses as to such
inability, and shall record the result.
26. When Court may stay execution. (1) The Court to which a decree
has been sent for execution shall, upon sufficient cause being shown, stay the
execution of such decree for a reasonable time, to enable the judgment-debtor to
apply to the Court by which the decree was passed, or to any Court having
appellate jurisdiction in respect of the decree or the execution thereof for an
order to stay execution, or for any other order relating to (he decree or execution
which might have been made by such Court of first instance or appellate Court if
execution had been issued thereby, or if application for execution had been made
thereto.
Contents
(2) Where the property or person of the judgment-debtor has been

seized under an execution the Court which issued the execution may order the
restitution of such property or the discharge of such person pending the result of
the application. .
27. Liability of judgment-debtor discharged. No order of restitution

or discharge under rule 26 shall prevent the property 01 person of a judgment-
debtor from being re-taken in execution of the decree sent for execution.
28. Order of Court which passed decree or of appellate Court to be

binding upon Court applied to. Any order of the Court which the decree was
passed, or of such Court of appeal as aforesaid, in relation to the execution of
such decree, shall be binding upon the Court to which the decree was sent for
execution.
29. Stay of execution pending suit between decree-holder and

judgment-debtor. Where a suit is pending in any Court against the holder of a
decree of such Court, on the part of the person against whom the decree was
passed, the Court may, on such terms as to security or otherwise, as it thinks fit,
stay execution of the decree until the pending suit has been decided.
Mode of Execution
30. Decree of payment of money. Every decree for the payment of

money, including a decree for the payment of money as the alternative to some
other relief, may be executed by the detention and [*****] prison of the judgment-
debtor, or by the attachment and sale of his properly, or by both.
31. Decree for specific movable property. (1) Where the decree is for
any specific movable, or for any share in a specific movable it may be executed
by the seizure, if practicable, of the movable or share, and by the delivery thereof
to the party to whom it has been adjudged, or to such person as he appoints to
receive delivery on his behalf, or by the detention in the civil prison of the
judgment-debtor, or by the attachment of his property, or by both.
(2) Where any attachment under sub-rule (1) has remained in force
for is months, if the judgment-debtor has not obeyed the decree and the decree-
holder has applied to have the attached property sold, such property may be
sold, and out of the proceeds the court may award to the decree-holder, in cases
where any amount has been fixed by the decree to be paid as an alternative to
167
delivery of movable property, such amount, and, in other cases, such

compensation as it thinks fit, and shall pay the balance (if any), to the judgment-
debtor on his application.
(3) Where the judgment-debtor has obeyed the decree and paid all
costs of executing the same which he is bound to pay, or where, at the end of six
months form the date of the attachment, no application to have the property sold
has been made, or, if made, has been refused, the attachment shall cease.
32. Decree for specific performance, for restitution of conjugal

rights, or for an injunction. (1) Where the party against whom a decree for the
specific performance of a contract, or of restitution of conjugal rights, or for an
injunction, has been passed, has had an opportunity of obeying the decree and
has wilfully failed to obey it, the decree may be enforced in the case of a decree
for restitution of conjugal rights by the attachment of his property or, in the case
of a decree of the specific performance of a contract or for an injunction by his
detention in [*****] prison, or by the attachment of his property, or by both.
(2) Where the party against whom a decree for a specific performance
or for an injunction has been passed is a corporation, the decree may be enforced
by the attachment of the property of the corporation or, with the leave of the
Court, by the detention in [*****] prison of the directors or other principal officers
thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has
remained in force for one year, if the judgment-debtor has not obeyed the decree
and the decree-holder has applied to have the attached property sold, such
property may be sold : and out of the proceeds the Court may award the decree-
holder such compensation as it thinks fit and shall pay the balance (if any) to the
judgment-debtor on his application.
(4) Where the judgment-debtor has obeyed the decree and paid all
costs of executing the same which he is bound to pay, or where, at the end of one
year from the date of the attachment, no application to have the property sold
has been made, or it' made has been refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an
injunction has not been obeyed, the Court may, in lieu of or in addition to all or
any of the processes aforesaid, direct that the act required to be done may be
done so far as practicable by the decree-holder or some other person appointed
by the Court, at the cost of the judgment-debtor, and upon the act being done the
expenses incurred may be ascertained in such manner as the Court may direct
and may be recovered as if they were included in the decree.
Contents
Illustration
A, a person of little substance, erects a building which renders uninhabitable a
family mansion belonging to B, A, in spite of his detention in prison and the attachment
of his property, declines to obey a decree obtained against him by B and directing him to
remove the building. The Court is of opinion that on sum realizable by the sale of A's
property would adequately compensate B for the depreciation in the value of his
mansion. B may apply to the Court to remove the building and may recover the cost of
such removal from A in the execution proceedings.
Court Decisions
Dismissal of suit on under taking. Perusal of Order 21, Rule 32, C.P.C.. clearly
shows that proceedings can be initiated only where party against whom decree has been
passed. In instant case, admittedly suit was dismissed on undertaking of writ petitioner
and respondents Nos. 6 and 7 and consequently no decree was passed- There being no
decree in field in favour of plaintiff Respondents Nos. 1 to 5, no application under Order
21 Rule 32 C.P.C. could be moved by plaintiff/respondents. Order passed by trial Court
as well as first appellate Court are coram non judice and not sustainable. PLJ 1999 Lah.
1060 = 1999 CLC 1415.
Application for execution :-- Warrant of arrest was issued under 0. 21 R. 35 CPC.
Trial Court ordered decree holder, to file application under 0. 21, R. 32 CPC which was
tiled-Warrant of possession and arrest. Issuance of. Revision against. Dismissal of. Writ
against. Revisional court has rightly held that execution proceedings did not suffer from
any illegality. Execution petition under 0- 21 R. 10 CPC was rightly filed by decree holder
and wrong direction was given by trial court to file application under 0. 21, R. 32 CPC, If
it is found that impugned Judgment passed by executing court and that of revisional
court, is not illegal or Corum non judice. Constitutional petition in such cases will be
incompetent. There is no substance to interfere in concurrent findings of lower courts.
PLJ 1998 Lah. 1679 = PLD 1998 Lah. 488 = NLR 1999 Civil 93.
33. Discretion of Court in executing decrees for restitution of

conjugal rights. (1) Notwithstanding anything in rule 32, the Court, either at the
time of passing a decree against a husband for the restitution of conjugal rights
or at any time afterwards, may order that the decree shall be executed in the
manner provided in this rule.
(2) Where the Court has made an order under sub-rule (1), it may
order that, in the event of the decree not being obeyed within such period as may
be fixed .in this behalf, the judgment-debtor shall make to the decree-holder such
periodical payments as may be just, and, if it thinks fit, require that the
169
judgment-debtor shall, to its satisfaction, secure to the decree-holder such

periodical payments.
(3) The Court may from time to time vary or modify and order made
under sub-rule (2) for the periodical payment of money, either by altering the
times of payment or by increasing or diminishing the amount, or may
temporarily suspend the same as to the whole or any part of the money as
ordered to be paid and again revive the same, either wholly or in part as it may
think just.
(4) Any money ordered to be paid under this rule may be recovered
as though it were payable under a decree of the payment of money.
34. Decree for execution .of document, or endorsement of

negotiable instrument. (1) Where a decree is for the execution of a document or
for the endorsement of a negotiable instrument and the judgment-debtor neglects
or refuses to obey the decree, the decree-holder may prepare a draft of the
document or endorsement in accordance with the terms of the decree and deliver
the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the
judgment-debtor together with a notice requiring his objections (if any) to be
made within such time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, is objections shall
be stated in writing within such time, and the Court shall take such order
approving or altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft
with such alterations (if any) as the Court may have directed upon the proper
stamp-paper if a stamp is required by the law for the time being in force; and the
Judge or such officer as may be appointed in this behalf shall execute the
document so delivered.
(5) The execution of a document or endorsement of a negotiable
instrument under this rule may be in the following form, namely: -
'C.D., Judge of the Court of (or as the case may be), for A. B, in a suit by
E.F., against A. B', and shall have the same effect as the execution of the
document or the endorsement of the negotiable instrument by the party ordered
to execute and endorse the same.
(6) The Court, or such officer as it may appoint in this behalf, shall
cause the document to be registered if its registration is required by the law for
the time being in force or the decree-holder desires to have it registered, and may
make such order as it thinks fit as to the payment of the expenses of the
registration.
Contents
35. Decree for immovable property. (1) Where a decree is for the
delivery of any immovable property, possession thereof shall be delivered to the
party to whom it has been adjudged, or to such person as he may appoint to
receive delivery on his behalf, and, if necessary, by removing any person bound
by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property,
such possession shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum, or other
customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered
and the person in possession, being bound by the decree, does not afford free
access, the Court, through its officers, may, after giving reasonable warning and
facility to any woman not appearing in public according to the customs of the
country to withdraw, remove or open any lock or bolt or break open any door or
do any other act necessary for putting the decree-holder in possession.
36. Decree for delivery of immovable property when in occupancy

of tenant. Where a decree is for the delivery of any immovable property in the
occupancy of a tenant or other person entitled to occupy the same and not bound
by the decree to relinquish such occupancy the Court shall order delivery to be
made by affixing a copy of the warrant in some conspicuous place on the
property, and proclaiming to the occupancy by beat of drum or other customary
mode, at some convenient place, the substance of the decree in regard to the
property.
Court Decisions
Decree holders entitlement for physical 'possession of decretal land. Tenant-at-
will of land in question, who was not party in suit filing objection against delivery of
actual physical possession to decree holder.. Effect. Trial Court had framed issue as to
whether suit was bad' for misjoinder of necessary parties and onus of same was on
defendant/ judgment debtor who did not produce any evidence in support of such issue
whereupon issue in question, was decided in the negative. Such rinding was maintained
upto the Supreme Court. Judgment debtor had submitted objection petition against
execution alleging for the first time that respondent being tenant at will in suit land, was
not party in suit therefore, execution of decree was not maintainable. Such petition was
dismissed and appeal against dismissal of petition met the same fate. Tenant on that very
day filed similar objection petition on same grounds alleging that he was not bound by
the decree. Record showed that respondent was fully aware of litigation between decree
holder and judgment debtor but he was least interested to become party to such
171
litigation. Decree holder has filed application before Tehsildar for recovery of produce
wherein statement of respondent was recorded even thereafter, he never strived to
become party to litigation. Objection petition of respondent does not seem to be bona fide
one and the same appeared to have been filed in collusion with judgment debtor as a
device to defeat decree obtained by decree holder after protracted ligation of more than
30 years. Tenants, and servants of judgment debtor were. however, bound of decree
against judgment debtor unless they were occupancy tenants. Respondent admittedly
was not occupancy tenant therefore, he was bound by the decree in question. Respondent
however, after dispossession if he so desires, would have option to avail remedies
provided under 0.,21, R. 100 C.P.C. PLJ 2000 Pesh. 122.
Arrest and Detention in Prison

37. Discretionary power to permit judgment-debtor to show cause
against detention in prison. (1) Notwithstanding anything in these rules, where
an application is for the execution of a decree for the payment of money by the
arrest and detention in [*****] prison of a judgment-debtor who is liable to be
arrested in pursuance of the application the Court, shall, instead of issuing a
warrant for his arrest, issue a notice calling upon him to appear before the Court
on a day to be specified in the notice and show-cause why he should not be
[detained in] prison:
Provided that such notice shall not be necessary if the Court is satisfied,
by affidavit, or otherwise, that with the object or effect of delaying the execution
of the decree, the judgment-debtor is likely to abscond or leave the local limits of
the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the
Court shall, if the decree-holder so requires, issue a warrant for the arrest of the
judgment-debtor.
Court Decisions
Non-issuance of show-cause notice—In execution proceedings, decree-holder
filed application under O.21, R.37, C.P.C. and notice was issued to the judgment-debtor—
On the same day, after issuance of notice by the Executing Court, the decree-holder made
an oral statement alleging that the judgment-debtor might leave the territorial
jurisdiction of the Executing Court, therefore, the notice was withdrawn and warrant of
arrest was issued with a direction that the judgment-debtor would remain in prison till
realization of the decretal amount--Judgment-debtor was arrested and confined to prison
who remained there for five months—Validity—Without adopting the normal procedure
of summoning the judgment-debtor through a show-cause notice for the satisfaction of
the decree and of the attachment of movable and immovable property of the judgment-
debtor, the Executing Court had acted in haste in ordering the arrest and detention of the
Contents
judgment-debtor—Order of detention was passed by Executing Court without any

lawful justification and the same was set aside. 2002 CLD 1301
Issuance of warrant of arrest by Executing Court in the first instance—Instead

of issuance of show-cause notice to the judgment-debtor, on apprehension of the decree-
holder, the Executing Court issued the warrant of arrest and detained the judgment-
debtor in prison—Judgment-debtor deposited a sum of Rs.50,000 with the decree-holder
and was released from the prison-Effect—Deposit of the amount showed that the
apprehension was not well-founded and instead of straightaway sending the judgment-
debtor to jail, he could have been bound down through an acceptable security or surety
bond to ensure his presence on each and every date of hearing--Order of detention was
set aside by High Court in circumstances. 2002 CLD 1301
Mere inability of judgment-debtor to pay decretal amount. No ground for arrest

of judgment-debtor. PLJ 1973 Kar. 147; PLD 1973 Note 133 at p. 203.
38. Warrant for arrest to direct judgment-debtor be brought up.

Every warrant for the arrest of a judgment-debtor shall direct the officer
entrusted with its execution to bring him before the Court with all convenient
speed, unless the amount which he has been ordered to pay, together with the
interest thereon and the cost (if any) to which he is liable, be sooner paid.
Court Decisions
Question of prohibition of interest, provisions of Code of Civil Procedure, 1908,
referred to above, are repugnant to Injunctions of Islam. PLJ 1992 FSC 153.
39. 1
[Omitted]
Legal Amendments
1. Omitted by Civil Laws (Reforms) Act (XIV of 1994.
40. Proceeding on appearance of judgment-debtor in obedience to

notice or after arrest. (1) Where a judgment-debtor appears before the Court in
obedience to a notice issued under rule 37, or is brought before the Court after
being arrested in execution of a decree for the payment of money, the Court shall
proceed to hear the decree-holder and take all such evidence as may be produced
by him in support of his application for execution, and shall then give the
judgment-debtor an opportunity of showing cause why he should not be
[detained in] prison.
173
(2) Pending the conclusion of the inquiry under sub-rue (1) the
Courts may, in its discretion, order the judgment-debtor to be detained in the
custody of ah officer of the Court or release him on his furnishing security to the
satisfaction of the 'Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court
may, subject to the provisions of section 51 and to the other provisions of this
Code, make an order for the detention of the judgment-debtor in [*****] prison
and shall in that event cause him to be arrested if he is not already under arrest :
Provided that in order to give the judgment-debtor an opportunity of
satisfying the decree, the Court may, before making the order of detention, leave
the judgment-debtor in the custody of an officer of the Court for a specified
period not exceeding fifteen days or release him on his furnishing security to the
satisfaction of the Court for his appearance at the expiration of the specified
period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-
rule (3), it shall disallow the application and, if the judgment-debtor is under
arrest, direct his release. -
Court Decisions
A petitioner would hot be detained in prison without fulfilling requirements of
Section 51 CPC and Order 21 Rule 40 C.P.C. PLJ 2000 Kar. 129 = PLD 2000 Kar. 322.
Attachment of Property
41. Examination of judgment-debtor as to his property. Where a

decree is for the payment of money the decree-holder may apply to the Court for
an order that: -
(a) the judgment-debtor, or
(b) in the case of a corporation, any officer thereof, or
(c) any other person. be orally examined as to whether any or what
debts are owing to the judgment-debtor and whether the
judgment-debtor has any and what other property or means of
satisfying the decree; and the Court may make an order for the
attendance and examination of such judgment-debtor, or officer or
other person, and for the production of any books or documents.
Contents
42. Attachment in case of decree for rent or mesne profits or other

matter, amount of which to be subsequently determined. Where a decree
directs an inquiry as to rent or mesne profits or any other matter, the property of
the judgment-debtor may, before the amount due from him has been ascertained,
be attached, as in the case of an ordinary decree for the payment of money.
43. Attachment of movable property other than agricultural

produce, in possession of judgment-debtor. Where the property to be attached
is movable property, other than agricultural produce,, in the possession of the
judgment-debtor, the attachment shall be made by actual seizure, and the
attaching officer shall keep the property in his own custody or in the custody of
one of his subordinates, and shall be responsible for the due custody thereof
:
Provided that, when the property seized is subject to speedy and natural decay,
or when the expense of keeping it in custody is likely to exceed its value, the
attaching officer may sell it at once.
44. Attachment of agricultural produce. Where the property to be

attached is agricultural produce the attachment shall be made by affixing a copy
of the warrant of attachment: -
(a) where such produce is a growing crop, on the land on which such
crop has grown, or
(b) where such produce has been cut or gathered, on the threshing-
floor or place or treading out grain or the like or fodder-stock on
or in which it is deposited, and another copy or on the outer door
or on some other conspicuous part of the house in which the
judgment-debtor ordinarily resides or, with the leave of the Court,
on the outer door or on some other conspicuous part of the house
in which the carries on business or personally works for gain or in
which he is known to have last resides or carried on business or
personally worked for gain; and the produce shall thereupon be
deemed by have passed into the possession of the Court.
45. Provisions as to agricultural produce under attachment. (1)

Where agricultural produce is attached, the Court shall make such arrangement
for the custody thereof as it may deem sufficient and, for the purpose of enabling
the Court to make such arrangements, every application for the attachment of a
growing crop shall specify the time at which it is likely to be fit to be cut or
gathered.
175
(2) Subject to such conditions as may be imposed .by the Court in this
behalf either in the order of attachment or in any subsequent order the judgment-
debtor may tend, cut, gather and store the produce and to any other act
necessary for maturing or preserving it; and if the judgment- debtor fails to do all
or any of such acts, the decree-holder may with the permission of the Court and
subject to the like conditions, do all or any of them either by himself or by any
person appointed by him in this behalf, and the costs incurred by the decree-
holder shall be recovered from the judgment-debtor as if they were included in,
or formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be
deemed to have ceased to be under attachment or to require re-attachment
merely because it has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been
made at a considerable time before the crop is likely to be. fit to be cut or
gathered, the Court may suspend the execution of the order for such time as it
thinks fit, and may, in its discretion, make a further order prohibiting the
removal of the crop pending the execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being
stored shall not be attached under this rule at any time less than twenty days
before the time at which it is likely to be fit to be cut or gathered.
46. Attachment of debt, share and other property not in possession

of judgment-debtor. (1) In the case of: -
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation,
(c) other movable property not in the possession of the judgment-
debtor, except property deposited in, or in the custody of any
Court, the attachment shall be made by a written order
prohibiting:-
(i) in the case of the debt, the creditor from recovering the
debt and the debtor from making payment thereof until
the further order of the Court;
(ii) in the case of the share, the person in whose name the
share may be standing from transferring the same or
receiving any dividend thereon:
(iii) in the case of the other movable property except as
aforesaid, the person in possession of the same from giving
it over to the judgment-debtor.
Contents
(2) A copy of such order shall be affixed on some conspicuous part of

the Court-house and another copy shall be sent in the case of the debt to the
debtor, in the case of the share, to the proper officer of the corporation, and, in
the case of the other movable property (except as aforesaid), to the person in
possession of the same.
(3) A debtor prohibited under clause (/) of sub-rule (1) may pay the
amount of his debt into Court, and such payment shall discharge him as
effectually as payment to the party entitled to receive the same.
47. Attachment of share in movables. Where the property to be

attached consists of the share or interest of the judgment-debtor in movable
property belonging to him and another as co-owners, the attachment shall be
made by a notice to the judgment-debtor prohibiting him from transferring the
share or interest or charging it in any way.
48. Attachment of salary or allowances of public officer or servant

of railway company or local authority. (1) Where the property to be attached is
the salary or allowances of a servant of the [State] or a servant of a railway
company or local authority, the Court whether the judgment-debtor or the
disbursing' officer is or is not within the local limits of the Court's jurisdiction,
may order that the amount shall, subject to the provisions of section 60, be
withheld from such salary or allowances either in one payment or by monthly
instalments as the Court may direct; and, upon notice of the order to such officer
as the appropriate Government may by notification in the official Gazette
appoint in this behalf: .
(a) where such salary or allowances are to be disbursed within the
local limits, to which this Code for the time being extends, the
officer or other person whose duty it is to disburse the same shall
withhold and remit to the Court the amount due under the order,
or the monthly instalments, as the case may be;
(b) where such salary or allowances are to be disbursed beyond the
said limits, the officer or other person within those limits whose
duty it is to instruct the disbursing authority regarding the
amount of the salary or allowances to be disbursed shall remit to
the Court the amount due under the order, or the monthly
instalments, as the case may be, and shall direct the disbursing
authority to reduce the aggregate of the amounts from time to
time to be disbursed by the aggregate of the amounts from time to
time remitted to the Court.
177
(2) Where the attachable proportion of such salary or allowance is

already being withheld and remitted to a Court in pursuance of a previous and
unsatisfied order of attachment, the officer appointed by the appropriate
Government in this behalf shall forthwith return the subsequent order to the
Court issuing it with a full statement of all the particulars of the existing
attachment.
(3) Every order made under this rule, unless it is returned in
accordance with the provisions of sub-rule (2), shall, without further other notice
or other process bind the appropriate Government or the railway company or
local authority, as the case may be, while the judgment-debtor is within the local
limits to which this Code for the time being extends and while he is beyond those
limits if he is in receipt of any salary or allowances payable out of [the revenues
of the Central Government or a Provincial Government] or the funds of a railway
company carrying on business in any part of Pakistan local authority in Pakistan
and the appropriate Government or the railway company or local authority, as
the case may be, shall be liable for any sum paid in contravention of this rule.
Explanation. In this rule 'appropriate Government' means: -
(i) as respects any person in the service of the Central Government,
or any servant of a [*****] railway or of a cantonment authority or of the port
authority of a major port, the Central Government;
(ii) [*****]
(iii) as respects any other servant of the [State] or a servant of any
other railway or local authority, the Provincial Government.
49. Attachment of partnership property. (1) Save as otherwise

provided by this rule, property belonging to a partnership shall not be attached
or sold in execution of a decree other than a decree passed against the firm or
against the partners in the firm as such.
(2) The Court may, on the application of the holder of a decree
against a partner, make an order charging the interest of such partner in the
partnership property and profit with payment of the amount due under the
decree and may, by the same or a subsequent order, appoint a receiver of the
share of such partner in the profits (whether already declared or accruing) and of
any other money which may be coming to him in respect of the partnership, and
direct accounts and inquiries and make an order for the sale of such interest or
other orders as might have been directed or made if a charge had been made in
favour of the decree-holder by such partner, or as the circumstances of the case
may require.
Contents
(3) The other partner or partners shall be at liberty at any time to

redeem the interest charged or, in the case of a sale being directed, to purchase
the same.
(4) Every application for an order under sub-rule(2) shall be served
on the judgment-debtor and on his partners or such of them as are within
Pakistan.
(5) Every application make by any partner of the Judgment debtor
under sub-rule (3) shall be served on the decree-holder and on the judgment-
debtor, and on such of the other partners as do not join in the application and as
are within Pakistan.
(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be
service on all the partners, and all orders made on such application shall be
similarly served.
50. Execution of decree against firm. (1) Where a decree has been
passed against a firm, execution may be granted: -
(a) against any property of the partnership;
(b) against any person who has appeared in his own name under rule
6 or rule 7 of Order XXX or who has admitted on the pleadings
that he is, or who has been adjudged to be, partner; and
(c) against any person who has been individually served as a partner
with a summons and has failed to appear:
Provided that nothing in this sub-rule shall be deemed to limit or
otherwise affect the provisions of section 247 of the Contract Act, 1872.
(2) Where the decree-holder claims to be entitled to cause the decree
to be executed against any person other than such a person as is referred to in
sub-rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to
the Court which passed the decree for leave and where the liability is not
disputed, such Court may grant such leave or where such liability disputed, may
order that the liability of such person be tried and determined in any manner in
which any issue in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined
under sub-rule (2), the order made thereon shall have the same force and be
subject to the same conditions as to appeal or otherwise as if it were a decree.
(4) Save as against any property of the partnership, a decree against a
firm shall not release, render liable or otherwise affect any partner therein unless
he has been served with a summons to appear and answer.
179
51. Attachment of negotiable instruments. Where the property is a

negotiable instrument not deposited in a Court, nor in the custody of a public
officer, the attachment shall be made by actual seizure, and the instrument shall
be brought into Court and held subject to further orders of the Court.
52. Attachment of property in custody of Court or public officer.

Where the property to be attached is in the custody of any Court or public
officer, the attachment shall be made by a notice to such Court or officer
requesting that such property, and any interest or dividend becoming payable
thereon, may be held subject to the further orders of the Court from which the
notice is issued:
Provided that, where such property is in the custody of a Court any question of
title or priority arising between the decree-holder and any other person, not
being the judgment-debtor, claiming to be interested in such property by virtue
of any assignment, attachment or otherwise, shall be determined by such Court.
53. Attachment of decree. (1) Where the property to be attached is a

decree, either for the payment of money or for sale in enforcement of a mortgage
or charge, the attachment shall be made: -
(a) if the decrees were passed by the same Court, then by order of
such Court; and
(b) if the decree sought to be attached was passed by another Court,
then by the issue to such other Court of a notice by the Court
which passed the decree sought to be executed, requesting such
other Court to stay the execution of its decree unless and until:-
(i) the Court which passed the decree sought to be executed
cancels the notice ; or
(ii) the holder of the decree sought to be executed or his
judgment-debtor applies to the Court receiving such notice
to execute its own decree.
(2) Where a Court makes an order under clause(a) of sub-rule(7), or
receives an application under sub-clause (ii) of clause (b) of the said sub-rule, it
shall, on the application of the creditor who has attached the decree or his
judgment-debtor, proceed to execute the attached decree and apply the net
proceeds in satisfaction of the decree sought to be executed.
(3) The holder of a decree sought to be executed by the attachment of
another decree of the nature specified in sub-rule (1) shall be deemed, to be
representative of the holder of the attached decree and to be entitled to execute
such attached decree in any manner lawful for the holder thereof.
Contents
(4) Where the property to be attached in the execution of a decree is a

decree other than a decree of the nature referred to in sub-rule (1), the attachment
shall be made, by a notice by the Court which passed the decree sought to be
executed, to the holder of the decree sought to be attached, prohibiting him from
transferring or charging the same in any way; and, where such decree has been
passed by any other Court, also be sending to such other Court a notice to
abstain from executing the decree sought to be attached until such notice is
cancelled by the Court from which it was sent.
(5) The holder of a decree attached under this rule shall give the
Court executing the decree such information and aid as may reasonably be
required.
(6) On the application of the holder of a decree sought to be executed
by the attachment of another decree, the Court making an order of attachment
under this rule shall give notice of such order to the judgment debtor bound by
the decree attached; and no payment or adjustment of the attached decree made
by the judgment-debtor in contravention of such order after receipt of notice
thereof, either through the Court or otherwise, shall be recognized by any Court
so' long as the attachment remains in force.
54. Attachment of immovable property. (1) Where the property is

immovable, the attachment shall be made by an order prohibiting the judgment-
debtor from transferring or charging the property in any way, and all persons
from taking any benefit from such transfer or charge.
(2) The order shall be proclaimed at some place on or adjacent to such
property by beat of drum or other customary mode, and a copy of the order shall
be affixed on a conspicuous part of the property and then upon a conspicuous
part of the Court-house, and also, where the property is land paying revenue to
the Government, in the office of the Collector of the district in which the land is
situate.
55. Removal of attachment after satisfaction of decree. Where: ~

(a) the amount decreed with costs and all charges and expenses
resulting from the attachment of any property and paid into
Court, or
(b) satisfaction of the decree is otherwise made through the Court, or
certified to the Court, or
(c) the decree is set aside or reversed,
the attachment shall be deemed to be withdrawn, and, in the case of
immovable property, the withdrawal shall, if the judgment-debtor so desires, be
181
proclaimed at his expense, and a copy of the proclamation shall be affixed in the
manner prescribed by the last preceding rule.
56. Order for payment of coin or currency notes to party entitled

under decree. Where the property attached is current coin or currency notes, the
Court may, at any time during the continuance of the attachment, direct that
such coin or notes, or a part thereof sufficient to satisfy the decree, be paid over
to the party entitled under the decree to receive the same.
57. Determination of attachment. Where any property has been

attached in execution of a decree but by reason of the decree-holder's default the
Court is unable to proceed further with the application for execution, it shall
either dismiss the application or for any sufficient reason adjourn the
proceedings to a future-date. Upon the dismissal of such application the
attachment shall cease.
Investigation of Claims and Objections
58. Investigation of claims to, and objections to attachment of,

attached property. (1) Where any claim is preferred to, or any objection is made
to the attachment of, any property attached in execution of a decree on the
ground that such property is no liable to such attachment, the Court shall
proceed to investigate the claim or objection with the like power as regards the
examination of the claimant or objector, and in all other respects, as if he was a
party to the suit:
Provided that no such investigation shall be made where it appears to the Court
that the claim or objection (whether made before or after the sale) has been
designedly or unnecessarily delayed, or was not made within a reasonable time
or within one year of the date of the first attachment of the said property in the
execution of the said decree, whichever is earlier, unless the claimant or objector:-
(a) proves title acquired in good faith and for consideration
subsequent to the date of the first attachment;
(b) proves that his predecessors in interest, whether their interest
existed at the time of such attachment or was acquired thereafter,
fraudulently omitted to make a claim or objection; and
(c) impleads all such predecessors-in-interest, as parties.
Contents
(2) Postponement of Sale. Where the property to which the claim or

objection applies has been advertised for sale, the Court ordering the sale may
postpone it pending the investigation of the claim or objection.
Court Decisions
Objections to Execution. Whether objections were malafide and were filed for
purpose of delaying exeuction. Judgment-debtor filed objections earlier that property did
not belong to him, without specifying who was its owner. Admitteldy, judgment-debtor
lives with his two sons to whom property was allegedly gifted, but they themselves took
no step uptil 13.1.1983, to object to attachment. Explanation that they were not aware of
attachment is not acceptable because they and their father are represented by same
counsel. There is no manner of doubt that objections were malafide and were filed with
sole purpose of obstructing execution of decree. Dismissed with special costs. PLJ 1995
Kar. 339 = PLD 1995 Kar. 421.
Intervenor cannot make out case for release of attachment in application
under Order 21, Rule 58 only by establishing his possession. He has to establish such
possession which law recognized as a right or interest in property. Trespasser or bare
licensee not a person who can be said to have any title to a right or interest in property.
PLJ 1988 Kar. 273.
Obvious and only just procedure for investigation of claims and
objection to attachment of property could be allowing parties adequate and sufficient
opportunity of establishing their respective claims. Held further: Impugned order being
manifestly violative of provisions of law, is liable to be set aside on this short ground
alone. PLJ 1990 Lah. 67 (DB).
Attachment order was no longer in the field and had ceased to exist.
Counsel of parties had made statement that parties had compromised, consent decree
had been passed and that impugned order of attached passed earlier in execution
proceedings was no more in the field. Order of sale of property subsequent to statement
of parties, without fresh . attachment order being erroneous and not sustainable in law.
PLJ 1999 Lah. 1370 = PLD 1999 Lah. 216.
Decree of High Court awarding simple interest at the rate of 6 percent per
annum from the date of decree had attained finality--Executing Court modifying such
decree to include interest from the date as claimed by appellant--Order passed by
Executing Court modifying decree of High Court which had attained finality was, thus,
arbitrary, capricious and coram-non-judice--Such order of Executing Court was rightly
set aside by the High Court--Where essential feature for assumption of jurisdiction were
contravened or forum exercised powers not vested in it, or exceeds authority beyond
limits prescribed by law, judgment rendered would not only be coram-non-judice but
nullity in the by of law and Court would condone delay even if such judgment was
challenged beyond period of limitation--Judgment of High Court setting aside impugned
order of Executing Court would not warrant interference. PLJ 2002 SC 222
183
PLD 1971 SC 61; 1986 SCMR 261; 1987 SCMR 1543; PLJ 1987 Quetta 92; PLD 1965 Kar.
293; AIR 1932 Lah.. 534 & PLD 1983 Lah.. 445 ref.
Execution of decree and attachment of property belonging to legal heirs of
judgment debtor. Applications for release of property accepted by executing Court
which order remained unchallenged. Dismissal of another petition by decree holder for
attachment of same property by executing Court with direction to submit fresh "Fard-e-
Taleeka.'. Constitutional petition. Petitioner has not placed any document on record to
establish that respondent have inherited any property from their predecessor-in-interest
and if nothing has come into hand of any heir or other person then he cannot be termed
legal representative and cannot be sued for such claim against deceased debtor nor
decree passed against deceased judgment debtor be executed against them- It is also
admitted fact that earlier order passed on 28.10.1997 by executing Court through which
property of Mst. "N" was released, never challenged further before any competent forum
wherein learned executing Court discussed in detail point for attachment of said
property- Decree holder may furnish "Fard-e-Taleeka' as directed by learned executing
Court. Order of learned Civil Judge is eminently just and correct as there is
nojurisdictional defect in same. Petitioner has failed to point out any illegality or
infirmity in above said order. Petitioner may seek his remedy before executing Court.
Petition dismissed. PLJ 1999 Lah. 1077.
59. Evidence to be adduced by claimant. The claimant or objector

must adduce evidence to show that at the date of the attachment he had a title to,
or right or interest in, the property attached.
60. Release of property from attachment. Where upon the said

investigation the Court is satisfied that the claimant or objector had a title to, or
right or interest in, the said property-and the said property was not, by reason of
such title, right or interest, wholly or partly liable to attachment, the Court shall
make an order releasing the property, wholly, or, as the case may be, to such
extent as it is not so liable, from attachment.
61. Continuance of attachment subject to claim of encumbrancer.

Where the Court is satisfied that the property is subject to mortgage or charge in
favour of some-person, and thinks fit to continue that attachment, it may do so
subject to such mortgage or charge.
62. Questions relating to rights, etc., of claimant in attached

property to be decided by Court. All questions relating to the right, title or
interest of the claimant or objector in the attached property shall be adjudicated
upon and determined by the Court and no separate suit shall lie to establish such
title, right or interest].
Contents
Court Decisions
All questions relating to right, title or interest in attached property whether
raised by claimant or by an objector are to be adjudicated upon and determined by
Executing Court. If anything more was delivered to auction-purchaser of attached
property, judgment-debtor would be entitled to release same in executing proceedings
for that question fell within meaning of "satisfaction" of decree. PLJ 1999 Kar. 605 = 1999
CLC 374.
63. [Omitted]
Sale Generally
64. Power to order property attached to be sold and proceeds to be

paid to person entitled. Any Court executing a decree may order that any
property attached by it and liable to sale, or such portion thereof as may seem
necessary to satisfy the decree, shall be sold, and that the proceeds of such sale,
or sufficient portion thereof, shall be paid to the party entitled under the decree
to receive the same.
Court Decisions
Judicial sale, setting aside of—After the auction was completed,
contributories/shareholders had come forward with a proposal which was to be fulfilled
by a third party—On the basis of such proposal the shareholders were seeking to stall the
winding up proceedings as also setting aside of the judicial sale—Judicial sale could not
be set aside on the basis of such proposal, 2001 CLC 1267
65. Sales by whom conducted and how made. Save as otherwise

prescribed, every sale in execution of a decree shall be conducted by an officer of
the Court or by such other person as the Court may appoint in this behalf, and
shall be made by public auction in manner prescribed.
66. Proclamation of sales by public auction. (1) Where any property

is ordered to be sold by public auction in execution of a decree, the Court shall
cause a proclamation of the intended sale to be made in the language of such
Court.
(2) Such proclamation shall be drawn up after notice to the decree-
holder and the judgment-debtor and shall state the time and place of sale, and
specify as fairly and accurately as possible:-
(a) the property to be sold;
185
(b) the revenue assessed upon the estate or part of the estate, where
the property to be sold is an interest in an estate or in part of an
estate paying revenue to the Government;
(c) any incumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a
purchaser to know in order to judge of the nature and value of the
property.
(3) Every application for an order for sale under this rule shall be
accompanied by a statement signed and verified in the manner hereinbefore
prescribed for the signing and verification of pleadings and containing, so far as
they are known to or can be ascertained by the person making the verification,
the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the
proclamation, the Court may summon any person whom it thinks necessary to
summon and may examine him in respect to any such matters and require him to
produce any document in his possession or power relating thereto.
Court Decisions
Joint property being indivisible, same was ordered to be auctioned and from sale
proceeds, shares of co-sharers be satisfied by giving them their share of the amount.
Property in question, was auctioned and at that time no objection was raised to mode of
auction. Proclamation of auction however, did not include reserve price which was
necessary so that rights of judgment debtors were properly safeguarded and bid was to
have started from that figure. Non-disclosure of reserve price of properly in
proclamation, would render the same liable to be struck down. Even if there was no
objection from either side still it was duty of Court to conduct auction in accordance with
law which has not been done- Trial Court by not f9ing reserve price in proclamation of
auction has violated provisions contained in O.21. R. 66 C.P.C.. Impugned
judgment/decree was set aside and Court was directed to issue fresh proclamation in
accordance with law for auction of property in question, keeping in view observations of
High Court mentioned in its judgment. PLJ 2000 Lah. 1598.
67. Mode of making proclamation. (1) Every proclamation shall be

made and published, as nearly may be, in the manner prescribed by rule 64, sub-
rule (2).
(2) Where the Court so directs, such proclamation shall also be
published in the official Gazette or in a local newspaper, or in both, and the costs
of such publication shall be deemed to be costs of the sale.
Contents
(3) Where property is divided into lost for the purpose of being sold
separately, it shall not be necessary to make a separate proclamation for each lot
unless proper notice of the sale cannot, in the opinion of the Court, otherwise be
given.
68. Time of sale. Save in the case of property of the kind described in
the proviso to rule 34, no sale hereunder shall, without the consent in writing of
the judgment-debtor, take place until after the expiration of at least thirty days in
the case of immovable property, and of at least fifteen days in the case of
movable property, calculated from the date on which the copy of the
proclamation has been affixed on the Court-house of the judge ordering the sale.
69. Adjournment or stoppage of sale. (1) The Court may, in its

discretion, adjourn any sale hereunder to a specified day and hour, and the
officer conducting any such sale may in his discretion adjourn the sale, recording
his reasons for such adjournment:
Provided that, where the sale is made in, or within the precincts of the
Court-house, no such adjournment shall be made without the leave of the Court.
(2) Where a sale is adjourned under sub-rule (1) for a longer period
than seven days, a fresh proclamation under rule 67 shall be made, unless the
judgment-debtor consents to waive it.
(3) Every sale shall be stopped if, before the lot is knocked down, the
debt and costs (including the costs of the sale) are tendered to the officer
conducting the sale, or proof is given .to his satisfaction that the amount of such
debt and costs has been paid into the Court which ordered the same.
70. Saving of certain sales. Nothing in rules 66 to 69 shall be deemed

to apply to a case in which the execution of a decree has been transferred to the
Collector.
71. Defaulting purchaser answerable for loss on re-sale. Any

deficiency of price which may happen on a re-sale by reason of the purchaser's
default and all expenses attending such re-sale, shall be certified to the Court or
to the Collector or subordinate of the Collector, as the case may be, by the officer
or other person holding the sale, and shall, at the instance of either the decree-
holder or the judgment-debtor, be recoverable from the defaulting purchaser
under the provisions relating to the execution of a decree for the payment of
money.
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72. Decree-holder not to bid for or buy property without

permission. (1) No holder of a decree in execution of which property is sold
shall, without the express permission of the Court, bid for or purchase the
property.
(2) Where decree-holder purchases, amount of decree may be taken
as payment. Where a decree-holder purchases with such permission, the
purchase money and the amount due on the decree may, subject to the
provisions of section 73, be set off against one another, and the Court executing
the decree shall enter up satisfaction of decree in whole or part accordingly.
(3) Where a decree-holder purchases, by himself or through another
person, without such permission, the Court may, if it thinks fit on the application
of the judgment-debtor or any other person whose interests are affected by the
sale, by order set aside the sale; and the costs of such application and order, and
any deficiency of price which may happen on the re-sale and all expenses
attending it, shall be paid by the decree-holder.
73. Restriction on bidding or purchase by officers. No officer or

other person having any duty to perform in connection with any sale shall, either
directly or indirectly, bid for, acquire or attempt to acquire any interest in the
property sold.
Sale of Movable Property
74. Sale of agricultural produce. (1) Where the property to be sold is

agricultural produce the sale shall be held: -
(a) if such produce is a growing crop, on or near the land on which
such crop has grown, or .
(b) if such produce has been cut or gathered, at or near the threshing-
floor or place for treading out grain or the like or fodder-stack on
or in which it is deposited:
Provided that the Court may direct the sale to be held at the nearest place
of public resort, if it is of opinion that the produce is thereby likely to sell to
greater advantage.
(2) Where, on the produce being put up for sale:-
(a) a fair price, in the estimation of the person holding the salaries not
offered for it, and
(b) the owner of the ^produce or a person authorized to act in his
behalf applies to have the sale postponed till-the next day or, if a
Contents
market is held at the place of sale, the next market-day, the sale
shall be postponed accordingly and shall be than completed,
whatever price may be offered for the produce.
75. Special provisions relating to growing crops. (1) Where the

property to be sold is a growing crop and the crop from its nature admits of
being stored but has not yet been stored, the day of the sale shall be so fixed as to
admit of its being made ready for storing before the arrival of such day and the
sale shall not be held until the crop has been cut or gathered and is ready for
storing.
(2) Where the crop from its nature does not admit of being stored, it
may be sold before it is cut and gathered, and the purchaser shall be entitled to
enter on the land, and to do all that is necessary for the purpose of tending and
cutting and or gathering it.
76. Negotiable instruments and shares in corporations. Where the

property to be sold is a negotiable instrument or a share in a corporation, the
Court may, instead of directing the sale to be made by public auction authorize
the sale of such instrument or share through a broker.,
77. Sale by public auction. (1) Where movable property is sold by

