-------------------------------------------------------------------------------------------------That on 13th September, 2012 Mr.

Justice (R) Moazzam Hayat (Member Federal Service Tribunal Islamabad), gave lecture to about 150 lawyers in the Auditorium of PJA on the topic of CODE OF CIVIL PROCEDURE 1908. --------------------------------------------------------------------------------------------------

CODE OF CIVIL PROCEDURE 1908

It comprises of main Act and the Rules framed under Section 121 CPC. The main Act comprises of 11 Parts Rules are framed under Part 10 Under Section 121 Rules shall have effect as if enacted in the body of Code Section 122 empowers the High Courts to frame Rules by cancelling, altering or annulling any Rule framed under Section 121 but the amendments have to be consistent with the body of the Act PRELIMINARY PART-I: Suits in General Execution Individual proceedings like appointment of Commissions, issuance of letter of requests Suits in particular cases; against Government, by the Government, rights of aliens to sue; and special provisions. Section 89-A Alternate dispute resolution Even parties can approach a Court for merely taking its advice/opinion as to a particular case S.90 Public Nuisance (S.91)-2 or more persons may sue for removal of public nuisance after taking consent of Advocate General and

 Powers of litigation by Collector/Government PART 6: Supplement Provisions PART 7: Appeals from Orders and Decrees Section 96 First Appeal Section 100 Second Appeal Section 104 Appeal against Orders POWERS OF APPELLATE COURT PART 8: REVIEW/REVISION

PART 9: PROVISIONS RELATING TO HIGH COURTS PART 10: PART 11: Rules Miscellaneous

Section 144 Restoration of property Section 148 - Extension of time Section 151 - Inherent Jurisdiction Section 152 - Correction of clerical mistakes and errors patent on record. Section 49 - The Court under obligation to get proper Court Fee on any document, can extent time RELEVANT LAWS

Court Fees Act, 1870 Suits Valuation Act, 1887 Specific Relief Act, 1877 Civil Courts Ordinance, 1962 and Civil Courts Ordinance, 1981 Contract Act

 Stamp Act; and Limitation Act

SMALL CAUSE COURTS Under Section 7 of 1887 Act read with Civil Courts Ordinance4, 1962 Section 9 Civil Suits MEANING OF CIVIL SUIT Dictionary meanings of suit are the external attire but the members of the legal profession use the term law suits, meaning that grievances or a complaint or pentition is made of a dispute before a Court of law for determination.

SUBSTANTIAL SUITS:

When rights guaranteed by the Constitution are infringed. Even Constitutional matters can be brought before the Court. Order 27-A says that in a suit against Provincial Government the Civil Court can decide that question after issuing a notice to the Advocate General. Against Federal Government after notice to the Attorney General. SECTION 89-A: A.D.R: Much emphasis on this provision although Rules not framed as yet for its implementation.

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Public Nuisance: Representative Suits When there are enormous defendants one defendant can be selected to represent others : Order 1 Rule VIII IMPORTANT PROVISIONS IN THE MAIN ACT Section 10 Stay of Suit. On the same subject matter to be consolidated. Or the subsequent suit in another district or in another court may be stayed. The High Court may transfer all the cases between different parties on the same subject matter in one court. Section 11 Res-judicata-Constructive Res-judicata. Issues once decided shall not be agitated between the same parties and their successors. Ground that could be taken in the earlier suits but not taken shall not be agitated in subsequent suits on the principle of constructive Res-judicata. However if the parties are different, the finding on a particular issue could be cited as evidence. Section 24 Transfer of Appeals Section 47 Adjudication of Questions raised before the executing Court Sections 100 to 106 Appeals Section 148 Extension of time fixed by Court. Application to be made in the court before the expiry of period fixed by it. Section 149 Duty of the Court to get recover the Court Fee payable on a document. Section 152 Correction of clerical/typographical errors. DEFINITIONS SECTION 2 Decree Formal expression of an adjudication, by which rights of parties are conclusively determined. It includes rejection of plaint under Order 7 Rule 11 CPC.

Section 2 sub Section (9). JUDGMENT Statement given by a judge of the grounds of a Decree. Mense Profit

Profits which the party in wrongful possession receives, with interest. SUITS Dictionary means, the external attire/dress. The legal fraternity has to use term law suit which means that a petition, a claim, or a dispute brought in a law court for adjudication.

PECUNIARY JURISDICTION The Civil Judges have been categorized as Judges having First Class powers, Second Class powers, Third Class powers. There are Admin/Senior Civil Judges in each district. Admin Civil Judge is technically a Senior Civil Judge but with less than 10 years of service. Whereas the Senior Civil Judge has to have at least 10 years of service. He can be an appellate court of Third and Fourth Class Civil Judges. The pecuniary jurisdiction of the Civil Judges is fixed under Section 9 of Civil Courts Ordinance, 1962. For the sake of administration the institution is made before the Senior Civil Judge who then without taking cognizance

entrusts the cases to other Courts according to their jurisdiction.