public auction the price of each lot shall be paid at the time of sale or as soon
after as the officer or other person holding the sale directs, and in default of
payment the property shall forthwith be re-sold.
(2) On payment of the purchase-money, the officer or other person
holding the sale shall grant a receipt for the same, and the sale shall become
absolute.
(3) Where the movable property to be sold is a share in goods
belonging to the judgment-debtor and a co-owner, and two or more persons, of
whom one is such co-owner respectively bid the same sum for such property or
for any lot, the bidding shall be deemed to be the bidding of the co-owner.
78. Irregularity not to vitiate sale, but any person injured may sue.
No irregularity in publishing or conducting the sale of movable property shall
vitiate the sale; but any person sustaining any injury by reason of such
irregularity at the hand of any other person may institute a suit against him for
compensation or (if such other person is the purchaser) for the recovery of the
specific property and for compensation in default of such recovery.
189
79. Delivery of movable property, debts and shares. (1) Where the
property sold is movable property of which actual seizure has been made, it shall
be delivered to the purchaser.
(2) Where the property sold is movable property in the possession of
some person other than the judgment-debtor, the delivery thereof to the
purchaser shall be made by giving notice to the person in possession prohibiting
him from delivering possession of the property to any person except the
purchaser.
(3) Where the property sold is a debt riot secured by a negotiable
instrument, or is a share in a corporation, the delivery thereof shall be made by a
written order of the Court prohibiting the creditor from receiving the debt or any
interest thereon, and the debtor from making payment thereof to any person
except the purchaser or prohibiting the person in whose name the share may be
standing from making any transfer of the share to any person except the
purchaser, or receiving payment of any dividend or interest thereon, and the
manager, secretary or other proper officer of the corporation from permitting any
such transfer or making any such payment to any person except the purchaser.
80. Transfer of negotiable instruments and shares. (1) Where the

execution of a document or the endorsement of the party in whose name a
negotiable instrument or a share in a corporation is standing is required to
transfer such negotiable instrument or share, the judge or such officer as the may
appoint in this behalf execute such document or make such endorsement as may
be necessary, and such execution or endorsement shall have the same effect as an
execution or endorsement by the party.
(2) Such execution or endorsement may be in the following form
namely:-
AB by CD, judge of the Court of (or as the case may be), in a suit by EF against
AB.
(3) Until the transfer of such negotiable instrument or share, the
Court may, by order, appoint some person to receive any interest or dividend
due thereon and to sign a receipt for the same; and any receipt so signed shall be
as valid and effectual for all purposes as if the same had been signed by the party
himself.
81. Vesting order in case of other property. In case of any movable

property not therein before provided for, the Court may make an order vesting
such property in the purchaser or as he may direct; and such property shall vest
accordingly.
Contents
Sale of Immovable Property
82. What Court may order sales. Sale of immovable property in

execution of decrees may be ordered by any Court other than a Court of Small
Causes.
83. Postponement of sale to enable judgment-debtor to raise

amount of decree. (1)Where an order for the sale of immovable property has
been made, if the judgment-debtor can satisfy the Court that there is reason to
believe that the amount of the decree may be raised by the mortgage or lease or
private sale or such property, or some part thereof, or of any other immovable
property of the judgment-debtor, the Court may, on his application postpone the
sale of the property comprised in the order for sale on such terms and for such
period as it thinks proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the judgment-
debtor authorizing him within a period to be mentioned therein, and
notwithstanding anything contained in section 66, to make the propose
mortgage, lease or sale:
Provided that all monies payable under such mortgage, lease or sale shall
be paid, not to the judgment-debtor, but, save in so far as a decree-holder is
entitled to set-off such money under the provisions of rule 72, into Court:
Provided also that no mortgage, lease or sale under this rule shall become
absolute until it has been confirmed by the Court.
(3) Nothing in this rule shall be deemed to apply to a sale or property
directed to be sold in execution of a decree for sale in enforcement of a mortgage
of, or charge on, such property.
84. Deposit by purchaser and re-sale on default. (1) On every sale of

immovable property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five per cent. On the
amount of his purchase-money to the officer or other person conducting the sale,
and in default of such deposit, the property shall forthwith be re-sold.
(2) Where the decree-holder is the purchaser and is entitled to set-off
the purchase-money under rule 12, the Court may dispense with the
requirements of this rule.
85. Time for payment in full of purchase money. The full amount of
purchase-money payable shall be paid by the purchaser into Court before the
191
Court closes on the fifteen day from the sale of the property:
Provided that, in calculating the amount to be so paid into Court, the purchaser
shall have the advantage of any set-off to which he may be entitled under rule 72.
86. Procedure in default of payment. In default of payment within

the period mentioned in the last preceding rule, the deposit may if the Court
thinks fit, after defraying the expenses of the sale, be forfeited to the Government
and the property shall be re-sold, and the defaulting purchaser shall forfeit all
claim to the property or to any part of the sum for which it may subsequently be
sold.
87. Notification on re-sale. Every re-sale of immovable property,

default of payment of the purchase-money within the period allowed for .such
payments shall be made after the issue of a fresh proclamation in the manner and
for the period hereinbefore prescribed for the sale.
88. Bid of co-sharer to have preference. Where the property sold a

share of undivided immovable property and two or more persons of whom one
is a co-sharer, respectively bid the same sum for such property or for any lot the
bid shall be deemed to be the bid of the co-sharer.
89. Application to set aside sale on deposit. (1) Where immovable

property has been sold in execution of a decree, any person, either owning such
property or holding an interest therein by virtue of a title acquired before such
sale, may apply to have the sale set aside on his depositing in Court:
(a) for payment to the purchaser, a sum equal to five per cent of the
purchase-money; and
(b) for payment to the decree-holder, the amount specified in the
proclamation of sale as that for the recovery of which the sale was
ordered, less any amount which may, since the date of such
proclamation of sale, have been received by the decree-holder.
(2) Where a person applies under rule 90 to set aside the sale of his
immovable property, he shall not, unless he withdraws his application be
entitled to make or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any
liability he may be under in respect of costs and interest not covered by the
proclamation of sale.
Court Decisions
Contents
Sale of property—Scope and application of O. XXI, Rr. 89, 90, 91 & 92, C.P.C.
PLD 2003 SC 500
Suit for specific performance decreed on application for compromise for
payment of earnest money. Judgment debtor failed to appear and contest execution
proceedings and according his property which was plot of land, allotted in his name by
K.DA., auctioned. Judgment debtor filing objection application regarding non service of
notice title to property etc.. Validity. Judgment debtor was duly served in person with
notice of sale of property for satisfaction of decree on 12.8.1991 for bearing before
Additional Registrar on 22.8.1991. but he did not bother to appear either in person or
through authorised agent. Presumption of correctness and regular performance is always
attached- to official acts-despite personal service of notice on judgment debtor, he was
served by way of publication in daily "Morning News' for hearing fixed but without any
response. Likewise, delay in deposit of costs, of sale proceedings on part of decree holder
having been condoned and being past and closed transaction cannot be re-opened in
present proceedings. It is needless to emphasise that judgment debtor having slept over
matter for nearby 12 years after consent decree and for more than 10 years of this
execution, as come up with irrelevant and frivolous objections to defeat sale which has
been duly accepted and confirmed by this Court (High Court) followed by deposit of
purchase money, delivery of vacant possession and transfer of property in 'favour of
auction purchaser. At any event, there is no evidence to hold that market value of plot in
question was Rs. 5 million at time of public notice for sale of property. Argument that it
is worth Rs. 10 million at moment is without any substance as past and closed transaction
cannot be re-opefted at instance of inscrupulous litigant who has kept silent for pretty
long time after consenting to decree and not paying paltry amount of earnest money as
undertaken by him in judicial proceedings, to which sanctity is always attached.
Application is made after more than 5^ years in as much as judgment debtor was
personally served with notice of sale on 12.8-1991. Application is liable to dismissal on
this preliminary ground alone. There is absolutely no merit in this application which is
accordingly dismissed with special costs of Rs. 5,000,/-. PLJ 1998 Kar. 304.
90. Application to set aside sale on ground of irregularity or fraud.

Where any immovable property has been sold in execution of a decree the
decree-holder, or any person entitled to share in a rateable distribution of assists,
or whose interests are affected by the sale, may apply to the Court to set side the
sale on the ground of a material irregularity or fraud in publishing or conducting
it:
Provided that no sale shall be set aside on the ground of irregularity or
fraud unless upon the fact proved the Court is satisfied that the applicant has
sustained substantial injury by reason of such irregularity of fraud; and
193
[Provided further that no such application shall be entertained unless the

applicant deposits such amount, not exceeding twenty per cent. of the sum
realized at the sale, or furnishes such security as the Court may direct].
Court Decisions
Sale in execution of decree, setting aside of—Dismissal of objection petition as
being not competent for having been filed under O. XXI, R. 10, C.P.C – Validity—
Objection petition had been filed in reference to execution application of decree-holder—
Contents of objection petition and relief claimed therein clearly showed that same was
within purview of O. XXI, R. 90, C.P.C – Executing courts was duty bound to have
considered contents of objection petition and by applying relevant provisions should
have decided matter on merits, rather knocking out judgment-debtor on technical
ground—Dismissal of objection petition on ground of maintainability could not be
sustained—High court set aside impugned order with directions to lower court to decide
objection petition considering same to have been under O. XXI, R. 90, C.P.C. PLD 2003
Lah. 421
Sale of property—Judgment-debtors applied for setting aside the sale under O.
XXI, R. 90, C.P.C which was dismissed by the Banking court on the grounds that the
objectors were directed to deposit twenty per cent. Of the sale proceeds but they had not
complied with the direction; that they were afforded an opportunity to deposit the entire
decretal amount and retain the property but in vain and that instead of taking the shelter
of O. XXI, R. 89, C.P.C. in response to the notice given under O. XXI, R. 90, C.P.C which
suggested that their conduct was not above board—Validity—Held, judgment-debtor
was well within his right to seek annulment of a sale through an application under O.
XXI, R. 89, C.P.C. or an application under R. 90, O. XXI, C.P.C. which had different
connotations and parameters—If the judgment-debtor had elected to file an application
under O. XXI, R. 90, C.P.C. the same had to be decided within the parameters thereof and
not on the basis of his refusal to deposit the decretal amount or accept the offer to
purchase the property over and above the price at which it was auctioned or procure a
buyer who could offer an amount over and above the auction price—No adverse
inference could also be drawn with regard to credentials of the judgment-debtor and
conduct—objection petition filed by the judgment debtors could not be said to be tainted
with mala fides in the face of the huge amount deposited by them in compliance with the
orders of supreme court and High court—No tangible proof f sale of his shares in the
property by one of the judgment-debtors being available, his locus standi to object to the
sale could not be assailed—Banking Court having dismissed the application under O.
XXI, R. 90, C.P.C . Without recording evidence of the parties, although the same required
holding of an investigation and recording of findings based on evidence adduced by the
parties, Supreme court declined to decide the matter on merits and remanded the case to
the Banking Court with the direction that the application under O. XXI, R. 90, C.P.C. filed
by the judgment-debtors be decided on merits after recording evidence of the parties,
within a specified period. PLD 2003 SC 500
Contents
Second proviso—Sale in execution of decree, setting aside of—Deposit of 20% of

auction price—proper stage—Second proviso to O. XXI, R. 90, C.P.C. is an enabling and
directory provision empowering Court to direct deposit of amount not exceeding 20% of
sum realized at sale or furnish security—Such discretion must be exercised by court
according to judicial standard—Words “as the controls and regulates its earlier part—
Objection petition can be dismissed, if direction of court is not complied with. PLD 2003
Lah. 421
Sale in execution of decree, setting aside of – Dismissal of objection petition for
non-deposit of 20% amount under O. XXI, R. 90, C.P.C – Validity—Execution Court had
never issued direction to judgment-debtor to make deposit or furnish security—
Executing court by taking resort to second proviso to O. XXI, R. 90, C.P.C was not
justified to dismiss objection petition—high Court set aside impugned order of High
court would be considered as sufficient direction by court in terms of the rule and
compliance made by judgment-debtor. PLD 2003 Lah. 421
Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89,
90, 91 & 92, C.P.C. PLD 2003 SC 500
Auction proceedings without first deciding objection petition. Effect. Conduct
of auction proceedings without first deciding objection petition was materially irregular
and seriously violative of rights of party concerned. PLJ 1999 Pesh. 74 = 1999 MLD 2127.
Non-attachment of property before auction thereof. Plea that property having

already been mortgaged with bank was not required to be attached was of no
consequence. Mortgage was to secure interest of creditor bank while attachment thereof,
would bring the same within domain of Court. Order of auction, thus. could not be
confused with order of attachment. Entire auction proceedings and confirmation of
auction through impugned order was, thus. set aside as being void and illegal. PLJ 1999
Pesh. 74 = 1999 MLD 2127.
Objection against sale of property in execution of decree without depositing

specified amount. No deposit could automatically be made by objector unless
specifically ordered by Court. Punitive aspect of Order 21, R. 90 C.P.C. could be invoked
only when objector fails to comply orders of deposit passed by court. Objection petition
against sale. therefore, was not liable to be thrown out on account of the fact that no
order was passed by Executing Court for deposit of specified amount. PLJ 1999 Pesh. 74
= 1999 MLD 2127.
91. Application by purchase to set aside sale on ground of

judgment-debtor having no saleable interest. The purchaser at any such sale in
execution of a decree may apply to the Court to set aside the sale, on the ground
that the judgment-debtor had no saleable interest in the property sold.
Court Decisions
195
Execution of decree—Sale of property—Scope and application of O. XXI, Rr. 89,

90, 91 & 92, C.P.C. PLD 2003 SC 500
92. Sale when to become absolute or be set aside. (1) Where no

application is made under rule 89, rule 90 or rule 91, or where such application is
made and disallowed, the Court shall make an order confirming the sale and
thereupon the sale shall become absolute.
(2) Where such application is made and where, in the case of an
application under rule 89, the deposit required by that rule is made within thirty
days from the date of sale, the Court shall make an order setting aside the sale:
Provided that no order shall be made unless notice of the application has
been given to all persons affected thereby.
(3) No suit to set aside and order made under this rule shall be
brought by any person against whom such order is made.
Court Decisions
Sale, confirmation of—While processing a sale or confirming the same, the
Executing Court is expected to act as a prudent common man/commercial person, 2001
CLC 1267
93. Return of purchase money in certain cases. Where a sale of

immovable property is set aside under rule 92 the purchaser shall be entitled to
an order for repayment of his purchase-money, with or without interest as the
Court may direct, against any person to whom it has been paid.
94. Certificate to purchaser. Where a sale of immovable property has

become absolute, the Court shall grant a 'certificate specifying the property sold
and the name of the person who at the time of sale is declared to be the
purchaser. Such certificate shall bear date the day on which the sale became
absolute.
95. Delivery of property in occupancy of judgment-debtor. Where

the immovable property sold is in the occupancy of the judgment-debtor or of
some person on his behalf or of some person claiming under a title created by the
judgment-debtor subsequently to the attachment of such property and a
certificate in respect thereof has been granted under rule 94, the Court shall, on
the application of the purchaser, order delivery to be made by putting such
purchaser or any person whom he may appoint to receive delivery on his behalf
Contents
in possession of the property, and, if need be, by removing any person who
refuses to vacate the same.
96. Delivery of property in occupancy of tenant. Where the property

sold is in the occupancy of a tenant or other person entitled to occupy the same
and a certificate in respect thereof has been granted under rule 94, the Court
shall, on the application of the purchaser, order delivery to be made by affixing a
copy of the certificate of sale in some conspicuous place on the property, and
proclaiming to the occupant by beat of drum or other customary made, at some
convenient place, that the interest of the judgment-debtor has been transferred to
the purchaser.
Resistance to Delivery of Possession of Decree-holder or Purchaser
97. Resistance or obstruction to possession of immovable property.

(1) Where the holder of a decree for the possession of immovable property or the
purchaser of any such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the property, he may make
an application to the Court complaining of such resistance or obstruction.
(2) The Court shall fix a day for investigation the matter and shall
summon the party against whom the application is made to appear and answer
the same.
Court Decisions
Execution petition by landlord against tenant after his ejectment from rented
premises. Objection petition filed by petitioner during execution proceedings on basis of
agreement to sell while suit for specific performance was in field. Whether petitioner
could get possession of property invoking provision of O.21. R-99 when he had already
been dispossessed. Rule-99 provides resistance or obstruction by bonafide claimant who
has caused resistance or obstruction and he is any person other than judgment-debtor
claiming in good faith to be in possession of property in his own account or on account of
some person other than judgment-debtor. Petitioner stands dispossessed and still matter
whether agreement in respect of disputed property is genuine or not or what charge or
interest is created in respect of disputed property in favour of petitioner is to be
determined by court concerned, and if petitioner is successful to prove same he can be
put into possession by court concerned. Provision of O.21. R. 99 read with provisions of
Rules 97, 98 as well as Section 74 of C.P.C. are not available to petitioner. PLJ 1998 Lah.
1088 = PLD 1998 Lah. 411 = NLR 1998 Civil 388.
197
98. Resistance or obstruction judgment-debtor. Where the Court is

satisfied that the resistance or obstruction was occasioned without any just cause
by the judgment-debtor or by some other person at his instigation, it shall direct
that applicant be put into possession of the property, and where the applicant is
still resisted 01. obstructed in obtaining possession, the Court may also, at the
instance of the applicant order the judgment-debtor, or any person acting at his
instigation, to be detained in t* * *] prison for a term which may extend to thirty
days.
99. Resistance or obstruction by bona fide claimant. (1) Where the

Court is satisfied that the resistance or obstruction was occasioned by any person
(other than judgment-debtor) claiming in good faith to be in possession of the
property on his own account or an account of some person other than the
judgment-debtor, the Court shall make an order dismissing the application.
Court Decisions
Objection petition- Dismissal of. Revision petition- Burden of proof. Order 21
Rule 99 CPC provides a protection to person in possession, not to be dispossessed in
process of execution proceeding, provided he fulfil requirement given therein, therefore
to establish his locus standi burden is on him to prove so to resist execution of decree
upheld up to High Court. Conductof a person, resisting execution of decree, in terms of
Order 21. Rule 99 r/w Section 47 CPC is very relevant. Order 21 Rule 99 CPC has laid
much stress on good faith and bonafide of objection, all such ingredients and.
characteristic are totally lacking m favour of objection. Objection that evidence recorded
between original parties cannot be taken as evidence to dislodge defence of objection.
Executing court, no doubt U/S 47 CPC can determine certain questions of facts arising
out during execution proceeding but law is well settled that. it cannot go beyond original
judgment and decree. Objector being a pr4y to entire proceeding in original suit cannot
take any exception to evidence or material brought on file. Revision petition is dismissed.
PLJ 1998 Pesh. 31 = 1998 CLC 385.
100. Dispossession by decree-holder or purchaser. (1) Where any

person other than the judgment-debtor dispossessed of immovable-property by
the holder of a decree for the possession of such property or where such property
has been sold in execution of a decree, by the purchaser thereof, he may make an
application to the Court complaining of such dispossession.
(2) The Court shall fix a day for investigating the matter and shall
summon the party against whom the application is made to appear and answer
the same.
Contents
Court Decisions
Restoration of possession. Objection petition filed by a person who was son of
one of defendants against whom decree had become final upto level of Supreme Court.
Objector was l4ing under same roof alongwith his father. Had petitioner any genuine
claim, he would have come forward on first round of litigation and would have
contested suit under Section 9 of Specific Relief Act. Petitioner has some before executing
court and filed objectiort petition in order to frustrate order of Supreme Court. This is
impermissible, such plea cannot be examined in revisional jurisdiction which is
discretionary as well as equitable in nature and cannot be extended in favour of such
applicants. PLJ 1995 Lah. 559 = 1995 CLC 777.
Separate suit barred—Courts below had acted without lawful authority and
without jurisdiction while refusing to decide objection application only on the ground
that possession had been delivered and decree had been satisfied—Case was remanded
and would be deemed to be pending before Executing Court with direction to decide
objection application in accordance with law, as seprate suit was barred. PLJ 2002 Lah..
1536
Decree holders entitlement for physical 'possession of decretal land. Tenant-at-
will of land in question, who was not party in suit filing objection against delivery of
actual physical possession to decree holder.. Effect. Trial Court had framed issue as to
whether suit was bad' for misjoinder of necessary parties and onus of same was on
defendant/ judgment debtor who did not produce any evidence in support of such issue
whereupon issue in question, was decided in the negative. Such rinding was maintained
upto the Supreme Court. Judgment debtor had submitted objection petition against
execution alleging for the first time that respondent being tenant at will in suit land, was
not party in suit therefore, execution of decree was not maintainable. Such petition was
dismissed and appeal against dismissal of petition met the same fate. Tenant on that very
day filed similar objection petition on same grounds alleging that he was not bound by
the decree. Record showed that respondent was fully aware of litigation between decree
holder and judgment debtor but he was least interested to become party to such
litigation. Decree holder has filed application before Tehsildar for recovery of produce
wherein statement of respondent was recorded even thereafter, he never strived to
become party to litigation. Objection petition of respondent does not seem to be bona fide
one and the same appeared to have been filed in collusion with judgment debtor as a
device to defeat decree obtained by decree holder after protracted ligation of more than
30 years. Tenants, and servants of judgment debtor were. however, bound of decree
against judgment debtor unless they were occupancy tenants. Respondent admittedly
was not occupancy tenant therefore, he was bound by the decree in question. Respondent
however, after dispossession if he so desires, would have option to avail remedies
provided under 0.21, R. 100 C.P.C. PLJ 2000 Pesh. 122.
199
101. Bona fide claimant to be restored to possession. Where the Court

is satisfied that the applicant was in possession of the property on his own
account or on account of some person other than the judgment-debtor, it shall
direct that the applicant be put into possession of property.
102. Rules not applicable to transferee pendente lite. Nothing in rules

99 and 101 shall apply to resistance or obstruction in execution of a decree for the
possession of immovable property by a person to whom the judgment-debtor
has transferred the property after the institution of the suit in which the decree
was passed or to the dispossession of any such person.
103. Certain orders conclusive and suit barred. All questions arising
as to title, right or interest in, or possession of, immovable property between an
applicant under rule 97 and the opposite-party, or between an applicant under
rule 100 and the opposite-party shall be adjudicated upon and determined by the
Court, and no separate suit shall lie for the determination of any such matter.
Court Decisions
Question pertaining to execution and satisfaction of decree—Such questions
were to be decided by Executing Court—Questions relating to title and possession were
also required to be decided by Executing Court—Separate suit has been expressly barred
—Courts below had acted without lawful authority and without jurisdiction while
refusing to decide objection application only on the ground that possession had been
delivered and decree had been satisfied—Case was remanded and would be deemed to
be pending before Executing Court with direction to decide objection application in
accordance with law. PLJ 2002 Lah.. 1536

R. 1: Add the following explanation to sub-rule(l) of rule 1 :-
'Explanation. The judgment-debtor may, if he so desires, pay the decretal
amount, or any part thereof, into the Court under clause (a) by postal money
order on a form specially approved by the High Court for the purpose. [11-7-
1933].
R. 5: In the last sentence after the words District Court and before the
words of the district insert the words or the Court or any judge having
jurisdiction is the place where the decree is to be executed to whom power to
receive plaints has been delegated by the District judge. (23-3-1938).
R. 10: Add the following proviso of rule 10:-
Contents
Provided that if the judgment-debtor has left the jurisdiction of the Court
which passed the decree, or of the Court to which the decree has been sent, the
holder of the decree may apply to the Court within whose jurisdiction the
judgment-debtor is, or to the officer appointed in this behalf, to order immediate
execution on the production of the decree and of an affidavit of non-satisfaction
by the holder of the decree pending the receipt of an order of transfer under
Section 39. (7-4-1932).
R. 17: For the words the Court may reject.... to be fixed by it in sub-rule
(1) of rule 17 substitute the following words:-
the Court shall fix a time within which the defect shall be remedied, and
if it is not remedied within such time, may reject the application. (7-4-1912).
R. 22: The words two years shall be substituted for the words one year
wherever they occur, in rule 22.
Add the following at the end of the rule:-
Failure to record such reasons shall be considered an irregularity not
amounting to a defect in jurisdiction.
R.26: For the words the Court may substitute the words Court shall,
unless, sufficient cause is shown to the contrary, in sub-rule(3).
R.31: In sub-rule (2) of rule 31 for the word six substitute the words
three. Add the following proviso after sub-rule(2):-
Provided that the Court may, in any special case, according to the special
circumstances thereof, extend the period beyond three months; but it shall in no
case exceed six months in all.
In sub-rule (3) of rule 31 for the words six months substitute the following
words:-three months or such other period as may have been prescribed by the
Court. (7-4-1932). R.32: In sub-rule (3) of rule 32 for the words one year substitute
the words three months.
Add the following proviso to sub-rule(3) of rule 32 :-
Provided that the Court may for sufficient reasons on the application of
the judgment-debtor, extend the period beyond three months; but it shall in no
case exceed one year in all.
In sub-rule (4) for the words one year, substitute the words three-months
or such other period as may have been prescribed by the Court. (7.4.1932)
R.39: In sub-rule (5) of rule 39 delete the words in the civil prison occurring
in two places.
R.43: Re-number the rule 43 as sub-rule (1), and add the following
further proviso and sub-rules (2) and (3) of rule 43:-
and provided also that, when the property attached consists of livestock,
agricultural implements or other articles which cannot conveniently be removed,
201
and the attaching officer does not act under the first proviso to this rule, he may,
at the instance of the judgment-debtor or of the decree-holder or of any person
claiming to be interested in such property, leave it in the village or place where it
has been attached:
(a) in the charge of the person at whose instance the property is
retained in such village or place, if such person enters into a bond in Form No.
15-A if Appendix E to this Schedule, with one or more sufficient sureties for its
production when called for, or
(b) in the charge of an officer of the Court, if a suitable place for its
safe custody be provided, and the remuneration of the officer for period of
fifteen days at such rate as may from time to time be fixed by High Court, be
paid in advance, or
(c) in the charge of a village Lambardar of such other respectable
person as will undertake to keep such property, subject to the orders of the
Court, if such person enters in to a bond in Form No. 15-B of Appendix E with
one or more sureties for its production.
(2) Wherever an attachment made under the provisions of this rule
ceases for any of the reasons specified in Rule 55, 57 or 60 of this Order, the Court
may order the restitution of the attached property to the person in whose
possession it was before attachment.
(3) When property is made over to a custodian under sub-clause (a)
or (c) of clause (1), the Schedule of property annexed to the bond shall be drawn
up by the attaching officer in triplicate and dated and signed by:-
(a) the custodian and his sureties;
{b) the officer of the Court who made the attachment;
(c) the person whose property is attached and made over; and
(d) two respectable witnesses.
One copy will be transmitted to the Court by the attaching officer and
placed on the record of the proceedings under which the attachment has been
ordered, one copy will be made over to the person whose property is attached
and one copy will be made over to the custodian. (13-12-1928).
Insert the following as rules 43-A to 43-D:-
43A. (1) Whenever attached property is kept in the village or place
where it attached, the attaching officer shall forthwith report the fact to the
Court, and shall, with his report, forward a list of the property seized.
(2) If attached property is not sold under the first proviso to rule 43 or
retained in the village or place where it is attached under second proviso to that
rule, it shall be brought to the Court-house and delivered to the proper officer of
the Court.
Contents
(3) A custodian appointed under the second proviso to rule 43 may at

any time terminate his responsibilities by giving notice to Court of his desire to
be relieved of his trust and delivering to the proper officer of the Court the
property made over to him.
(4) When any property is taken back from a custodian, he shall be
granted a receipt for the same.
43B. (1) Whenever attached property kept in the village or place where
it is attached is livestock, the person at whose instance it is retained shall provide
for its maintenance, and if he fails to do so, and if it is incharge of an officer of the
Court, it shall be recorded to the Court-house
Nothing in this rule shall prevent the judgment-debtor, or any person
claiming to be interested in such stock, from making such arrangements for
feeding the same as may not be consistent with its safe custody.
(2) The Court may direct that any sums which have been expended
by the attaching officer or are payable to him, if not duly deposited or paid, be
recovered from the proceeds of property, if sold or be paid by the person
declared entitled to delivery before he receives the same. The Court may also
order that any sums deposited or paid under these rules be recovered as costs of
the attachment from any party to the proceedings.
43C. When an application is made for the attachment of livestock or
other movable property, the decree-holder shall pay into Court in cash such sum
as will cover the costs of the maintenance and custody of the property for 15
days if within three clear days before the expiry of any such period of 15 days the
amount of such costs for such further period as the Court may direct be not paid
into Court, the Court, on receiving a report thereof from the proper officer, may
issue an order for the withdrawal of the attachment and direct by whom the
costs of the attachment are to be paid.
43D. Any person who has undertaken to keep attached property under
rule 43 (1) (c) shall be liable to be proceeded against as a surety under Section 145
of the Code and shall be liable to pay in execution proceedings the value of any
such property wilfully lost by him.
R. 45: Add the following to sub-rule (1) of rule 45:-
and with every such application such charges as may be necessary for the
custody of the crop up to the time at which it is likely to be fit to be cut or
gathered shall be paid to the Court.
R. 53: (1) Add the following words to sub-rule (l)(b) of rule 53 after the
words to such other Court.
and to the Court to which it has been transferred for execution.
(2) In sub-rule (l)(b) (ii), substitute the words the attached for the words its own
203
and insert the following between the words executed or and his judgment-
debtor-
with the consent of the said decree-holder expressed in writing or with
the permission of the attaching Court.
(3) In sub-rule (6), substitute the words with the knowledge, for the
words after receipt of notice. (7-4-1932).
R. 54: At the end of sub-rule(2) of rule 54, substitute semi-colon for full-
stop and add:-
where the property is land situated in a Cantonment, copies of the order
shall also be forwarded to the Cantonment Board and to the Military Estates
Officer in whose area that Cantonment is situated.
Add as sub-rule (3) of rule 54:-
(3) The order shall take effect as against persons claiming under a
gratuitous transfer from the judgment-debtor, from the date of the order of
attachment, and as against other from the time they had knowledge of the
passing of the order of attachment or from the date of the proclamation,
whichever is earlier.
R. 58: Add the following proviso under sub-rule (1) of rule 58;-
and that if an objection is not made within a reasonable time of the first
attachment the objector shall have no further right to object to the attachment
and sale of the same property in execution of the same decree, unless he can
prove a title acquired subsequent to the date of the first attachment. (7-4-1972).
R. 66: Add the following words to clause (e) of sub-rule (2) of rule 66:-
Provided that it shall not be necessary for the Court itself to give its own
estimate of the value of the property; but the proclamation shall include the
estimate, if any, given by either or both of the parties.
After sub-rule (2) of rule 66 add the following as sub-rule (3), and
renumber the existing sub-rules (3) and (4) as (4) and (5) respectively:
(3) Where the property to be sold is-movable property which has been made over
a custodian under sub-clause (a) or(c) of clause (1) of R. 43 of this Order, the
Court shall also issue a process by way of notice to the custodian, directing him
to produce the property at the place of sale at a time to be specified therein, with
a warning that if he fails to comply with the directions, he shall be liable to action
under Section 145 of the Code of Civil Procedure. (16-5-1932).
R.68: Lahore and N. W.F.P. In rule 68 for the words thirty read fifteen
and for the words fifteen read one week (1.4.1992).
R. 69: In sub-rule (2) of rule 69 thirty days shall be substituted for seven
days.
Contents
R. 75: Lahore and N.W.F.P. In sub-rule (2) of rules 75 after the word
stored add the words or can be sold to greater advantage in an unripe state. (12-
5-1909 and 28-4-1938).
R. 89: In sub-rule (1) of this rule for the words any person ... acquired
such sale, substitute the words any person claiming any interest in the property
sold at the time of the sale or at the time of making the application under this
rule or acting for or in the interest of such a person.
R. 90: Add the following proviso:-
Provided further that no such sale be set aside on any ground which the
applicant could have put forward before the sale was conducted.
R. 98: (1) After the words at his instigation of rule 98 where they occur
add the following words:-
or on his behalf. (2) Add the following at the end of the rule 98-
such detention shall be at the public expense and the person at whose instance
the detention is ordered shall not be required to pay subsistence allowance.
(7.4.1992 and 2.9.1994).
R. 99: Insert in rule 99 the words to have a right after the words in good
faith. (3.3.1993).
R. 103: Lahore and N.-W.F.P. Add the following proviso:-
Provided further that no such sale be set aside on any ground which the
applicant could have put forward before the sale was conducted. (7-4-1932).
R. 104: Add the following rule 104: -
104. For the purpose of all proceedings under this Order, service on any
party shall bedeemed to be sufficient if effected at the address for service referred
to in Order VIII, rule 11, subject to the provisions of Order VII, rule 24, provided
that this rule shall not apply to the notice prescribed by rule 22 of this Order.
N.-W.F.P.
R. 6: Read rule 6 as Rule 6 (1) and add the following sub-rule (2)
(2) Such copies and certificates may, at the request of the decree-holder, be
handed over to him or to such person as he appoints, in a sealed cover to be
taken to the Court to which they are to be sent.
R. 16: For the first proviso, to rule 16 substitute the following proviso:-
Provided that where the decree, or such interest as aforesaid, has been
transferred by assignment, notice of such application shall be given to the
transferor; and unless an affidavit by the transferor admitting the transfer is
presented with the application, the decree shall not be executed, until the Court
has heard his objections (if any) to its execution.
205
R. 22: The words two years shall be substituted for the words one year
wherever they occur.
R. 26: For may in sub-rule (3) read shall unless good cause to the contrary
is shown.
R. 29: After rule 29 the following rule shall be added:-
29A. When suit under rule 63 of this Order is pending, the Court in which such
suit is filed may if it considers that execution of the former decree should be
stayed, intimate the fact to the executing Court, which shall thereupon stay
execution until the suit is decided.
R. 31: In sub-rules (2) and (3) of rule 31 for the*-words six months
substitute three months.
Add in sub-rules (2) and (3) to such period, exceeding six months in all as
it may think fit.
R. 32: In sub-rule (3) of rule 32 for the words for one year substitute the
words for three months or such further period not exceeding one year in the
whole as may be fixed by the Court.
R. 39: For sub-rule (4) of rule 39 substitute that following: All payments
shall be made to the officer-in-charge of the civil prison.
In sub-rules (5) of rue 39 omit the words in the civil prison.
R. 43D: Add the following further proviso:-
Provided further that when the attached property consists of livestock or
articles which cannot conveniently be removed, and the attaching officer does
not act under the first provision to this rule, he may leave it in the village or place
where it has been attached in the charge of a village Lambardar of such other
respectable person as will undertake keep the property, subject to the orders of
the Court if such person enters into a written bond for its production.
Any person who has so undertaken to keep attached property may be proceeded
against as surely under Section 145 of the Code and shall be liable to pay in
execution proceedings the value of any such property wilfully lost by him.
R.53: In sub-rule (l)(b) and in sub-rule (4), of rule 53 after the words to
such other Court add the words or to any other Court to which the decree has
been transferred for execution.
In sub-rule (l)(b) (ii), of rule 53 for the words its own decree, substitute
the words the attached decree..
In sub-rule (6) of rule 53 for the words after receipt of notice thereof, read
after receipt of notice or with the knowledge thereof.
R.54: (1) Add the following at the end of sub-rule (2) of rule 54:-
and also when the property is situate within Cantonment limits, in the office of
the Local Cantonment Board and Military Estates Officer concerned.
Contents
(2) Add the following as sub-rule (3) of rule 54:-

(3) The order shall take effect as against purchasers for value in food
faith from the date when a copy of the order is affixed on the property, and
against all other transferees from the judgment-debtor from the date on which
such order is made.
R.57: Cancel the concluding sentence of rule 57, upon the dismissal ...
shall cease, and substitute the following:-
In dismissing such application the Court shall direct whether the
attachment shall continue or cease. In the absence of any such directions the
attachment shall be deemed to cease.
R.66: Add the following to clause (e) of sub-rule (2) of rule 66: -
Provided that it shall not be necessary for the Court itself to give its own
estimate of the value of the property; but the proclamation shall include the
estimate, if any, given by either or both of the parties.
R.69: In sub-rule (2), of rule 69 for the word seven, substitute the word
thirty and add the following proviso:-
Provided that the Court may dispense with the consent of any judgment-
debtor, who has failed to attend in answer to a notice issued under rule 66.
R.72: For sub-rule (1) of rule 72 substitute the following: -
(l) The holder of a decree, in execution of which the property is sold, shall
be competent to bid for or purchase the property without express permission of
the Court, provided that the Court may on application of the judgment-debtor
and for sufficient cause debar him from so bidding or purchasing.
R.89: In sub-rule (1) of rule 89 for the words either owning, before such
sale, substitute either claiming any interest in such property at the time of sale or
at the time of application, or acting for or on the interest of such person.
R.98: After the words at his instigation of rule 98 wherever they occur,
add the words or on his behalf, and after the words in the civil prison add the
words at the expense of the State.
R.99: For the words other than the judgment-debtor substitute the
words of rule 99 other than the persons mentioned in rules 95 and 98.
SINDH
R. ll: Add the following as clause (ff) to sub-rule (2) of rule 11:-
(ff) Whether the original decree-holder has transferred any part of his
interest in the decree and, if so, the date of the transfer and the name and address
of the parties to the transfer.
R.24: Add the following proviso to sub-rule (2) of rule 24:- .
Provided that First Class Subordinate Judge may, in his special jurisdiction, send
207
a process to another subordinate Court in the same district for execution by the
proper officer in that Court.
R.46: Add the following as rules 46-A to 46-1.
Procedure when debt or any movable property not in possession of judgment-

debtor, attached.
46-A. The Court may in the case of debt (other than a debt secured by a
mortgage or a charge or by a negotiable instrument) and any movable property
not in the possession of the judgment-debtor which has been attached under R.46
or R. 51 of this Order, upon the application of the attached creditor, issue notice
to any person liable to pay such debt or deliver or account for such movable
property (such person to be hereinafter called the garnishee calling upon him
either to pay or deliver into Court the due from or the property deliverable by
him to such judgment-debtor, or so much thereof as may be sufficient to satisfy
the decree and costs of execution, or to appear and show-cause why he should
do not do so:
Provided that if the debt or, property in respect of which the application
aforesaid is made is of value beyond the pecuniary jurisdiction of the Court, the
execution case shall be sent, if the attaching Court is the Karachi Small Cause
Court, to the High Court, if it is any other Court, to the District to which the said
Court is subordinate; and thereupon the High Court or as the case may be, the
District Court or any other competent Court to which such case may be
transferred shall deal with it in the same manner as if the case had been
originally instituted in that Court.
Such application shall be supported by an affidavit verifying the facts
alleged and stating that in the belief of the deponent the garnishee is indebted to
the judgment-debtor.
Procedure when garnishee does not forthwith pay amount, etc.

46B. Where the garnishee does not forthwith pay or deliver into Court
the amount due from or the property deliverable by him to the judgment-debtor
so much thereof as is sufficient to satisfy the decree and the cost of execution, or
does not appear and show cause in answer to the such notice, and no such order
being made execution may issue as though such order were a decree against him.
Procedure when garnishee disputes his liability.

46C. Where garnishee disputes his liability, the Court may order that
any issue or question necessary, or the determination or the liability shall be tried
Contents
as if it were an issue in a suit and upon the determination of such issue shall
make such order as may seem just.
Procedure when debt or property belongs to a third person

46D. Where it is suggested or appears to be probable that the debt or
the property attached belongs to some third person or that any third person has a
lien or a charge on or an interest in it, the Court may order such third person to
appear and state the nature and particulars of his claim, if any, to such debt or
property and prove the same.
Order to be made on hearing such person

46E. After hearing such third person and any other person who may
subsequently be ordered to appear, or in the case of such third or other person
not appearing when ordered, the Court may pass order as is hereinbefore
provided, or make such other order upon such terms, of any, with respect to the
lien, charge or interest (if any), of such third or other person as may seem fit and
proper.
Payment or delivery under order to be a valid discharge
46F. Payment or delivery made by the garnishee on a notice under rule
46A or under any such order as aforesaid shall be a valid discharge to him as a
against the judgment-debtor and any other person ordered to appear as
aforesaid, for the amount paid or levied or, as the case may be, property
delivered, although such order may be set aside or reversed.
Procedure regarding debts owing from a firm

46G. Debts owing from a firm carrying on business within the
jurisdiction may be proceeded against under rules 46A to 46E of this Order,
although one or more members of such firm may be resident outside the
jurisdiction: Provided that where any person having control or management of
the partnership business or any member of the firm within the jurisdiction is
served with the garnishee notice, any appearance by any member pursuant to
such notice shall be a sufficient appearance by the firm.
The costs to be in discretion of Court

46H. The cost of any application made under rule 46A and of any
proceeding arising therefrom or incidental thereto shall be in the discretion of the
Court.
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Orders appealable
461. An order made under rule 46B or 46E shall have the same force
and be subject to the same conditions as to appeal or otherwise as if it were
decree.
R.104. Add the following as Rule 104:
(1) Subject to the provisions of sub-rules (3) and (4) the address for service
filed under rule 19 of Order 7 or rule 11 of Order 8, or, if the address has been
subsequently altered under rule 24 of Order 7 or under rule 12 of Order 8, the
amended address shall hold good during all execution proceedings.
(2) Every application for execution shall .stale the address for service
given by the opposite-party in the Court which passed the decree or the Court to
which the decree was last transferred for execution and notices and processes
shall issue to such address.
(3) Rules 22,23,24 and 25 of Order 7 shall apply, so far as may be, to
execution proceedings.
(4) If an appeal or an application for review or revision against the
decree or order sought to be executed is pending at the time when the
application for execution is filed, the provisions of rule 38 of Order 41 shall, so
far as may be, apply to such execution proceedings.
(5) Nothing in sub-rules (1) to (3) of rule 104 shall apply to the notice
prescribed by Rule 22 of Order 21.
ORDER_XXII
DEATH; MARRIAGE AND INSOLVENCY OF PARTIES

1. No abatement by partys death if right to sue survives. The death
of a plaintiff or defendant shall not cause the suit to abate if the right to sue
survives.
2. Procedure where one of several plaintiffs or defendants dies

and right to sue survives. Where there are more plaintiffs or defendants than
one, and any of them dies, and where the right to sue survives to the surviving
plaintiff or plaintiffs alone, or against the surviving defendant or defendants
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alone, the Court shall cause an entry to that effect to be made on the record and
the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants.
3. Procedure in case of death of one of several plaintiffs or of sole

plaintiff. (1) Where one of two or more plaintiffs dies and the right to sue does
not survive to the surviving plaintiff or plaintiffs alone, [or on receipt of
intimation of the death of which plaintiff from the person nominated for that
purpose under rule 26, Order VII], or a sole plaintiff dies and the right to sue
survives, the Court, on an application made in that behalf, shall cause the legal
representative of the deceased-plaintiff to be made a party and shall proceed
with the suit.
(2) Where within the time allowed by law no application is made or
intimation is given under sub-rule (1), the Court may proceed with the suit, and
any order made or judgment pronounced in such suit shall, notwithstanding the
death of such plaintiff, have the same force and effect as if it had been made or
pronounced before the death took place.
Court Decisions
An application for bringing legal representatives on record could be treated as
combined application under Rules 3 and 9 of Order 22 for setting aside abatement and
impleading legal representatives. PLJ 1997 SC 142 = 1997 SCMR 260.
4. Procedure in case of death of one of several defendants or of

sole defendant. (1) Where one of two or more defendants dies and the right to
sue does not survive against the surviving defendant or defendants alone, or on
receipt of an intimation of the death of such defendant from the person
nominated by him for that purpose under rule 18, Order VIII or a sole defendant
or sole surviving defendant dies and the right to sue survives, the Court, on an
application made in that behalf, shall cause the legal representative of the
deceased-defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate
to his character as legal representative of the deceased defendant.
(3) When within the time limited by law no application is made or
intimation is given under sub-rule (1), the Court may proceed with the suit, and
any order made or judgment pronounced in such suit shall, notwithstanding the
death of such defendant, have the same force and effect as if it had been
pronounced before the death took place.
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(4) It shall not be necessary to substitute the legal or representatives

of any such defendant who has tailed to file a written statement or has failed to
appear and contest the suit at the hearing; and judgment may in such case be
pronounced against the said defendant notwithstanding his death, and such
judgment shall have the same force and effect as if it had been pronounced
before his death took place.
Court Decisions
Impleading of Legal Representatives. Provisions distinguishable from
corresponding provisions in Sec. 368 of the Code of 1882. Abatement effects against
deceased defendant only if no application under R. 1, O.22 is made within prescribed
time. PLJ 1978 AJ & K 70.
Sub-rule (4) of Rule 4 of Order 22 C.P.C. provides, "It shall not be
necessary to substitute legal representation of any such defendant who has failed to file a
written-statement or has failed to appear and contest suit at hearing; and judgement may
in such case be pronounced against said defendant notwithstanding his death, and such
judgment shall have same force and effect as if had been pronounced before his death
took place "PLD 1988 SC 259 and PLD 1986 SC 113 referred; wherein it was held that
remedy under Order 22 Rule 9 C.P.C. is available in case proper application is filed
beyond time provided sufficient cause is shown within meaning of sub-rule(2) of rule 9
of order 22. PLJ 1997 SC 142 = 7997 SCMR 260.
Appellant dying after hearing of arguments in appeal. Non-impleading
of legal representatives of appellant in Court of appeal not fatal. PLJ 1999 SC (AJ&K)
260.
Deceased defendant had acknowledged in his written statement
abandonment by him of his rights in favour of plaintiffs in which compromise was
effected. Deceased defendant did not raise any objection against said compromise and
abandonment on his part when such compromise was subsequently challenged in suit.
No transfer of land having been made in favour of deceased defendant, death of said
defendant and non-impleading of any of his representatives in said suit could not have
resulted in creating any legal defect in the constitution of suit as regards rights claimed
by plaintiff of subsequent suit wherein compromise effected in earlier suit was
challenged. As regards rights claimed by plaintiff of subsequent suit and persons i.e.
donees to whom he allegedly transferred land in question, being already parlies in' such
suit, question of legality of compromise which was challenged to the extent of plaintiffs
(since deceased) share in land in favour of said donees could have been adjudicated
upon without affecting settlement between defendant (deceased) in earlier suit and co-
defendants as regards adjustment and settlement of their share inter se. Courts below
"while holding that suit had abated as a whole, did not apply law correctly to facts
established on record m present case which resulted in refusal to exercise jurisdiction to
decide suit on merits and on such ground impugned judgment were liable to be set aside.
S.C considered the case to be fit case for remand to be decided on merits. Delay in
Contents
making application for bringing legal representative, was condoned in circumstances.

PLJ 2000 SC 185 = PLD 2000 SC 89.
It is not correct that only appeal can be maintainable in each and every
case of an application under 0. 22 R. 4. In a case where their is not ex-parte order and
defendant is contesting against plaintiff with full force then refusal by Court to bring his
L.Rs. on record after his death would attracted only Revision. After amendments brought
in Rule 4 Order 22 CPC through L.R.O. 1972. a suit or appeal does not abate for non
impleading of L.Rs. even if no application is made. If L.Rs. are refused to be brought on
record, such decision of Court would amount to crucify justice. PLJ 1996 Kar. 353 = 1996
MLD 566.
Abatement. High Court would be right in setting aside order of abatement of

second appeal pending before it and deciding it on merits when non-impleadment of
predecessor in interest of appellant was not fatal to hearing the appeal on merits and
determining the real controversy. 'Case to non-interfere when judgment of trial Court as
well as of "High Court, on merits of case, had been concluded by a finding of fact, were
in aid of justice. PLJ 2000 SC 331.
Dead person impleaded as respondent. Legal representatives cannot be brought

on record subsequently. Held, application to bring on record legal representatives is only
maintainable in respect of an appellant or a respondent but G was neither an appellant
nor a respondent because admittedly he had passed away much before institution of
petition for. leave to appeal before Suprme Court which means that in appeal a dead
person was impleaded as a respondent. A respondent is a l4ing person and a dead
person cannot be treated as a respondent. Therefore application for substitution of legal
representa-tives was liable to be dismissed in any case. irrespective of the fact whether
application was barred by time or not. If a dead person is impleaded as a respondent it
may be possible to implead his legal representatives but that will be a case of addition of
new party and not of substitution. Since application for substitution was not
maintainable, this appeal also cannot bear any fruit. PLJ 1999 SC (AJK) 413.
General Power of Attorney. Revocation. Delay in moving application under 0.

22 R. 4. If delay can be explained and no prejudice is caused to any contesting party, then
delay can be over looked. No point of delay was urged by respondent when application
was argued before trial Court. Weapon of technical delay in moving an application
should not be used in promotion of principles of natural justice. PLJ 1996 Kar. 353 = 1996
MLD 566.
5. Determination of question as to legal representative. Where a

question arises as to whether any person is or is not the legal representative of a
deceased-plaintiff or a deceased-defendant, such question shall be determined by
the Court.
213
6. No abatement by reason of death after hearing. Notwithstanding

anything contained in the foregoing rule, whether the cause of action survives or
not, there shall be no abatement by reason of the death of either party between
the conclusion of the hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced notwithstanding the death and shall
have the same force and effect as if it had been pronounced before the death took
place.
Court Decisions
Death of defendants after concluding of evidence but before hearing of
arguments. If arguments were not heard before judgment was passed, hearing of case
would, for purpose of O.22, R. 6. C.P.C. be deemed to have been concluded with the
conclusion of evidence of parties. PLJ 1997 Lah. 1043 = 1996 CLC 2016.
Principle of abatement would apply to those cases where death had occurred
prior to coming into force of Law Reforms Ordinance. 1972, and period to implead legal
representatives had expired. PLJ 1997 Lah. 1043 = 1996 CLC 2016.
Suit against partition of agricultural land by Rev. Court. Necessary
parties died before ultimate hearing concluded. Legal representatives of deceased ,
persons were not impleaded within limitation prescribed by law. Suit thus, .stood abated
in tolo and not 'only to the extent of share of deceased defendants. Partial abatement
would take place only if two decrees were not inconsistent and could independently
stand. If suits against remaining defendants were decreed it would only be possible if
order of partition as a whole was set aside for each co-sharer had right to get partition of
every inch of joint property, therefore, if order of partition to extent of share of two
deceased defendants was maintained, that would amount to depriving them and also
other co-sharer's benefit of having joint Land partitioned and, therefore, two
contradictory decrees would have to be passed which was not warranted. PLJ 1997 Lah.
1043 = 1996 CLC 2016.
7. Suit not abated by marriage of female party. (1) The marriage of

a female plaintiff or defendant shall not cause the suit to abate, but the suit may
notwithstanding be proceeded with to judgment, and, where the decree is
against a female defendant, it may be executed against her alone.
(2) Where the husband is by law liable for the debts of his wife, the
decree may, with the permission of the Court, be executed against the husband
also; and, in case of judgment for the wife, execution of the decree may, with
such permission, be issued upon the application of the husband, where the
husband is by law entitled to the subject-matter of the decree.
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8. When plaintiffs insolvency bears suit. (1) The insolvency of a

plaintiff in any suit which the assignee or receiver might maintain for the benefit
of his creditors, shall not cause the suit to abate, unless such assignee or receiver
declines to continue the suit or (unless for any special reason the Court otherwise
directs) to give security for the costs thereof within such time as the Court may
direct.
(2) Procedure where assignee fails to continue suit or give security.
Where the assignee or receiver neglects or refuses to continue the suit and to give
such security within the time so ordered, the defendant may apply for the
dismissal of the suit on the ground of the plaintiffs insolvency, and the Court
may make an order dismissing the suit and awarding to the defendant the costs
which he has incurred in defending the same to be proved as a debt against the
plaintiffs estate.
9. Effect of dismissal. -(1) When a suit is dismissed under rule 8, no

fresh suit shall be brought on the same cause of action.
(2) Any person claiming to be the legal representative of a deceased-
plaintiff or defendant or the assignee or the receiver in the case of an insolvent
plaintiff may apply so the Court for setting aside any order made or judgment
pronounced by it in is absence; and if it proved that the was prevented by any
sufficient cause from continuing the suit or defending the suit, as the case may
be, the Court shall set aside the order or the judgment, upon such terms as to
costs or otherwise as it thinks fit.
Court Decisions
Abatement of suit. This Sub-rule Gives a power to court to set aside abatement
only if it is proved that concerned person was prevented by any sufficient cause from
continuing suit. Application for setting aside of abatempnt was opposed and plea of
limitation was raised. It was not specifically stated in objections that it was incorrect that
file was before High Court during period mentioned in application. View taken by High
Court is that this fact has to be deemed to be admitted. But High Court failed to notice
that it still remained to be decided whether this fact constituted sufficient cause. This
question had still to be resolved but was left un-decided. If suit file was with High Court,
application could still be moved before trial judge even in absence of suit file. If an
application could have been moved before High Court which could have attached it with
suit file. In that case an appropriate order could have been passed on application by trial
court as and when file was received back- Duty imposed by law was moving of an
application which if performed would have absolved respondents off their responsibility
but they failed to do so. There was no cause which prevented respondents from moving
215
an application. Orders of High Court as well as trial Court are not sustainable. PLJ 1997
SC (AJK) 312 = 1997CLC 1722.
An application for bringing legal representatives on record could be
treated as combined application under Rules 3 and 9 of Order 22 for setting aside
abatement and impleading legal representatives. PLJ 1997 SC 142 = 1997 SCMR 260.
legal representatives have to prove that they were prevented by
sufficient cause from continuing or defending suit. Respondent No. 1 died on 18.10.1989
while appeal was heard and decided on 24.10.1989. There was hardly sufficient time for
applicants to get themselves impleaded instead of their deceased predecessor.
Applications accepted and judgment set aside. PLJ 1990 Lah. 547.
10. Procedure in case of assignment before final order in suit. (1) In

other cases of an assignment, creation or devolution of any interest during the
pendency of a suit the suit may, by leave of the Court, be continued by or against
the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be
deemed to be an interest entitling the person who procured such attachment to
the benefit of sub-rule (1).
Court Decisions
Assignment during pendency of suit- Assigneess entitlement to be impleaded in
suit and continue proceedings--In case of assignment, creation or devolution of any
interest during pendency of suit, court can grant leave to assignees of continue with
proceedings—Appellants have purchased property in question as was evident from
entry, of mutation of specified date, there was thus, sufficient reason to believe that rights
in property have been assigned in favour of assignees—Appellants were allowed to be
impleaded as party in suit and they were permitted to continue with suit. PLJ 2002 Lah..
1556
1992 SCMR 652 ref.
Where Appellant seeking permission to join as party to suit on basis of

agreement. Rights in property to be devolved in future. Whether he is proper and
necessary party and could join as party. If not what remedy was available under taw.
Rule 10 of Order 22 introduces enabling provision for induction of parties in suit upon
whom during pendency interest may have devolved or otherwise been conferred. . Such
rule, quite arguably happens to be in place because solely upon phraselogy and
operation of 0-1, CPC successor in interest may not have been entitled to be joined as
necessary or proper party. Order 22 Rule 10 CPC. in reality, is provision which
contemplates concept of devolution of interest and tangible interest- If such interest had
devolved before suit was filed or appellant's assignors had different - notions upon frame
of suit and were inclined to give effect to above agreement, as stipulating actual and
effective devolution or conferment of interest, there was nothing to preclude them from
Contents
inducting appellant, at initial stage, as co-plaintiff in suit. Interest of appellant is merely

contingent and agreement is to operate. Appeal dismissed. . PLJ 1996 Kar. 18 = 1996
CLC 678.
Powers of Court in matters of creation and devolution of any interest or
assignment thereof during pendency of suit would be covered by O.22, R. 10, C.P.C..
Guiding principle in O.I, R. 10, C.P.C., however, in such matters being discretionary,
same have to be exercised ex debito justitiae. Sound exercise of discretion would be to
allow addition of rather than substitution of defendant. Where no prejudice whatsoever
could possibly be caused to original or to added defendant on account of being sued side
by side and when plaintiff was likely to suffer if and when it was found that its entire
claim could not be met by appellant, best course would be to add rather than substitute
appellant Impugned order of High Court maintained, in circumstances. PLJ 1999 Kar.
130 = 1998 CLC 1419.
Substitution of name in place of present defendant on the title page of
plaint. Appeallant (Habib Credit and Exchange Bank Ltd) subsidiary of Habib Bank
Limited took over to carry out operations of BCCI (Pak.) in pursuance of amalgamation
scheme u/S. 47 of Banking Companies Ordinance 1962. Statutory requirements u/S. 47
(12) of the Banking Companies Ordinance 1962 were complied with and assignee waited
till formalities were complied - with and when it felt that assignor will not be able to look
after interest of the assignee in a manner that assignee itself can do, it applied for
substitute of their names in place of defendant. Whether justified. Justified.'Application
allowed. PLJ 1998 Kar. 132 = 1988 CLC 314.
11. Application of Order to appeals. In the application of this Order

to appeals, so far as may be the word plaintiff shall be held to include an
appellant, the word defendant a respondent, and the word suit and appeal.
12. Application of Order to proceedings. Nothing in rule 3, 4 and 8

shall apply to proceedings in execution of a decree or order.
217
ORDER_XXIII
WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim. (1) At any

time after institution of a suit the plaintiff may, as against all or any of the
defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied :-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to
institute fresh suit for the subject-matter of a suit or part of claim,
it may, on such terms as it thinks fit, grant the plaintiff permission
to withdraw from such suit or abandon such part of a claim with
liberty to institute a fresh suit in respect of the subject-matter of
such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a
claim, without the permission referred to in sub-rule(2), he shall be liable for
such costs as the Court may award and shall be precluded from instituting any
fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to
permit one of several plaintiffs to withdraw without the consent of the others.
Court Decisions
Deletion of names of co-sharers of the property in dispute from the
memorandum of appeal by the First Appellate Court—Validity—Party after the
institution of a suit though was at liberty to withdraw his suit or abandon part of his
claim under O. XXIII, R.1, C.P.C against all or any of the defendants, yet even if such
principle was applied to the appeals, the Court could not permit one of several plaintiffs
to withdraw without consent of the others. PLD 2003 SC 818
A perusal of O. 23 R. 1(2) clearly shows that suit cannot be withdrawn as of right
with permission to file a fresh , suit. It is only when Court comes to conclusion that suit is
likely to tail on account of a formal defect or other cause of like nature that permission to
withdraw suit and to file a fresh suit can be granted by trial Court. There is only a bald
assertion in application that suit suffers from defects. Lower appellate Court had given
no reason due to which suit was liable to fail. Impugned order shows no application of
mind to this aspect at all. Impugned order set aside. Case remanded to lower appellate
Court to be decided afresh. PLJ 1999 Lah. 1538 = PLD 1999 Lah. 438.
Contents
Permission to file a fresh suit may be granted if Court is satisfied that (1).
suit would fail by reason of some formal defect, or (2) if there are sufficient grounds for
allowing plaintiff to institute fresh suit for the same matter of suit. PLJ 2000 SC 340.
Court trying subsequent suit is not competent to enter into question
whether Court which granted plaintiff permission to withdraw first suit with liberty to
bring a fresh suit had properly made such order. PLJ 2000 SC 349.
Use of words "whether Court is satisfied" in sub-rule (2) of Rule (1) of
Order 23 indicates that Court before granting such permission to plaintiff must satisfy
itself as to existence of grounds upon which such permission is sought. Merely for reason
that Court, has failed to record such grounds in its order, it would not be open to Court
to question whether such leave had been validly granted or not, as no party can be made
to suffer on account of an error of Court. If grounds upon which such permission was
granted to plaintiff to institute a fresh suit cannot be spelt out from order of Court, such
objection cannot be allowed to be raised subsequently. Order of Court in such case would
be unexceptionable when no prejudice is said to have been caused to defendants. PLJ
2000 SC 340.
Previous suit having been withdrawn under 0. 23, R. 1 which permission
to bring fresh suit. provisions of Sec. 14 of Act 9 of 1908 to have been applicability and
plaintiff to remain bound by law of Limitation in same manner as if no previous suit
instituted. PLJ 1984 Lah. 38.
Plaintiff/Petitioner applying for withdrawal of the suit, with permission
to bring a fresh suit on a different cause of action, initially the suit for specific
performance of agreement ,to sell and the request for withdrawal was to institute a fresh
suit on the basis of allotment, thus Plaintiff/Petitioner was not entitled to withdrawal
with liberty to institute a fresh suit. PLJ 1998 Pesh. 155 = 1998 CLC 1397.
Ground mentioned in application under O.23. R. 1(2) C.P.C. that
property in question, has been gifted by respondent (defendant) to mother of plaintiff,
same could not be treated to be apparent lackness in formation/arranging the suit in
order to invoke possessions ofO.20Il, R. l(l)(a) C.P.C- Such defect being substantial or
latent in its nature touching merits of case, thus, for such reason permission to withdraw
the suit was un-warranted. Other ground that suit suffered from formal defect for want
of non-joinder of necessary parties, such ground has never been considered fatal for a
suit. Even otherwise, such defect could be removed by adhering to provisions of O.I, R.
10 and S. 151 C.P.C.. Improper valuation of subject-matter of suit also does not
tantamount to constitute formal defect, in that, valuation of subject-matter of suit both for
jurisdiction of Court and payment of Court-fee could be corrected by Court after
recording evidence and if it comes to conclusion that deficient Court fee has been paid on
plaint then the Court can call upon plaintiff to make deficiency good in exercise of its
jurisdiction under S. 149 C.P.C- Court can also determine question of its jurisdiction
during pendency of suit. As for defect in non-claiming possession was concerned, same
could be added by amendment of plaint with permission of Court. PLJ 2000 SC 1831.
Contention that application filed by plaintiff under Order 23 R. 1 CPC
does not bear signature of counsel for the defendants is not tenable because order of
219
court clearly'shows that order was passed in presence of learned counsel for defendant
who raised no objection and therefore application was granted. Contention that no
decision was announced by Court as such no fraud was committed is also not
sustainable. Application was filed in the court and learned Judge in presence of learned
counsel for defendants allowed application. Application itself shows that there was some
understanding between parties outside court and in pursuance of same suits were
withdrawn. Contentions not sustainable. PLJ 1997 Kar. 138 = 1997 MLD 866.
High Court's order in condoning non-payment of cost as a condition
precedent for filing fresh suit. Validity. No proof of payment of costs either before
institution or during pendency of second suit was although available, yet conduct of
respondent could not be termed as contumacious or • obdurate on that score alone in
that, his stance throughout the proceedings was that he had paid costs in question.
Respondent's such stance could not brushed aside in as much as it does not stand to
reason that he had put his suit at stake by not making payment of meagre amount of Rs.
30/- . No time for payment of costs having been specified in the order granting
permission to respondent to withdraw from suit. delay was condoned by Court in
exercise of inherent powers and rightly so. in that element of maid fide was missing.
Inherent power exercised by Trial Court was maintained by Appellate Court and the
High Court and costs were admittedly paid by respondent during pendency of suit
culminating into petition for leave to appeal. Matter and controversy between parties
was not closed finally in first round of litigation in as much as High Court had observed
that remedy was to approach Civil Court and as a result of such observation, fresh suit
was filed, costs were paid and delay was condoned by all the Courts below. Such
decision was in line with law laid down by S.C in PLD 1993 SC 6. PLJ 2000 SC 1679 =
2000 SCMR 1730.
Filing of revision in wrong forum could not be termed as bona fide
mistake. For condonation of delay, petitioner, were required to established that delay in
filing revision had occurred due to bona fide mistake or under circumstances which were
beyond their control; Such qualifying conditions, however, were lacking in petitioner's
case, therefore, petitioner, cannot claim protection ofS. 5, Limitation Act, 1908 or S. 151
C.P.C- Record indicated that revision petition was returned to petitioners on 27.2.1999
but the same was filed in High Court on 10.4.1999 so the same was further delayed by
one month and 13 days for which no explanation had been offered by petitioners.
Petitioners having failed to 'make out a case to the effect that they have been pursuing
their case in good faith, therefore, they were not entitled to condonation of delay, so
caused. Revision was dismissed on ground of limitation. PLJ 2000 Pesh. 323.
2. Limitation law not affected by first suit. In any fresh suit

instituted on permission granted under the last preceding rule, the plaintiff shall
be bound by the law of limitation in the same manner as if the first suit had not
been instituted.
Contents
Court Decisions
Legally parties are at liberty to enter a compromise and they are required to satisfy court
that dispute has been adjusted wholly by a lawful agreement therefore it becomes duty of court to
give to same. It is not policy of law to discourage parties from setting their disputes outside court
rather emphasis of modern time is on that parties should be afforded opportunity to settle their
disputes without intervention of court. These remarks would apply with greater force to Islamic
society. PLJ 1998 Lah. 1620 = NLR 1998 Reu.-37.
3. Compromise of suit. Where it is proved to the satisfaction of the

Court that a suit has been adjusted wholly or in part by any lawful agreement or
compromise, or where the defendant satisfies the plaintiff in respect of the whole
or any part of the subject-matter of the suit, the Court shall order such
agreement, compromise or satisfaction to be recorded; and shall pass a decree in
accordance therewith so far as it relates to the suit.
Court Decisions
Compromise in Court through coercion. Claim that thumb impression on
compromise in Court was obtained by coercion cannot be accepted because petitioner
lady was accompanied by her brother and she had voluntarily accepted offer which
endured to her benefit and for benefit of her legal heirs. PLJ 2000 Lah. 1525 = 2000 CLC
1379.
Advocate for plaintiffs had power to compromise suit and suit was
lawfully compromised. Even otherwise no injustice has been caused to plaintiffs. PLJ
1989 Kar. 374.
where an Arbitration agreement is not consented to by all parties, such
an agreement would definitely be invalid and moreso. cannot give jurisdiction to
Arbitrator to give his verdict and decide dispute and in such an eventuality an award
does not bind parties being void altogether. Where there is no consent of parties, the
question of adjustment of suit under 0. 23 r. 3 CPC does not arise. "Satisfaction" of Court
regarding such adjustment is essential pre-requisite. Both the lower Courts were not
satisfied regarding consent, compromise and concurrent finding arrived at cannot be
interfered. PLJ 1996 Qta. 127 = PLD 1996 Qta. 1.
4. Proceedings in execution of decrees not affected. Nothing in this

Order shall apply to any proceedings in execution of a decree or order.
HIGH COURT AMENDMENT:

LAHORE
Add the following provisos to the rule:-

221
Provided that the hearing of a suit shall proceed and no adjournment

shall be granted in it for the purposes of deciding whether there has been any
adjustment or satisfaction, unless the Court for reasons to be recorded in writing,
thinks fit to grant such adjournment, and provided further that the judgment in
they suit shall not be announced until the question of adjustment or satisfaction
has been decided:
Provided further that when an application made by all the parties to the
suit, either in writing or in open Court through their counsel, that they wish to
compromise the suit, the Court may fix a date on which the parties or their
counsel should appear and the compromise be recorded, but shall proceed to
hear those witnesses in the suit who are already in attendance, unless for any
other reason to be recorded in writing, it considers it impossible or undesirable to
do so. If upon the date fixed no compromise has been recorded, no further
adjournment shall be granted for this purpose, unless, the Court, for reasons to
be recorded in writing considers it highly probable that the suit will be
compromised on or before the date to which it proposes to adjourn the hearing.
(21.7.1937)
Contents
ORDER_XXIV
PAYMENT INTO COURT

1. Deposit by defendant of amount in satisfaction of claim. The
defendant in any suit to recover a debt or damages may, at any stage of the suit
deposit in Court such sum of money as he considers a satisfaction in full of the
claim.
2. Notice of deposit. Notice of the deposit shall be given through

Court by the defendant to the plaintiff, and the amount of the deposit shall
(unless the Court otherwise directs) he paid to the plaintiff on his application.
3. Interest on deposit not allowed to plaintiff after notice. No

interest shall be allowed to the plaintiff on any sum deposited by the defendant
from the date of the receipt of such notice, whether the sum deposited is in full of
the claim of falls short thereof.
4. Procedure where plaintiff accepts deposit as satisfaction in part.

(1) Where the plaintiff accepts such amount as satisfaction in part only of his
claim, he may prosecute his suit for the balance; and if the Court decides that the
deposit by the defendant was a full satisfaction of the plaintiffs claim the plaintiff
shall pay the costs of the suit incurred after the deposit and costs incurred
previous thereto, so far as they were caused by excess in the plaintiffs claim.
(2) Procedure where he accepts it as satisfaction in full. Where the
plaintiff accepts such amount as satisfaction in full of his claim, he shall present
to the Court a statement to that effect, and such statement shall be filed and the
Court shall pronounce judgment accordingly; and in directing by whom the costs
of each party are to be paid, the Court shall consider which of the parties is most
to blame for the litigation.
Illustrations
(a) A owes B Rs. 100. 5 sues A for the amount, having made no demand for
payment and having no reason to believe that the delay caused by making a demand
would place him at a disadvantage. On the plaint being filed, A pays the money into
223
Court. B accepts it in full satisfaction of his claim, but the Court should not allow him any
costs, the litigation being presumably groundless on his part.
(b) B sues A under the circumstances mentioned in Illustration (a). On the
plaint being filed, A disputes the claim. Afterwards A pays the money into Court. B
accepts it in full satisfaction of claim. The Court should also give B his costs of suit. As
conduct having shown that the litigation was necessary.
(c) A owes B Rs. 100 and is willing to pay him that sum without suit. B
claims Rs. 150 and sues A for that amount. On the plaint being filed A pays Rs. 100 into
Court and disputes only his liability to pay the remaining Rs. 50. B Accepts Rs. 100 in full
satisfaction of his claim. The Court should order him to pay As costs.
Contents
ORDER_XXV
SECURITY FOR COSTS

1. When security for costs may be required from plaintiff. (1)
Where, at any stage of a suit, it appears to the Court that a sole plaintiff is, or
(when there are more plaintiffs than one) that all the plaintiffs are residing out of
Pakistan, and that such plaintiff does not, or that no one of such plaintiffs does,
possess any sufficient immovable property within Pakistan other than the
property in suit, the Court may, either of its own motion or on the application of
any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give
security for the payment of the costs incurred and likely to be incurred by any
defendant.
(2) Residence out of Pakistan. Whoever leaves Pakistan under such
circumstances as to afford reasonable probability that he will not be forthcoming
whenever may be called upon to pay costs shall be deemed to be residing out of
Pakistan within the meaning of sub-rule (1)
(3) On the application of any defendant in a suit for the payment of
money, in which the plaintiff is a woman, the Court may at any stage of the suit
make a like order if it is satisfied that such plaintiff does not possess any
sufficient immovable property within Pakistan.
2. Effect of failure to furnish security. (1) In the event of such

security not being famished within the time fixed, the Court shall make an order
dismissing suit unless the plaintiff or plaintiffs are permitted to withdraw
therefrom.
(2) Where a suit is dismissed under this rule, the plaintiff may apply
for an order to set the dismissal aside, and, if it is proved to the satisfaction of the
Court that he was prevented by any sufficient cause from furnishing the security
within the time allowed, the Court shall set aside the dismissal upon such terms
as to security costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
(3) The dismissal shall not be set aside unless notice of such
application has been served on the defendant.
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ORDER_XXVI
COMMISSIONS
Commissions to Examine Witnesses

1. Cases in which Court may issue commission to examine
witness. Any Court may in any suit issue a commission for the examination on
interrogatories or otherwise of any person resident within the local limits of its
jurisdiction who is exempted under this Court from attending the Court or who
is from sickness or infirmity unable to attend it.
2. Order for commission. An order for the issue of a commission for

the examination of a witness may be made by the Court either of its own motion
or on the application, supported by affidavit or otherwise, of any party to the suit
or of the witness to be examined.
3. Where witness resides within Courts jurisdiction. A commission

for the examination of a person who resides within the local limits of the
jurisdiction of the Court issuing the same may be issued to any person whom the
Court thinks fit to execute it.
4. Persons for whose examination commission may issue. (1) Any

Court may in any suit issue a commission for the examination of: -
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on
which he is required to be examined in Court; and
(c) any person in the service of the [State] who cannot, in the opinion
of the Court, attend without detriment to the public service.
(2) Such commission may be issued to any Court, not being a High
Court, within the local limits of whose jurisdiction such person resides, or to any
pleader or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct
whether the commission shall be returned to itself or to any subordinate Court.
Contents
5. Commission or request to examine witness not within Pakistan.

Where any Court to which application is made for the issue of commission for
the examination of a person residing at any place not within Pakistan is satisfied
that the evidence of such person is necessary, the Court may issue such
commission or a letter of request.
6. Court to examine witness pursuant to commission. Every Court

receiving a commission for the examination of any person shall examine him or
cause him to be examined pursuant thereto.
7. Return of commission with depositions of witnesses. Where a

commission has been duly executed, it shall be returned, together with the
evidence taken under it, to the Court from which it was issued, unless the order
for issuing the commission has otherwise directed, in which case the commission
shall be returned in terms of such order; and the commission and the return
thereto and the evidence taken under it shall (subject to the provisions of the next
following rule ) form part of the record of the suit.
8. When depositions may be read in evidence. Evidence taken

under a commission shall not be read as evidence in the suit without the consent
of the party against whom the same is offered, unless:
(a) the person who gave the evidence is beyond the jurisdiction of the
Court, or dead or unable from sickness or infirmity to attend to be
personally examined, or exempted from personal appearance in
Court, or is a person in the service of the [State] who cannot, in the
opinion of the Court, attend without determined to the public
service; or
(b) the Court in its discretion dispenses with the proof of any of the
circumstances mentioned in clause (a), and authorises the
evidence of any person being read as evidence in the suit,
notwithstanding proof that the cause for taking such evidence
mission has ceased at the time of reading the same.
Commissions for Local Investigations
9. Commissions to make local investigations. In any suit in which

the Court deems a local investigation to be requisite or proper for the purpose of
elucidating any matter in dispute, or of ascertaining the market-value of any
property, or the amount or any mesne profits or damages or annual net profits,
227
the Court may issue a commission to such person as it thinks fit directing him to
make such investigation and to report thereon to the Court:
Provided that, where the Provincial Government has made rules as to the
persons to whom such commission shall be issued, the Court shall be bound by
such rules.
Court Decisions
Courts below were correct in holding that what petitioners might establish by
leading evidence might not necessarily be elicited on spot inspection by Local
Commissioner and that there was no point in staying the process and suspending
implementation of Civil Court decree, when same had already been acted upon and
canal department had taken all necessary steps in that behalf. 1995 C L C 26
10. Procedure of Commissioner. (1) The Commissioner, after such

local inspection as he deems necessary and after reducing to writing the evidence
taken by him, shall return such evidence, together with his report in writing
signed by him to the Court.
(2) Report and depositions to be evidence in suit. The report of the
Commissioner and the evidence taken by him (but not the evidence without the
report) shall be evidence in the suit and shall form part of the record; but the
Court or, with the permission of the Court, any of the parties to the suit may
examine the Commissioner personally in open Court touching any of the matters
referred to him or mentioned in his report, or as to his report, or as to the manner
in which he has made the investigation.
(3) Commissioner may be examined in person. Where the Court is
for any reason dissatisfied with the proceedings of the Commissioner, it may
direct such further inquiry to be made as it shall think fit.
Court Decisions
Right to examine local commissioner. Right to examine Commissioner personally in
court is available to parties only with permission of court. Appointment of commissioner was for
limited purpose and particularly for further satisfaction of judicial mind as to proper identification
of disputed property. Report of local commissioner when read in light of evidence on record does
not require his examination in Court. PLJ 1998 Lah. 464 = PLD 1998 Lah. 338.
Commissions to examine Accounts
11. Commission to examine or adjust accounts. In any suit in which

an examination adjustment of accounts is necessary, the Court may issue a
Contents
commission to such person as it thinks fit directing him to make such

examination or adjustment.
12. Court to give Commissioner necessary instructions. (1) The

Court shall furnish the Commissioner with such part -6f the proceedings and
such instructions as appear necessary, and the instructions shall distinctly specify
whether the Commissioner is merely to transmit they proceedings which he may
hold on the inquiry, or also to report his own opinion on the point referred for
examination.
(2) Proceedings and report to be evidence; Court may direct further
inquiry. The proceedings and report (if any) of the Commissioner shall be
evidence in the suit, but where the Court has reason to be dissatisfied with them,
it may direct such further inquiry as it shall think fit.
Commission to make Partitions
13. Commission to make partition of immovable property. Where a

preliminary decree for partition has been passed, the Court may, in any case not
provided for by section 54, issue a commission to such person as it thinks fit to
make the partition or separation according to the rights as declared in such
decree
14. Procedure of Commissioner. (1) The Commissioner shall, after

such inquiry as may be necessary, divide the property into as many shares as
may be directed by the order under which the commission was issued, and shall
allot such shares to the parties, and may, if authorised thereto by the said order,
award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the
Commissioners (where the commission was issued to more than one person and
they cannot agree shall prepare and sign separate reports appointing the share of
each party and distinguishing each share (if so directed by the said order) by
metes and bounds. Such report or reports shall be annexed to the commission
and transmitted to the Court; and the Court, after hearing any objections which
the parties may make to the report or reports, shall confirm, vary or set aside the
same.
(3) Where the Court confirms or various the report or reports it shall
pass a decree in accordance with the same as confirmed or varied; but where the
Court sets aside the report or reports it shall either issue a new commission or
make such other order as it shall think fit.
229
General Provisions
15. Expenses of commission to be paid into Court. Before issuing

any commission under this Order, the Court may order such sum (if any) as it
thinks reasonable for the expenses of the commission to be, within a time to be
fixed, paid into Court by the party at whose instance or for whose benefit the
commission is issued.
16. Powers of Commissioners. Any Commissioner appointed under

this Order may, unless otherwise directed by the order of appointment:-
(a) examine the parties themselves and any witness whom they or
any of them may produce, and any other person whom the
Commissioner thinks proper to call upon to give evidence in the
matter referred to him;
(b) call for and examine documents and other things relevant to the
subject of inquiry;
(c) at any reasonable time enter upon or into any land or building
mentioned in the order.
17. Attendance and examination of witnesses before Commissioner.