But once the Senior Civil Judge takes cognizance he cannot send the case to any other Civil Judge because it shall tantamount to transfer of the case which power is vested in the District Judge under Section 24. In some cases this power can be given to the Senior Civil Judge also. Presently the power is exercised only by the District Judge who can transfer the appeal or the pending Civil Suit even to an Additional District Judge on his original side. PLAINT A suit is instituted on presentation of a plaint. In plaint all necessary facts have to be mentioned constituting a cause of action. The grievances arising out in favour of the plaintiff are to be mentioned. The date of cause of action has to be mentioned for determination of limitation as well as jurisdiction of the Court. The plaint is to contain averment as to the jurisdiction of the Court, also for the purposes of Court Fee and valuation under the Court Fees Act, 1870 and Suits Valuation Act, 1887. A plaint can be rejected under Order 7 Rule 11 CPC when it is barred by a law, is time barred, is without jurisdiction or does not disclose any cause of action.

 It shall be the duty of the Court to ensure that the proper

Court Fee has been paid on the plaint or any other document. Otherwise it shall pass an order Section 149 CPC for making up the deficiency. A dispute had arisen as to whether the suit shall be treated in time when presented without proper Court Fee or shall be treated to be properly presented on the date when the proper Court Fee is paid. This objection had been valid in preEmption cases especially. It was held that the proper presentation was on the date proper Court Fee was paid. Return of Plaint for want of territorial jurisdiction under Order 7 Rule 10 CPC with endorsement as to:- 1) Date of Presentation of Plaint. 2) Date of Return. 3) Short grounds. 4) Signature and Seal of the Court. 5) A copy of the Plaint shall be obtained from the plaintiff and placed on record. SUMMONS The defendant or defendants shall be issued summons through various processes along with copies of plaints and documents.

WRITTEN STATEMENT Order VIII Written Statement may be filed by the Defendant either admitting the claim or denying it.

 The defendant or defendants may claim set off in money

suits. In such event the written statement shall be treated as plaint. Proper court fee shall have to be paid on it. It is only in such cases that replication is required. There is no provision for replication in the entire CPC. It is only a judge made law. Replication is needed when new facts are mentioned in the written statement or the defendant claims limitation, jurisdiction etc. (Order 8 Rule-9) The defense can be struck off under Order VIII Rule -10. ORDER 1 Parties to the suit Rules 8 10 Important; necessary & proper parties. Deletion and addition of parties either on application or by the Court itself. ORDER 2 : FRAME OF SUIT

Rule 2 Sub Rule (2) is very important all reliefs based on one cause of action have to be made in one suit. Any relief not claimed shall tantamount to its relinquishment. When the Court gives only one relief and makes no mention about other reliefs claimed in the plaint, it shall mean that such reliefs/claims have not been granted. The remedy shall be only by filing appeal. ORDER IX: APPEARANCE AND NON APPEARANCE OF PARTIES

 Relevant provisions are Rule 2, Rule 6, Rule 7, Rule 8, Rule 9 and Rule 13.

Rule 2. Suit may be dismissed for want of payment of process fee. Rule 3. When both the parties are not present. Rule 4. Suit may be restored on application. Rule 6. Ex party proceedings. Rule 7. Setting aside ex party proceedings. Rule 8. Dismiss in default due to absence of plaintiff. Rule 9. Restoration of suit.

An application has to be made for setting aside ex party decree within 30 days from the date of decree or from the date of knowledge.

ORDER X:

EXAMINATION OF PARTIES

The pleadings are often very lengthy. The Civil Courts have inherent jurisdiction to examine the parties or even their Counsel Such examination makes the matter very simple in many cases and can be decided easily. Called better statement. ORDER XI: Discovery and Inspection Issuance of interrogatories. ORDER XII: ADMISSIONS

 A party to the suit may issue a notice to the opposite side to admit facts. ORDER XIII:

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Production, impounding and return of documents Stamp Act/Executant to pay the deficiency with penalty or the party producing it but ultimately it is the responsibility of the Executant. ORDER XIV: The Judge shall peruse the pleadings and shall determine the points at which the parties are at variance. These points are called Issues. In Punjab it is the responsibility of the Court to frame Issues. Issues can be added or deleted under Rule 5. ORDER XV: Disposal on first hearing When the suit is conceded or it is established that the Court did not have jurisdiction or the suit was time barred. ORDER XVI: Summoning of witnesses different processes. ORDER XVII: Adjournments Rules 2&3 are very important. The suit cannot be decreed automatically under Order 17 Rule 3 CPC when the party seeking adjournment fails to perform the act for which it had taken adjournment. The Court has still to record reasons. ORDER XVIII: Hearing and Examination of Witnesses