The provisions of this Code relating to the summoning, attendance and
examination of witnesses, and to the remuneration of, and penalties to be
imposed upon, witnesses shall apply to persons required to give evidence or to
produce documents under this Order whether the commission in execution of
which they are so required has been issued by a Court situate within or by a
Court situate beyond the limits of Pakistan and for purposes of this rule the
Commissioner shall be deemed to be a Civil Court.
(2) A Commissioner may apply to any Court (not being a High
Court) within the local limits of whose jurisdiction a witness resides for the issue
of any process which he may find it necessary to issue to or against such witness
and such Court may, in its discretion, issue such process as it considers
reasonable and proper.
18. Parties to appear before Commissioner. -(1) Where a commission

is issued under this Order, the Court shall direct that the parties to the suit shall
appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the
Commissioner may proceed in their absence.
Contents
Commissions issued at the instance of foreign Tribunals
19. Cases in which High Court may issue commission to examine

witness. (1) If a High Court is satisfied:
(a) that a foreign Court situated in a foreign country wishes to obtain
the evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Courts
appellate jurisdiction, it may, subject to the provisions of rule 20,
issue a commission for the examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b)
and (c) of sub-rule(l):--
(a) by a certificate signed by the consular officer of the foreign
country of the highest rank in Pakistan and transmitted to the
High Court through the Central Government, or
(b) by a letter of request issued by the foreign Court and transmitted
to the High Court through the Central Government, or
(c) by a letter of request issued by the foreign Court and produced
before the High Court by a party to the proceeding.
20. Application for commission. The High Court may issue a

commission under rule 19: --
(a) upon application by a party to the proceeding before the foreign
Court, or
(b) upon an application by a law officer of the Provincial Government
acting under instructions from the Provincial Government.
21. To whom commission may be issued. A commission under rule

19 may be issued to any Court within the local limits of whose jurisdiction the
witness resides, or, where the witness resides within the local limits of the
ordinary original civil jurisdiction of the High Court, to any person whom the
Court thinks fit to execute the commission.
22. Issue, execution and return of commissions and transmission of

evidence to foreign Court. The provisions of rules 6, 15,16,17 and 18 of this
Order insofar as they are applicable shall apply to the issue, execution and return
of such commissions, and when any such commission has been duly executed it
shall be returned, together with the evidence taken under it, to the High Court,
231
which shall forward it to the Central Government, alongwith the letter of request
for transmission to the foreign Court.
Contents
ORDER_XXVII
SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC

OFFICERS IN THEIR OFFICIAL CAPACITY
1. Suits by or against Government. In any suit by or against the

Government, the plaint or written statement shall be signed by such person as
the Government may, by general or special order, appoint in this behalf and shall
be verified by any person whom the Government may so appoint and who is
acquainted with the facts of the case.
Court Decisions
Mode of signing plaint or written statement. Persons authorised to sign plaint
or written statement on behalf of government. Plaint or written statement filed by or
behalf of government would require that the same be signed by such persons as
government would appoint by general or special order. Persons who were ex-officio
authorised to act for government were deemed to be recognized. agents of government.
Where government had not appointed special pleader and had decided to contest the
case through its District Attorney/Deputy District Attorney, they in their official capacity
can act on behalf of government and can perform all such acts which were required to be
performed by government in judicial proceedings. Deputy Commissioner need not have
verified plaint or written statement on behalf of government in circumstances. PLJ 1999
Lah. 1200.
2. Persons authorised to act for Government. Persons being ex-

officio or otherwise authorised to act for the Government in respect of any
judicial proceeding shall be deemed to be the recognized agents by whom
appearances, acts and applications under this Code may be made or done on
behalf of the Government.
3. Plaints in suits by or against Government. In suits by or against

the Government, instead of inserting in the plaint the name and description and
place of residence of the plaintiff or defendant, it shall be sufficient to insert the
appropriate name as provided in section 79, [*****]
233
4. Agent for Government to receive process. The Government

pleader in any Court shall be the agent of the Government for the purpose of
receiving processes against the Government issued by the such Court.
5. Fixing of day for appearance on behalf of Government. The

Court, in fixing the day for the Government to answer to the plaint, shall allow a
reasonable time for the necessary communication with the Government through
the proper channel, and for the issue of instructions to the Government pleader
to appear and answer on behalf of the Government and may extend the time at
its discretion.
6. Attendance of person able to answer questions relating to suit

against Government. The Court may also, in any case in which the Government
pleader is not accompanied by any person on the part of the [Government], who
may be able to answer any material questions relating to the suit, direct the
attendance of such a person.
7. Extension of time to enable public officer to make reference to

Government. (1)Where the defendant is a public officer and, on receiving the
summons, considers it proper to make a reference to the Government before
answering the plaint, he may apply to the Court to grant such extension of the
time fixed in the summons as may be necessary to enable him to make such
reference and to receive orders thereon through the proper channel.
(2) Upon such application the Court shall extend the time for so long
as appears to it to be necessary.
8. Procedure in suits against public officer. (1) Where the

Government undertakes the defence of a suit against a public officer the
Government pleader, upon being furnished with authority to appear and answer
the plaint, shall apply to the Court, and upon such application the Court shall
cause a note of his authority to be entered in the register of civil suits.
(2) Where no application under sub-rule (l) is made by Government
pleader on or before the day fixed in the notice for the defendant to appear and
answer, the case shall proceed as in a suit between private parties:
Provided that the defendant shall not be liable to arrest nor his property
to attachment, otherwise than in execution of a decree.
8-A. No security to be required from Government or a public officer

in certain cases. No such security as is mentioned in rules 5 and 6 of Order XLI
Contents
shall be required from the Government or, where the Government has
undertaken the defence of the suit, from any public officer sued in respect of an
act alleged to be done by him in his official capacity.
Court Decisions
Provision of rule 8-A envisages that no security would be required where a
judgment debtor is Government and seeks relief as provided in O.41 rules 5 & 6 CPC.
Even if appeal'is dismissed, respondent could easily recover decretal amount from
appellants. Maintainability of suit is also under challenge. Impugned decree was
suspended without calling upon appellants to furnish security. PLJ 1997 Kar. 832 = PLD
1997 Kar. 351.
Operation of impugned decree can be suspended without obliging
petitioners to furnish security. PLJ 1993 Lah. 4. (DB).
8-B. Definitions of Government and Government Pleader. In this

Order Government and Government Pleader means respectively: -
(a) in relation to any suit by or against [*****] the Central
Government, or against a public officer in the service of that
Government, the Central Government and such pleaders or that
Government may appoint whether generally or specially for this
purpose of the Order;
(b) [*****]
(c) in relation to any suit by or against a Provincial Government or
against a public officer in the service of a Province, the Provincial
Government and the Government pleader, or such other pleader
as the Provincial Government may appoint, whether generally or
specially, for the purposes of this Order.
235
ORDER_XXVIIA
SUITS INVOLVING ANY SUBSTANTIAL QUESTION AS

TO THE INTERPRETATION OF CONSTITUTIONAL LAW
1. Notice to the Advocate-General. In any suit in which it appear to
the Court that [any substantial question as to the interpretation of Constitutional
law] is involved, the Court shall not proceed to determine the question until after
notice has been given to the [Attorney-General for Pakistan] if the question of
law concerns the Central Government and to the Advocate-General of the
Province if the question of law concerns a Provincial Government.
2. Court may add Government as party. The Court may at any stage
of the proceedings order that the Central Government or a Provincial
Government shall be added as a defendant in any suit involving [any substantial
question and to the interpretation of Constitutional law] if the [Attorney-General
for Pakistan] or the Advocate-General of the Provinces, as the case may be,
whether upon receipt of notice under rule 1, or otherwise, applies for such
addition and the Court is satisfied that such addition is necessary or desirable for
the satisfactory determination of the question of law involved.
3. Costs when Government added as party. Where under rule 2

Government is added as a defendant in a suit, [the Attorney-General. | the
Advocate-General or the Government shall not be entitled to or liable for costs in
the Court which ordered the addition unless the Court having regard to all the
circumstances of the case for any special reason otherwise orders.
4. Application of Order to appeals. In the application of this Order

to appeals the word defendant shall be held to include a respondent and the
word suit an appeal.
Contents
ORDER_XXVIII
SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR

AIRMEN
1. Officers, soldiers, sailors or airmen who cannot obtain leave
may authorise any person to sue or defend for them. Where any officer,
[soldier, sailor or airman] actually [in the service of the State] in such capacity is
party to a suit, and cannot obtain leave of absence for the purpose of prosecuting
or defending the suit in person, he may authorise any person to sue or defend in
his stead.
(2) The authority shall be in writing and shall be signed by the officer,
[soldier, sailor or airman] in the presence of (a) his commanding officer, or the
next subordinate officer, if the party is himself the commanding officer, or (b)
where the officer, [soldier, sailor or airman] is serving in military, naval, or air
force, staff employment, the head or other superior officer of the office in which
he is employed. Such commanding or other officer shall countersign the
authority, which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that
the authority was duly executed, and that the officer, soldier, sailor or airman] by
whom it was granted could not obtain leave of absence for the purpose of
prosecuting or defending the suit in person.
Explanation. In this Order the expression commanding officer means the
officer in actual command for the time being of any regiment, corps, (ship,)
detachment or depot to which the officer, soldier, sailor or airman belongs.
2. Person so authorised may act personally or appoint pleader. Any

person authorised by an officer, soldier, sailor or airman to prosecute or defend a
suit in his stead may prosecute or defend it in person in the same manner as the
officer, soldier, sailor or airman could do if present; or he may appoint a pleader
to prosecute or defend the suit on behalf of such officer, soldier, sailor or airman.
3. Service on person so authorised or on his pleader, to be good

service. Processes served upon any person authorised by an officer, soldier,
237
sailor or airman under rule 1 or upon any pleader appointed as aforesaid by such
person shall be a effectual as if they had been served on the party in person.
ORDER_XXIX
SUITS BY OR AGAINST CORPORATIONS
1. Subscription and verification of pleading. In suits by or against a

corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer of the
corporation who is able to depose to the facts of the case.
2. Service on corporation. Subject to any statutory provision

regulating service of process, where the suit is against a corporation the
summons may be served: -
(a) on the secretary or on any director, or other principal officer of the
corporation, or
(b) by leaving it or sending it by post addressed to the corporation at
the registered office, or if there is no registered office then at the
place where the corporation carries on business.
3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the
secretary or of any director, or other principal officer of the corporation who may
be able to answer material questions relating to the suit.
Contents
ORDER_XXX
SUITS BY OR AGAINST FIRMS AND PERSONS

CARRYING ON BUSINESS IN NAMES OTHER THAN
THEIR OWN
1. Suing of partners in name of firm. Any two or more persons
claiming or being liable as partners and carrying on business in Pakistan may sue
or be sued in the name of firm (if any) of which such persons were partners at the
time of the accruing of the cause of action, and any party to a suit may in such
case apply to the Court for a statement of the names and addresses of the persons
who were, at the time of the accruing of the cause of action, partners in such firm,
to be furnished and verified in such manner as the Court may direct.
(2). Where persons sue or are sued as partners in the name of their
firm under sub-rule (1), it shall, in the case of any pleading or other document
required by or under this Code to be signed, verified or certified by the plaintiff
or the defendant, suffice if such pleading or other document is signed, verified or
certified by any one of such persons.
Court Decisions
Suits by partnership concerns and proprietary concerns—Distinction—Filing
of suit by or against partnership firm is permitted under the provisions of O.30, R.1,
C.P.C., whereas O.30, R.10, C.P.C. deals with suit in the name of the proprietary concern
and specifically provides only for filing of suits against a proprietary concern in its name
but does not provide for filing of a suit by a proprietary concern as it does not have any
legal status/character as distinct from its proprietor—Proprietary concern thus can be
sued in its name but it cannot sue in its own name. PLD 2002 Kar. 315
PLD 1961 Dacca 693; 1983 CLC 1964; 1999 MLD 1781 and 2001 CLC 419 ref.
2. Disclosure of partners names.(l) Where a suit is instituted by

partners in the name of their firm, the plaintiff or the pleader shall, on demand in
writing by or on behalf of any defendant, forthwith declare in writing the names
and places of residence of all the persons constituting the firm on whose behalf
the suit is instituted.
239
(2) Where the plaintiffs or their pleader fail to comply with any
demand made under sub-rule (1), all proceedings in the suit may, upon for that
purpose, be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner
referred to in sub-rule (1), the suit shall proceed in the same manner, and the
same consequences in all respects shall follow, as if they had been named as
plaintiffs in the plaint:
Provided that all the proceedings shall nevertheless continue in the name
of the firm.
3. Service. Where persons are sued as partners in the name of their

firm, the summons shall be served either: -
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried
on within Pakistan upon any person having, at the time of service,
the control or management of the partnership business there, as
the Court may direct, and such service shall be deemed good
service upon the firm so sued, whether all or any of the partners
are within or without Pakistan:
Provided that, in the case of a partnership which has been dissolved to
the knowledge of the plaintiff before the institution of the suit, the summons
shall be served upon every person within Pakistan whom it is sought to make
liable.
4. Right of suit on death of partner.- (1) Notwithstanding anything

contained in section 45 of the Contract Act, 1872, where two or more persons
may sue or be sued in the name of the firm under the foregoing provisions and
any of such persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal representative of the
deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise affect any right
which the legal representative of the deceased may have:
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
Court Decisions
Death of a partner of a registered partnership firm- Legal heirs of deceased
partner. Deletion from panel of defendants. Pleadings of parties do not show that State
Bank had filed suit claiming relief against partners of firm from their personal property.
Contents
In view of substantive law (Order 30 Rule 4 of CPC) and in absence of a charge on

personal property of a partner of a registered firm, his legal representatives are riot to be
impleaded as defendants on account of his death before or after institution of suit. PLJ
1996 Qta. 14 = PLD 1996 Qta. 28.
5. Notice in what capacity served. Where a summons is issued to a

firm and is served in the manner provided by rule 3, every person upon whom it
is served shall be informed by notice in writing given at the time of such service,
whether he is served as a partner or as a person having the control or
management of the partnership business, or in both characters, and, in default of
such notice, the person served shall be deemed to be served as a partner.
6. Appearance of partners. Where persons are sued as partners in

the name of their firm, they shall appear individually in their own names, but all
subsequent proceedings shall, nevertheless, continue in the name of the firm.
7. No appearance except by partners. Where a summons is served in

the manner provided by rule 3 upon a person having the control or management
of the partnership business, no appearance by him shall be necessary unless he is
a partner of the firm sued.
8. Appearance under protest. Any person served with summons as

a partner under rule 3 may appear under protest, denying that he is a partner,
but such appearance shall not preclude that plaintiff from otherwise serving a
summons on the firm and obtaining a decree against the firm in default of
appearance where no partner has appeared.
9. Suits between co-partners. This Order shall apply to suits

between a firm and one or more of the partners therein and to suits between
firms having one or more partners in common, but no execution shall be issued
in such suits except by leave of the Court, and, on an application for leave to
issue such execution, all such accounts and inquiries may be directed to be taken
and made and directions given as may be just.
10. Suits against person carrying on business in name other than his
own. Any person carrying on business in a name or style other than his own
name may be sued in such name or style as if it were a firm name; and, so far as
the nature of the case will permit, all rules under this Order shall apply.
241

LAHORE
To rule 1 ,the following Explanation shall be added:
Explanation. This rule applied to a Joint Hindu family trading

partnership.
N.-W.F.P and Sindh. Same as in Lahore.

Contents
ORDER_XXXI
SUITS BY OR AGAINST TRUSTEES. EXECUTORS AND

ADMINISTRATORS
1. Representative of beneficiaries concerning property vested in
trustees etc. In all suits concerning property vested in a trustee, executor or
administrator, where the contention is between the persons beneficially
interested in such property and third a person, the trustee, executor or
administrator shall represent the person so interested, and it shall not ordinarily
be necessary to make them parties to the suit. But the Court may, if it thinks fit,
order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators. Where there

are several trustees, executors or administrators, they shall all be made parties to
a suit against one or more of them:
Provided that the executors who have not proved their testators will, and
trustees, executors and administrators outside Pakistan, need not be made
parties.
3. Husband of married executrix not to join. Unless the Court

directs otherwise, the husband of a married trustee, administratrix or executrix
shall not as such be a party to a suit be or against her.
243
ORDER_XXXII
SUITS BY OR AGAINST MINORS AND PERSONS OF

UNSOUND MIND
1. Minor to sue by next friend. Every suit by a minor shall be
instituted in his name by a person who in such suit shall be called the next
friend, of minor.
Court Decisions
Minor, a girl, on coming to know about the two transactions of sale of land, filed
suit challenging them as being illegal, unauthorized, without consideration and
inoperative against her ownership and possessory rights in the said land, inter alia, on
the ground that the disputed transactions had taken place during the time when she was
minor, that the sales ere unauthorized and based on fraud and that no sale was made for
her—Validity—Transferees under the sale had failed to prove the transaction of sale itself
—Sale was shown to have been made for a consideration of huge amount but no cogent
evidence was available that the said amount was passed on to the seller/vendor and if
so, as to where the same was deposited or kept—Recital of the Sale mutation itself
manifested that no payment was made at the time of attestation of mutation whereas
mere prior receipt of the same had been shown with the acknowledgment of exchange of
possession of the land—No cogent evidence was produced regarding execution of power
of attorney in favour of the alleged attorneys by the father of the minor, for, the best
evidence was the said document itself which should have been produced in evidence
alongwith the evidence of its execution which the transferees failed to do—Transferees at
a later stage attempted to produce copy of the said power-of-attorney the production of
which was rightly declined as secondary evidence could not have been allowed to be
produced unless the requirement of law about non-availability of the primary evidence
i.e. the original power of attorney had been established to the satisfaction of the Court
which was not done—Even if the sale transaction was made by the father of the minor as
natural guardian under Islamic Law of the property of her minor daughter, the same still
could be questioned by the minor on attainment of majority on the ground that the
transaction had not been made for her benefit—Sale transaction, in circumstances, was
not with consideration and thus rightly struck down by the Courts while the other sale
having been made during the period of minority of the plaintiff and no sale consideration
having been paid to her, the same was void and could be struck down on that ground
and suit having been filed by the plaintiff within three years of attainment of her majority
was within time—Said sale in circumstances was also rightly held to be not effective
Contents
against her rights of ownership in the land being void and without consideration. PLD
2003 SC 849
2. Where suit instituted without next friend, plaint to be taken off

the file. (1) Where a suit is instituted by or on behalf of a minor without a next
friend, the defendant may apply to have the plaint taken off the file, with costs to
be paid by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person, and the
Court, after hearing his objection (if any), may make such order in the matter as
it thinks nt.
Court Decisions
O. XXXII, Rr. 1 & 2—Minor, a girl, on coming to know about the two transactions of sale
of land, filed suit challenging them as being illegal, unauthorized, without consideration
and inoperative against her ownership and possessory rights in the said land, inter alia,
on the ground that the disputed transactions had taken place during the time when she
was minor, that the sales ere unauthorized and based on fraud and that no sale was
made for her—Validity—Transferees under the sale had failed to prove the transaction of
sale itself—Sale was shown to have been made for a consideration of huge amount but
no cogent evidence was available that the said amount was passed on to the
seller/vendor and if so, as to where the same was deposited or kept—Recital of the Sale
mutation itself manifested that no payment was made at the time of attestation of
mutation whereas mere prior receipt of the same had been shown with the
acknowledgment of exchange of possession of the land—No cogent evidence was
produced regarding execution of power of attorney in favour of the alleged attorneys by
the father of the minor, for, the best evidence was the said document itself which should
have been produced in evidence alongwith the evidence of its execution which the
transferees failed to do—Transferees at a later stage attempted to produce copy of the
said power-of-attorney the production of which was rightly declined as secondary
evidence could not have been allowed to be produced unless the requirement of law
about non-availability of the primary evidence i.e. the original power of attorney had
been established to the satisfaction of the Court which was not done—Even if the sale
transaction was made by the father of the minor as natural guardian under Islamic Law
of the property of her minor daughter, the same still could be questioned by the minor on
attainment of majority on the ground that the transaction had not been made for her
benefit—Sale transaction, in circumstances, was not with consideration and thus rightly
struck down by the Courts while the other sale having been made during the period of
minority of the plaintiff and no sale consideration having been paid to her, the same was
void and could be struck down on that ground and suit having been filed by the plaintiff
within three years of attainment of her majority was within time—Said sale in
circumstances was also rightly held to be not effective against her rights of ownership in
the land being void and without consideration. PLD 2003 SC 849
245
3. Guardian for the suit to be appointed by Court for minor

defendant. (1) Where the defendant is a minor, the Court, on being satisfied of
the fact of his minority, shall appoint a proper person to be guardian for the suit
for such minor.
(2) An order for the appointment of a guardian for the suit may be
obtained upon application in the name and on behalf of the minor or by the
plaintiff.
(3) Such application shall be supported by an affidavit verifying the
fact that the proposed guardian has no interest in the matters in controversy in
the suit adverse that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except
upon notice to minor and not any guardian of the minor appointed or declared
by an authority competent in that behalf, or, where there is no such guardian,
upon notice to the father or other natural guardian of the minor, or, where there
is no father or other natural guardian, to the person in whose care the minor is,
and after hearing any objection which may be urged on behalf of any person
served with notice under the sub-rule.
(5) A person appointed under sub-rule (1) to be guardian for the suit
for a minor shall, unless his appointment is terminated by retirement, removal or
death, continue as such through all proceedings arising out of the suit including
proceedings in any appellate or revisional Court and any proceedings to the
execution of a decree.
Court Decisions
Appointment of a guardian ad-litem :-- It is duty of court to appoint Guardian
of minor defendant in suit after being satisfied of fact of minority of minor defendant.
Purpose behind appointment of a guardian ad-litem is to protect interest of such minor.
Duty for protection of interest of minor is cast on court and not on parties to suit. PLJ
1997 SC120 = 1997 SCMRI34.
Language of rule is imperative and must be strictly complied with. A
disabled person is a minor, an insane person or an imbecile and all such persons can
challenge decree where it was based upon a compromise without following mandate as
ordained under Rule 7 of Order 32 CPC because such decree could not be termed as a
consent decree validly passed. Before passing of compromise decree leave of court was
not expressly recorded, Objection taken by respondents that this ground was not agitated
before Civil Judge cannot be considered to debar petitioner to raise it not because it is
question of law and goes to root of case- Further courts have always to act like watch
dogs protecting interests of minor. Revision allowed on ground that -imperative
provisions of O. 32 R. 7 CPC have not been complied with. Impugned decree, set aside.
Contents
Case remitted to Civil Judge to determine whether compromise was beneficial to

interests of minor-petitioner. PLJ 1999 Lah. 951.
4. Who may act as next friend or be appointed guardian for the

suit. (1) Any person who is of sound mind and has attained majority may act as
next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the
minor and that he is not, in the case of a next friend, a defendant, or, in the case
of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by
competent authority, no person other than such guardian shall act as the next
friend of the minor or be appointed his guardian for the suit unless the Court
considers for reasons to be recorded, that it is for the minors welfare that another
person be permitted to act or to be appointed, as the case may be.
(3) No person shall without his consent be appointed guardian for the
suit.
(4) Where there is no other person fit and willing to act as guardian
for the suit, the Court may appoint any of its officers to be such guardian, and
may direct that the costs to be incurred by such office in the performance of his
duties as such guardian shall be borne either by the parties or by any one or
more of the parties to the suit, or out of any fund in Court in which the minor is
interested, and may give directions for the repayment or allowance of such costs
as justice and the circumstances of the case may require.
5. Representation of minor by next friend or guardian for the suit.

(1) Every application to the Court on behalf of a minor, other than an application
under rule 10, sub-rule (2), shall be made by his next friend or by his guardian
for the suit.
(2) Every order made in a suit or on any application, before the Court
in or by which a minor is in anyway concerned or affected, without such minor
being represented by a next friend or guardian for the suit, as the case may be,
discharged, and, where the pleader of the party at whose instance such order
was obtained knew, or might reasonably have know, the fact of such minority,
with costs to be paid by such pleader.
6. Receipt by next friend or guardian for the suit of property under

decree for minor. (1) A next friend or guardian for the suit shall not, without the
leave of the Court, receive any money or other movable property on behalf of a
minor either-
247
(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.
(2) Where the next friend or guardian for the suit has not been
appointed or declared by competent authority to be guardian of the minor, or,
having been so appointed or declared, is under any disability know to the Court
to receive the money or other movable property, the Court shall, if it grants him
leave to receive the property, require such security and give such directions as
will, in its opinion sufficiently protect the property from waste and ensure its
proper application.
7. Agreement or compromise by next friend or guardian for the

suit. (1) No next friend or guardian for the suit shall, without the leave of the
Court, expressly recorded in the proceedings, enter into any agreement or
compromise on behalf of a minor with reference to the suit in which he acts as
next friend of guardian.
(2) Any such agreement or compromise entered into without the
leave of the Court so recorded shall be voidable against all parties other than the
minor.
Court Decisions
Agreement or compromise by next friend :-- Restrictions are imposed on
powers of next friend or guardian of minor, to enter into agreement or compromise on
behalf of minor, without leave of court which must be recorded expressly. Purpose of
such restriction as imposed by O.32, R. 7 C.P.C. is to protect minor's interest in suit being
adversely affected by a wrongful act or negligence on the part of next friend or guardian.
Court while allowing leave has to bear in mind, rights of minors and to see as parent of
minor that compromise was beneficial to him. Record must show that leave was infact
granted. Once such compromise was allowed with the leave of court same would be
binding on minor until fraud was shown. Interest of minors and adults being identical,
mother of minors who was party to suit had agreed to terms of agreement/compromise
and there being no accusation against her for having done anything adverse to interest of
minors, same fully protected and agreement/compromise was binding on minors. PLJ
1999 Lah. 969.
Judgment and decree of sale passed on compromise without taking into
consideration interest of minor-Judgment and decree, held, void so far as interest of
minor concerned-Such sale being indivisible judgment and decree held further, not valid
in toto, 1983 C L C 99
Statement on special oath by person expressly referred to by party to suit.
Plaintiff being minor represented through his next friend who is his real paternal uncle.
Whether leave of court was necessary for decision of suit on statement of reference. Law
Contents
by now is fairly well settled that offer of oath as was made by next friend of petitioner in
instant case, is only special method of proof adopted and is not in nature of agreement or
" compromise-Order 27, R. 7 CPC in terms had not application to facts of present case as
not agreement or compromise had been effected between parties. Settlement of Raham
Ali on special oath offered by next friend of minor was binding on minor particularly
when there was no allegation of negligence of collusion against next friend. There was no
need for obtaining sanction/leave of court. Petition dismissed. PLJ 1995 SC 504 = 1995
SCMR 865.
Un-conditional withdrawal of earlier suit wherein one of plaintiffs was minor.
Subsequent suit on same cause of action by same plaintiff on minors attaining majority.
Maintainability. Minor and lunatic being disadvantage litigants, would be unable to
safeguard their interest and for that reason law requires their representation in litigation
through major to act as next friend or guardian ad litem. Where next friend or guardian
ad-litem, enters into agreement but does not disclose and take Court into confidence of
reasons behind withdrawal with object to defeat provision of 0. 32, R. 7 C.P.C., Court
would be duty bound to ascertain such reason which necessitated and prompted for
withdrawal of claim on behalf of minor so as to know and understand basis in that
behalf. Court as ultimate guardian of minor had special obligation to require next friend
to explain benefit which minor was going to gain on account of such withdrawal. Interst
of minor in withdrawing earlier suit, was not kept in view by Courts while order
allowing withdrawal was passed as matter of routine, as if withdrawal was by major
party. Therefore, withdrawal in earlier suit vis-a-vis minor would create no bar to the
finding of subsequent suit on his behalf. Other plaintiff in earlier suit being major had
given up her claim voluntarily, therefore, subsequent suit on her behalf was not
competent. Appellant Court having not given any finding on issue with regard to full
ownership of deceased lady, and validity of gift by her, case was remanded for
determination of such issue. Appeal 19 the extent of minor's right to file subsequent suit
was accepted. PLJ2000 Lah. 1337.
8. Retirement of next friend. (1) Unless otherwise ordered by the

Court, a next friend shall not retire without first procuring a fit person to be put
in his place and giving security for the costs already incurred.
(2) The application for the appointment of a new next friend shall be
supported by an affidavit showing the fitness of the person proposed, and also
that he has no interest adverse to that of the minor.
9. Removal of next friend. (1) Where the interest of the next friend
of a minor is adverse to that of the minor or where he is so connected with a
defendant whose interest is adverse to that of the minor as to make it unlikely
that the minors interest will be properly protected by him, or where he does not
do his duty, or, during pendency of the suit, ceases to reside within Pakistan, or
for any other sufficient cause, application may be made on behalf of the minor or
249
by a defendant for his removal, and the Court, if satisfied of the sufficiency of the
cause assigned, may order the next friend to be removed accordingly, and make
such other order as costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by

an authority competent in this behalf, and an application is made by a guardian
so appointed or declared, who desires to be himself appointed in the place of the
next friend, the Court shall remove the next friend unless it considers, for reasons
to be recorded by it, that the guardian ought not to be appointed the next friend
of the minor, and shall thereupon appoint the applicant to be next friend in his
place upon such terms as to the costs already incurred in the suit as it thinks fit.
10. Stay of proceedings on removal, etc., of next friend. (1) On the

retirement, removal or death of the next friend of a minor, further proceedings
shall be stayed until the appointment of a next friend in his place.
(2) Where the pleader of such minor omits, within a reasonable time,
to take steps to get a new next friend appointed, any person interested in the
minor or in the matter in issue may apply to the Court for the appointment of
one, and the Court may appoint such person as it thinks fit.
11. Retirement, removal or death of guardian for the suit. (1) Where
the guardian for the suit desires to retire or does not do his duty, or where other
sufficient ground is made to appear, the Court may permit such guardian to
retire or may remove him, and may make such order as to costs as it thinks fit.
(2) Where the guardian for the suit retires, dies or is removed by the
Court during the-pendency of the suit, the Court shall appoint a new guardian in
his place.
12. Course to be followed by minor plaintiff or applicant on

attaining majority. (1) A minor plaintiff or a minor not a party to a suit on whose
behalf an application is pending shall, on attaining majority, elect whether he
will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application, he shall
apply for an order discharging the next friend and for leave to proceed in his
own name.
(3) The title of the suit or application shall in such case be corrected so
as to read henceforth thus:-
A. B., late a minor, by B.C., his next friend now having attained majority.
Contents
(4) Where he elects to abandon the suit or application, he shall, if a

sole plaintiff or sole applicant, apply for an order to dismiss the suit or
application on repayment of the costs incurred by the defendant or opposite-
party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte but no
order discharging next friend and permitting a minor plaintiff to proceed in his
name shall be made without notice to the next friend.
13. Where a minor co-plaintiff attaining majority desires to

repudiate suit. (1) Where a minor co-plaintiff on attaining majority desires to
repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and
the Court, if it finds that he is not a necessary party, shall dismiss him from the
suit on such terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any
co-plaintiff and on the defendant.
(3) The costs of all parties of such application, and of all or any
proceedings theretofore had in the suit, shall be paid by such persons as the
Court directs.
(4) Where the applicant is a necessary party to the suit the Court may
direct him to be made a defendant.
14. Unreasonable or improper suit. (1) A minor on attaining majority

may, if a sole plaintiff, apply that a suit instituted in his name by has next friend
be dismissed on the ground that it was unreasonable or improper.
(2) Notice of the application shall be served on all the parties
concerned, and the Court, upon being satisfied of such unreasonableness or
impropriety, may grant the application and order the next friend to pay the costs
of all parties in respect of the application and of anything done in the suit, or
make such other order as it thinks fit.
15. Application of rules to persons of unsound mind. The provisions

contained in rules 1 to 14, so far as they are applicable, shall extend to persons
adjudged to be of unsound mind and to persons who though not so adjudged are
found by the Court on inquiry, by reason of unsoundness of mind or mental
infirmity, to be incapable of protecting their interests when suing or being sued
16. Certain Laws not to be affected. Nothing in this order shall be
construed to affect or in any way derogate from the provisions of any local law
for the time being in force relating to suits by or against minors or by or against
lunatics or other persons of unsound mind.
251

LAHORE
R. 1: The following paragraph shall be added to rule 1-

Such person may be ordered to pay any costs in the suit as if he were the plaintiff
R. 2: The following sub-rules were substituted for sub-rules (3) and (4) of
rule 2:
(3) The plaintiff shall file with his plaint a list of relatives of the minor
and other persons with their addresses, who prima facie are most likely to be
capable of acting as guardian for suit for a minor defendant. The list shall
constitute an application by the plaintiff under sub-rule (2) above.
(4) The Court may, at any time after institution of the suit, call upon
the plaintiff to furnish such a list, and, in default of compliance, may reject the
plaint.
R. 3: The following sub-rules (6) and (7) be added: -

(6) Any application for the appointment of a guardian for the suit,
any list furnished under the rule shall be supported by an affidavit verifying the
fact that the proposed guardian has no interest in the matter in controversy in the
suit adverse to that of the minor, and that each person proposed is a fit person to
be so appointed.
(7) No order shall be made on any application under this rule, except
upon notice to any guardian of the minor appointed or declared by an authority
competent in that behalf, or where there is no such guardian of minor, or, where
there is no father or other natural guardian of the minor, or, where there is no
father or other natural guardian of the minor, or, where there is no father or
other natural guardian, to the person in whose care the minor is, and after
hearing any objection which he urged on behalf of any person served with notice
under this sub-rule.
Provided that the Court may, if it sees fit issue notice to the minor also.
(24.11.1927) R. 4: (7) Add sub-rule (2) of rule 4-
(2) Where a minor defendant has no guardian appointed or declared
by competent authority, the Court may, subject to the proviso to sub-rule (1),
appoint as his guardian for the suit a relative of the minor.
If no proper person be available, who is a relative of the minor, the Court
shall appoint one of the other defendants, if any, and, failing such other
Contents
defendant, shall ordinarily proceed under sub-rule (4) of the rule to appoint one
of its officers or a pleader.
(ii) The following words be added to sub-rule (3):-but the Court may
presume such consent to have been given, unless it expressly refused.
(iii) In sub-rule (4) after the word officers add or a pleader, and for the
word officer substitute the word person.
N.-W.F.P.
R.I. Same as in Lahore
SINDH
R. 7. Add the following as sub-rule (1A) after sub-rule (1) of rule 7.
(I A) Where an application is made to the Court for leave to enter into an
agreement or compromise or for withdraw of a suit in pursuance of a
compromise or for taking any other action on behalf of a minor or other person
under disability, and such minor or other person under disability is represented
by Counsel (Advocate) or Pleader, the Counsel (Advocate) or Pleader shall file in
Court with the application a certificate to the effect that the agreement or
compromise or action proposed is in his opinion for the benefit of the minor or
other person under disability. A decree or order for the compromise of a suit,
appeal or matter to which a minor or other person under disability is a party,
shall recite the sanction of the Court thereto and shall set out the terms of the
compromise in Form No. 24 in Appendix D to this Schedule.
253
ORDER_XXXIII
SUITS BY PAUPERS
1. Suits may be instituted in forma pauperis. Subject to the
following provisions, any suit may be instituted by a pauper.
Explanation. A person is a pauper when he is not possessed of sufficient
means to enable him to pay the fee prescribed by law for the plaint in such suit,
or, where on such fee is prescribed when he is not entitled to property worth one
hundred rupees other than his necessary wearing-apparel and the subject-matter
of the suit.
Court Decisions
An order declaring a party pauper for purpose of payment of Court-fee is not
one of appealable orders under Code of Civil Procedure but it was revisable- As there
was neither material illegality nor material irregularity in manner of reaching impugned
decision in terms of clause (c) of Section 115 C.P.C. there was little scope for interference
with, conclusion of trial Court on merits which otherwise rested firmly on sound
material. Application could not be dismissed on ground-that it did not conform to
requirements of rule 2 or 8 of Order 33. Impugned order was neither in excess of nor
without jurisdiction and it also did not suffer from a breach of procedural law. PLJ 1994
Lah. 528 = 1994 CLC 2084.
2. Contents of application. Every application for permission to sue

as a pauper shall contain the particulars required in regard to plaints in suits: a
Schedule of any movable or immovable property belonging to the applicant,
with the estimated value thereof, shall be annexed thereto; and it shall be signed
and verified in the manner prescribed for the signing and certification of
pleading.
3. Presentation of application. Notwithstanding anything contained

in these rules, the application shall be presented to Court by the applicant in
person, unless he is exempted from appearing in Court, in which case the
application may be presented by an authorised agent who can answer all
material questions relating to the application, and who may be examined in the
Contents
same manner as the party represented by him might have been examined had
such party attended in person.
Court Decisions
Application not been presented by plaintiff in person. Petitioner being Parda
Nasheen lady was exempted from personal appearance in court and power to reject an
application on ground mentioned in R. 5 of 0.33 CPC could only be exercised before
notice und.er R. 6 had been issued and not subsequently. Contention of. Contention can
be accepted. There can be no cavil that if petitioner is apardanashin lady she is exempted
from personal appearance by virtue of Section 132 of CPC and she is therefore entitled to
present application through a duly authorised agent. There is nothing on record to show
that the petitioner was a Parda observing lady rather had even been claimed to be so.
Impugned order is however, liable to be struck down on second ground urged by teamed
counsel which was that having once issued notice in application to opposite side and
collector in terms of Order 33 R, 1 CPC power of rejection under rule. 5 could not be
exercised. PLJ 1996 Lah. 117 = 1996 CLC 512.
4. Examination of applicant. (1) Where the application is in proper

form and duly presented, the Court may, if it thinks fit, examine the applicant, or
his agent when the applicant is allowed to appear by agent, regarding the merits
of the claim and the property of the applicant.
(2) If presented by agent, Court may order applicant to be examined
by commission. Where the application is presented by an agent, the Court may, if
it thinks fit, order that the applicant be examined by a commission in the manner
in which the examination of an absent witness may be taken.
5. Rejection of application. The Court shall reject an application for

permission to sue as a pauper:-
(a) where it is not framed and presented in the manner prescribed by
rules 2 and 3, or
(b) where the applicant is not a pauper, or
(c) where he has, within two months next before the presentation of
the application, disposed of any property fraudulently or in order
to be able to apply for permission to sue as a pauper, or
(d) where his allegations do not show a cause of action, or
(e) where he has entered into any agreement with reference to the
subject-matter of the proposed suit under which any other person
has obtained an interested in such subject-matter
255
6. Notice of day for receiving evidence of applicants pauperism.

Where the Court sees no reason to reject the application on any of the grounds
stated in rule 5, it shall fix a day (of which at least ten days clear notice shall be
given to the opposite-party and the Government pleader) for receiving such
evidence as the applicant may adduce in proof of his pauperism, and for hearing
any evidence which may be adduced in disproof thereof.
7. Procedure at hearing. (1) On the day so fixed or as soon thereafter

as may be convenient, the Court shall examine the witnesses (if any) produced
by either party, and may examine the applicant or his agent, and shall make a
memorandum of the substance of their evidence.
(2) The Court shall also hear any argument which the parties may
desire to offer on the question whether, on the face of the application and of the
evidence (if any) taken by the Court as herein provided, the applicant is or is not
subject to any of the prohibitions specified in rule 5.
(3) The Court shall then either allow or refuse to allow the application
to sue as a pauper.
8. Procedure if application admitted. Where the application is

granted, it shall be numbered and registered and shall be deemed the plaint in
the suit, and the suit shall proceed in all other respects as a suit instituted in the
ordinary manner, except that the plaintiff shall not be liable to pay any Court-fee
(other than fees payable for service of process) in respect of any petition,
appointment of a pleader or other proceeding connected with the suit.
9. Dispaupering. The Court may on the application of defendant, or

of the Government pleader, of which seven days clear notice in writing has been
given to the plaintiff, order the plaintiff to be dispaupered:-
(a) if he is guilty of vexatious or improper conduct in the course of
the suit;
(b) if it appears that his means are such that he ought not to continue
to sue as a pauper; or
(c) if he has entered into any agreement with reference to the subject-
matter of the suit under which any other person has obtained an
interest in such subject-matter.
10. Costs where pauper succeeds. Where the plaintiff succeeds in the
suit, the Court shall calculate the amount of Court-fees which would have paid
by plaintiff if he had not been permitted to sue as a pauper; such amount shall be
Contents
recoverable by Provincial Government from any party ordered by the decree to

pay the same, and shall be a first charge on the subject-matter of the suit.
11. Procedure where pauper fails. Where the plaintiff fails in the suit
or is disappeared, or where the suit is withdrawn or dismissed:-
(a) because the summons for the defendant to appear and answer has
not been served upon him in consequence of the failure of the
plaintiff to pay the Court-fee or postal charges(if any) chargeable
for such service, or
(b) because the plaintiff does not appear when the suit is called on for
hearing,the Court shall order the plaintiff, or any person added as
a co-plaintiff to the suit, to pay the Court-fees which would have
been paid by the plaintiff if he had not been permitted to sue as a
pauper.
11-A. Procedure where pauper suit abates. Where the suit abates by
reason of the death of the plaintiff or of any person added as a co-plaintiff the
Court shall order that the amount of Court-fees which would have been paid by
the plaintiff if he had not been permitted to sue as a pauper shall be recoverable
by the Provincial Government from the estate of the deceased-plaintiff.
12. Provincial Government may apply for payment of Court-fees.

The Provincial Government shall have the right at any time to apply to the Court
to make an order for the payment of Court-fees under rule 10, rule 11 or rule
11A.
13. Provincial Government to be deemed a party. All matters arising

between the Provincial Government and any party to the suit under rule 10 rule
11, HA or rule 12 shall be deemed, to be questions arising between the parties to
the suit within the meaning of section 47.
14. Recovery of amount of Court-fees. Where an order is made under

rule 10, rule 11, or rule 11A the Court shall forthwith cause a copy of the decree
or order to be forwarded to the Collector, who may, without prejudice to any
other mode of recovery, recover the amount of Court-fees specified therein from
the person or property liable for the payment as if it were an arrear of land
revenue.
257
15. Refusal to allow applicant to sue as pauper to bar subsequent

application of like nature. An order refusing to allow the applicant to sue as a
pauper shall be a bar to any subsequent application of the like nature by him in
respect of the same right to sue, but the applicant shall be at liberty to institute a
suit in the ordinary manner in respect of such right, provided that he first pays
the costs, (if any) incurred by the Provincial Government and by the opposite-
party in opposing his application for leave to sue as a pauper.
16. Costs. The costs of an application for permission to sue as pauper

and of no inquiry into pauperism shall be costs in the suit.
Contents
ORDER_XXXIV
SUITS RELATING TO MORTGAGES OF IMMOVABLE

PROPERTY
1. Parties to suit for foreclosure, sale and redemption. Subject to the
provisions of the Code, all persons having an interest either in the mortgage-
security or in the right of redemption shall be joined as parties to any suit
relating to the mortgage.
Explanation. A puisne mortgagee may sue for foreclosure or for sale
without making the prior mortgagee a party to the suit: and a prior mortgagee
need not be joined in a suit to redeem a subsequent mortgage.
2. Preliminary decree in foreclosure suit. (1) In a suit for

foreclosure, if the plaintiff succeeds, the. Court shall pass a preliminary decree.
(a) ordering that an account be taken of what was due to the plaintiff
at the date of such decree for:-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by
him up to that date in respect of his mortgage-security,
together with interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing:-
(i) that, if the defendant pays into Court the amount so found
or declared due on or before such date as the Court may
fix within six months from the date on which the Court
confirms and countersigns the account taken under
clause(a), or from the date on which such amount is
declared in Court under clause (b), as the case may be, and
thereafter pays such amount as may be adjudged due in
respect of subsequent costs, charges and expenses as
provided in rule 10, together with subsequent interest on
such sums respectively as provided in rule 11, the plaintiff
shall deliver up to the defendant, or to such person as the
259
defendant appoints, all documents in his possession or

power relating to the mortgaged property, and shall, if so
required, retransfer the property to the defendant at his
cost free from the mortgage and from all incumbrances
created by the plaintiff or any person claiming under him,
or, where the plaintiff claims by derived title, by those
under whom he claims, and shall also, if necessary, put the
defendant in possession of the property; and
(ii) that, if payment of the amount found or declared due
under or by the preliminary decree is not made on or
before the date so fixed, or the defendant fails to pay,
within such time as the Court may fix, the amount
adjudged due in respect of subsequent costs, charges,
expenses and interest, the plaintiff shall be entitled to
;apply for a final decree debarring the defendant from all
right to redeem the property.
(2) The Court may on good cause shown and upon terms to be fixed
by the Court, from time to time, at any time before a final decree is passed,
extend the time fixed for the payment of the amount found or declared due
under sub-rule (1) or of the amount adjudged due in respect of subsequent costs,
charges, expenses and interest.
(3) Where, in a suit for foreclosure, subsequent mortgagees or
persons deriving title from, or subrogated to the rights of, any such mortgagees
are joined as parties, the preliminary decree shall provide for the adjudication of
the respective rights and liabilities of the parties to the suit in the manner and
form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D
with such variations as the circumstances of the case may require.
3. Final decree in foreclosure suit. (1) Where, before a final decree

debarring the defendant from all right to redeem the mortgaged property has
been passed, the defendant makes payment into Court of all amounts due from
him under sub-rule (1) of rule 2, the Court shall, on application made by the
defendant in this behalf, pass a final decree-
(a) ordering the plaintiff to deliver up the documents referred to in
the preliminary decree, and if necessary;
(b) ordering him to re-transfer at the cost of the defendant the
mortgaged property as directed in the said decree; and, also if
necessary,
(c) ordering him to put the defendant in possession of the property.
Contents
(2) Where payment in accordance with sub-rule (1) has not been
made, the Court shall, on application made by the plaintiff in this behalf, pass a
final decree declaring that the defendant and all persons claiming through or
under him are debarred from all right to redeem the mortgaged property and
also, if necessary, ordering the defendant to put the plaintiff in possession of the
property.
(3) On the passing of a final decree under sub-rule (2), all liabilities to
which the defendant is subject in respect of the mortgage or on account of the
suit shall be deemed to have been discharged.
4. Preliminary decree in suit for sale. (1) In a suit for sale if the
plaintiff succeeds, the Court shall pass a preliminary decree to the effect
mentioned in clauses (a), (b) and (c)(i) of sub-rule (1), of rule 2, and further
directing that in default of the defendant paying as therein mentioned, the
plaintiff shall be entitled to apply for a final decree directing that, the mortgaged
property or a sufficient part thereof be sold, and the proceeds of the sale (after
deduction therefrom of the expenses of the sale) be paid into Court and applied
in payment of what has been found or declared under or by the preliminary
decree due to the plaintiff, together with such amount as may have been
adjudged due in respect of subsequent costs, charges, expenses and interest, and
the balance, if-any, be paid to the defendant or other persons entitled to receive
the same.
(2) The Court may on good cause shown and upon terms to be fixed
by me Court, from time to time, at any time before a final decree for sale is
passed, extend the time fixed for the payment of the amount found or declared
due under sub-rule (1) of the amount adjudged due in respect of subsequent cost,
charges, expenses and interest.
(3) Power to decree sale in foreclosure suit. In a suit for foreclosure in
the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at
the instance of any party to the suit or of any other person interested in the
mortgage-security or the right of redemption pass a like decree (in lieu of a
decree for foreclosure) on such terms as it thinks fit including the deposit in
Court of a reasonable sum fixed by the Court to meet the expenses of the sale and
to secure the performance of the terms.
(4) Where, in a suit for sale or suit for foreclosure in which sale is
ordered, subsequent mortgagees or persons deriving title from, or subrogated to
the rights of, any such mortgagees are joined as parties, the preliminary decree
referred to in sub-rule (1) shall provide for the adjudication of the respective
rights and liabilities of the parties to the suit in the manner and form set forth in
261
Form No. 9, Form No. 10 and Form No. 11 as the case may be, of Appendix D
with such variations as the circumstances of the case may require.
Court Decisions
Although decree granted by Special Court was described as a preliminary
decree, it was, in substance, a final decree as it did not contemplate any further
proceedings. A preliminary mortgage decree under O.34 R. 4 is incapable of execution
Held, final decree for sale passed by Special Court was liable to be set aside. First decree
being a money decree and amount having been received by decree-holder, decree has
been fully satisfied. Appeal accepted. PLJ 1989 SC 146.
5. Final decree in suit for sale. (1) Where on or before the day fixed
or at any time before the confirmation of a sale made in pursuance of a final
decree passed under sub-rule (3) of this rule the defendant makes payment into
Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall,
on application made by the defendant in this behalf, pass a final decree or, if
such decree has been passed, an order: -
(a) ordering the plaintiff to deliver up the documents referred to in
the preliminary decree, and, if necessary:-
(b) ordering him to transfer the mortgaged property as directed in the
said decree, and, also, if necessary:-
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in
pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not
pass an order under sub-rule (1), of this rule, unless the defendant in addition to
the amount mentioned n sub-rule (1) deposits in Court for payment to the
purchaser a sum equal to five per cent of the amount of the purchase-money paid
into Court by the purchaser. Where such deposit has been made, the purchaser
shall be entitled to an order for re-payment of the amount of the purchase-money
paid into Court by him together with a sum equal to five per cent thereof.
(3) Where payment in accordance with sub-rule (1) has not been
made, the Court shall, on application made by the plaintiff in this behalf, pass a
final decree directing that the mortgaged property or a sufficient part thereof be
sold, and that the proceeds of the sale be dealt with in the manner provided in
sub-rule (1) of rule 4.
Court Decisions
Discretion conferred on Court relates to extension of time for payment of decretal
amount by judgment debtor after the sale and before its confirmation as also in a case in
Contents
which no sale had taken place at all. Such discretion does not deal with extension of
limitation period for passing final decree at the instance of plaintiff in a suit where
defendant had not paid the amount decreed. PLJ 2001 SC 85 = PLD 2001 SC 489.
6. Recovery of balance due on mortgage in suit for sale. Where the

net proceeds of any sale held under the last preceding rule are formed
insufficient to pay the amount due to the plaintiff, the Court, on application by
him may, if the balance is legally recoverable from the defendant otherwise than
out of the property sold, pass a decree for such balance.
7. Preliminary decree in redemption suit. (1) In a suit for

redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree: -
(a) ordering that an account be taken of what was due to the
defendant at the date of such decree for:-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him
up to that date, in respect of his mortgage-security, together
with interest thereon ; or
(b) declaring the amount so due at that date; and
(c) directing:-
(i) that if the plaintiff pays into Court the amount so found or
declared due on or before such date as the Court may fix
within six months from the date on which the Court
confirms and countersigns the account taken under clause
(a), or from the date on which such amount is declared in
Court under clause (b), as the case may be, and thereafter
pays such amount as may be adjudged due in respect of
subsequent costs, charges and expenses as provided in rule
10 together with subsequent interest on such sums
respectively as provided in rule 11, the defendant shall
deliver up to the plaintiff, or to such person as the plaintiff
appoints, all documents in his possession or power relating
to the mortgaged property, and shall, if so required,
retransfer the property to the plaintiff at his cost free from
the mortgage and from all incumberances created by the
defendant or any person claiming under him, or, where the
defendant claims by derived title, by those under whom he
263
claims, and shall also, if necessary, put the plaintiff in

possession of the property; and
(ii) that, if payment of the amount found or declared due under
or by the preliminary decree is not made on or before the
date so fixed, or the plaintiff fails to pay, within such time as
the Court may fix, the amount adjudged due in respect of
subsequent costs, charges, expenses and interests, the
defendant shall be entitled to apply for a final decree:-
(a) in the case of a mortgage other than a usufructuary
mortgage, a mortgage by conditional sale, or an anomalous
mortgage the terms of which provide for foreclosure only
and not for sale, that the mortgage property be sold, or
(b) in the case of a mortgage by conditional sale or
such an anomalous mortgage as aforesaid, that the plaintiff
be debarred from all right to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed
by the Court, from time to time, at any time before the passing of a final decree
for foreclosure or sale, as the case may be, extend the time fixed for the payment
of the amount found or declared due under sub-rule (1) or of the amount
adjudged due in respect of subsequent costs, charges, expenses and interest.
8. Final decree in redemption suit. (1) Where before a final decree

debarring the plaintiff from all right to redeem the mortgaged property has been
passed or before the confirmation of a sale held in pursuance of a final decree
passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of
all amounts due from him under sub-rule (1) of rule 7, the Court shall, on
application made by the plaintiff in this behalf, pass a final decree or, if such
decree has been passed, an order: -
(a) ordering the defendant to deliver up the documents referred to in
the preliminary decree, and if necessary :-
(b) ordering him to re-transfer at the cost of the plaintiff the
mortgaged property as directed in the said decree, and, also, if
necessary:-
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in
pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not
pass on order under sub-rule (1) of this rule unless the plaintiff, in addition to the
amount mentioned in sub-rule (1), deposits in the Court for payment to the
purchase a sum equal to five per cent of the amount of the purchase- money paid
Contents
into Court by the purchaser. Where such deposit has been made, the purchaser
shall be entitled to an order for repayment of the amount of the purchase-money
paid into Court by him, together with a sum equal to five per cent, thereof.
(3) Where payment in accordance with sub-rule (l) has not been
made, the Court shall, on application made by the defendant in this behalf: -
(a) in the case of a mortgage by conditional sale or of such an
anomalous mortgage as is hereinbefore referred to in rule 7, pass a
final decree declaring that the plaintiff and all persons claiming
under him are debarred from all right to redeem the mortgaged
property and, also, if necessary ordering the plaintiff to put
defendant in possession of the mortgaged property; or
(b) in the case of any other mortgage, not being a usufructuary
mortgage, pass a final decree that the mortgaged property or a
sufficient part thereof be sold, and the proceeds of the sale (after
deduction therefrom of the expenses of the sale) be paid into
Court and applied in payment of what is found due to the
defendant, and the balance; if any, be paid to the plaintiff or other
persons entitled to receive the same.
8-A. Recovery of balance due on mortgage in suit for redemption.

Where the net proceeds of any sale held under the last preceding rule are found
insufficient to pay the amount due to the defendant, the Court, on application by
him, may if the balance is legally recoverable from the plaintiff otherwise than
out of the property sold, pass a decree for such balance.
9. Decree where nothing is found due or where mortgagee has

been overpaid. Notwithstanding anything hereinbefore contained, if it appears,
upon taking the account referred to in rule 7, that nothing is due to the defendant
or that he has been overpaid, the Court shall pass a decree directing the
defendant, if so required, to re-transfer the property and pay to the plaintiff the
amount which may be found due to him; and the plaintiff shall, if necessary, be
put in possession of the mortgaged property.
10. Costs of mortgagee subsequent to decree. In finally adjusting the

amount to be paid to a mortgagee in case of a foreclosure, sale or redemption, the
Court shall, unless in the case of costs of the suit the conduct of the mortgagee
has been such as to disentitle him thereto, add to mortgage-money such costs of
the suit and other costs, charges and expenses as have been properly incurred by
265
him since the date of the preliminary decree for foreclosure, sale or redemption
up to the time of actual payment.
11. Payment of interest. In any decree passed in a suit for foreclosure,

sale or redemption, where interest is legally recoverable, the Court may order
payment of interest to the mortgagee as follows, namely: -
(a) interest up to the date on or before which payment of the amount
found or declared due is under the preliminary decree to be made
by the mortgagor or other person redeeming the mortgage:-
(i) on the principal amount found or declared due on the
mortgage, at the rate payable on the principal, or, where
no such rate is fixed, at such rate as the Court deems
reasonable,
(ii) on the amount of the costs of the suit awarded to the
mortgagee, at such rate as the Court deems reasonable
from the date of the preliminary decree, and
(iii) on the amount adjudged due to the mortgagee for costs,
charges and expenses properly incurred by the mortgagee
in respect of the mortgage security up to the date of the
preliminary decree and added to the mortgage money at
the rate agreed between the parties, or failing such rate, at
the same rate as is payable on the principal, or failing both
such rates, at nine per cent per annum, and
(b) subsequent interest up to the date of realization or actual payment
at such rate as the Court deems reasonable.
(i) on the aggregate of the principal sums specified in clause
(a) and of the interest thereon as calculated in accordance
with that clause; and
(ii) on the amount adjudged due to the mortgage in respect of
Such further costs, charges and expenses as may be
payable under rule 10.
12. Sale of property subject to prior mortgage. Where any property

the sale of which is directed under this Order is subject to a prior mortgage, the
Court may, with the consent of the prior mortgagee, direct that the property be
sold free from the same, giving to such prior mortgagee, .the same interest in the
proceeds of the sale as he had in the property sold.
Contents
13. Application of proceeds. (1) Such proceeds shall be brought into

Court and applied as follows:-
first, in payment of all expenses incident to the sale or properly incurred
in any attempted sale;
secondly, in payment of whatever is due to the prior mortgagee, on
account of the prior mortgage, and of costs, .properly incurred in
connection therewith;
thirdly, in payment of all interest due on account of the mortgage in
consequence whereof the. sale was directed, and of the cost of the suit in
which the decree directing the sale was made;
fourthly, in payment of the principal money due on account of that
mortgage; and
lastly, the residue (if any) shall be paid to the person proving himself to
be interested in the property sold, or if there are more such persons than
one, then to such persons according to their respective interests therein or
upon their joint receipt.
(2) Nothing in this rule or in rule 12 shall be deemed to affect the
powers confirmed by section 57 of the Transfer of Property Act, 1882.
14. Suit for sale necessary for bringing mortgaged property to sale.
(1) Where a mortgagee has obtained a decree for the payment of money in
satisfaction of a claim arising under the mortgage, he shall not be entitled to
bring the mortgaged property to sale otherwise than by instituting a suit for sale
in enforcement of the mortgage, and he may institute such suit notwithstanding
anything contained in Order 11, rule 2.
(2) Nothing in sub-rule (1) shall apply to any territories to which the
Transfer of Property Act, 1882, has not been extended.
15. Mortgages by the deposit of title-deeds and charges. All the

provisions contained in this Order which apply to a simple mortgage shall, so far
as may be, apply to a mortgage by deposit of title deeds within the meaning of
section 58, and to a charge within the meaning of Section 100 of the Transfer of
Property Act, 1882.
267
ORDER_XXXV
INTERPLEADER
1. Plaint in interpleader suits. In every suit of interpleader the
plaint shall, in addition to other statements necessary for plaints, state- o
(a) that the plaintiff claims no interest in the subject-matter in dispute
other than for charges or costs;
(b) the claims made by the defendants severally ; and
(c) that there is no collusion between the plaintiff and any of the
defendants.
2. Payment of thing claimed into Court. Where the thing claimed is

capable of being paid into Court or placed in the custody of the Court the
plaintiff may be required to so pay or place it before he can be entitled to any
order in the suit.
3. Procedure where defendant is suing plaintiff. Where any of the

defendants in an interpleader suit is actually suing the plaintiff in respect of the
subject-matter of such suit, the Court in which the suit against the plaintiff is
pending shall, on being informed by the Court in which the interpleader suit has
been instituted, stay the proceedings as against him and his costs in the suit to
stayed may be provided for in such suit; but if, and insofar as, they are not
provided for in that suit, they may be added to his costs incurred in the
interpleader-suit.
4. Procedure at first hearing. (1) At the first hearing the Court may:-
(a) declare that the plaintiff is discharged from all liability to the
defendants in respect of the thing claimed, award him his costs,
and dismiss him from the suit; or
(b) if it thinks that justice or convenience so require, retain all parties
until the final disposal of the suit.
(2) Where the Court finds that the admissions of the parties or other
evidence enable it to do so, it may adjudicate the title to the thing claimed.
(3) Where the admission of the parties do not enable the Court so to
adjudicate, it may direct:-
Contents
(a) that an issue or issues between the parties be framed and tried,
and
(b) that any claimant be made a plaintiff in lieu of or in addition to
the original plaintiff, and shall proceed to try the suit in the
ordinary manner.
5. Agents and tenants may not institute interpleader suit. Nothing

in this Order shall be deemed to enable agents to sue their principals, or tenants
to sue their landlords, for the purpose of compelling them to interplead with any
persons other than persons making claim through such principals of the
landlords.
Illustrations
(a) A deposits a box of jewels with B as his agent, C alleges that the jewels
were wrongfully obtained from him by A, and claims them from B. B cannot institute an
interpleader-suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the
purpose of making the jewels a security for a debt due from himself to C. A afterwards
alleges that Cs debt is satisfied, and C alleges the contrary. Both claim the jewels from B.
B may institute an interpleader-suit against A and C.
6. Charge of plaintiffs costs. Where the suit is properly instituted

the Court may provide for the costs of the original plaintiff by giving him a
charge on the thing claimed or in some other effectual way.
269
ORDER_XXXVI
ORDER XXXVI
SPECIAL CASE
1. Power to state case for Courts opinion. (1) Parties claiming to be
interested in the decision of any question of fact or law may enter into an
agreement in writing stating such question in the form a of a case for the opinion
of the Court, and providing that, upon the finding of the Court with respect to
such question: -
(a) a sum of money fixed by the parties or to be determined by the
Court shall be paid by one of the parties to the other of them; or
(b) some property, movable or immovable, specified in the
agreement, shall be delivered by one of the parties to the other of
them ; or
(c) one or more of the parties shall do, or refrain from doing, some
other particular act specified in the agreement.
(2) Every case stated under this rule shall be divided into
consecutively numbered paragraphs, and shall concisely state such facts and
specify such documents as may be necessary to enable the Court to decide the
question raised thereby.
2. Where value of subject-matter must be stated. Where the

agreement is for the delivery of any property, or for the doing, or the refraining
from doing, any particular act, the estimated value of the property to be
delivered, or to which the act specified has reference, shall be stated in the
agreement.
3. Agreement to be filed and registered as suit. (1) The agreement,

if framed in accordance with the rules hereinbefore contained, may be filed in the
Court which would have jurisdiction to entertain a suit, the amount or value of
the subject-matter of which is the same as the amount or value of the subject-
matter of the agreement.
Contents
(2) The agreement, when so filed, shall be numbered and registered

as a suit between one or more of the parties claiming to be interested as plaintiff
or plaintiffs, and the other or the others of them as defendant or defendants; and
notice shall be given to all the parties to the agreement, other than the party or
parties by whom it was presented.
4. Parties to be subject to Courts jurisdiction. Where the agreement,

has been filed, the parties to it shall be subject to the jurisdiction of the Court and
shall be bound by the statements contained therein.
5. Hearing and disposal of case. (1) The case shall be set down for
hearing as a suit instituted in the ordinary manner, and the provisions of this
Code shall apply to such suits so far as the same are applicable.
(2) Where the Court is satisfied, after examination of the parties or
after taking such evidence is it thinks fit:-
(a) that the agreement was duly executed by them,
(b) that they have a bonafide interest in the question stated therein,
and
(c) that the same is fit to be decided,it shall proceed to pronounce
judgment thereon, in the same way as in an ordinary suit, and
upon the judgment so pronounced a decree shall follow.
271
ORDER_XXXVII
SUMMARY PROCEDURE ON NEGOTIABLE

INSTRUMENTS
1. Application of Order. This Order shall apply only to the High
Court [to the District Court, and to any other Civil Court notified in this behalf
by the High Court.
Court Decisions
Suit on Negotiable instrument. A suit based upon negotiable instrument in
which summons have been issued in Form No. 4 Append 9B of Civil Procedure Code
defendant was not entitled to appear or defend suit as a matter of course unless he
obtains leave from Court to appear and defend suit. In default of obtaining such leave for
appearance and defence, allegations in plaint shall be deemed to be admitted and
plaintiffs shall be entitled to decree prayed for. Advantage in adopting procedure
prescribed by O.37, Civil Procedure Code was that defendant is not as a matter of right
entitled to appear or to defend, but if he deserves to be heard he must apply to Court for
permission to appear and defend within 10 days of service of summons as envisaged by
Art. 159 of Limitation Act, 1908. Till such time as leave to defend granted defendant
cannot even file interlocutory application in order to agitate point of jurisdiction or to
'question transactions between parties or to challenge validity and legal effect of
promissory note and crossed cheque issued by them in favour of plaintiff. PLJ 1997 Kar.
674 = 1997 MLD 1835.
For purpose of jurisdiction a court is required to accept contents of plaint
as correct and legally speaking pleas raised by defendants in rebuttal or otherwise cannot
be considered for declining to assume jurisdiction. From averments of case, Court had
jurisdiction to proceed with suit for recovery of amount and objection to jurisdiction of
Court was without merit. PLJ 1997 Kar. 674 = 1997 MLD 1835.
Suit for recovery of money. Defendant being served in Jail. applied for leave to
appear and defend within 10 days of service effected. Petition filed before Addl ; Distt:
Judge as Distt: Judge was on leave. Distt : Judge dismissed application as not filed within
specified time and before proper forum. Distt : Judge forgot that under his own orders
passed with reference to section 21 and 22 of Civil Courts Ordinance, 1962. he had
already delegated his powers to Additional District Judge who was fully authorised and
empowered to receive all such documetns in his behalf. Powers exercised by such
delegatee are not confined to any normal or summary powers exercised by District Judge
but are related to powers exercised by District Judge simpliciter. All powers exercised
Contents
under Order 37 CPC are powers of District Judge and do fall under C.P.C. and thus can
with all convenience be delegated with reference to section 21 and 22 of Civil Courts
Ordinance. Orders of District Judge are patently wrong and he has failed to exercise
jurisdiction vested in him. PLJ 1996 Pesh. 305 = 1996 MLD 2167
Banking Companies (Recovery of Loans) Ordinance, Appellant had claimed
damages on account of challenged breach of agreement on part of respondents (Bank) in
not advancing a loan. which amount appellant intended to recover through summary
procedure. High Court, havingjurisdiction as a Special Court under S. 6(1) of Banking
Companies (Recovery of Loans) Ordinance, 1979 in respect of a claim filed by Banking
Company against a borrower or by a borrower against a Banking Company, in respect of
or arising out of a loan. could not have passed a decree straightaway as the claim for
damages could not be equated with a suit founded on a negotiable instrument.
Plaintiffs/applicants claim for damages could be said to have arisen out of a loan.
Supreme Court, further, observed that if it set aside the order of the High Court acting as
Special Court on the ground urged in petition for leave to appeal that would - perpetuate
injustice as the appellants might get a decree for huge amount of damages without
proving the quantum of damages allegedly suffered by them on account of failure on
part of respondents to advance a loan. PLJ 2000 SC 803.
Plaintiff neither was a borrower or a customer nor he had obtained loan
or finance from Bank. Plaint showed that certain sum of money was placed with
Defendant-Bank by plaintiff as an investment for which Defendant-Bank issued cheques
drawn on Bank's account which were endorsed good for payment, but subsequently
were dishonoured. Plaintiff, in circumstances, could not be said to have borrowed money
from defendant-Bank. Mere issuance of cheques drawn on account-holder's account and
endorsed good for payment by Bank. would not amount to a transaction as contemplated
by Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997.
Suit filed by plaintiff, in circumstances, would proceed as an ordinary suit before original
Civil side of High Court based on sunmary chapter of Civil Procedure Code as negotiable
instrument as provided under O.37. R. 2, C.P.C. PLJ 1999 Kar. 703 = 1999 CLC 1294.
2. Institution of summary suits upon bills of exchange, etc. (1) All

suits upon bills of exchange, hundies or promissory notes, may, in case the
plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the
form prescribed; but the summons shall be in Form No. 4 in Appendix B or in
such other form as may be from time to time prescribed.
(2) In any case in which the plaint and summons are in such forms,
respectively the defendant shall no appear or defend the suit unless he obtains
leave from a Judge as hereinafter provided so to appear and defend, and, in
default of his obtaining such leave or of his appearance and defence in pursuance
thereof, the allegations in the plaint shall be deemed to be admitted, and the
plaintiff shall be entitled to a decree:-
273
(a) for the principal sum due on the instrument and for interest
calculated in accordance with the provisions of section 79 or
section 80, as the case may be, of the Negotiable Instruments Act,
1881, up to the date of the institution of the suit or for the sum
mentioned in the summons, whichever is less, and for interest up
to the date of the decree at the same rate or at such other rate as
the Court thinks fit; and
(b) for such subsequent interest, if any, as the Court may order under
section 34 of this Code ; and
(c) for such sum for costs as may be prescribed: Provided that, if the
plaintiff claims more that such fixed sum for costs the costs shall
be ascertained in the ordinary Way.
(3) A decree passed under this rule may be executed forthwith.
Court Decisions
Principles for grant of leave to defend suit .The following are the principles for
grant of leave to defend the suit:-
(a) If the defendant satisfies the Court that he has a good defence to the
claim on its merits the plaintiff is not entitled to leave to sign judgment
and the defendant is entitled to unconditional leave to defend.
(b) If the defendant raises a triable issue indicating that he has a fair or bona
fide or reasonable defence although not a positively good defence the
plaintiff is not entitled to sign judgment and the defendant is entitled to
unconditional leave to defend.
(c) If the defendant discloses such facts as may be deemed sufficient to
entitle him to defend. That is to say, although the affidavit does not
positively and immediately make it clear that he had a defence, yet,
shows such a state of facts as leads to the inference that at the trial of the
action he may be able to establish a defence to the plaintiff's claim the
plaintiff is not entitled to judgment and the defendant is entitled to leave
to defend but in such a case the Court may in its discretion impose
conditions as to the time or mode of trial but not as to payment into
Court or furnishing security.
(d) If the defendant has no defence or the defence set up is illusory or sham
or practically moonshine then ordinarily the plaintiff is entitled to leave
to sign judgment and the defendant is not entitled to leave to defend.
(e) If the defendant has no defence or the defence is illusory or sham or
practically moonshine then, although ordinarily the plaintiff is entitled to
leave to sign judgment, the Court may protect the plaintiff by only
allowing the defence to proceed if the amount claimed is paid into Court
or otherwise secured and give leave to the defendant on such condition
Contents
and thereby show mercy to the defendant by enabling him to try to

prove a defence. 2001 CLC 653
Leave to defend the suit, grant of—Suit for recovery of money on the basis of
negotiable instruments—Dispute was with regard to dishonoured cheques—Issuance of
the cheques and the same being without consideration required evidence to be led—For
the purpose of determining as to whether the disputed cheque was issued without
consideration leave to appear and defend the suit was granted—Such leave was granted
subject to the defendant, furnishing security, of the amount mentioned on the face of the
cheques—Application for leave to defend the suit was disposed of accordingly, 2001 CLC
1156
Court, while granting leave to defend suit, was required to examine all the
questions, which could arise by way of defence as deducible on the plea raised by the
defendant. 2001 CLC 653
Issuance of the cheques and the same being without consideration required
evidence to be led—For the purpose of determining as to whether the disputed cheque
was issued without consideration leave to appear and defend the suit was granted—Such
leave was granted subject to the defendant, furnishing security, of the amount mentioned
on the face of the cheques—Application for leave to defend the suit was disposed of
accordingly, 2001 CLC 1156
Summary procedure had been provided in cases where leave to defend was to be
granted on very cogent reason which should be sufficient to satisfy the Court to the effect
that applicant had made out a case for obtaining leave to defend. 2001 CLC 645
Where Defendant failed to perform the condition: -- If leave to defend the suit
was granted conditionally and defendant failed to perform the condition, that would
tantamount as if no leave to defend the suit had been given, 2001 MLD 711
PLD 1987 Lah.. 101; 1990 CLC 1119; PLD 1996 SC 749; PLD 1990 SC 497 and PLD
1995 SC 362 ref.
Defendant was granted leave to defend suit and to file written statement subject
to his furnishing security within ten days, but the defendant had failed to furnish the
security within stipulated period—Order granting leave to defend suit, was rightly
recalled by the Court and such order not suffering from any error of law, could not be
interfered with. 2001 MLD 1630
Condition attached to leave to defend is fully justified and legally sound.
Discretion has been properly exercised. PLJ 1989 Lah. 435.
Unconditional leave to defend suit—Defendant had raised plausible defence by

asserting question of fact and law-to be tried or investigated into, more particularly
whether any business transaction existed between the plaintiff and the defendant and
whether cheques were without consideration—Defendant having raised the triable issues
indicating that he had fair and reasonable defence, though not a positively good defence,
was entitled to unconditional leave to defend suit. 2001 CLC 653
275
Claiming of interest under S.79 of the Negotiable Instruments Act, Plaintiffs

had prayed for a decree in the sum of Rs.5,22,000 towards the amount of four
dishonoured cheques and also a sum of Rs.15,660 towards interest at the rate of 6% per
annum under S.79 of the Negotiable Instruments Act, 1881— Where neither the amount
of four dishonoured cheques issued by the defendants was in dispute nor the fact that
uptil the institution of the suit no amount had been paid, the plaintiffs in view of S.79 of
the Negotiable Instruments Act, 1881 were entitled to claim 6% per annum interest—Suit
of the plaintiffs was decreed in the sum of Rs.5.37,660 with cost and also 12% per annum
mark- up from the date of institution of suit till realization of decretal amount from the
defendants accordingly. 2002 CLD 107
Summary suit for recovery of money—Plea raised by the defendants was that
after return of cheques by the Bank with refusal memo., the plaintiff should have again
presented the cheques for encashment or should have immediately served notice on the
defendant instead of serving such notice after more than eight months—Validity-When
intention of defendants for non-payment of the sum mentioned in the cheques was
visible to the plaintiffs from their conduct, the plaintiffs were under no legal obligation to
present the dishonoured cheques to the drawee Bank again or to have immediately
served notice to the defendants. 2002 CLD 107
Mark Up :-- Plaintiffs had prayed for a decree in the sum of Rs.5,22,000 towards
the amount of four dishonoured cheques and also a sum of Rs.15,660 towards interest at
the rate of 6% per annum under S.79 of the Negotiable Instruments Act, 1881— Validity
—Where neither the amount of four dishonoured cheques issued by the defendants was
in dispute nor the fact that uptil the institution of the suit no amount had been paid, the
plaintiffs in view of S.79 of the Negotiable Instruments Act, 1881 were entitled to claim
6% per annum interest—Suit of the plaintiffs was decreed in the sum of Rs.5.37,660 with
cost and also 12% per annum mark-up from the date of institution of suit till realization
of decretal amount from the defendants accordingly, 2002 PLD 107
3. Defendant showing defence on merits to have leave to appear.

(1) The Court shall, upon application by the defendant, give leave to appear and
to defend the suit, upon affidavits which disclose such facts as would make it
incumbent on the holder to prove consideration, or such other facts as the Court
may deem sufficient to support the application.
(2) Leave to defend may be given unconditionally or subject to such
terms as to payment into Court, giving security, framing and recording issues or
otherwise as the Court thinks fit.
(3) The provisions of Section 5 of the Limitation Act, 1908 (IX of 1908)
shall apply to applications under sub-rule (1)].
Contents
Court Decisions
Leave to appear and Defend :-- Court, while granting leave to defend suit, was
required to examine all the questions, which could arise by way of defence as deducible
on the plea raised by the defendant. 2001 CLC 653
Issuance of the cheques and the same being without consideration required
evidence to be led—For the purpose of determining as to whether the disputed cheque
was issued without consideration leave to appear and defend the suit was granted—Such
leave was granted subject to the defendant, furnishing security, of the amount mentioned
on the face of the cheques—Application for leave to defend the suit was disposed of
accordingly, 2001 CLC 1156
Impugned order granting leave conditionally to agents to defend suit, is legal
and proper and no exception can be taken to it. PLJ 1992 SC 261.
Where there were plausible grounds and disputed questions of fact
which cannot be overlooked. Unconditional leave to appear and defend suits was
granted. PLJ 1991 Kar. 351.
There being no application under Section 5 of Limitation Act, question of
condoning delay does not arise. PLJ 1990 Kar. 332.
Defendant in his application for leave to defend suit had made vague
and general averments, therefore. District Judge had rightly found that he had failed to
make out case for leave to defend suit. Grant of leave to defend suit was not a matter of
course or right. To be oblige for such benefit defendant was liable to show such facts
which would warrant proving of consideration by plaintiff" to disclose plausible defence
which might give rise to triable issues. Leave would be refused if no defence worth the
name was made out on facts or in law in application for leave to defend suit. Leave
would also be refused where defence disclosed on affidavits was sham or colourable or
imaginary and was not to give rise to triable issues. Defendant had neither been able to
put forward any defence nor he had been able to raise any triable issues in his
application for grant of leave to defend suit. District Judge had thus, rightly rejected
defendants' application to defend suit. PLJ 2000 Pesh. 33 = 2000 CLC 199.
Plaintiff although was in possession of documentary evidence in shape
of cheques which were dishonoured by concerned Banks yet defendant had specifically
denied his signature on the same and had raised plea that his signatures had been
manufactured by plaintiff. Defendant had also raised plea that amount in question was
paid in cash and he had produced receipts for payment of amount. Defendant had raised
legal as well as factual pleas which could only be decided by allowing parties to lead
evidence. Defendant had, thus, made out prima facie case for leave to defend suit. PLJ
1997 Kar. 891 = 1997 CLC 766.
Law requires that .each day of delay should be explained but no such
explanation was offered in application for seeking permission to defend suit'. Nothing
was stated in petition for condonation of delay as to how such delay occurred except that
Civil Courts were closed in those days being month of August. Courts remain open for
urgent matters, however, apart from that Courts having opened for regular work with
277
effect from 1.9.1998. Petition for leave to defend was filed on 15.9-1998 without showing
any reason as to what prevented defendant to move such application belated by.. Trial
Court was. thus. justified to hold that there was no good ground" for allowing leave to
defend suit. Trial Court having acted in judicial manner and without exercising
jurisdiction vested in it arbitrarily, impugned order did not suffer from any legal or
factual defect so as to call for interference in revisional jurisdiction. PLJ 1999 Lah. 471 =
1999 MLD 2182.
Leave to defend suit was granted to petitioner provided he furnished
bank guarantee equal to amount which was to be recovered through suit. Validity.
Defendnat had no right to defend suit without grant of leave by Court. Such relief being
discretionary, same has to be exercised judicially on basis of affidavits which must
sufficiently support application. Grant of leave could be unconditional or subject to term
like security etc. which Court deemed fit. Test of allowing defendant leave to defend suit;
would not be on basis that defendant would ultimately succeed. Party concerned must
give his case arguable look and grounds raised by him should be in shape of plausible
defence so as to displace refutable presumption attached to documents on account of
which such more efficacious remedy was sought. Where Court finds that claim of
plaintiff was prima facie frivolous or untenable, or where triable issues were raised or
where that was question of limitation, leave has to be granted un-conditionally. Court
has to satisfy its conscience that there were plausible reasons for allowing leave to defend
conditionally or unconditionally. Perusal of affidavit showed that proper defence had not
been taken and same was not in accordance with O. 37 R. 3 C.P.C. and High Court Rules.
Requirement of furnishing of bank guarantee without reasons, imposed harshness to
order of leave to defend. High Court in its visitorial jurisdiction substituted words
"furnishing of reliable security for the amount involved" instead of words "furnishing of
bank guarantee". Case was sent back to Trial Court for proceeding further in the matter.
Defective affidavit having been filed by petitioner, he was directed to submit additional
affidavit in accordance with requirements of law before Court, failing which it would be
deemed that there was no affidavit and, therefore, no petition for leave to defend. PLJ
2000 Lah. 648 = 2000 CLC 913.
Question raised by defendant which S.C of Pakistan had considered to be of
sufficient importance so as to grant leave ..to consider same--Held, grant of leave by S.C
by itself was a valid rather binding consideration to hold that defence disclosed raised a
triable issue for purposes of grant of leave to defend a suit. P L D 1987 Lah. 290
Leave to defend suit conditionally. Petitioner allegedly gave cheque for giving
loan to respondent but cheque was dismissed and was not paid by bank as petitioner had
no money in his account. Petitioner neither filed any suit for cancellation of cheque nor
informed bank to stop payment. Obviously, he has set up very weak defence.
Presumption though rebuttable is that cheque in question is for consideration and onus is
on petitioner-defendant to prove lack of consideration. In such case imposition of
condition of Bank Guarantee cannot be said to be perverse or capricious. PLJ 1998 Lah.
481 = 1998 CLC 961.
Contents
Leave granted with condition to furnish bank guarantee. Petitioner having

denied issuance of cheques in favour of respondent, its independent 'provisions have
been made side by side in Constitution, one authorising President to enhance, from time
to time, pension payable to such class of Judges whose length of service is not less than
five years and other authorising him to determine rights and privileges in respect of
pension payable to every other Judge of High Court. Therefore, P.O. 2 of 1993 serves duel
purpose by determining rates of pension admissible to both. In absence of dear intention
being spelt out the Article 2(2) of P.O. No. 2 of 1993 is not to extend to such Judges who
have not put in less than five years of service, provisions of said Act cannot be
interpreted to disadvantage of petitioner. Rights and privileges admissible to petitioner
in respect of his pension are now governed under President's Order No. 2 of 1993. PLJ
1995 Kar. 208 = PLD 1995 Kar. 223.
Words "otherwise as court thinks fit" gives court a discretion to grant
leave to defend to its satisfaction, therefore, there is no legal imfirmity in order of learned
trial court for furnishing bank guarantee against subject matter of suit. PLJ 1997 Lahon-
425 = 1997 MLD 409.
Limitation—Limitation period for filing application to defend suit would start

running from the day when the copy of the plaint was supplied to the
defendant/applicant— Application filed within ten days of receipt of copy of plaint, was
within time. 2001 CLC 653.
PLD 1984 Kar. 252 and 1991 CLC 1261 ref.
Failure to issue summons to the defendant in Form 4, Appendex 'B', C.P.C.—
Effect—Limitation prescribed for to appear and defend the case did not start running
against such defendant, 2001 CLC 1065
4. Power to set aside decree. After decree the Court may, under
special circumstances, set aside the decree, and if necessary stay or set aside
execution, and may give leave to the defendant to appear to the summons and to
defend the suit, if it seems reasonable to the Court so to do, and on such terms as
the Court, thinks fit.
Court Decisions
Ex-parte decree. Contention that service was not effected on defendants and they
came to know about ex pate decree through private sources, is not tenable and is a
frivolous defence. Admittedly all three modes of service namely (1) by publication, (2) by
registered post and (3) by bailiff. were adopted and completed and defendant No. 1 was
regularly represented but other defendants intentionally and deliberately kept out with a
view to come at a later stage to obstruct grant of final decree. Service by all three modes
was duly effected and defendants have deliberately avoided to defend suit. PLJ 1995 Kar.
198 = NLR 1995 CLC 790 = PLD 1995 Kar 162.
279
Petition filed before Addl; Distt: Judge as Distt: Judge was on leave. Distt : Judge
dismissed application as not filed within specified time and before proper forum. Distt :
Judge forgot that under his own orders passed with reference to section 21 and 22 of
Civil Courts Ordinance, 1962. he had already delegated his powers to Additional District
Judge who was fully authorised and empowered to receive all such documetns in his
behalf. Powers exercised by such delegatee are not confined to any normal or summary
powers exercised by District Judge but are related to powers exercised by District Judge
simpliciter. All powers exercised under Order 37 CPC are powers of District Judge and
do fall under C.P.C. and thus can with all convenience be delegated with reference to
section 21 and 22 of Civil Courts Ordinance. Orders of District Judge are patently wrong
and he has failed to exercise jurisdiction vested in him. PLJ 1996 Pesh. 305 = 1996 MLD
2167.
5. Power to order bill, etc., to be deposited with officer of Court. In

any proceedings under the Order the Court may order the bill, hundi or note on
which the suit is founded to be forthwith deposited with an officer of the Court,
and may further order that all proceedings shall be stayed until the plaintiff gives
security for the costs thereof.
6. Recovery of cost of noting non-acceptance dishonoured bill or

note. The holder of every dishonoured bill of exchange or promissory note shall
have the same remedies for the recovery of the expenses incurred in nothing the
same for non-acceptance or non-payment, or otherwise, by reason of such
dishonour, as he has under this Order for the recovery of the amount of such bill
or note.
7. Procedure in suits. Save as provided by this Order, the procedure

in suits hereunder shall be the same as the procedure in suits instituted in the
ordinary manner.
Contents
ORDER_XXXVIII
ARREST AND ATTACHMENT BEFORE JUDGMENT
Arrest before Judgment
1. Where defendant may be called upon to furnish security for

appearance. Where at any stage of a suit, other than a suit of the nature referred
to in section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise:
(a) that the defendant, with intent to delay the plaintiff, or to avoid
any process of the Court or to obstruct or delay the execution of
any decree that may be passed against him:-
(i) has absconded or left the local limits of the jurisdiction of
the Court, or
(ii) is about to abscond or leave the local limits- of the
jurisdiction of the Court, or
(iii) has disposed of or removed from the local limits of the
jurisdiction of the Court his property or any part thereof,
or
(b) that the defendant is about to leave Pakistan under circumstances
affording reasonable probability that the plaintiff will or may
thereby by obstructed or delayed in the execution of any decree
that may be passed against the defendant in the suit, the Court
may issue a warrant to arrest the defendant and bring him before
the Court to show cause why he should not furnish security for
his appearance:
Provided that the defendant shall not be arrested if he pays to the officer
entrusted with the warrant any sum specified in the warrant as sufficient to
satisfy the plaintiffs claim, and such sum shall be held in deposit by the Court
until the suit is disposed of or until the further order of the Court.
2. Security. (1) Where the defendant fails to show such cause the
Court shall order him either to deposit in Court, money or other property
sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon while the suit is pending and until
satisfaction of any decree that may be passed against him in the suit, or make
281
such order as it thinks fit in regard to the sum which may have been paid by the
defendant under the proviso to the last proceeding rule.
(2) Every surety for the appearance of a defendant shall hind himself,
in default of such appearance, to pay any sum of money which the defendant
may be ordered to pay in the suit.
3. Procedure on application by surety to be discharged. (1) A surety

for the appearance of a defendant may at any time apply to the Court in which
he became such surety to be discharged from his obligation.
(2) On such application being made, the Court shall summon the
defendant to appear or, if it thinks fit, may issue a warrant for his arrest in the
first instance.
(3) On the appearance of the defendant in pursuance of the summons
or warrant, or on his voluntary surrender, the Court shall direct the surety to be
discharged from his obligation, and shall call upon the defendant to find fresh
security.
4. Procedure where defendant fails to furnish security or find

fresh security. Where the defendant fails to comply with any order under rule 2
or rule 3 the Court may commit him to [***] prison until the decision of the suit
or, where a decree is passed against the defendant until the decree has been
satisfied:
Provided that no person shall be detained in prison under this rule in any
case for a longer period than six months nor for a longer period than six weeks
when the amount or value of the subject-matter of the suit does not exceed fifty
rupees:
Provided also that no person shall be detained in prison under this rule
after he has complied with such order.
5. Where defendant may be called upon to furnish security for

production of property. (1) Where at any stage of a suit, the Court is satisfied by
affidavit or otherwise, that the defendant, with intent to obstruct or delay the
execution of any decree that may be passed against him: -
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the
local limits of the jurisdiction of the Court, the Court may direct the defendant
within a time to be fixed by it, either to furnish security, in such sum as may be
specified in the order to produce and place at the disposal of the Court, when
required, the said property or the value of the same, or such portion thereof as
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may be sufficient to satisfy the decree or to appear and show cause why he
should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the
property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment
of the whole or any portion of the property so specified.
Court Decisions
Attachment of property. Relief of attachment before judgment plaintiff is
required, prima facie, to show that defendant is intending to dispose of his properties
with intention to obstruct or delay execution of any decree that may be passed against
him, which plaintiff was not able to satisfactorily establish. Mere apprehension of a
plamtiff will not attract discretion of a court. PLJ 1998 Kar. 100 = 1998 MLD 171.
6. Attachment where cause not shown or security not furnished. (1)

Where the defendant fails to show cause why he should not furnish security, or
fails to furnish the security required, within the time fixed by the Court, the
Court may order that the property specified, or such portion thereof as appears
sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required
security, and the property specified or any portion of it has been attached, the
Court shall order the attachment to be withdrawn, or make such other order as it
thinks fit.
Court Decisions
It shall be valid to the extent of bills pending with C.D.A.. Outstanding amount
could be satisfied from amount of bills which stand attached by respondent. Rest of bills
pending with other departments are not liable to be attached. PLJ 1997 Lah. 1172.
7. Mode of making attachment. Save as otherwise expressly

provided, the attachment shall be made in the manner provided for the
attachment of property in execution of a decree.
8. Investigation of claim to property attached before judgment.