ORDER XIX: Affidavits

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A fact may be proved by submission of an affidavit but the deponent shall have to be summoned for cross examination if the veracity of his statement is questioned. He shall be cross-examined. ORDER XX: Judgments and Decrees ORDER XXI: Execution Many clauses Different modes of execution Rule 101 bona fide claimant to be restored the possession. Rule 102 Rules not applicable to transfer on the principle of lis pendence. Rule 103 certain orders conclusive and suit barred. ORDER XXII: Death, Marriage and Insolvency. No suit or appeal shall abate on the death of a party if the right to sue or right to defend survives. Suit not abated by the marriage of female. For example a widow has 1/8th or 1/4th share as the case may be in the estate of her deceased husband. Her second marriage shall not disentitle her from that claim. ORDER XXIII: ORDER XXIV: ORDER XXV: ORDER XXVI: Withdrawal of the Suits and Consent Decrees. Payment in Court Security for Cash Commissions. Statements of Commissions have to

be recorded. As court witnesses subject to cross examination by both the parties.

ORDER XXVII:

Suits against or by the Government.

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ORDER XXVIIA: All constitutional matters can be resolved by the Civil Courts after notices to the Advocate General or to the Attorney General as the case may be. ORDER XXVIII: Military, Navy and Air Force men can bring suits or defend them through Attorney if leave cannot be granted to them ORDER XXIX: Suit by or against Corporations. In Corporate name

through the officer designated in the rules. ORDER XXX: Suit by or against Firms. Registered or un

registered. Registered in their registered name. ORDER XXXI: Administrators ORDER XXXII: mind Very important The court must satisfy itself as to the averment made with regard to a party being minor or of unsound mind. It shall then ensure that such party is properly represented/defended by next friend who some times may even be an official of the Court. The expenses of that official are to be bourne by the plaintiff. ORDER XXXIII: Proper Suits. ORDER XXXIV: Mortgages. Preliminary Decree. Final Decree. Suit by or against minors or persons of unsound Suit by or against Trustees, Executors or

ORDER XXXV:

INTER-PLEADER

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Inter-pleader means that a person is keeping something with him but he is not sure as to whom that thing belongs a or b, he shall, therefore file suit against both a & b. This suit is filed by the person against different persons claiming their rights over that property. ORDER XXXVI: Special Cases for Courts opinion. ORDER XXXVII: Suits on negotiable instruments Summary Procedure Small Cause Courts Provincial Government may set up Small Cause Courts. Presently one Court exists at Lahore but the District and Sessions Judges in other Districts have been given powers under Section 37. Small Cause Courts are to be set up under Section 7 of 1887 Act read with Civil Courts Ordinance, 1962. ORDER XXXVIII: Arrests and Adjudication before Decree. Even Security can be obtained. ORDER XXXIX: Most important Discretionary relief Discretion to be judicial Should not be given without notice to the opposite side except in cases of demolition and forcible eviction. Disobedience Rule 2 (3 CPC) requires evidence. ORDER 40: Appointment of Receivers.

ORDER 41: ORDER 42: ORDER 43: ORDER 44: ORDER 45: ORDER 46: ORDER 47: ORDER 48:

Appeals from Original Decree Appeals from appellate Decree Appeals from Orders Proper appeals Appeals in the Supreme Court Reference Review Miscellaneous

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Process, how to be served and how to bear the expenses. ORDER 49: ORDER 50: ORDER 51: High Courts Provincial Small Cause Courts Omitted

Thus in all, there are total 158 Sections in the main Act whereas Sections 154 and 155 are omitted. The total Orders are 50 since Order 51 has been omitted. SCHEDULES First Schedule Pleadings/process/Decrees/Execution etc Schedules 2&5 repealed Schedule 3 is of Execution of Decrees by the Collectors possession through Kalbarani actual possession notional possession, when tenants are in possession. Schedule 4 is about amendment in the Court Fee Act of 1870 in which mention is made about counter claim and agreement to get opinion of the Court.

SUITS UNDER THE SPECIFIC RELIEF ACT Discretionary Declaration with injunction, prohibitory as well as mandatory

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Any action can be challenged in the Civil Court of any authority. Even the order of the Supreme Court can be challenged on the grounds of fraud and misrepresentation. CONTRACT ACT Void and Voidable Contracts. Void contracts are those which are declared unlawful/immoral. Voidable contracts are those contracts which can be declared void at the instance of the parties.

The lawyers must be well conversant with the CPC, Specific Relief Act, Civil Courts Ordinances 1962 and 1982, Suit Valuation Act, Arbitration Act, Special Authorities Act, Contract Act, Limitation Act and all other laws creating rights and liabilities.

A Suit on different causes of action may be filed when the defendant or defendants are the same but each set of claim shall have to be independently proved or disproved.

Very Important

 Preliminary Decree Suit for administration of property, for

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rendition of accounts, dissolution of partnerships, redemption of mortgages. Local commissions to be appointed to suggest partition among co sharers, accountants may be appointed in suit for rendition of accounts etc. When the defendants are many and it is not possible to serve them all, the court may order one of the important defendants to be designated as representative of other defendants. The defendants may be served by beat of drum or/and publication of notices in newspapers.