Where any claim is preferred to property attached before judgment, such claim
shall be investigated in the manner hereinafter provided for the investigation of
claims to property attached in execution of decree for the payment of money.
283
9. Removal of attachment when security furnished or suit

dismissed. Where an order is made for attachment before judgment, the Court
shall order the attachment to be withdrawn when the defendant furnishes the
security required, together with security for the costs of the attachment, or when
the suit is dismissed.
10. Attachment before judgment not to affect rights of strangers nor

bar decree-holder from applying for sale. Attachment before judgment shall not
affect the rights, existing prior to the attachment, of persons not parties to the
suit, nor bar any person holding a decree against the defendant from applying
for the sale of the property under attachment in execution of such decree.
11. Property attachment before judgment not to be reattached in

execution of decree. Where property is under attachment by virtue of the
provisions of this Order and a decree is subsequently passed in favour of the
plaintiff, it shall not be necessary upon an application for execution of such
decree to apply for a re-attachment of the property.
12. Agricultural produce not attachable before judgment. Nothing

in this Order shall be deemed to authorise the plaintiff to apply for the
attachment of any agricultural produce in the possession of an agriculturist, or to
empower the Court to order the attachment or production of such produce.
13. Small Cause Court not to attach immovable property. Nothing in
this Order shall be deemed to empower any Court of Small Causes to make an
order for the attachment of immovable property.
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ORDER_XXXIX
TEMPORARY INJUNCTION AND

INTERLOCUTORY ORDERS
Temporary Injunctions
1. Cases in which temporary injunction may be granted. Where in
any suit it is proved by affidavit or otherwise:-
(a) that any property in dispute in a suit is in danger of being wasted,
damaged or alienated by any part to the suit, or wrongfully sold
in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of
his property with a view to defraud his creditors, the Court may
by order grant a temporary injunction to restrain such act, or
make such other order for the purpose of staying grand
preventing the wasting, damaging, alienation, sale, removal or
deposition of the property as the Court thinks fit, until the
disposal of the suit or until further orders.
Court Decisions
Temporary injunction-- Suit for specific performance of agreement to sell
against agent and his principal-- Power of attorney executed by principal in favour of his
agent followed by memorandum of understanding provided that attorney would take
prior consent of principal regarding sale of shops with minimum price of Rs. 9 lacs each
shop- Plaintiff signed agreement with agent for purchase of 47 shops for consideration of
Rs. 42,300,000 and paid him Rs. 25,000,000 as part payment- principal repudiated such
sale agreement being in excess of power given to his agent and contrary to limitations
imposed on him- given to his gent and contrary to limitations imposed on him- Principal
gave proposal for grant of temporary injunction subject to deposit of balance sale
consideration-- Plaintiff instead of depositing same showed his willingness to furnish
security to extent of Rs. 3,60,000 per shop with condition that principal be directed to
deposit amount of part payment, receipt of which had been denied by principal-
Validity-- Plaintiff in spite of admission by agent had failed to make out prima facie case
for grant of injunction-- Court in such cases normally would order deposit of balance sale
price in court in order to see, whether factually plaintiff was ready and willing to
perform his part of sale agreement in respect of which specific performance was sought--
285
Such part payment had but been paid by plaintiff directly to the principal- Balance of
convenience did not lie in favour of plaintiff and principal would be put to
inconvenience, if they were restrained from exercising right and power in respect of their
property-- Plaintiff had failed to make out a case for injunction- High Court dismissed
application for temporary injunction in circumstances. PLD 2003 Kar. 16
Bona fides of plaintiff—Delay in approaching Court—Effect—In order to seek
injunction, a party has to be vigilant and should approach the court without any loss of
time to show its bona fides—Delay in such matters normally disentitles the party from
seeking relief of injunction. PLD 2003 Kar. 222
Temporary injunction, grant of—an equitable relief based upon well-known
principle of equity. PLD 2003 SC 344
Prima facie case not the only exclusive factor—Balance of convenience and
irreparable loss being equally important could not be ignored—Duty of Court to examine
balance of convenience, irreparable loss as well as behaviour and conduct of the parties.
PLD 2003 SC 344
Burden on plaintiff seeking temporary injunction not as onerous as the burden
would be for succeeding in obtaining decree in suit- Grant and refusal of temporary
injunction- Principles for guidance of court stated. PLD 2003 Kar. 16
Temporary injunction, grant or refusal of—principles. PLD 2003 Kar. 284
Prerequisites for grant or refusal of temporary injunction—Plaintiff has to
prove prima facie good legal case, balance of convenience in his favour and that he will
suffer irreparable loss if the injunction is refused, PLD 2001 Pesh. 126
Interim injunction. A discretionary relief. Grant of interim injunction was a
discretionary relief, but in passing such an order Court was not expected to go by its
whims and generally accepted principles, governing exercise of such discretion had to be
abided by, for, if it was not done, miscarriage of justice would be occasioned—Trial
Court on having weighed and considered all attendant facts and circumstances of the
case, had to pass, rational, judicious and equitable order—Total relief could not be
granted in the garb of interim relief, 2001 CLC 1695
1968 SCMR 88 ref.
Plaintiff failed to make out a strong, prima facie, case for attachment of amount
of commission withheld under an interim attachment order passed by Court nearly 9
years back. Plaintiff not only failed to make out a good, prima facie, case for grant of
interim injunction, but balance of convenience and essential ingredients relating to
irreparable injury was also not in his favour. Interim order issued in favour of
plaintiff/petitioner was recalled in circumstances. PLJ 1999 Kar. 573 = 1999 CLC 259 =
NLR 1999 Civil 123.
At stage of grant of interim relief plaintiff need not establish his title to
suit property as it is not necessary for plaintiff to show that he must succeed in this suit.
Plaintiff is only to show that he has a good arguable case. In other words it would be
sufficient for plaintiff to show that he has a fair question to raise as to existence of his
right and that till question is ripe for trial, a case is made out or preservation of property
in status quo. Court is not expected to examine merits of case closely. Alt that Court has
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to see is that on face of it person applying for an injunction has a case which needs
consideration and comparative balance of convenience and inconvenience has also to be
looked into- In exercising jurisdiction Court does not profess to determine legal rights of
parties in respect of property, but acts on assumption that party seeking its interference
has legal right and needs aid of Court for protection of legal right until legal right is
finally ascertained. Thus Court has only to look on nature and difficulty of points which
may arise in case and not on merits of case. It is not necessary that Court should find a
case which entitles plaintiff to succeed at all events. Meaning of balance of convenience in
favour of plaintiff is that if an injunction is not granted and suit is ultimately decided in
favour of plaintiff convenience caused to plaintiff would be greater than that which
would be caused to defendant if an injunction is granted but suit is ultimately dismissed.
Although it called balance of inconvenience, it is really balance of inconvenience and it is
for plaintiff to show that inconvenience to be caused to them would be greater than that
which may be caused to defendant. PLJ 1998 SC (AJK) 218 = 1998 MLD 2045.
Establishing prima facie case and irreparable loss-Cancellation of licence of

petrol station—Violation of principle of natural justice and fundamental rights—Plaintiff
had been running petrol station for the past seven years—Authorities without giving any
prior notice to the plaintiff cancelled his licence, without hearing him—Action of
Authorities was against the principles of natural justice—Balance of convenience was in
favour of the plaintiff as he was running the business of petrol station—Free and lawful
trade was the Constitutional right of the plaintiff which could not be snatched from him
without hearing him or without any justified cause—Plaintiff would suffer irreparable
loss if his established business was closed before the verdict was given in Civil suit by the
competent Court, where the matter was pending—Plaintiff having shown prima facie
case in his favour, interim injunction was granted to him. 2001 CLC 1956
Interim injunction initially granted in favour of plaintiff (petitioner was not
confirmed by Trial Court as also by Appellate Court. Courts below have given
presumption of truth to impugned mutation which is not in accordance with law. Both
Courts below have erred in law to exercise their discretion in accordance with law laid
down by High Court, Respondent's counsel raised impliedly preliminary objection that
revision had become infructuous in view 'of suit filed by some of petitioners during
pendency of present suit. Respondents, however, would be well within their right to file
application before trial Court that suit had become infructuous. Revision against non-
confirmation of temporary injunction was accepted. Parties, in interest of justice and fair
play were directed to maintain status quo qua- possession and respondents were
restrained to alienate property till specified date. Trial Court was directed to decide the
case till specified date. PLJ 2000 Lah. 1079.
Interim injunction, grant of—Prerequisites for grant or refusal of temporary

injunction—Plaintiff has to prove prima facie good legal case, balance of convenience in
his favour and that he will suffer irreparable loss if the injunction is refused, PLD 2001
Pesh. 126
287
Deceased owner of the suit property had one son and four daughters—Son
excluded the daughters from the inheritance on the basis of gift deeds made in his favour
—One of the daughters filed a suit for possession through partition and interim
injunction was granted by High Court on the statement of the son made in favour of the
daughter whereby the son had offered himself not to deal with or sell that part of the
property which could fall to the share of the daughter in case the alleged gift deeds were
found invalid—High Court had restrained the son from alienating the property to the
extent of the share of the daughter—Later on two other daughters also instituted the suit
and filed application for interim injunction—Courts below refused injunction to the
plaintiffs— Validity—Where the Trial Court and the High Court had in the first round of
litigation commenced by the other daughter came to the conclusion that the safeguard
was required to be provided to one daughter of the deceased owner then denial of the
same protection to the other daughters of the same father was not understandable and
such denial was unjust—Technicalities of law, if any, involved in the matter, could not be
permitted to lead to unfair and unjust conclusions—Son in the present case, had taken a
different stance vis-a-vis the other daughters of the same deceased owner—S.Cconverted
the petition into appeal and directed that the protection provided earlier to the daughter
to the extent of her Islamic share in the properties left behind by the deceased owner be
allowed to the plaintiffs also—Interim injunction was granted. 2002 SCMR 1345
Contention of the defendants was that as the plaintiffs had not sought
declaration about their ownership and title in the suit whereas the other relief, in the
form of injunction, possession and mesne profits being dependent upon ownership of
plaintiffs, same could not be granted without a declaration about their ownership—
Validity—Where plaintiffs had not sought declaration of their ownership in the suit, a
consequential relief of injunction, permanent or interim, could not be granted to them—
Due to the material omission in the prayer clause in the suit, the plaintiff, prima facie,
had no case for grant of an interim injunction in their favour—High Court set aside the
interim injunction granted in favour of the plaintiff. 2002 CLC 571
Condition imposed in Bank guarantee with regard to encashment—Bank
guarantee executed in favour of the defendant contained a built in condition to the effect
that its encashment would depend upon violation of conditions of the tender—Plaintiff
who had tendered the guarantee assailed the act of encashment of the guarantee in Civil
suit—Both the Courts below declined to grant interim injunction against encashment of
Bank guarantee—Where violation/breach could not be determined without conducting
inquiry, departure could be made from the rule mentioned in S.126 of the Contract Act,
1872—Till final decision of the suit filed by the defendant the Bank guarantee could not
be encashed—Leave to appeal was granted by S.C in circumstances. 2002 CLD 1012
Temporary injunction against Government in favour of Civil servant issued with
condition of furnishing security for refunding emoluments received under injunction if
suit decided against Civil servants. Held, balance of convenience is merged in condition
of irreparable loss. and order of Government proceeded against is prima facie ultra vires.
Refusal would be oppressive to Civil servants and not to Government. PLJ 1978 Lah.
513.
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Applicant in whose favour order confirming interim injunction was

passed had not averred that after said order certain developments had taken place
whereby said order could not be undone. In case order confirming interim injunction was
recalled, no retracting steps would have to be taken. Interest of justice demanded that
application filed under O.39. Rr, 1 & 2. C.P.C. for grant of interim injunction be decided
on merits after hearing both the parties. Order whereby interim injunction was confirmed
was recalled, with direction that order granting interim injunction would continue till
final disposal of application filed for grant of interim injunction . PLJ 2000 Kar. 177 PLD
2000 Kar. 27.
Interim injunction. Pre-requisifces. Plaintiff was required to prove three

essential ingredients i.e, prima facie case; balance of convenience and irreparable loss to
plaintiff" for grant of injunction. Impugned order whereby injunction had been granted
lacked said essential ingredients of injunction in their true spirit and legal sense
inasmuch as plaintiff had prima facie failed to prove that there existed valid, proper and
legal contract between them, which could be enforced through Court of law. Balance of
convenience and irreparable loss to plaintiff in case of non-grant of injunction had not
been proved by plaintiff nor the same were considered by Trail Court at the time of grant
of injunction. Order of grant of injunction being not sustainable, was recalled in
circumstances. PLJ 1998 Kar. 867 = 1998 CLC 760,
Entitlement. Contract between parties was of category of contracts which could
not be specifically enforced and fell within the mischief of Cl. (b) of S. 21 of the Specific
Relief Act, 1877 and bar of injunction as provided in S. 56(f) of the Act was attracted.
Plaintiffs could not make out prima facie case for grant of temporary injunction pending
decision of suit, in so far as third party interest had been created in property in question
as per plaintiffs' own admission and their failure to implead such persons as party in
their suit. Balance of convenience, thus,, would not be in favour, of plaintiffs. Plaintiffs
having themselves estimated damages/losses suffered by them on account of breach of
agreement in the sum of specified amount, no case for temporary injunction was made
out. Where relief asked for could be measured in terms of money and plaintiffs
themselves having claimed specified amount as damages in their suit, grant of
temporary injunction respecting land in question was not warranted, and, hence, refused.
PLJ 1998 Kar. 822 = 1998 CLC 441.
Mere entries in Khasra Girdawari which even did not lend any support plaintiffs
case, would be hardly sufficient to make out goodpnma facie, case. Other essential
ingredients, namely balance of convenience, which was more or less balance of
inconvenience and irreparable loss, were "sine qua non" for grant/refusal of temporary
injunction, were neither existing nor were taken so by Courts below. Application for
grant of temporary injunction was, thus, rightly turned down. PLJ 1997 Lah. 1520 = 1997
CLC 1546.
Contention that defendants and its agents, servants, employees officers, and any
person acting through for .under it be restrained, from using, advertising, marketing,
offering or promotion for sale, selling or otherwise disposing of any of its products,
289
bearing/ using market/name/word "Danedar" in any manner whatsoever, and from

supplying any such products or other material, whatsoever, bearing or using said
word/name/mark "Danedar" in any manner whatsoever. High Court is of the
considered view that plaintiffs have not been able to make out a prima facie case in their
favour nor they have been able to show any irreparable loss to be suffered by them.
balance-of convenience is also not in their favour. PLJ 1997 Kar. 25 = 1997 MLD 1277.
Case of plaintiff is that defendant No. 1 has obtained power of attorney on basis
of fraud, misrepresentation and coercion, he may be restrained from acting as attorney '
of plaintiff, from alienating, setting or transferring flat at sea Cliff Apartments and from
selling house at Gulshan Iqbal. General power of attorney was executed by plaintiff in
favour of defendant No. 1 in respect of house at Gulshan Iqbal, which admittedly stands
disposed of by way of sale to defendant No. 2. No where plaintiff has said in her plaint
that at any subsequent stage this power of attorney was revoked or cancelled by her.
Since this power of attorney has been acted upon, there would be no use of granting
mterim injunction against defendant No. 1 & 2 upto this extent-Interim relief as prayed
has been infructuous. However, defendant No. 1 has admitted that amount was received
by him as sale consideration after disposal of bungalow at Gulshan Iqbal of which
plaintiff was recorded owner. No where defendant No. 1 has stated that he has either
accounted for or handed over sale consideration of said bungalow to plaintiff. Plaintiff
has established a prima facie case to extent that she was entitled fpr return/refund of this
amount. Other immovable property which was apparently purchased from sale proceeds
of bungalow of Gulshan Iqbal is likely to be alienated, therefore, defendant No. 1 is
restrained from disposing of in any manner or creating any third party interest,
incumberence or lien on that at sea Cliff Apartment till disposal of suit. Defendant No. 1
directed to submit accounts for amount which he has received as sale consideration of
Gulshan Iqbal house. PLJ 1998 Kar. 100 = 1998MLD 171.
Breach of contract—Defendant suspended supply of raw material to the plaintiff

before the institution of the suit—Trial Court granted the injunction whereby the
defendant was restrained from discontinuing the supply of the raw material—Validity—
Where the supply had already been suspended by the defendant, the order passed by the
Trial Court was not justified to direct the sale of goods to the plaintiff—Plaintiff failed to
make out a prima facie case and to show that the principles of irreparable loss and
balance of convenience was in their favour—Order of temporary injunction granted by
the Trial Court was set aside and the application filed by the plaintiff was dismissed.
2002 CLD 77
Appeal to Supreme Court. High Court in revision vacated stay order passed by
District Judge in favour of appellants (plaintiffs) and specifically laid down that
respondents would raise construction over disputed land at their own risk and cost.
Plaint did not reveal that respondents had encroached over disputed land. All necessary
ingredients for grant of injunction i.e. (i) prima facie case (ii) balance of convenience and
(iii) .injury likely to be caused to defendants if stay order was issued were in favour of
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respondents and order of High Court vacating stay order did not suffer from any
infirmity. PLJ 1999 SC (AJK) 372 = 1999 CLC 964.
Contract of international character--Petitioner's prayer for issuance of injunction

restraining defendants (banks) from making payment of any amount against goods/L.C.
to defendant (exporter) was not granted by Courts below—Letters of credit irrevocable in
nature—Any restraint on contracts of international character upon encashment of
negotiable instrument would create serious complications, hardship and anomalies in
international trade and shatter confidence of traders in International banking system—
Act of fraud, mischief or injustice in relation to documents of shipment evidencing
shipment of goods to be in knowledge of bank, however, is the only exception—Letter of
credit involve, absolute unconditional obligation on bank irrespective of any disputes
between parties--Persual of documents, would indicate that petitioner did accept
delivery of goods without objecting quality of goods and without inspection at the time
of loading of goods—In absence of fraud, forgery, irretrievable injure injustice or
attaining wrongful advantage from contract with regard to establishment of letter of
credit, no restraint order can be passed. PLJ 2002 Lah.. 108
2000 CLC 1436; 1990 MLD 909; 1989 CLC 1194; 1999 CLC 259 and 1995 PSC 1276 ref.
Suit for declaration. Grant of temporary injunction to effect that tenant in

possession may not be dispossessed otherwise than due process of law. Order of
temporary injunction upheld in appeal, prohibitory injunction was issued, 'whereby,
petitioners/defendants were restrained to take law into there own hands by evicting the
respondent/plaintiff per force from land in question, but were permitted to avail any
legal remedy in appropriate forum. PLJ 1999 Lah. 1060 = 1999 CLC 1415.
Election Matters :-- Election Petition .assailing validity, genuineness and

propriety of election process under adjudication before Election Commission. Grant of
interim relief restraining successful candidate from functioning his duties as M.P-A. till
final adjudication of Election Petition. Prayer for- It would not he in interest of justice to
grant interim relief, for same, would not only cause great inconvenience and irreparable
loss to respondent, but tantamount to granting relief prayed in main petition itself before
conclusion of regular trial. Moreover, allegations how-so-ever, are allegations simplicitor
and cannot be treated as gospel truth at very inception. No valid ground exists to put
rope around neck of Respondent in offing. Imposition of any embargo does not look
justified. PLJ 1998 Tr.C. 68 = 1998 CLC2047.
Affidavits :-- Technicalities could not be allowed to defeat ends 'of justice,
particularly at interim stage. Application for interim injunction must be decided mainly
on basis of affidavits submitted by parties. PLJ 1997 Kar. 908 = 1997 CLC 997.
Temporary injunction. Where agreement between parties was a licence

agreement and licences had expired, plaintiffs had no right to remain in premises and
291
defendant would be justified in taking action against plaintiffs for obtaining possession
of premises in accordance with law. Plaintiffs were not entitled to relief of injunction. PLJ
1999 Kar. 337 = PLD 1999 Kar. 181.
Interim injunction for indefinite duration. Without notice to opposite party.

Rule 3 of Order 39 requires that court shall in all cases, before granting an injunction
direct notice of application for same to be given to opposite party. Impugned order does
not show any extreme urgency nor it was spelt out therefrom whereby legal requirement
of notice to opposite side necessarily led to be dispensed with. No justification was
indicated by learned Civil Judge that delay in granting injunction would have defeated
object. Interim injunction was not even for any fixed period but was dearly directed to
ensure for indefinite duration as word "meantime" would connote. Learned Civil Judge
acted in disregard of provisions of rule 2-A or Order 39 whereunder an interim
injunction should not ordinarily exceed fifteen days if passed in absence of defendant.
PLJ 1998 Lah. 92 = 1998 CLC 61.
Appliction for grant of interim injunction. Plot in question, having changed

many hands, in absence of grant of interim injunction, same was likely to change hands
again and third parties interest would be created with likelihood of multiplicity of
litigation and it would be impossible to retrieve original position of plot if plaintiff
ultimately succeeded Interim injunction granted earlier was confirmed in circumstances.
PLJ 2000 Kar. 34 = 2000 MLD 895.
Joint property. Plaintiffs application for ad-interim relief against defendants was
dismissed by two Courts below. High Court however, granted plaintiffs such
application. Plaitiffs did have prima facie case, revealing, inter alia, joint and possibly un-
partitioned property, of which defendants wanted to lay hands on, allegedly, the most
valuable part and once undisturbed constructions, thereon were allowed to" be raised
and/or third party interest intervened, such facts in themselves, would lead to
multifariousness of proceedings even if defendants undertaking, as regards imminent
construction was accepted. Grant of ad-interim relief being discretionary matter,
discretion vesting in Courts has to be exercised judiciously and equitably, ensuring all
the time that the twain of law and justice were adequately applied and administered.
High Court had correctly exercised its revisional powers under S- 115 C.P.C. and duty
fashioned the discretion vesting in Courts below, which was illegally exercised. PLJ 2000
SC 534 = 2000 SCMR 780.
2. Injunction to restrain repetition or continuance of breach. (1) In

any suit for restraining the defendant from committing a breach of contract or
other injury of any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit, and either before
or after judgment, apply to the Court for a temporary injunction to restrain the
Contents
defendant from committing the breach of contract or injury complained of, or

any breach of contract or injury of a like kind arising out of the same contract or
relation to the same property or right.
(2) The Court may by order grant such injunction, on such terms, as
to the duration of the injunction, keeping an account, given security or otherwise,
as the Court thinks fit.
(3) In case of disobedience, or of breach of any such terms, the Court
granting an injunction may order the property of the person guilty of such
disobedience or breach to be attached, an may also order such person to be
detained in [*****] prison for a term not exceeding six months, unless in the
meantime the Court directs his release.
(4) No attachment under this rule shall remain in force for more than
one year, at the end of which time, if the disobedience or breach continues,
property attached may be sold, and out of the proceeds the Court may award
such compensation as it thinks fit, and shall pay balance, if any, to the party
entitled thereto.
Court Decisions
Powers of a Civil Court. extended to initiate appropriate action for disobedience
of order of Court and whenever necessary, inherent powers under S- 151, C.P-C. could be
exercised for advancement of ends of justice or to prevent abuse of process of Court. PLJ
1999 Kar. 263 = 1998 CLC 1872.
Breach of injunction order. Application for such breach filed against private
persons who were not impleaded as party to suit/appeal was also against officials, who
had completely denied violation or breach of injunction order; Official's stand was that
they had done complained of acts before issuance of interim order and that they had
acted in good faith in discharge of duty. No action either against private persons or
against officials was called for. PLJ 1998 Kar. 822 = 1998 CLC 441.
Punishment for breach of terms of injunction. Apparently impugned

publications on face of it and without determination of controversy cannot be regarded
as culpable and violating restriction imposed by injunction order. Extracts complained of
do not seem to adverselya effect glory of Islam or integrity, security or defence of
Pakistan. Article 19 Constitution of Pakistan guarantees freedom of Press which means
complete freedom to write and publish without censorship or restriction which may be
absolutely necessary for preservation of just and Islamic Society. A few restrictions on
freedom of Press in tight of conditions prevailing in a counry considered absolutely
essential may be jusified by circumstances. Factual controversies cannot be decided
without adequate and unimpeachable evidence. Neither any evidence was adduced nor a
293
charge framed against defendants in order to render them liable to punishment on a

criminal nature. PLJ 1997 Kar. 425 = 1997 CLC 918.
Commitment of defendant that plaintiff would not be dispossessed nor
house in question be dismantled illegally. Plaintiff, suit was dismissed on such
commitment- Subsequently, plaintiff moved application under O.39.R. 2(3) C.P-C- that
defendant, in breach of their commitment had dismantled wall of his house. Defendants
on appearance in Court made offer to the effect that if plaintiff states on oath that they
had dismanted wall of plaintiff and violated commitment they be punished. Plaintiff
stated on oath that defendants had dismantled wall of his house, on which defendants
were convicted. Defendants, appeal was. however, accepted, their conviction was set
aside and case remanded for decision afresh in accordance with law. Defendants could
not wriggle out of their own commitment made in Court. Case under O.39. R. 2(3) C-
P.C- was not made out. Case was. however, made out under S. 3/4 Contempt of Court
Act 1976. Undertaking given to " Court by a party or his counsel has exactly the same
force as an order injunction granted by Court. Cumulative effect of S. 228 PPC and S. 5(4)
of Contempt of Court Act 1976, would indicate that subordinate Courts have jurisdiction
to convict any person for committing contempt of Court only in circumstances
mentioned in S. 228 P-P.C.. Sub-ordinate Courts could, thus, punish for contempt of
Court only where contempt was committed in the face of Court or its orders were
disobeyed or disrespected. Such aspect of case was not adverted to by Courts below,
therefore. Trial Court was directed to make reference to High Court. PLJ 2000 Lah. 70 =
2000 CLC 387.
Suit for specific performance of agreement to sell against agent and his
principal-- Power of attorney executed by principal in favour of his agent followed by
memorandum of understanding provided that attorney would take prior consent of
principal regarding sale of shops with minimum price of Rs. 9 lacs each shop- Plaintiff
signed agreement with agent for purchase of 47 shops for consideration of Rs. 42,300,000
and paid him Rs. 25,000,000 as part payment- principal repudiated such sale agreement
being in excess of power given to his agent and contrary to limitations imposed on him-
given to his gent and contrary to limitations imposed on him- Principal gave proposal for
grant of temporary injunction subject to deposit of balance sale consideration-- Plaintiff
instead of depositing same showed his willingness to furnish security to extent of Rs.
3,60,000 per shop with condition that principal be directed to deposit amount of part
payment, receipt of which had been denied by principal- Validity-- Plaintiff in spite of
admission by agent had failed to make out prima facie case for grant of injunction--
Court in such cases normally would order deposit of balance sale price in court in order
to see, whether factually plaintiff was ready and willing to perform his part of sale
agreement in respect of which specific performance was sought-- Such part payment had
but been paid by plaintiff directly to the principal- Balance of convenience did not lie in
favour of plaintiff and principal would be put to inconvenience, if they were restrained
from exercising right and power in respect of their property-- Plaintiff had failed to make
out a case for injunction- High Court dismissed application for temporary injunction in
circumstances. PLD 2003 Kar. 16
Contents
Temporary injunction, grant or refusal of—principles. PLD 2003 Kar. 284

Burden on plaintiff seeking temporary injunction not as onerous as the burden
would be for succeeding in obtaining decree in suit- Grant and refusal of temporary
injunction- Principles for guidance of court stated. PLD 2003 Kar. 16
Application for non-compliance of interim order of Court. Persons against
whom such application was filed were neither party to proceedings nor impleaded at any
stage of appeal. Effect. Such persons having not been impleaded either in suit or in
appeal were not liable to be punished for disobedience of the order/decree passed in
favour of petitioner. First appellate Court had thus, rightly reversed order of Civil Judge
and the same being based on true appreciation of law and facts would call for no
interference in revisionat jurisdiction. Non-impleading a person in revision who had
been a party in suit and appeal had, however, rendered the same as in competent as a
whole. PLJ 1999 Lah. 764 = 1999MLD2297.
2-A An interim injunction passed under rule 1 or 2 in the absence of

defendant shall not ordinarily exceed fifteen days: Provided that such injunction
may be extended for failure of its service on the defendant when such failure is
not attributable to the plaintiff or when the defendant seeks time for defence of
application for injunction.
Court Decisions
Interim injunction for indefinite duration. Without notice to opposite party.
Rule 3 of Order 39 requires that court shall in all cases, before granting an injunction
direct notice of application for same to be given to opposite party. Impugned order does
not show any extreme urgency nor it was spelt out therefrom whereby legal requirement
of notice to opposite side necessarily led to be dispensed with. No justification was
indicated by learned Civil Judge that delay in granting injunction would have defeated
object. Interim injunction was not even for any fixed period but was dearly directed to
ensure for indefinite duration as word "meantime" would connote. Learned Civil Judge
acted in disregard of provisions of rule 2-A or Order 39 whereunder an interim
injunction should not ordinarily exceed fifteen days if passed in absence of defendant.
PLJ 1998 Lah. 92 = 1998 CLC 61.
2-B. The order of injunction made under rule 1 or 2 after hearing the
parties or after notice to the defendant shall cease to have effect on the expiration
of six months unless extended by the Court after hearing the parties again and
for reasons to be recorded for such extension.
Provided that report of such extension shall be submitted to the High
Court.
Court Decisions
295
Temporary injunction when ceases to exist. Amendment in Order 39 CPC.

Persual of Act XJV of 1994 promulgated on 31.7.1994 would provide that it is amendment
in procedural law which has to be retrospective. Thus one has no escape from
consequence that temporary injunction issued by trial court ceases to exist. Trial court is
at liberty to hear parties again and pass any order deemed fit within contemplation of
Order 39, Rule 2 (B) CPC. PLJ 1996 Pesh. 45 = 1996 CLC 1572.
3. Before granting injunction Court to direct notice to opposite

party. The Court shall in all cases, before granting an injunction, direct notice of
the application for the same to be given to the opposite party:
[Provided that, except in the case of sale of goods for default in payment,
at the stipulated time, of in respect of which the goods were pledged with any
bank, or where the injunction is to be granted against Government or a
Government servant as such or any statutory authority, board or corporation set
up or established by Government in any case not involving the ejectment of any
person from, or the demolition of any premises, the Court may where it appears
that the object of granting injunction would be defeated by the delay, dispense
with such notice:
Provided further that the period of notice under this rule to Government
or a Government servant as such or any statutory authority, board or corporation
set up or established by Government shall not be less than two days nor exceed
seven days.
4. Order for injunction may be discharged, varied or set aside. Any

order for an injunction may be discharged, or varied, or set aside by the Court,
on application made thereto by any party dissatisfied with such order.
Court Decisions
Applicability--Provision of O.39.R.4 can be invoked only where previous
injunction order which was sought to be vacated was unduly harsh and/or un-workable
or the same was deemed to be necessary in view of fresh circumstances e.g., when
injunction order sought to be recalled was ex-parte-Party showing such circumstances
cannot be non-suited merely on the ground that although appeal could have been filed
against injunction order, the same was not filed. PLJ 2002 Kar. 119
Recalling of earlier injunction order granted in favour of plaintiff--Applicant
in whose favour order confirming interim injunction was passed had not averred that
after said order certain developments had taken place whereby said order could not be
undone. In case order confirming interim injunction was recalled, no retracting steps
would have to be taken. Interest of justice demanded that application filed under O.39.
Rr, 1 & 2. C.P.C. for grant of interim injunction be decided on merits after hearing both
the parties. Order whereby interim injunction was confirmed was recalled, with direction
Contents
that order granting interim injunction would continue till final disposal of application
filed for grant of interim injunction under O.39.Rr. 1 & 2. C.P.C. PLJ 2000 Kar. 177 PLD
2000 Kar. 27.
Defendants as per material on record appear to be prior user of trade
mark in question, therefore, interest of justice would require that stay order granted
earlier in favour of plaintiff be vacated—Both parties would be allowed to use trade-
mark in question, till suit was decided. PLJ 2002 Kar. 119
High Court as Trial Court has got power under O.39, R. 4, CPC to amend or to
discharge, vary or set aside order of injunction in changed circumstances. Order whereby
injunction was granted, set aside. PLJ 1988 Kar. 116.
4-A. Injunction to cease to be in force after certain -period. An

injunction granted by a Court in a suit which seeks to question the validity or
legal effect of any order made, proceedings taken or act done by any authority or
person, which has been made, taken or done, or purports to have been made,
taken or done, under any law which is specified in Part I of the First Schedule to
the Constitution or relates to or is connected with assessment of collection of
public revenues shall cease to have effect on the expiration of a period of sixty
days following the day on which it is made, unless the case is finally decided, or
the injunction is discharged or set aside, by the Court earlier.
Explanation. In this rule public revenues includes the dues of any bank
owned by the Federal Government or of any corporation or undertaking owned
or controlled by the Federal Government or a Provincial Government.
5. Injunction to corporation binding on its officers. An injunction

directed to a corporation is binding not only on the corporation itself, but also on
all members and officers of the corporation whose personal action it seeks to
restrain.
Interlocutory Orders
6. Power to order interim sale. The Court may, on the application of

any party to a suit order the sale by any person named in such order, and in such
manner and on such terms as it thinks fit, of any movable property, being the
subject-matter of such suit, or attached before judgment in such suit, which is
subject to speedy and natural decay, or which for any other just and sufficient
cause it may be desirable to have sold at once.
297
7. Detention, preservation, inspection, etc., of subject-matter of

suit. (1) The Court may, on the application of any party to a suit and on such
terms as it thinks fit: -
(a) make an order for the detention, preservation or inspection of any
property which is the subject-matter of such suit, or as to which
any question may arise therein;
(b) for all or any of the purposes aforesaid authorise any person to
enter upon or into any land or building in the possession of any
other party to such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to
be taken, or any observation to be made or experiment to be tried,
which may seem necessary or expedient for the purpose of
obtaining full information or evidence.
(2) The provisions as to execution of process shall apply, mutatis
mutandis, to persons authorised to enter under this rule.
8. Application for such orders to be after notice. (1) An application

by the plaintiff for an order under rule 6 or rule 7 may be made after notice to the
defendant at any time after institution of the suit.
(2) An application by the defendant for a like order may be made
after notice to the plaintiff at any time after appearance.
9. When party may be put in immediate possession of land the

subject-matter of suit. Where land paying revenue to Government or a tenure
liable to sale, is the subject-matter of a suit, if the party the in possession of such
land of tenure neglects to pay the Government revenue, or the rent due to the
proprietor of the tenure, as the case may be, and such land or tenure is
consequently ordered to sold, any other party to the suit claiming to have an
interest in such land or tenure may, upon payment of the revenue or rent due
previously to the sale (and with or without security at the discretion of the
Court), be put in immediate possession of the land or tenure. and the Court in its
decree may award against the defaulter the amount so paid, with interest
thereon at such rate as the Court thinks fit, or may charge the amount so paid,
with interest thereon at such rate as the Court orders, in any adjustment of
accounts which may be directed in the decree passed in the suit.
10. Deposit of money, etc., in Court. Where the subject-matter of a

suit is money or some other thing capable of delivery, and any party thereto
admits that he holds such money or other thing as a trustee for another party, or
Contents
that it belongs or is due to another party, the Court may order the same to be
deposited in Court or delivered to such last-named party, with or without
security, subject to the further direction of the Court.
HIGH COURT AMENDMENTS SINDH
Re-number rule 1 as sub-rule (1) and add the following as sub-rules (2)
and (3):-
(2) In case of disobedience, or of breach of the terms of such
temporary injunction or order, the Court granting the injunction or making such
order may order the property of the person guilty of such disobedience or breach
to be attached, and may also order such person to be detained in the civil prison
for a term not exceeding six months unless in the meantime the Court directs his
release.
(3) The property attached under sub-rule (2) may, when the Court
considers it fit so to direct, be sold and out of the proceeds, the Court may award
such compensation to the injured party as it finds proper and shall pay the
balance, if any, to the party entitled thereto. (3-2-1993)
299
ORDER_XL
APPOINTMENT OF RECEIVERS
1. Appointment of receivers. (1) Where it appears to the Court to be

just and convenient the Court may by order-
(a) appoint a receiver of any property, whether before or after decree,
(b) remove any person from the possession or custody of the
property,
(c) commit the same to the possession, custody or management of the
receiver, and
(d) confer upon the receiver all such powers, as to bringing and
defending suits and for the realization on, management,
protection, preservation and improvement of the property, the
collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents
as the owner himself has, or such of those powers as the Court
thinks fit.
(2) Nothing in this rule shall authorise the Court to remove from the
possession or custody of property any person whom any party to the suit has not
a present right so to remove.
Court Decisions
Appointment of Receiver :-- Applicant seeking appointment of Receiver has to
establish prima facie title to property for obtaining such appointment. Applicant,, besides
establishing prima facie title to property must establish that appointment of Receiver was
just and convenient Petitioner had admitted before Court that respondent was to owner
of tractor in question, therefore, with admitted entitlement to the extent of half share
(subject to final decision of Court), he was better custodian of property rather than that
stranger who was entrusted the same for purposes of maintenance or custody by trial
Court. Respondent was, however, directed to furnish security against half of sale price of
tractor while also under taking that he would produce property in question, whenever
required by Trial Court and further he would neither sell the same nor give it on lease to
anyone until disposal of Us and that he would not allow property to be wasted or
destroyed. Security would be furnished by respondent immediately on being summoned
by trial Court. PLJ 1999 Lah. 1682.
Contents
2. Remuneration. The Court may by general or special order fix the

amount to be paid as remuneration for the service of the receiver.
3. Duties. Every receiver so appointed shall:-

(a) furnish such security (if any) as the Court thinks fit, duly to
account for what he shall receive in respect of the property;
(b) submit his accounts at such periods and in such from as the Court
directs;
(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the property by his
wilful default or gross negligence.
4. Enforcement of receivers duties. Where a receiver:-

(a) fails to submit his accounts at such periods and in such form as
the Court directs, or
(b) fails to pay the amount due from him as the Court directs, or
(c) occasions loss to the property by his wilful default or gross
negligence,the Court may direct his property to be attached and
may sell such property, and may apply the proceeds to make
good any amount found to be due from him or any loss
occasioned by him, and shall pay the balance (if any) to the
receiver.
5. When Collector may be appointed receiver. Where the property

is land paying revenue to the Government, or land of which the revenue has
been assigned or redeemed, and the Court considers that the interest of those
concerned will be promoted by the management of the Collector, the Court may,
with the consent of the Collector, appoint him to be receiver of such property.
301
ORDER_XLI
APPEALS FROM ORIGINAL DECREES

1. Form of appeal: What to accompany memorandum. (1) Every
appeal shall be preferred in the form of a memorandum signed by the appellant
or his pleader and presented to the Court or to such officer as it appoints in this
behalf. The memorandum shall be accompanied by a copy of the decree appealed
from and (unless the Appellate Court dispenses therewith) of the judgment on
which it is founded.
(2) Contents of memorandum. The memorandum shall set forth
concisely and under distinct heads, the grounds of objection to the decree
appealed from without any argument or narrative, and such grounds shall be
numbered consecutively.
Court Decisions
Defect in appeal—Office objection, removal of – No time fixed by office for re-
filing—Appeal re-filed without unnecessary delay could not be said to have gone out of
limitation—Appeal once validly instituted within prescribed time of limitation, mere
technical office objection could not take away vested right of litigant. PLD 2003 Lah. 398
Forum of appeal--Jurisdictional value given in plaint, would determine forum of
appeal--Jurisdictional value given in plaint of pre-emption suit, held, could not
unilaterally be altered by pre-emptors to choose forum of appeal .1986 M L D 2885
Non-filing of certified copy of decree sheet alongwith memorandum of appeal.
Appellant was required to append with memorandum of appeal two documents i.e. copy
of decree appealed from and copy of judgment upon which decree was founded in terms
of O.41, R. 1 C.P.C.. Appellate Court although has power to dispense with copy of
judgment but has no power to dispense copy of decree. Memorandum of appeal must be
accompanied by copy of decree appealed from. Court has no power to dispense with
provision regarding presentation of copy of decree. Appeal presented without copy of
decree was not valid appeal. Position would be the same where decree has not yet been
prepared or where appellant was under wrong impression that same has not been
prepared. Appeal must be rejected where copy was not filed within prescribed limitation
period. High Court, thus, committed no illegality in dismissing appeal as being in
competent. PLJ 1999 SC (AJK) 69.
Contents
Condonation of delay in filing appeal beyond period of limitation :-- Filing

copy of decree sheet alongwith memorandum of appeal was mandatory requirement of
O.41, R.I C.P.C.. Proper course for appellant was to have waited for preparation of copy
of decree and thereafter to file appeal, in that eventuality, he was entitled to condonation
of delay, if any. Appellant Court had given two adjournments to appellant for filing copy
of decree sheet but the same was not filed resulting in dismissal of appeal. Copy of
decree sheet filed after 147 days of order of Trial Court would not render institution of
appeal before Appellate Court as valid. There being no properly instituted appeal before
Appellate Court, appeal filed, thereafter, before High Court was incompetent. Appeal
against order of High Court was, thus, not warranted and was dismissed in
circumstances. PLJ 2000 SC (AJ&K) 325.
Appellate Court in slip-shod manner without holding inquiry rejected memo of
appeal under 0-41, R. 3 C.P.C. which was admitted to regular hearing by him and record
of trial Court had been summoned where impugned judgment and decree did exist and
it could be found out from record that appellant had really applied for certified copies of
judgment and decree within requirement of O.41, R. 1, C.P.C.. Court was bound to see
whether party had obtained copies of judgment and decree in time and placed the same
within limitation or whether appeal was filed improperly. Court in such case cannot
reject memo of appeal under O.41. R. 3 C.P.C.. Placing of wrong judgment and decree on
memo of appeal appeared to be bona fide mistake. Court has inherent power to do justice
and to redress wrong instead of trying to dispose of case on mere technicalities. Both
memo of appeals were checked by Court officials and no objection was raised that
judgment and decree were wrongly placed. Appellate Court could have decided and
exercised its power ex-debito justice to do that real and substantial justice for
administration of which Court had power to hold inquiry into bona fides of parties and
that decree-sheet of case did exist on appeal decided by Appellate Court and if it did
exist then party who was not at fault should not suffer. Judgment and decree passed by
Appellate Court was set aside and case was remanded to Appellate Court to summon
record of relevant case and hold inquiry and on satisfaction that party was not at fault
and misplacement of decree sheet was bona fide mistake, decide the appeal on merits
after fulfilment of necessary legal formalities. PLJ 2000 Lah. 256 = 2000 MLD 466.
2. Grounds which may be taken in appeal. The appellant shall

not, except by-leave of the Court, urge or be heard in support of any
ground of objection not set forth in the memorandum of appeal, but the
Appellate Court, in deciding the appeal, shall not be confined to the
memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground
unless the party who may be affected thereby has had a sufficient opportunity of
contesting the case on that ground.
303
3. Rejection or amendment of memorandum. (1) Where the

memorandum of appeal is not drawn up in the manner hereinbefore prescribed,
it may be rejected, or by returned to the appellant for the purpose of being
amended within a time to be fixed by the Court or be amended then and there.
(2) Where the Court rejects any memorandum, it shall record the
reasons for such rejection.
(3) Where a memorandum of appeal is amended, the Judge, or such
officer as he appoints in this behalf, shall sign or initial the amendment.
Court Decisions
Rule 3 of O.41 being not exhaustive, clause (c) of O.7, R- 11 relating to drawing
up of plaint on properly stamped paper as essential requirement to save it from ultimate
rejection for nonpayment of Court-fee, also to apply to appeals. PLJ 984 SC 262.
Order 41, rule 3, C. P. C. is to be read with the other relevant provisions
of C. P. C. regarding drawing up of and processing of the `plaint' as applicable to appeal.
The expression 'hereinbefore' has also been used in this context in rule 3 in a wider sense
as relatable in rules 1 and 2 of Order 41, and other rules in C, P. C. which would be
attracted by reference to section 107(2), C. P. C. The same as discussed earlier, provides
for all relevant matters which have not been specifically mentioned in rule 3 of Order 41,
in this behalf. And that being so, clause (c) of Order 7, rule l l which relates to the
drawing up of the plaint on a properly stamped paper as an essential requirement, to
save it from ultimate rejection for nonpayment of the court-fee would also apply to the
appeals. Accordingly it is held that Order 41, rule 3 is not exhaustive in this behalf.
It will not be correct to say that the `plaint' and `memorandum of appeal' are such
documents that they cannot at all be treated at par in procedural respects in accordance
with the enabling and very wide provision in that behalf made in section 107(2), C. P. C.
Accordingly there is no justification for making an exception.
There is another aspect of the matter. The application of Order 7, rule 11(b)(c) to appeals
in one sense at least is salutary for the progress of the appeal, for hearing. If it is applied
then as would be presently shown it might not be possible to reject a memorandum of
appeal on grounds of deficiency of court-fee unless in accordance therewith an
opportunity is provided, to supply the required court-fee. It is also conducive for a
purpose amongst others, for which Order 7, rule 11(b) and (c) were enacted namely
collection of State revenue in so far as appeal stage of the Court process is concerned. It is
obligatory under Order 7, rule 11(c) to afford one opportunity to supply the deficiency in
court-fee, before rejection of the plaint under the said provision. There are two
interpretations of section 107(2) (when read with Order 7, rule 11(c) and Order 41, rule 3)
then the one favoring the saving of the appeal proceedings from rejection on ground
connected with collection of public revenue by affording the said opportunity, would
have to be adopted. Thus, the age old conflict on this fiscal-cum-procedural question is
resolved in favour of the subject. The result is that Order 7, rules 11(b) and (c) applies to
plaints as also to memoranda of appeals. P L D 1984 S.C 289
Contents
4. One of several plaintiffs or defendants may obtain reversal of

whole decree where it proceeds on ground common to all. Where there are
more plaintiffs or more defendants than one in a suit, and the decree appealed
from proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may appeal from the
whole decree, and thereupon the Appellate Court may reverse or vary the decree
in favour of all the plaintiffs or defendants, as the case may be.
Court Decisions
It has been provided under Rule 4. Order 41, that where there are more plaintiffs
or more defendants than one in a suit and decree appealed from proceeds on any ground
common to all plaintiffs or all defendants, any one of plaintiffs or of defendants could file
an appeal from whole decree and thereupon Appellate Court could reverse or vary
decree in favour of all plaintiffs or defendants as case may be even though only one of
plaintiffs or defendants had appealed against said decree while Rule 33 of same Order
provides that Appellate Court could pass any decree and make any order which ought to
have been passed or make and could also pass and make such further or other decree or
order as case may require and this power may be exercised by Appellate Court
notwithstanding that appeal is as to a part only of decree and may also be exercised in
favour of all or any of respondents or parties although such respondent or party may not
have filed any appeal or objection. PLJ 1997 Lah. 1206 = 1997 CLC 243.
O. 41 rule 4. Rule 4 applies where decree appealed from proceeds on
ground common to all plaintiff or defendants while rule 33 is wider in scope and applied
even where decree does not proceed on any ground common lo all persons against
whom it was passed. High Court is of the view that the provision is not mandatory but
discretionary and has to be applied, if necessary in the ends of justice, with due care and
caution. PLJ 1996 Lah. 856 = 1996 CLC 1403.
High Court fell into error when thinking that power under Rule 20 could
be exercised only on application to be made by present appellant. PLJ 1989 SC 433.
STAY OF PROCEEDINGS AND OF EXECUTION
5. Stay by Appellate Court. (1) An appeal shall not operate as a stay

of proceedings under a decree or order appealed from except so far as the
Appellate Court may order, nor shall execution of a decree by stayed by reason
only of an appeal having been preferred from the decree, but the Appellate Court
may for sufficient cause order stay of execution of such decree.
(2) Stay by Court which passed the decree. Where an application is
made for stay of execution of an appealable decree before the expiration of the
305
time allowed for appealing therefrom, the Court which passed the decree may on
sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or
sub-rule (2) unless the Court making it is satisfied:
(a) that substantial loss may result to the party applying for stay of
execution the order is made;
(b) that the application has been made without unreasonable delay;
and
(c) that security has been given by the applicant for the due
performance of such decree or order as may ultimately be binding
upon him.
(4) Notwithstanding anything contained in sub-rule (3), the Court
may make an ex parte order for stay of execution pending the hearing of the
application.
Court Decisions
Conditional Stay. Provision of rule 8-A envisages that no security would be
required where a judgment debtor is Government and seeks relief as provided in O.41
rules 5 & 6 CPC. Even if appeal is dismissed, respondent could easily recover decretal
amount from appellants. Maintainability of suit is also under challenge. Impugned
decree was suspended without calling upon appellants to furnish security. PLJ 1997 Kar.
832 = PLD 1997 Kar. 351.
Contention that appellant being Government was exempt from
furnishing security of decretal amount, what to speak of its actual deposit in cash. Held:
On mere filing of appeal by Government or any public officer, there cannot be automatic
grant of stay of execution of decree. Held further: For making a case for stay of execution
of money decree, Rule 8-A of Order 27. CPC is to be read with Rules 5 & 6 of Order 41.
CPC, and when for its stay a convincing ground is made out, then stay can be ordered
without furnishing of security, if appellant happened to be Government or public
servant- Held further: High Court was satisfied that appellants had not been able to
show sufficient cause and further they would not sustain substantial loss within meaning
of Rule 5 of Order 41, CPC, if stay of execution was not ordered. High Court exercised
discretion on sound principles of law governing stay of execution of money decrees,
thus, no exception could be taken to it. PLJ 2001 SC 15 = 2001.SCMR377.
6. Security in case of order for execution of decree appealed from.

(1) Where an order is made for the execution of a decree from which an appeal is
pending, the Court which passed the decree shall, on sufficient cause being
shown by the appellant, require security to be taken for the restitution of any
property which may be or has been taken in execution of the decree or the decree
Contents
or for the payment of the value of such property and for the due performance of
the decree or order of the Appellate Court, or the Appellate Court may for like
cause direct the Court which passed the decree to take such security.
(2) Where order has been made for the sale of immovable property in
execution of a decree, and an appeal is pending from such decree, the sale shall,
on the application of the judgment-debtor to the Court which made the order, be
stayed on such terms as to giving security or otherwise as the Court thinks fit
until the appeal is disposed of.
7. No security to be required from the Government or a Public

officer in certain cases. Rep. by the A.0.. 1937.
8. Exercise of powers in appeal from order made in execution of

decree. The powers conferred by Rules 5 and 6 shall be exercisable where an
appeal may be or has been preferred not from the decree but from an order made
in execution of such decree:
Provided that, where such appeal has been preferred by the judgment-
debtor, he shall be required, unless the Court is of opinion that prima facie the
appeal is one which must succeed owing to an error apparent on the face of the
record:
(a) in the case of a decree for the payment of money, to deposit the
decretal amount or to furnish security for its payment, and
(b) in the case of any other decree, to furnish security for the due
performance of the decree].
Court Decisions
Decree for payment of money. It is discretionary with Appellate Court to pass
orders to deposit decretal amount or to furnish security for its payment. In case of any
other decree, Appellate Court may direct furnishing of security for due performance of
decree. Order of Appellate Court directing cash deposit of decretal amount was
unexceptional in circumstances of case and even otherwise S.C ordinarily does not
interfere with interlocutory orders of High Court except in exceptional circumstances.
PLJ 2000 SC 329.
PROCEDURE ON ADMISSION OF APPEAL
9. Registry of memorandum of appeal. (1) Where a memorandum

of appeal is admitted, the Appellate Court or the proper officer of that Court
shall register the appeal in a book to be kept for the purpose.
307
(2) Register of Appeals. Such book shall be called the Register of

Appeals.
10. Appellate Court may require appellant to furnish security for

costs. (1) The Appellate Court may, in its discretion, either before the
respondents is called upon to appear and answer or afterwards on the
application of the respondent, demand from the appellant security for the cost of
the appeal, or of the original suit, or of both.
(2) Where appellant resides out of Pakistan etc. Provided that the
Court shall demand such security in all cases in which the appellant is residing
out of Pakistan, and is not possessed of any sufficient immovable property
within Pakistan other than the property (if any) to which the appeal relates.
(3) Where such security is not furnished within such time as the
Court orders, the Court shall reject the appeal.
11. Power to dismiss appeal without sending notice to lower Court.

(1) The Appellate Court, after sending for the record if it thinks fit so to do, and
after fixing a day for hearing the appellant or his pleader and hearing him
accordingly if he appears on that day, may dismiss the appeal without sending
notice to the Court from whose decree the appeal is preferred and without
serving notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be
adjourned the appellant does not appear when the appeal is called on for
hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the
Court from whose decree the appeal is preferred.
Court Decisions
Dismissal of appeal in limine without summoning record of Trial Court and
without considering grounds specifically taken in memo. of appeal—Validity—Appellate
Court had dismissed the appeal without considering the plea of limitation taken in
memo. of appeal and recording proper findings on the issue—Both such issues could not
be decided without summoning record and affording opportunity of hearing to parties
concerned—Both on facts and law, it was not a case, which could be dismissed in limine
by final Court of facts—High Court accepted revision petition and set aside impugned
judgment/decree holding that appeal would be deemed to be pending and would be
decided in accordance with law. 2002 CLC 969
12. Day for hearing appeal. (1) Unless the appellate Court dismisses
the appeal under rule 11, it shall fix a day for hearing the appeal,
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(2) Such day shall be fixed with reference to the current business of
the Court, the place of residence of the respondent, and the time necessary of for
the service of the notice of appeal, so as to allow the respondent sufficient time to
appear and answer the appeal or such day.
13. Appellate Court to give notice to Court whose decree appealed

from. (1) Where the appeal is not dismissed under rule 11, the Appellate Court
shall send notice of the appeal to the Court from whose decree the appeal is
preferred.
(2) Transmission of papers to Appellate Court. Where the appeal is
from the decree of a Court, the records of which are not deposited in the
Appellate Court, the Court receiving such notice shall send with all practicable
despatch all material papers in the suit, or such papers in the suit, or such papers
as may be specially called for by the Appellate Court.
(3) Copies of exhibits in Court whose decree appealed from. Either
party may apply in writing to the Court from whose decree the appeal is
preferred, specifying any of the papers in such Court of which he requires copies
to be made; and copies of such papers shall be made at the expense of, and given
to, the applicant.
14. Publication and service of notice of day for hearing appeal. (1)
Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-
house, and a like notice shall be sent by the Appellate Court to the Court from
whose decree the appeal is preferred, and shall be served on the respondent or
on his pleader in the Appellate Court in the manner provided for the service on a
defendant of a summons to appear and answer, and all the provisions applicable
to such summons, and to proceedings with reference to the service thereof, shall
apply to the service of such notice.
(2) Appellate Court may itself cause notice to be served. Instead of
sending the notice to the Court from whose decree the appeal is preferred, the
Appellate Court may itself cause the notice to be served on the respondent or his
pleader under the provisions above referred to.
15. Contents of notice. The notice to the respondent shall declare

that, if he does not appear in the Appellate Court on the day so fixed, the appeal
will be heard ex parte.
PROCEDURE ON HEARING
309
16. Right to begin. (1) On the day fixed or on any other day to which
the hearing may be adjourned, the appellant shall be heard in support of the
appeal.
(2) The Court shall then, if it does not dismiss the appeal at once,
hear the respondent against the appeal, and in such case the appellant shall be
entitled to reply.
17. Dismissal of appeal for appellants default. (1) Where on the day
fixed, or on any other day to which the hearing may be adjourned, the appellant
does not appeal is called on for hearing Court may make an order that the appeal
be dismissed.
(2) Hearing appeal ex parte. Where the appellant appears and the
respondent does not appear, the appeal shall be heard ex parte.
Court Decisions
Dismissal of appeal on appellant’s default- Procedure- If the Court does not
choose to dismiss the appeal, the same has to be adjourned, but R. 17, O.XLI, C.P.C
nowhere empowers the court to render a decision on merits in the absence of the
appellant-- Decree on merits in envisaged by O.XLI, R. 30 and hearing of both the sides is
the condition precedent for such a decree. PLD 2003 Lah. 27
Neither the counsel for the appellants was present or heard nor the counsel for
respondents was in a position to argue the case- Decision of appeal by District judge on
merits in view of direction by the Member, Inspection Team of the High Court to the
effect that the appeal be decided by as of specified date-Validity- Held, remedy of appeal,
in particular, the first appeal, is a right which a suitor is entitled to avail under the law i.e.
Civil procedure Code itself- When an appeal in preferred by a party and indefeasible
right of hearing bests in him, which cannot be stultified or transgressed except in
accordance with law—Direction of the nature, issued by the Member, Inspection Team of
the High court, which was at the most administrative in nature could not be made a basis
for denying the appellants the right of hearing as envisaged by O. XLI, R. 30, C.P.C-
Court which is charged with onerous duty and responsibility fo administering justice is
expected to maintain a balance so that neither the matter is delayed unnecessarily nor its
disposal is effected in such a hasty miner as may be violative f the law and fairness-
Judicial power or jurisdiction to administer justice in accordance with law cannot be
abdicated merely to honour any executive or administrative instruction or directive-
Court, in order to keep the streams of justice clean and unpolluted, is expected to shun
every extraneous instruction/direction and act purely in accordance with law- Direction
of the Member, Inspection Team of the High Court can only be regarded as directory,
enabling the Court to expedite the hearing/decision, but in no case can be given
supremacy over the explicit legal provisions- If the counsel for appellants was not in a
position to advance arguments on the date fixed due to his engagements before High
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Court the case Could be adjourned to the next day even on payment of costs in order to
compensate the other side for any inconvenience- Appeal, thus, could not be dismissed
by the District judge on merits, which exercise undertaken by him was futile and
violative of law. PLD 2003 Lah. 27
Application for readmission of appeal—Appellant had contended that he failed
to appear as he understood date of hearing different to the one fixed for hearing the
appeal and he had told the wrong date to the counsel as well—Counsel for appellant
could not explain his absence and had not filed any affidavit in support of stand taken by
the appellant—Counsel for appellant neither had produced his brief nor his case diary to
prove assertion made by his client/appellant in his application—Appeal was rightly
dismissed in default in circumstances, 2001 MLD 1091
But Whenever appeal was admitted and it contained arguable points then
Appellate Court should avoid from disposing of appeal on technical grounds especially
for non-prosecution. Law favours adjudica-tion of rights of parties on merits rather than
disposal of same in summary manner or on technical grounds. Where principles of
natural justice were fully -ignored in passing order of dismissal of appeal, such order
would be deemed to be in excess of jurisdiction. PLJ 1998 Kar. 105 = 1998 MLD 150.
Pre--requisities. Appeal could be dismissed for default or non-
prosecution when impression was created or statement was given by counsel for
appellant or on his behalf that he/she had no interest in appeal. Where counsel for
appellant remained absent from Court without any intimation, then it could be presumed
by Court that no one. particularly appellant, was interested in appeal, thus. same could
be dismissed under O.41, R. 17. C.P.C- Where, however, counsel had sent application for
adjournment or intimation to Court that he/she was unable to attend Court on account
of certain reasons then such counsel was constructively present. Preusmption of "no
interest" would be baseless especially when reasons mentioned in request for
adjournment through application, intimation or by some other means were not based on
falsehood. PLJ 1998 Kar. 105 = 1998 MLD 150.
18. Dismissal of appeal where notice not served in consequence

appellants failure to deposit costs. Where on the day fixed, or on any other day
to which the hearing may be adjourned, it is found that the notice to the
respondent has not been served in consequence of the failure of the appellant to
deposit, within, the period fixed, the sum required to defray the cost of serving
the notice, the Court may make an order that the appeal be dismissed:
Provided that no such order shall be made although the notice has not
been served upon the respondent, if on any such day the respondent appears
when the appeal is called on for hearing.
19. Re-admission of appeal dismissed for default. Where an appeal

is dismissed under rule 11, sub-rule (2) of rule 17 or rule 18, the appellant may
apply to the Appellate Court for the re-admission of the appeal, and where it is
311
proved that he was prevented by any sufficient cause from appearing when the
appeal was called on for hearing or from depositing the sum so required, the
Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks
fit.
Court Decisions
Restoration of appeal. There was no delay in filing of application and quick
action, was evidence of bonafide of appellant. Application was supported by affidavit of
advocate and affidavit of party. Copies of brief and diary, supporting plea was annexed,
which was prima facie indicative of fact. that date was inadvertently noted. In matters of
restoration of cases, generous consideration has to be given. Law always favour
adjudication on merits, rather than non-suiting parties on techanicalities. Wrong noting
of date, has always been considered, to be good ground for restoration of suit/appeal.
PLJ 1998 Lah. 1512 = 1999 MLD 2429.
Only reason advanced for re-admission of appeal is negligence on part of
petitioner's counsel. Negligence of counsel is never considered to be sufficient cause for
restoration of appeal nor "for condonation of delay in filing petition for re-admission.
Obligation of appellant to be vigilant in prosecution of appeal after engaging counsel
does not absolve him from bis duty to see that his appeal is properly and diligently
prosecuted. Whole blame cannot be shifted only to counsel of petitioner, but he himself is
also responsible for fate of appeal. There is no explanation as to why he kept silent and
did not enquire about hearing of appeal for eight months. Petitioner is ginlty of positive
malafides or lack of bona fides and gross negligence. Not entitled for any indulgence.
PLJ 1993 Lah. 1199 = 1999 CLC 45.
Appellate Court would have no jurisdiction to dismiss appeal on merits
in absence of appellant or his counsel. PLJ 1993 Kar. 100 (DB).
Plea advanced by counsel for appellant for his absence was of his sudden
illness. Counsel's such plea was supported by his and his junior's that he had made
request for adjournment of case due to illness of senior counsel but his request was
turned down. No reason was pointed out to disbelieve said affidavits. Application for
restoration of appeal was allowed. Appeal was restored and re-admitted for regular
hearing. PLJ 1997 Kar. 881 = 1997 CLC 689.
Re-admission and condonation of delay. Earlier provisions of Section 5 of

.Limitation Act were not applicable and period of limitation provided for re-admission of
appeal could not be extended. Through Act, IV of 1990 amendment was made in Order
41 C.P.C. and sub-rule (2) was added to Rule-19. After said amendment, delay in filing
petition for re-admission of appeal can be condoned if sufficient cause is shown for
delay. Petition for re-admission is barred by 119 days. No sufficient cause existed for
condonation of delay. It is well established principle of law that where valuable rights are
accrued to party for lapse of time due to negligence or lack of bona fides etc. such party
cannot be deprived of such rights except . where sufficient cause'is shown. Court has no
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jurisdiction to extend time as petitioner was grossly negligent and inactive. Petition for
condonation and re-admission fail and are dismissed in limine. PLJ 1998 Lah. 1199 = 1999
CLC 45.
O. 41 Rule 19 read with Limitation Act, 1908 (9 of 1908) Arts. 168 & 181.
Application for restoration of appeal dismissed for default. Re-admission of an appeal
dismissed for non-appearance of appellant and his Advocate is governed by Article 168
of Limitation Act and not by Article 181. In such situation application under 0- 41 R. 19 is
to be submitted within thirty days whereas, present application has been filed after about
nearly s9 months. Sufficient cause has not been shown for non-appearance on the day on
which appeal was called on. by applicant and his advocate. PLJ 1997 Kar. 510 = 1997
MLD 2884.
20. Power to adjourn hearing and direct person appearing

interested to be made respondents. Where it appears to the Court at the hearing
that any person who was a party to the suit in the Court from whose decree the
appeal is preferred but who has not been made a party to the appeal, is
interested in the result of the appeal, the Court may adjourn the hearing to a
future day to be fixed by the Court and direct that such person be made a
respondent.
Court Decisions
Whether appeal before High Court was not properly constituted for non-
impleading necessary party and was fatal. Provisions of Rule 20 of order 41, C.P.C.
shows that appellate court is empowered during hearing of appeal to implead any
person as respondent who was party to suit' in Court from whose decree appeal is
preferred but was not made -party to appeal and that such person who is required to be
joined in appeal, is interested in result of appeal. Therefore, it is left to discretion of
Appellate Court to determine whether party who is required to be arrayed as one of
respondent is necessary party and interested in result of appeal. It is to be seen that
under Order 41, Rule 20, C.P.C, no consequences is provided for error if appeal was filed
without impleading necessary or interested person. In order to determine that non-
joining of Government of Sindh as one of respondent before Appellate .Court was fatal to
proceedings, it would be, pertinent to see that in .that manner defendant No. 2 would
have been affected as result of disposal of said appeal., In case, appeal had been allowed
by District Judge, definitely it would not, have been to prejudice or to disadvantage of
defendant/Government. -All relevant documents upon which' plaintiff had based his
claim were already brought on record by him- Real contest of ownership, thus appears to
be between plaintiff and defendant No. 1 and Provincial Government (defendant No. 2)
does not appear to be interested in decision of litigation. No claim was set up by this
defendant bn suit property. It appears to be Proforma defendant. Objection has been
.raised at very belated stage. Despite fact that appeal before District Judge was pending
for period of nearly five years, respondent No. 1 never raised this objection. In case said
313
Government had been interested in proceedings and had been adversely affected by any
judgment or decree, it would have filed appeal. From conduct -of Government/
defendant before trial Court as well as before this Court, it is now established that
Government is not interested in dispute between applicant ,and respondent No, 1. It was
not shown that defendant No. 2 was necessary. party and in its absence Appellate Court
was not able to effectively and properly adjudicate all issues involved in appeal. No-
joinder of Government at appellate stage was not fatal. Objection over ruled. PLJ 1998
Kar. 289 = 1998 CLC 911.
21. Re-hearing on application of respondent against whom ex parte

decree made. Where an appeal is heard ex parte and judgment is pronounced
against the respondent he may apply to the Appellate Court to re-hear the
appeal; and, if he satisfies the Court that the notice was not duly served or that
he was prevented by sufficient cause from appearing when the appeal was called
on for hearing the Court shall re-hear the appeal on such terms as to costs or
otherwise as it thinks fit to impose upon him.
Court Decisions
Re-hearing on application of respondent against whom ex parte decree made.
Two points were to be examined, namely whether applicant (appellant) was duly served
and where petition for rehearing of appeal was made within time. Transferee Court
issued notice Pairui to applicant (now appellant) but he could not be served in person.
Application for rehearing of appeal decreed ex parts, could not be summarily rejected
without holding enquiry into question of due service of notice and also sufficiency of
cause given for condoning default in appearance. Question of limitation was closely
linked with and dependent upon related important question of due service of notice in
appeal. Since impugned decision was arrived at without investigation of disputed issues,
it could not be upheld and allowed to be maintained. Appeal accepted and case
remanded for fresh decision of appeal. PLJ 1994 Lah. 119 = 1994 CLC 391.
Where No personal service was effected on defendants. Substituted service

effected in local newspapers was not in accordance with law and address of defendants
in publication and plaint was different. Ex parte proceedings against defendants.
Learned District Judge totally lost of provisions of Order V, rule 20 C.P.C.. He did not
come to definite conclusion that respondents were avoiding service" wilfully and only
after observing that respondents could not be served inspite of summons having been
sent through registered letters several time, he opted to proceed for getting them served
through citation. Better course for him would have been first to have awaited return of
process issued in names of respondents and if there was report that they were not
available in given address, ask appellants/defendants to furnish their fresh and complete
address, make further efforts to get their personal service effected in ordinary manner
and then only after satisfying himself and verifying fact that all efforts made in this
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behalf for effecting their service in ordinary manner had failed than substituted service
could be resorted to. Another factor which was not taken care of by Addl. District Judge
was that some of respondents were shown as minors by defendants/respondents
themselves in their Memo. of appeal and in case their g\iardian-a.d-litem failed to .turn
up, it was duty of presiding officer to have adverted to provision of law as contained in
Order 32 Rule 3 of C.P.C.. After learned Addl. District Judge had come to conclusion that
plaintiffs/respondents were not turning up inspite of citation in newspaper, it was
necessary for him to have asked appellants to move application for appointment of fresh
guardian-ad-litem but neither appellants moved such application nor were they so
directed nor order in this behalf was so passed by Addl. District Judge of his own.
Appeal.accepted case remitted to Addl. District Judge for re-hearing of appeal on merits.
PLJ 1998 Lah. 413 = PLD 1998 Lah. 118.
22. Upon hearing, respondent may object to decree as if he had

preferred separate appeal. (1) Any respondent, though he may not have
appealed from any part of the decree, may not only support the decree on any of
the grounds decided against him in the Court below, but take any cross-objection
to the decree which he could have taken by way of appeal, provided he has filed
such objection in the Appellate Court within one month from the date of service
on him or his pleader of notice of the day fixed for hearing the appeal, or within
such further time as the appellate Court may see fit to allow.
(2) Form of objection and provisions applicable thereto. Such cross-
objection shall be in the form of a memorandum, and the provisions of rule 1, so
far as they relate to the form and contents of the memorandum of appeal, shall
apply thereto.
(3) Unless the respondent files with the objection at written
acknowledgment from the party who may be affected by such objection or his
pleader of having received a copy thereof, the Appellate Court shall cause a copy
to be served, as soon as may be after the filing of the objection, on such party or
his pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has under this rule
filed a memorandum of objection, the original appeal is withdrawn or is
dismissed for default, the objection so filed may nevertheless be heard and
determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to pauper appeals shall, so far as they can
be made applicable, apply to an objection under this rule.
Court Decisions
315
Appeal against decree by defendant—Plaintiff not seeking setting aside or

modification of decree—plaintiff was very mush within his right to support decree even
on ground decided against him by Trial Court. PLD 2003 Lah. 413
Cross-objections against findings of Trial Court—Where neither any appeal
nor cross-objections as provided under O.41, R.22, C.P.C. were filed against findings of
Trial Court, such findings of Trial Court had become final as the same had not been
challenged in any Court of law. PLD 2001 Lah.. 390
Respondents are competent to support impugned judgment even on grounds
which were not decided in their favour, because there being no decree or order against
them, it was not open to them to file any cross-objection or cross-appeal of their own.
PLJ 1991 Pesh. 87.
23. Remand of case by Appellate Court. When the Court from whose
decree an appeal is preferred has disposed of the suit upon a preliminary point
and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues shall be tried
in the case so remanded, and shall send a copy of its judgment and order to the
Court from whose decree the appeal is preferred, with directions to re-admit the
suit under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original trial
shall, subject to all just exceptions, be evidence during the trial after remand.
Court Decisions
Remand of case to Trial Court for decision afresh—Plaintiff asserted to be the
owner of the suit property and in his absence the property was transferred in the name of
the vendor claiming to be the son of the plaintiff-defendant purchased the property from
the vendor and the same was transferred in the name of the defendant—Plaintiff denied
the vendor as his son and filed suit for cancellation of document and recovery of
possession—Vendor was neither impleaded in the suit nor his statement was recorded as
witness—Trial Court dismissed the suit but High Court in exercise of appellate
jurisdiction allowed the appeal, impleaded the vendor as a party and remanded the case
to the Trial Court and suo motu directed the Trial Court to record additional evidence—
Contention of the defendant was that the High Court should have decided the appeal on
the basis of evidence available on record—Validity—Judicial discretion exercised by the
High Court as Appellate Court, in the present case, was neither unwarranted nor
unjustified when valuable proprietary rights of the plaintiff (who was out of country for
a long period) were extinguished without his consent and permission, it was a fit case for
exercise of suo motu jurisdiction by the High Court—High Court by remanding the suit
did not act arbitrarily or without jurisdiction—S.Crepelled the contention of the
defendant and declined to set aside judgment and remand of case for decision afresh—
Appeal was disposed of accordingly. PLD 2002 S.C 615
PLD 1992 SC 811; 1995 SCMR 1748 and 1992 SCMR 1778 ref.
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If parties had led evidence and the case had been decided on merits, the
Appellate Court should have re-examined the evidence and decided the same in
accordance with law—If evidence was not sufficient or an issue was omitted, the
Appellate Court could reframe the issue, decide it on existing evidence or by rece4ing
further evidence and in any case, suit could not be remanded simply because one of the
issues was not decided or some further evidence was required—Without reversing the
judgment on merits, remand was not permissible in law—Frequent remands were
deprecated by High Court as the same resulted in wastage of time and would create
frustration in the litigants—Sufficient evidence being on record and issues having
properly been framed in the case. Appellate Court, at the best, could have itself recorded
further evidence and decided the appeal on merits instead of remanding the case and
opening another round of litigation—Course adopted by the Appellate Court being
contrary to law, order remanding the case to the Trial Court, was set aside by High
Court, 2001 MLD 1285
Remand of case. Pre-requistes. Provisions of O.41. R. 23, C.P.C. deal with cases
where decree of Trial Court was reversed on preliminary point and cases sent back for
adjudication on merits. Appellate or revisional forums, on detecting material irregularity
or omission of Trial Court on framing of issues'necessary for deciding real controversy or
justifiable reasons patent on record could remand case with appropriate directions.
Remand of case, not being routine matter, it should be adopted only when compelling
circumstances exist. None amongst parties having pleaded remand. High Court acted
with material irregularity by remanding case for additional evidence on its own motion.
PLJ 1997 SC 2084 = 1997 SCMR 1849.
Insufficiently of evidence on record for reaching at a conclusion. Good
ground for remanding case to trial Court. PLJ 1978 SC 359.
ADJ while disposing appeal remanded case with order to decide it as a
fresh. Both parties interpreted order of ADJ according to their own accord. Whether
remand order was defective and ambigious. Order of Appellate court is totally silent
regarding specification as was required by Rule 29 of Order 41. Main Judgment was not a
speaking Judgment as was required under rule 31 of order 41, Hence arising of
ambiguity in such circumstances was natural. Intention of learned ADJ while remanding
case, was to frame two additional issues and decide all these issues by putting parties at
liberty to adduce evidence, if they choose so, before trial court. If purpose of learned
additional District Judge had been to gel evidence recorded only on two additional issues
then he would have specified same. as was required, under rule 28 to take such evidence
and send same to appellate court. There seems no logic to believe that intention of trial
court was to decide issues once again on basis of only previously recorded evidence. On
remand of a matter by an appellate authority, trial court has to provide opportunities to
parties, to adduce evidence on all issues including additional issues particularly when
appellate court had ordered to decide matter as a fresh unless unambiguously specified
as required by rule 29 of order 41 CPC. PLJ 1996 Kar. 668 = 1996 MLD 1533.
317
Conditions. Case could be remanded by Appellate Court in two eventualities as

provided under O.41, Rr. 23 & 25. C.P.C. firstly, when suit was disposed of by Courts
below on preliminary issue; and secondly, when Courts below had omitted to frame
issues necessary for resolving controversy between parties. Both said eventualities or
conditions were non-existent in case as suit was decided by Courts below not on
preliminary issue, but on all issues framed and question of non-framing of issue was also
not involved in case. Court, in extraordinary circumstances, had powers to remand case
in exercise of its inherent powers under S. 151, C.P.C. in the interest of justice, but such
powers should only be exercised sparingly and in unavoidable circumstances. PLJ 1999
SC (AJK) 358 = 1999 CLC 1368.
Ingredients. Most important ingredient of a valid judgment is reasons or

grounds for decision because validity of judgment in higher forum is to be Been from
reasoning and the same is to be challenged by aggrieved party is to attack reasoning of
judgment in appeal and not narration of facts. Conclusion arrived at by court will not be
binding without reasoning, therefore, courts insist that even in exparte judgments
reasons should be clearly given. PLJ 1998 Lah. 401 = PLD 1998 Lah. 100. = NLR 1998
Civil 164.
24. Where evidence on record sufficient, Appellate Court may

determine case finally. Where the evidence upon the record is sufficient to
enable the Appellate Court to pronounce judgment, the Appellate Court may,
after resettling the issues, if necessary, finally determine the suit notwithstanding
that the judgment of the Court from whose decree the appeal is preferred has
proceeded wholly upon some ground other than that on which the Appellate
Court proceeds.
Court Decisions
Remand of case by First Appellate Court. Where there was sufficient evidence
on record, merely because certain issues had not been framed, instead of remanding such
case. same could have been decided on basis of evidence already available on record.
First Appellate Court did not advert to provision of O-41. R. 24 C-P.C. and remanded
case without realizing . that material was available on record to help it in answering
controversy between parties. Court suggested resort to provisions of O.41 Rr. 24 & 25
C.P.C. to check frequent tendency of remand. PLJ 1999 Lah. 1191.
Provision of O.41, R. 24, C.P.C. empowered Appellate Court to pronounce

judgment on issues not determined by Trial Court if sufficient evidence was on record
instead of remanding the same for re-trial. Order 41, R. 24 C.P.C., however, was restricted
to appeals against decrees and was not applicable to appeals against orders. There being
no finding on any of issues apart from question of jurisdiction by Trial Court, Appellate
Court was not empowered under any provision of C.P.C. to adjudicate upon those
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issues. Issue of jurisdiction, however, having been decided by Trial Court finding of
'Appellate Court on that issue that Civil Court was possessed of jurisdiction, was correct.
Judgment and decree of Appellate Court relating to decision on merits was set aside and
suit was remanded to Trial Court for decision on all issues. PLJ 1997 Peashawar 198 =
1997 CLC 477.
25. Where Appellate Court may frame issues and refer them for trial
to Court whose decree appealed from. Where the Court from whose decree the
appeal is preferred has omitted to frame or try any issue, or to determine any
question of fact, which appears to the Appellate Court essential to the right
decision of the suit upon the merits, the Appellate Court may, if necessary, frame
issue and refer the same for the trial to the Court from whose decree the appeal is
preferred, and in such case shall direct such Court to take the additional evidence
required; and such Court shall proceed to try such issues, and shall return the
evidence to the Appellate Court together with its findings thereon and reasons
therefor.
Court decisions
Powers of Revisional and Appellate Courts to remand the case in terms of O.
XLI, R. 25, C.P.C – Scope and extent—If the parties had led evidence with regard to the
particular point and the court of first instance by giving specific finding on the said point
as a pivotal question of fact decided the same in the light of evidence available on record,
the remand of the case in appeal or revision for mere reason that a specific issue was not
framed on such point was not proper exercise of jurisdiction—Where the case was not of
the nature in which without framing issue the controversial question regarding nature of
transaction whether sale or mortgage could not be decided by the Appellate Court on the
basis of evidence available on record, remand of the case by the Appellate court was not
proper—High Court, in revision, instead of saving the parties from unnecessary agony of
litigation, committed the same mistake and remanded the case to the Trial Court with
additional direction of framing of fresh issue and recording of further evidence if need be
—proper course for the High court was to send to case back to the Appellate Court for
decision of appeal on merits—Supreme Court, in circumstances, while setting aside the
judgment of High Court directed that the Appellate court shall decide the appeal afresh
on all issues on the basis of available evidence. PLD 2003 SC 271
26. Findings and evidence to be put on record: Objection to finding.

(1) Such evidence and findings shall from part of the record in the suit; and either
party may, within a time to be fixed by the Appellate Court, present a
memorandum of objections to any finding.
(2) Determination of appeal. After the expiration of the period so
fixed for presenting such memorandum the Appellate Court proceed to
determine the appeal.
319
27. Production of additional evidence in Appellate Court. (1) The

parties to an appeal shall not be entitled to produce additional evidence, whether
oral or documentary, in the Appellate Court, but if:--
(a) the Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for
any other substantial cause;
the appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.
Court Decisions
Additional evidence, production of—Principles—Appellate Court can allow
additional evidence under O.41, R.27, C.P.C, where the Court from whose decree the
appeal is preferred has refused to admit evidence which ought to have been admitted
and, secondly where the Appellate Court requires any document to be produced or any
witness to be examined to enable the Court to pronounce judgment or for any other
substantial cause—Provisions of O.XI, R.27, C.P.C. are exception to the principle that
Appellate Court cannot record fresh evidence and additional evidence can be recorded
under O.41, R.27, C.P.C. provided the situation attracts the applicability—Power to allow
additional evidence is discretionary in nature but such discretion is circumscribed by the
limitations specified in the rule itself. 2002 CLC 879
Expression shows that where the Appellate Court feels any difficulty in
pronouncing the judgment in absence of the solicited additional evidence, such evidence
can be permitted—Word 'it' is further significant which makes reference to the Appellate
Court in whose wisdom the judgment can only be pronounced after recording the
additional evidence. 2002 CLC 879
Setting aside of judgment and decree passed by Trial Court—Appellate Court
found it necessary for the just decision of the case that additional evidence was to be
recorded—Judgment and decree passed by the Trial Court was set aside and the case was
remanded to the Trial Court for recording of the additional evidence—Validity—
Evidence, was either to be recorded by the Appellate Court itself or it might have sent the
case to the Trial Court only for the purpose of recording the additional evidence and after
recording the evidence the Trial Court had to remit the memorandum to the Appellate
Court and the Court thereafter could pronounce its own judgment—Lower Appellate
Court by setting aside the judgment and decree of the Trial Court had exercised the
jurisdiction not vested in it by law—Judgment and decree passed by the Trial Court
could not be set aside for the recording of additional evidence—High Court set aside the
Contents
judgment and decree passed by the Appellate Court and remanded the case to the
Appellate Court for recording the permitted additional evidence itself and then to
pronounce the judgment in circumstances. 2002 CLC 879
PLD 1990 Lah.. 37 and AIR 1940 Mad. 511 ref.
Application for production of additional evidence at appellate stage—
Documents which the applicant wanted to produce In additional evidence had been
mentioned in the plaint and had nexus with the ultimate purpose for the just decision—
Evidence which was sought to be adduced had direct bearing on the point in issue and
the Appellate Court could require the documents to enable it to pronounce judgment and
thus, there was a substantial cause—Dismissal of application for production of additional
evidence by the Appellate Court in circumstances was a material illegality as the Court
had not exercised its vested jurisdiction—High Court set aside the said order of
Appellate Court and allowed the production of additional evidence mentioned in the
application with direction that the respondent shall have the right to produce the
evidence b rebuttal. 2001 CLC 1721
PLD 1992 SC 811; 1998 MLD 1622; 1996 CLC 650 and 1992 SCMR 1778 ref.
It is settled principle of law that additional evidence under Order 41. R. 27,
C.P.C. can be adduced only for sufficient reasons or if it is necessary for enabling Court
to pronounce judgment. Findings of District Judge do not suffer from any infirmity and
appeal has no merit. PLJ 1992 SC (AJK) 201.
Where a party challenges vires of a mutation, it becomes essential for
other party to prove execution of said mutation. A Court cannot pronounce a just
judgment without looking at documents and without recording statements of those who
wish to prove or disprove documents. PLJ 1996 Lah. 196 = 1996 CLC 650.
After disposal of ejectment application, appellant's Managing Director
made enquiries in respect of whereabouts of respondent's husband at Dubai. There is no
reason shown as to why such attempt was"not made earlier. Said trip and discovery of
new evidence after disposal of ejectment case, would not fall within purview of
substantial cause or would not be in interest of justice no one could be permitted to fill
up lacuna left by one party to disadvantage of other party. Discovery of fresh evidence at
later stage is no ground for permitting additional evidence at appellate stage as such
evidence was not refused by Rent Controller. High Court Would not require said
photostat copies of documents to be brought as additional evidence for pronouncement
ofjudgment as it would not come within purview of Rule 27 of Order 41 C.P.C. PLJ 1996
Kar. 301 = 1996 CLC 936.
High Court in second appeal can take all necessary step suo motu, can
issue all necessary directions, can direct trial Court, on its own, to bring all necessary and
relevant documents on record of suit as additional evidence, even without asking of
either party to suit and can remand case back to Trial Court for fresh decision on merits,
in the light of additional evidence to be brought on record. High Court, however, at the
time of exercise of such jurisdiction, must record reasons for the same. District Judges are
also vested with such authority while hearing first appeals against judgments and
decrees passed by Courts of original Civil jursidiction. Appellate Court can on its own
321
take all necessary steps for doing complete justice and such authority can be exercised by
it under 0- 41, R. 33 C.P.C. or if need be in exercise of its inherent jurisdiction under
Section 151 C.P.C. PLJ 2000 Lah. 1372 = 2000 CLC 744.
Two documents which were sought to be produced in additional
evidence have no bearing on pleas of parties regarding identification'of properties and
area underneath about which evidence bad already been produced by parties and same
was thoroughly examined by trial Court and first appellate Court, therefore, said
additional evidence was not at. all relevant for purpose of disposal of suit on merits.
Application dismissed. PLJ 2001 SC 618.
First Appellate Court appears justified in rejecting an application for
additional evidence, which was made after s9 years, during which the parties remained
before trial Court. This application was also rightly found to be an attempt to prolong the
proceedings inasmuch as earlier the comparison of thumb impression of Mst. Bevi also
took quite some time and finally no report came forth. PLJ 2000 Lah. 1010.
Certified copies of .documents from Government Officer are public
documents. Appellate Court was not justified in refusing to allow production of
additional evidence of public documents. Same being relevant document is allowed. PLJ
2000 Lah. 801 = 2000 MLD 404.
Petitioner, did not produce additional evidence before trial Court.
Appellate Court dismissed application of production of additional evidence. There are
several precedents of superior Courts that under Order 41 Rule 27 no additional evidence
can be produce before appellate Court unless the trial Court refused to admit it or
appellate Court itself requires so. It is held that only newly discovered evidence can be
produce as an additional evidence before appellate Court while the evidence which
petitioner sought to produce was already in his knowledge when case was in trial Court.
PLJ 2000 Lah.: 1391.
Both Courts below have totally ignored that petitioner was seeking
production of additional evidence and not evidence in rebuttal. Additional evidence can
be allowed at any stage. Court had ample powers to do -needful so as to advance justice
rather than injustice. Concept of bar against filling gaps was no more available-in
Pakistani jurisprudence and law including precedent law on Islamic principles; which
were being made applicable progressively to proceedings before Courts and other forum
which are required to record/admit evidence. Petition allowed. PLJ 1999 Lah. 1071 =
NLR 1999 Civil 407.
Requirement—High Court was fully competent under O.41, R.27, C.P.C.
to direct additional evidence for a just and proper determination of the issue even
without application by the parties—Power to allow additional evidence was always
discretionary in nature and the exercise of discretion would depend on the facts of each
case and as a general rule parties to a lis were not entitled to produce additional evidence
but if the Appellate Court required any documents to be produced or any witness to be
examined to pronounce judgment or for any other substantial cause, it could always do
so after recording reason. PLD 2002 S.C615
Contents
To fill up any lacuna :-- Additional evidence should not be allowed to be

produced to enable a party to fill up any lacuna. This principle can more aptly be applied
to case of a person who has remained indolent, for years together in matter of producing
oral or documentary evidence before trial court. PLJ 1996 SC i 718 = 1996 SCMR 1430.
Whether applies to trial court or not. Though rule is specifically for appellate
court, but it also recognises authority and power vested in trial court as envisaged in
clause (a) of above rule- Document sought to be produced is a public document and
came in possession of respondents after recordings evidence. Therefore question of
document being fabricated or sought to be produced to fill in lacuna in case, does not
arise. Document appears to have a material bearing of suit and was. in fact, not in
possession of respondent at time they had an opportunity to produce their evidence. It
can safely be resolved that trial court exercised its proper jurisdiction in allowing
production of additional evidence. PLJ 1997 AJK 84 = 1997 MLD 2352 = NLR 1997 Civil
379
Essentials. There is no cavil with proposition that under Order 41, Rule 27,
C.P.C., parties are entitled to produce additional evidence; whether oral or documentary,
if (i) court from whose decree appeal is preferred has refused to admit evidence which
ought to have been admitted, or (ii) Appellate Court requires any document to be
produced or any witness to be examined to enable it to pronounce judgment, or for any
other substantial cause. PLJ 1998 SC 1315 = 1998 SCMR 789 = NLR 1998 C4l 406.
28. Mode of taking additional evidence. Wherever additional

evidence is allowed to be produced, the Appellate Court may either take such
evidence or direct the Court from whose decree the appeal is preferred, or any
other subordinate Court, to take such evidence and to send it when taken to the
Appellate Court.
29. Points to be defined and recorded. Where additional evidence is

directed or allowed to be taken, the Appellate Court shall specify the points to
which evidence it to be confined, and record on its proceedings the points so
specified.
JUDGMENT IN APPEAL
30. Judgment when and where pronounced. The Appellate Court,

after hearing the parties or their pleaders and referring to any part of the
proceedings, whether on appeal or in Court from whose decree the appeal is
preferred to which reference may be considered necessary, shall pronounce
323
judgment in open Court, either at once or on some future day of which notice
shall be given to the parties or their pleaders.
Court Decisions
Judgment in appeal- Default by appellants- Neither the counsel for the
appellants was present or heard nor the counsel for respondents was in a position to
argue the case- Decision of appeal by District judge on merits in view of direction by the
Member, Inspection Team of the High Court to the effect that the appeal be decided by as
of specified date-Validity- Held, remedy of appeal, in particular, the first appeal, is a
right which a suitor is entitled to avail under the law i.e. Civil procedure Code itself-
When an appeal in preferred by a party and indefeasible right of hearing bests in him,
which cannot be stultified or transgressed except in accordance with law—Direction of
the nature, issued by the Member, Inspection Team of the High court, which was at the
most administrative in nature could not be made a basis for denying the appellants the
right of hearing as envisaged by O. XLI, R. 30, C.P.C- Court which is charged with
onerous duty and responsibility fo administering justice is expected to maintain a
balance so that neither the matter is delayed unnecessarily nor its disposal is effected in
such a hasty miner as may be violative f the law and fairness- Judicial power or
jurisdiction to administer justice in accordance with law cannot be abdicated merely to
honour any executive or administrative instruction or directive- Court, in order to keep
the streams of justice clean and unpolluted, is expected to shun every extraneous
instruction/direction and act purely in accordance with law- Direction of the Member,
Inspection Team of the High Court can only be regarded as directory, enabling the Court
to expedite the hearing/decision, but in no case can be given supremacy over the explicit
legal provisions- If the counsel for appellants was not in a position to advance arguments
on the date fixed due to his engagements before High Court the case Could be adjourned
to the next day even on payment of costs in order to compensate the other side for any
inconvenience- Appeal, thus, could not be dismissed by the District judge on merits,
which exercise undertaken by him was futile and violative of law. PLD 2003 Lah. 27
Dismissal of appeal on appellant’s default- Procedure- If the Court does not
choose to dismiss the appeal, the same has to be adjourned, but R. 17, O.XLI, C.P.C
nowhere empowers the court to render a decision on merits in the absence of the
appellant-- Decree on merits in envisaged by O.XLI, R. 30 and hearing of both the sides is
the condition precedent for such a decree. PLD 2003 Lah. 27
31. Contents, date and signature of judgment. The judgment of the

Appellate Court shall be in writing and shall state: -
(a) the points for determination;
(b) and decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to
which the appellant is entitled;
Contents
and shall at the time that it is pronounced be signed and dated by the
judge or the judges concurring therein.
32. What judgment may direct. The judgment may be for confirming,
varying or reversing the decree from which the appeal is preferred, or, if the
parties to the appeal shall take, or as to the order to be made in appeal, the
Appellate Court may pass a decree or make an order accordingly.
33. Power of Court of Appeal. The Appellate Court shall have power
to pass any decree and make any order which ought to have been passed or
made and to pass or make such further or other decree or order, as the case may
require, and this power may be exercised by the Court notwithstanding that the
appeal is as to part only of the decree and may be exercised in favour of all or
any of the respondents or parties, although such respondents or parties may not
have filed any appeal or objection: -
Provided that the Appellate Court shall not make any order under
section 35A, in pursuance of any objection on which the Court from whose
decree the appeal is preferred has omitted or refused to make such order.
Illustration
A claims a sum of money as due to him from X or Y, and in a suit against
both obtains a decree against X. X appeals and A and Y are respondents. The
Appellate Court decides in favour of X. It has power to pass a decree against Y.
Court Decisions
O. XLI, R. 33—Findings of Trial Courts on questions of fact—First Appellate court can
reverse such findings and can come to its own conclusion on the basis of evidence on
record. PLD 2003 Lah. 389
34. Dissent to be recorded. Where the appeal is heard by more

Judges than one, any Judge dissenting from the judgment of the Court shall state
in writing the decision or order which he thinks should be passed on the appeal,
and he may state his reasons for the same.
DECREE IN APPEAL
35. Date and contents of decree. (1) The decree of the Appellate
Court shall bear date the day on which the judgment was pronounced.
325
(2) The decree shall contain the number of the appeal, the names and
descriptions of the appellant and respondent, and a clear specification of the
relief granted or other adjudication made.
(3) The decree shall also state the amount of costs incurred in the
appeal, and by whom or out of what property and in what proportions such
costs and the costs in the suit are to be paid.
(4) Judge dissenting from judgment need not sign decree. The decree
shall be signed and dated by the Judge or Judges who passed it:
Provided that where there are more Judges than one and there is a
difference of opinion among them, it shall not be necessary for any Judge
dissenting from the judgment of the Court to sign the decree.
36. Copies of judgment and decree to be furnished to parties.

Certified copies of the judgment and decree in appeal shall be furnished to the
parties on application to the Appellate Court and at their expense.
37. Certified copy of decree to be sent to Court whose decree

appealed from. A copy of the judgment and of the decree, certified by the
Appellate Court or such officer as it appoints in this behalf, shall be sent to the
Court which passed the decree appealed from and shall be filed with the original
proceedings in the suit, and an entry of the judgment of the Appellate Court shall
be made in the register of civil suits.

LAHORE
R. 1. Add the following proviso to sub-rule (1) of rule 1: -

Provided that when two or more cases are tried together and decided by
the same judgment, and two or more appeals are filed against the decrees,
whether by the same or different appellants, the officer appointed in this behalf
may, if satisfied that the questions for decision are analogous in each appeal,
dispense with the production of more than one copy of the judgment. (2-12-
1942).
Add the following as sub-rule (3) of rule 14: -
(3) It shall be in the discretion of the Appellate Court to make any
order, at any stage of the appeal whether on the application of any party or on its
own motion, dispensing with service of such notice on any respondent who did
not appear, either at the hearing in the Court whose decree is complained of or at
Contents
any proceeding subsequent to the decree of that Court, or on the legal

representatives of any such respondent:
Provided that: -
(a) the Court may require notice of appeal to be published in any
newspaper or in such other manner as it may direct;
(b) no such order shall preclude any such respondent or legal
representative from appearing to contest the appeal.
R. 23A. Add the following as Rule 23A: -
23A. Where the Court from whose decree an appeal is preferred has
disposed of the case otherwise than on a preliminary point, and the decree is
reversed in appeal, and a re-trial is considered necessary the Appellate Court
shall have the same powers as it has under Rule 23.
R. 35. Add the following to sub-rule (4) to R. 35:-

Provided also in the case of the High Court, that the Registrar or such
other officer as may be incharge of the Judicial Department from time to time,
shall sign the decree on behalf of the judge or Judges who passed it; but that such
Registrar, or such officer shall not sign such decree on behalf of a dissenting
Judge.
R. 38. Add the following as Rule 38:-
38. (1) An address for service filed under Order 7, rule 19, or Order 8, rule
11, or subsequently altered under Order 7, rule 22 or Order 8, rule 12 shall hold
good during all appellate proceedings arising out of the original suit or petition.
(2) Every memorandum of appeal shall state the addresses for service
given by the opposite-parties in the Court below, and notices and processes shall
issue from the appellate Court to such addresses.
(3) Rules 21 and 22 of Order 7 shall apply so far as may be to
appellate proceedings.
N.-W.F.P.
R. 1. Add the following as proviso to sub-rule (1) of rule 1: -
Provided that when two or more cases are tried together and decided by
the same judgment and two or more appeals are filed against decrees by the
same appellants it shall not be necessary to produce more than one copy of the
judgment.
R. 14. Add the following proviso to sub-rule (1) of rule 14: -

327
Provided that with permission of the Court no notice need be served

upon a respondent who was & pro forma defendant in a suit which was decided
ex pane against him.
R. 38. Add the following as Rule 38: -

38. (1) An address for service filed under Order 7, rule 19, or Order 1, rule
11, or subsequently altered under Order 7, rule 22, or Order 8, rule 12, shall hold
good during all appellate proceedings arising out of the original suit or petition.
(2) The notice of appeal, and other processes connected with
proceedings therein, shall issue to the addresses mentioned in clause (1) above,
and service, effected at such addresses shall be as effective as if it had been made
personally on the appellant or respondent, as the case may be.
(3) Rules 21, 22, 23, 24 and 25 of Order 7, shall apply, so far as may be,
to appellate proceedings. (24-11 -1972 and 29-1 -1973).
SINDH
R. 14. Add the following as sub-rule (3) of rule 14: -
(3) Appellate Court may, however, in its description, dispense with
the service of notice of the appeal of interlocutory application therein on a
respondent or opponent who has made no appearance at the trial Court.
-R. 14A. Add the following as Rule 14A: -
14A. Subject to the leave of the Appellate Court nothing in these rules
requiring any notice to be served on or given to an opposite-party or respondent
shall be deemed to require any notice to be served on or given to the legal
representative of any deceased opposite-party or deceased-respondent, where
such opposite-party or respondent did not appear, either at the hearing in the
Court whose decree is complained of or at any proceedings subsequent to the
decree of that Court.
R.38. Add the following as Rule 38: -
38. (1) An address for service filed under Order 7, rule 19, Order 8 rule 11,
or subsequently altered under Order 7, rule 24, or Order 8, rule 12, shall hold
good during all appellate proceedings arising out of the original suit of petition,
subject to any alteration under sub-rule (3).
(2) Every memorandum of appeal shall state the address for services
given by the opposite parties in the Court below and notices and processes shall
issue from the Appellate Court to such addresses.
(3) Rules 21 to 25 of Order 7, shall apply, so far as may be to appellate
proceedings
Contents
329
ORDER_XLII
APPEALS FROM APPELLATE DECREES
1. Procedure. The rules of Order XLI shall apply, so far as may be, to
appeals from decrees.
HIGH COURT AMENDMENT LAHORE
Add the following as Rule 2:- 2. In addition to the copies specified in

Order 41, rule 1, the memorandum of appeal shall be accompanied by a copy if
the judgment of the Court of first instance unless the appellate Court dispenses
therewith.
Contents
ORDER_XLIII
APPEALS FROM ORDERS

1. Appeal from orders. An appeal shall lie from the following orders
under the provisions of section 104, namely: -
(a) an order under rule 10 of Order VII returning a plaint to be
presented to the proper Court;
(b) an order under rule 10 of Order VIII pronouncing judgment
against a party;
(c) an order under rule 9 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside the dismissal of a
suit;
(d) an order under rule 13 of Order IX rejecting an application (in a
case open to appeal) for an order to set aside a decree passed ex
parte;
(e) an order under rule 4 of Order X pronouncing judgment against a
party;
(f) an order under rule 21 of Order XI;
(g) an order under rule 10 of Order XVI for the attachment of
property;
(h) an order under rule 20 of Order XVI pronouncing judgment
against a party;
(i) an order under rule 34 of Order XXI on an objection to the draft of
a document or of an endorsement;
(ii) an order under rule 62 or rule 103 of Order XXI relating to the
right, title or interest of the claimant or objector in attached
property;]
(j) an order under rule 72 or rule 92 of Order XXI setting aside or
refusing to set aside a sale;
(k) an order under rule 9 of Order XXII refusing to set aside the
abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give
leave;
331
(m) an order under rule 3 of Order XXIII recording or refusing to

record an agreement, compromise or satisfaction;
(n) an order under rule 2 of Order XXV rejecting an application (in a
case open to appeal) for an order to set aside the dismissal of a
suit;
(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to
extend the time for the payment of mortgager-money;
(p) an order in interpleader suits under rule 3, rule 4 or rule 6 of
Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or
under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate Court;
(v) an order made by any Court other than a High Court refusing the
grant of a certificate under rule 6 of Order XLV;
(w) an order under rule 4 of Order XLVII granting an application for
review.
Court Decisions
Jurisdiction of Appellate Court—Trial Court did not apply its mind and
decided the application for grant of interim injunction in mechanical manner without
recording evidence, and without framing the issue—High Court, having ample powers
to look into the subsequent events, set aside order passed by Trial Court which was not
in accordance with law. 2001 CLC 1695
PLD 1970 SC 173 and 1990 CLC 1069 ref.
Appeal against order under O. 17, R. 2, C.P.C. does not lie; appropriate remedy is
to seek redress under O.9, R.9 or 13, C.P.C. as the case may be. 2002 CLC 71
Conversion of appeal into revision or constitutional petition-- High Court has

ample power to convert appeal into revision or constitutional petition in interest of
justice and fair play at any stage of proceedings--It is admitted fact that respondent filed
suit for permanent injunction against appellants and affixed Court fee for purpose of
Court fee and jurisdiction—It is settled law that forum of appeal is to be determined not
on basis of market value of land but it is to be determined on basis of value of original
suit--Held: Appeal not maintainable order of Addl. District Judge set aside and appeal
returned to petitioner for presentation to proper Court--Appeal accepted. PLJ 2002 Lah..
163
Contents
Return of memorandum of appeal—Appeal against--Appeal against order of

return of memorandum of appeal, held, was not competent--Appeal could, however, be
treated as revision on prayer of party or counsel. 1986 M L D 606
A I R 1930 Lah.. 832 fol. I L R 25 All. 174 and 59 P R 1899 ref.
2. Procedure. The rule of Order XLI shall apply, so far as may be, to
appeals from orders.
3. Notice before presentation of appeal. (1) Where an appeal

against an order is preferred during the pendency of a suit, the appellant shall,
before presenting the appeal, give notice of such appeal to the respondent or his
advocate by delivering a copy of the memorandum and grounds of appeal
alongwith a copy of the order appealed against [either personally or through
registered post acknowledgment due and the postal or other receipt shall be filed
with the memorandum of appeal for the record of the appellate Court.
(2) On receipt of notice referred to in sub-rule (1), the respondent
may, with the permission of the Court, appear before it and contest the appeal
and may be awarded costs on dismissal of the appeal in limine.
Court Decisions
Non-compliance Of Provision of Notice before presentation of appeal :--
Respondents being duly represented before High Court before admission of appeal,
object of serving notice on respondents under O.43. R. 3, C.P.C. before filing of appeal
was fully met and. therefore, appellant could not have been non-suited in appeal on such
ground. PLJ 1997 SC 1155 -- 1997 SCMR 414.
Failure to satisfy requirement of prescribed notice in Rule. 3 of Order 43
CPC, in appropriate cases, may be visited by dismissal of appeal whereas in like manner
where justice of case so requires, party in default may be relieved of pains of dismissal by
according adequate dispensation in way of costs or otherwise because costs, have been
held to be panacea for all Civil wrongs. In urgent cases appellate forum need not wait for
service and may act on its mere issuance.' Serious cases where appellate court comes to
conclusion that omission or avoidance is deliberate, calculated to extract undue
advantage by circumventing requirement of law, may -entail penalties of dismissal.
Conditionalities of Rule. 3 of Order 43 CPC appear to have been substantially complied
with in this case and no mala fides have been shown C.M.A. dismissed. PLJ 1996 Kar. 8 =
1996 CLC 570.
giving previous notice of filing of appeal is meant to be restricted to
stage of-preliminary hearing of appeal and is not to have any further effect, once appeal
has crossed that stage and has been admitted for regular hearing thereafter appeal is to
be heard and decided on merits. It follows thai after its admission appeal cannot be
333
dismissed for non-compliance with provision of Order 43 Rule 3 of Code of Civil

Procedure. PLJ 1997 Lah. 1752 = 1997 MLD 1910 = 1997 Law Notes 126.
Failure on part of appellant having caused prejudice to other party, no
valid exception to be taken to order of Additional District Judge dismissing appeal
(presented before service of notice to respondents). PLJ 1984 Lah. 398.
Issuance of notice to respondent before presentation of appeal against
order passed during pendency of suit to be obligatory and no appeal to be entertained
without issuance of notice. PLJ 1984 SC 1.
Proper place of procedure being to help and not to thwart obtaining of
justice, right of party to have his appeal heard not to be allowed to be defeated for failure
to comply with form in case of substance having been complied with. PLJ 1984 SC1.
After admission, appeal cannot be dismissed for non-compliance with
provisions of Order 43. R- 3 CPC. PLJ 1990 Lah. 266 (DB).
4. Application of Rule 3. The provisions, of rule 3 shall mutatis

mutandis, apply to all applications filed before an Appellate Court during the
pendency of suit.
HIGH COURTS AMENDMENTS :

LAHORE
In clause (u) of rule 1 after the word and figure rule 22, add or rule 23A.
SINDH
Substitute the words any order for the words an order under rule 23 of
order XLI appearing in clause (u) of Rule 1.
Contents
ORDER_XLIV
PAUPER APPEALS
1. Who may appeal as pauper; procedure on application for
admission of appeal. Any person entitled to prefer an appeal, who is enable to
pay the fee required for the memorandum of appeal, may present an application
accompanied by a memorandum of appeal, and may be allowed to appeal as a
pauper, subject, in all matters, including the presentation of such application, to
the provisions relating to suit by paupers, insofar as those provisions are
applicable: Provided that the Court shall reject the application unless, upon a
perusal thereof and of the judgment and decree appealed from, it sees reason to
think that the decree is contrary to law or to some usage having the force of law,
or is otherwise erroneous or unjust.
2. Inquiry into pauperism. The inquiry into the pauperism of the

applicant may be made either by the Appellate Court or under the orders of the-
Appellate Court by the Court from whose decision the appeal is preferred:
Provided that, if the applicant was allowed to sue or appeal as a pauper
in the Court from whose decree the appeal is preferred no further inquiry in
respect of the pauperism shall be necessary, unless the Appellate Court sees
cause to direct such inquiry.
335
ORDER_XLV
APPEALS TO THE SUPREME COURT

[See Section 109 to 112]
1. Decree defined. In this Order, unless there is something

repugnant in the subject or context, the expression decree shall include a
judgment or final order.
2. Application to Court whose decree complained of. Whoever

desires to appeal to [the Supreme Court] shall apply by petition to the Court
whose decree is complained of.
3. Certificate as to value of fitness. [(1) A petition made under rule

2 shall briefly state the grounds of appeal and pray for a certificate.
(2) Upon receipt of such petition, the Court shall direct notice to be
served on the apposite-party to show cause why the said certificate should not be
granted: Provided that no notice shall be directed to be served on or given to the
opposite-party or to the legal representative of a deceased opposite-party in a
case where such opposite-party did not appear either at the hearing, in the Court
whose decree is complained of or at any proceedings subsequent to the decree of
that Court.
(3) the Court may, if the opposite-party in response to the notice
issued under sub-rule (2) appears after hearing both the parties, or if the
opposite-party does not appear in response to such notice, then after hearing the
party making the petition, grant or refuse the certificate.
(4) If on the date fixed for the hearing, the party making the petition
does not appear and the opposite-party appears in response to such notice or if
both the parties do not appear on such date, the petition shall be dismissed.
4. Consolidation of suits. For the purposes of pecuniary valuation,

suits involving substantially the same questions for determination and decided
by the same judgment may be consolidated; but suits decided by separate
judgments shall not be consolidated, notwithstanding that they involve
substantially the same question for determination.
Contents
5. Remission of dispute to Court of first instance. In the event of

any dispute arising between the parties as to the amount or value of the subject-
matter of the suit in the Court of first instance, or as to the amount or value of the
subject-matter in dispute on appeal to [the Supreme Court] the Court to which a
petition for a certificate is made under rule 2 may, if it thinks fit, refer such
dispute for report to the Court of first instance, which last-mentioned Court shall
proceed to determine such amount of value and shall return its report together
with the evidence to the Court by which the reference was made.
6. [Omitted]
7. Security and deposit required on grant of certificate. (1) Where

the certificate is granted, the applicant shall, within ninety days or such further
period, not exceeding sixty days, as the Court may upon cause shown allow from
the date of the decree complained of, or within six weeks from the date of the
grant of the certificate, whichever is the later date: -
(a) furnish security in cash or in Government securities for the costs
of the respondent, and
(b) deposit the amount required to defray the expense of translating,
transcribing, indexing [printing] and transmitting to [the Supreme
Court] a correct copy of the whole record of the suit, except:-
(1) formal documents directed to be excluded by [Rule of the
Supreme Court] in force for the time being;
(2) papers which the parties agree to exclude;
(3) accounts, or portions of accounts, which the officer empowered by
the Court for that purpose considers unnecessary, and which the parties have not
specifically asked to be included; and
(4) such other documents as the High Court may direct to be
excluded: Provided that the Court at the time of granting the certificate may after
hearing any opposite-party who appears, order on the ground of special
hardship that some other form of security may be furnished: Provided further,
that no adjournment shall be granted to an opposite party to contest the nature of
such security.
8. Admission of appeal and procedure thereon. Where such

security has been furnished and deposit made to the satisfaction of the Court, the
Court shall:-
(a) declare the appeal admitted,
(b) give notice thereof to the respondent,
337
(c) transmit to Supreme Court under the seal of the Court a correct
copy of the said record,except as aforesaid, and
(d) give to either party one more authenticated copies of any of the
papers in the suit on his applying therefor and paying the
reasonable expenses incurred in preparing them.
9. Revocation or acceptance of security. At any time before the

admission of the appeal the Court may, upon cause shown, revoke the
acceptance of any such security, and make further directions thereon.
10. Power to order further security or payment. Where at any time

after the admission of an appeal but before the transmission of the copy of the
record, except as aforesaid, to [the Supreme Court] such security appears
inadequate, or further payment is required for the purpose of translating,
transcribing, printing, indexing or transmitting the copy of the record, except as
aforesaid, the Court may order the appellant to furnish, within a time to be fixed
by the Court, other and sufficient security, or to make, within like time, the
required payment.
11. Effect of failure to comply with order. Where the appellant fails
to comply with such order, the proceedings shall be stayed, and the appeal shall
not proceed without an order in this behalf of [the Supreme Court], and in the
meantime execution of the decree appealed from shall not be stayed.
12. Refund of balance deposit. When the copy of the record except as
aforesaid, has been transmitted to [the Supreme Court], the appellant may obtain
a refused of the balance (if any) of the amount which he has deposited under rule
7.
13. Powers of Courts pending appeal. (1) Notwithstanding the grant

of a certificate for the admission of any appeal, the decree appealed from shall be
unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit on special cause shown by any party
interested in the suit, or otherwise appearing to the Court, -
(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such
security from the respondent as the Court thinks fit for the due
performance of any order which [the Supreme Court] may make
on the appeal, or
Contents
(c) stay the execution of the decree appealed from, taking such
security from the appellant as the Court thinks fit for the due
performance of the decree appealed from, or of any order which
[the Supreme Court] may make on the appeal, or
(d) place any party seeking the assistance of the Court under such
conditions or give such other direction respecting the subject-
matter of the appeal, as it thinks fit, by the appointment of a
receiver or otherwise.
14. Increase of security fond inadequate. (1) Where at any time

during the pendency of the appeal the security furnished by cither party appears
inadequate, the Court may, on the application of the other party, require further
security.
(2) In default of such further security being furnished as required by
the Court:
(a) if the original security was furnished by the appellant, the Court
may, on application of the respondent, execute the decree
appealed from as if the appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the Court
shall, so far as may be practicable, stay the further execution of the
decree, and restore the parties to the position in which they
respectively were when the security which appears inadequate
was furnished, or give such direction respecting the subject-matter
of the appeal as it thinks fit.
15. Procedure to enforce orders of Supreme Court. Whoever desires

to obtain execution of any order of [the Supreme Court] shall apply by petition,
accompanied by a certified copy of the decree passed or order made in appeal
and sought to be executed, to the Court from which the appeal to [the Supreme
Court] was preferred.
(2) Such Court shall transmit .the order of [the Supreme Court] to the
Court which passed the first decree appealed from, or to such other Court as [the
Supreme Court] by such order may direct, and shall (upon the application of
other party) give such directions as may be required for the execution of the
same; and the Court to which the said order is so transmitted shall execute it
according, in the matter and according to the provisions applicable to the
execution of its original decrees.
(4) Unless [the Supreme Court] is pleased otherwise to direct, no
order of [the Supreme Court] shall be inoperative on the ground that no notice
339
has been served on or given to the legal representative of any deceased opposite-
party or deceased-respondent in a case, where such opposite- party or
respondent did not appear either at the hearing in the Court whose decree was
complained of or at any proceedings subsequent to the decree of that Court, but
such order shall have the same force and effect as if it had been made before the
death took place.
16. Appeal from order relating to execution. The orders made by the
Court which executes the order of [the Supreme Court], relating to such
execution, shall be appealable in the same manner an subject to the same rules as
the orders of such Court relating to the execution of its own decrees.
17. [Omitted]
Legal Amendments
1. Omitted by the Federal Court Act, 1941 (XXI of 1941), S.I}.

Contents
ORDER_XLV_A
EXECUTION OF ORDER OF FEDERAL COURT

1. (1) Whoever desires to desires to obtain execution of an order of
the Federal Court made under sub-section (2) of section 209 of Government of
India Act, 1935, shall apply by petition, accompanied by a certified copy of the
order sought to be executed, to the High Court from which the appeal to the
Federal Court was preferred.
(2) The High Court shall transmit the order of the Federal Court to
the Court which passed the first decree appealed from or to such other Court as
the High Court may deem fit and may give such directions as may be required
for the execution of the same. The Court to which the said order is transmitted
shall execute it accordingly, in the manner and according to the provisions
applicable to the execution of its original decrees.
2. The provisions of Rule 16 of Order XLI shall apply mutatis

mutandis to the execution of decrees or orders for cost passed by the Federal
Court in appeal from the High Court
341
ORDER_XLVI
REFERENCE
1. Reference of question to High Court. Where, before or on the

hearing of a suit of an appeal in which the decree is not subject to appeal, or
where, in the execution of any such decree,, any question of law or usage having
the force of law arises, on which the Court trying the suit or appeal or executing
the decree, entertains reasonable doubt, the Court may, either of its own motion
or on the application of any of the parties, draw up a statement of the facts of the
case and the point on which doubt is entertained, and refer such statement with
its own opinion on the point for decision of the High Court.
2. Court may pass decree contingent upon decision of High Court.

The Court may either stay the proceedings or proceed in the case
notwithstanding such reference, and may pass a decree or make an order
contingent upon the decision of the High Court on the point referred; but no
decree or order shall be executed in any case in which such reference is made
until the receipt of a copy of the judgment of the High Court upon the reference.
3. Judgment of High Court to be transmitted, and case disposed of

accordingly. The High Court, after hearing the parties if they appear and desire
to be heard, shall decide the point so referred, and shall transmit a copy of its
judgment, under the signature of the Registrar, to the Court by which the
reference was made, and such Court shall, on the receipt thereof, proceed to
dispose of the case in conformity with the decision of the High Court.
4. Costs of reference to High Court. The costs (if any) consequent on

a reference for the decision of the High Court shall be costs in the case.
5. Power to alter, etc., decree of Court making reference. Where a

case is referred to the High Court under rule 1, the High Court may return the
case for amendment, and may alter, cancel or set aside any decree or order which
the Court making the reference has passed or made in the case out of which the
reference arose, and make such order as it thinks fit.
Contents
6. Power to refer to High Court questions as to jurisdiction in

small causes. (1) Where at any time before judgment a Court in which a suit has
been instituted doubts whether the suit is cognizable by a Court of Small Causes
or is not so cognizable, it may submit the record to the High Court, with a
statement of its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement, the High Court may order
the Court either to proceed with the suit or to return the plaint for presentation
to such other Court as it may in its order declare to be competent to take
cognizance of the suit.
7. Power to District Court to submit for revision proceedings had

under mistake as to jurisdiction in small causes. (1) Where it appears to a
District Court that a Court subordinate thereto has, by reason of erroneously
holding a suit to be cognizable by a Court of Small Causes or not to be so
cognizable, failed to exercise a jurisdiction vested in it by law, or exercised a
jurisdiction not so vested, the District Court may, and if required by a party shall,
submit the record to the High Court with a statement of its reasons for
considering the opinion of the subordinate Court with respect to the nature of
the suit to be erroneous.
(2) On receiving the record and statement the High Court may make
such order in the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case
submitted to the High Court under this rule, the High Court may make such
order as in the circumstance appears to it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any
requisition which the District Court may make for any record or information for
the purpose of this rule.
HIGH COURT AMENDMENT
SINDH
Add the following as Rule 8: Rule 38 of Order 41 shall apply so far as may
be, to proceedings under this Order.
343
ORDER_XLVII
REVIEW
[See section 114]
1. Application for review of judgment. (1) Any person considering

himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,and
who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the
decree was passed or order made, or on account of some mistake
OF error apparent on the face of the receipt, or for any other
sufficient reason, desires to obtain a review of the decree passed
or order made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply
for a review of judgment notwithstanding the pendency of an appeal by some
other party where the ground of such appeal is common the applicant and the
appellant, or when, being respondent, he can present to the Appellate Court the
case the case on which he case on which he applies for the review.
Court Decisions
Review of judgment—Discovery of new and important matter or evidence –
plaintiff sought review of judgment on the ground that the Trial Court did not consider
the documents filed by the plaintiff which were required to be considered—Documents
filed by the plaintiff which were required to be considered—Documents filed by the
plaintiff alongwith the review application were in his possession but he did not file the in
the court at any time during the trial – Effect—To justify review under O.XLVII, R. 1(c),
C.P.C the plaintiff had to show discovery of new and important matter or evidence,
which after the exercise of due diligence was not within his knowledge or could not be
produced by him at the time when the order was made or on account of some mistake or
error apparent on the face of the record or for any other sufficient reason—No discovery
Contents
of new and important matter or evidence had taken place which after the exercise of due
diligence was not within the knowledge of the plaintiff or could not be produced by him
at the time the order was passed—Even if the documents had been filed it would have
made any difference in the ultimate decision of the case—Court had not come to a wrong
conclusion on account of some mistake or error apparent on the face of the record—No
other argument was advanced in support of the review application—High Court
declined to interfere in exercise of review application—High court declined to interfere in
exercise of review jurisdiction with the judgment and decree passed against the plaintiff
—Application was dismissed in circumstances. PLD 2003 Kar. 145
2. To whom applications for review may be made. An application

for review of a decree or order of a Court, not being a High Court, upon some
ground other than the discovery of such new and important matter or evidence
as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or
error apparent on the face of the decree, shall be made only to the judge who
passed the decree or made the order sought to be reviewed but any such
application may, if the Judge who passed the decree or made the order has
ordered notice to issue under rule 4, sub-rule (2), Proviso (a), proviso (a), be
disposed of by his successor.
3. Form of applications for review. The provisions as to the form of

preferring appeal shall apply, mutatis mutandis, to applications for review.
4. Application where rejected. (1) Where it appears to the Court that

there is not sufficient ground for a review, it shall reject the application.
(2) Application whose granted. Where the Court is of opinion that
the application for review should be granted, it shall grant the same.
Provided that-
(a) no such application shall be granted without previous notice to
the opposite party, to enable him to appear and be heard in
support of the decree or order, a review of which is applied for;
and
(b) no such application shall be granted on the ground of discovery of
new matter or evidence which the applicant alleges was not
within his knowledge, or could not be adduced by him when the
decree or order was passed or made, without strict proof of such
allegation.
5. Application for review in Court consisting of two or more

Judges. Where the Judge or Judges, or any one of the Judges, who passed the
345
decree or made the order, a review of which is applied for, continue attached to
the Court at the time where the time where the application for a review is
presented and is not or are not precluded by absence or other cause for a period
of six months next after the application from considering the decree or order to
which the application refers, such Judge or Judges or any of them shall bear the
application, and no other Judge or Judges of the Court shall hear the same.
6. Application where rejected. (1) Where the application for a

review is heard by more than one Judge and the Court is equally divided, the
application shall be rejected.
(2) Where there is a majority, the decision shall be according to the
opinion of the majority.
7. Order of rejection not appealable: Objections to order granting

application. (1) An order of the Court rejecting the application shall not be
appealable; but an order granting an application may be objected to on the
ground that the application was-
(a) in contravention of the provisions of rule 2,
(b) in contravention of the provisions of rule 4, or
(c) after the expiration of the period of limitation prescribed therefor
and without sufficient cause. Such objection may be taken at once
by an appeal from the order granting the application or in any
appeal from the final decree or order passed or made in the suit.
(2) Where the application has been rejected in consequences of the
failure of the applicant to appear, he may apply for an order to have the rejected
application restored to the file, and, where it is proved to the satisfaction of the
Court that he was prevented by any sufficient cause from appearing when such
application was called on for hearing, the Court shall order it to be restored to
the tile upon such terms as to costs or otherwise as it thinks fit, and shall appoint
a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the
application has been served on the opposite-party.
8. Registry of application granted, and order for re-hearing. When

an application for review is granted, a note thereof shall be made in the register
and the Court may at once re-hear the case or make such order in regard to the
re-hearing as it thinks fit.
Contents
9. Bar of applications. (1) No application to review an order made

on an application for a review or a decree or order passed or made on a review
shall be entertained.
(2) Nothing in this Order shall apply to any judgment pronounced or
made by the Supreme Court.
HIGH COURT AMENDMENT SINDH
Add the following as Rule 10: -10. Rule 38 of Order 41 shall so far as may
be, to proceedings under this Order.
347
ORDER_XLVIII
MISCELLANEOUS
1. Process to be served at expense of party issuing. (1) Every

process issued under this Code shall be served at the expense of the party on
whose behalf it is issued, unless the Court otherwise directs.
(2) Costs of service. The Court-fee chargeable for such service shall
be paid within a time to be fixed before the process is issued.
2. Orders and notices how served. All orders, notices and other
documents required by this Code to be given to or served on any person shall be
served in the manner provided for the service of summons.
3. Use of forms in appendices. The forms given in the appendices,

with such variation as the circumstances of each case may require, shall be used,
for the purposes therein mentioned.
Contents
ORDER_XLIX
HIGH COURTS
1. Who may serve processes of High Courts. Notice to produce
documents, summonses to witnesses, and every other judicial process, issued in
the exercise of the original civil jurisdiction of the High Court, and of its
matrimonial, testamentary and intestate jurisdictions, except summonses to
defendants, writs of execution and notices to respondents may be served by the
attorneys in the suits, or by persons employed by them, or by such other persons
as the High Court, by any rule or order, directs.
2. Saving in respect of High Court. Nothing in this Schedule shall

be deemed to limit or otherwise affect any rules in force at the commencement of
this Code for the taking of evidence or the recording of judgment and orders by a
[*****] High Court.
3. Application of rules. The following rules shall not apply to any

[*****] High Court in the exercise of its ordinary or extraordinary original civil
jurisdiction namely: -
(1) rule 10 and rule 11, clauses (b) and (c), of Order VII;
(2) rule 3 of Order X;
(3) rule 2 of Order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15, and 16 (so far as relates to manner
of taking evidence) of Order XVIII;
(5) rules 1 to 8 of Order XX; and
(6) rule 7 of Order XXXIII (so far as relates to the making of a
memorandum);
and rule 35 of Order XLIL shall not apply to any such High Court in the
exercise of its appellate jurisdiction.
349
ORDER_L
PROVINCIAL SMALL CAUSE COURTS

1. Provincial small Cause Courts. The provisions hereinafter
specified shall not extend to Court constituted under the Provincial Small Cause
Courts Act, 1887, or to Courts exercising the jurisdiction of a Court of Small
Causes under the said Act that is to say: --
(a) so much of this schedule as relates to:-
(i) suits excepted from the cognizance of a Court of Small
Causes or the execution of decrees in such suits;
(ii) the execution of decrees against immovable property or
the interest of a partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and Orders:-
Order II rule 1 (frame of suit);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the
pronouncement at once of judgment;
Order XXVIII, rules 5 to 12 (evidence);
Order XLI to XLI (appeals);
Order XLVII, rules 2, 3, 5, 6, 7 (review);
Order LI.
Contents
ORDER_LI
PRESIDENCY SMALL CAUSE COURTS
[Omitted by the A. 0., 1949]
ORDER_LII
Applicability of Rule 38 of Order 41 to proceedings

under Section 115.
1. Rule 38 of Order 41 shall apply, so far as may be, to proceedings
under Section 115 of the Code.
HIGH COURT AMENDMENT

SINDH
Add the following as Order 52:-(As above) Order LII applies to Sindh
only having been inserted by High Court Amendment (Sindh).
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CODE OF CIVIL PROCEDURE, 1908

2. Power of Court to order separate trials. Where it appears to the

3. Who may be joined as defendants. All persons may be joined as

jointly, severally or in the alternative, where, if separate suits were brought

4. Court may give judgment for or against one or more of joint

5. Defendant need not be interested in all the reliefs claimed. It

6. Joinder of parties liable on same contract. The plaintiff may, at

7. When plaintiff in doubt from whom redress is to be sought.

8. One person may sue or defend on behalf of all in same interest.

reasonably practicable, by public advertisement, as the Court in each case may

Representative suit on behalf on numerous persons having common interest.

9. Misjoinder and non-joinder. No suit shall be defeated by reason

Misjoinder and non-joinder of parties—Effect—Where a necessary party is not

Azad Jammu and Kashmir Interim Constitution. Plea misjoinder or non-

inconvenience is likely to be caused to defendant if he is not transposed as plaintiff. PLJ

Suit for recovery of loan- During pendency of suit predecessor-in-interest of

Impugned order rejecting application for impleadment does not require

impleaded as defendants on account of his death before or after institution of suit.

12. Appearance of one of several plaintiffs or defendants for

13. Objections as to non-joinder or misjoinder. All objections on the

Object—Omission or failure to include any of the reliefs in the plaint operated as

Relinquishment of claim in earlier suit—Earlier suit was withdrawn without

'Cause of action'—Connotation—'Cause of action' means every fact that will be

Second suit on same cause of action. From averments made by

Where In absence of relevant material, controversy regarding applicability of

Constructive resjudicata. Matter of inheritance from plaintiffs deceased father

O. II, R.2 – Order II, R. 2 of C.P.C—Applicability—civil Procedure Code 1908, having

3. Joinder of causes of action. (1) Save as otherwise provided,

4. Only certain claims to be joined for recovery of immovable

(a) claims for mesne profits or arrears of rent in respect of the

5. Claims by or against executor, administrator or heirs. No claim

6. Power of Court to order separate trials. Where it appears to the

7. Objection as to mis-joinder. All objections on the ground of

HIGH COURTS AMENDMENTS

RECOGNIZED AGENTS AND PLEADERS

2. Recognized agents. The recognized agents of parties by whom

only where no other agent is expressly authorized to make and do

Withdrawal of petition without permission to institute a fresh one. Filing of fresh

Power of attorney-Essentials-Power of attorney not authorizing attorney to rile

3. Service of process on recognized agent. (1) Processes served on

4. Appointment of pleader. (1) No pleader shall act for any person

some other person duly authorised by or under a power-of-attorney to make

Engaging Counsel through attorney. Attorney during course of proceedings

Power of attorney duly signed, in a suit. No separate power-of-attorney was

Vakalatnama. Discharge. A Vakalatnama /Power/ Memo of appearance of an

Verification- Plaintiffs in view of objection defective verification of plaint and

Ratification by principal need not necessarily be in writing; same can be

Leave to revoke power of attorney. Leave to withdrawal power of attorney

5. Service of process on pleader. Any process served on the pleader

6. Agent to accept service. (1) Besides the recognized agents

HIGH COURTS AMENDMENTS N.-W.F.P.

2. Register of suits. The Court shall cause the particulars of every

ISSUE AND SERVICE OR SUMMONS

2. Copy of statement annexed to summons. Every summons shall

3. Court may order defendant or plaintiff to appear in person. (1)

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

5. Summons to be either to settle issues or for final disposal. The

6. Fixing day for appearance of defendant. The day for the

7. Summons to order defendant to produce documents relied on

HIGH COURTS AMENDMENTS LAHORE

8. On issue of summons for final disposal, defendant to be

9. Delivery or transmission of summons for service. (1) Where the

10. Mode of service. Service of the summons shall be made by

High-Court Amendment;__ Lahore.