1.

Appeal
1. Introduction
Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is made to some
superior court against decision of subordinate court. Basic object of appeal is to test soundness of
decision of lower court. Appeal may be filed against original decree, or against decree passed in appeal.

2. Relevant Provisions
Following are the relevant Provisions regarding appeal and second appeal
(i) Section 96, 97, 98, 99, of CPC for 1st Appeal
(ii) Section 100, 101, 102, 103 of CPC for 2nd appeal
(iii) Cross Reference
(a) Section 17, 18 of West Pakistan Civil court ordinance II of 1962
(b) Order 41, 42 of CPC

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

4. Definition of Appeal
“Judicial examination of the decision by a higher court of the decision of the inferior court”.

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

6. Nature of Right of Appeal

Rights of appeal are substantive right and they are not mere matters of procedure. Right of appeal is
governed by the law prevailing at the date of the suit and not by law that prevails at the date fo the
decision or at the date of filling of the appeal.

7. Appeals from a decree

An appeal lies under section 96 CPC only from a decree because the decree marks the stage at which the
jurisdiction of the court which the appeal is made begins. As such unless a decree is drawn up, no appeal
lies from a mere finding, but if the finding amount to a decree, an appeal would lie.

8. Kinds of Appeal
Appeal may be classified not following two kinds.

1st Appeal
Generally, first appeal shall lie from every decree passed by any court exercising original jurisdiction to
the court authorizes to hear appeal from the decisions of such court.

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

Person who may Appeal:

1. parties to the suit

2. persons adversely affected by the decree

Person otherwise competent to file appeal:

1. Legal representatives of the party
2. Transferee of the interest of party,
3. A benamidar on behalf of a real owner
4. A guardian on behalf of a minor
5. Government (Federal or Provincial)

Appeal against preliminary decree:

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

Decisions in Appeal under section 98:

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

When the appeal is heard by two judges and they differ upon a matter of fact then decision despite of
differed opinion shall stand confirmed.

When the appeal is heard by two judges but the point of difference is about law then they will refer the
matter to referee judges of the same court and decion shall be confirmed by the majority including the
judges who referred the matter. but if they will not agree to refer it then the decision shall be
confirmed.

Grounds of first Appeal:

1. judicial mind not applied

2. misreading or non reading of evidence
3. any other irregularity in procedure

Effect of irregularity in decree at appeal stage u/s 99:

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

1. Where the decision is not on merit

2. The court was not competent with regard to jurisdiction
3.

2nd Appeal
Generally, Second appeal lies to the High Court, from every decree passed in an appeal, by a court
subordinate to lie High Court. It lies only on grounds mentioned in section 100 CPC but not on question
of fact.
Grounds for Second Appeal
It is settled proposition of law that second will lie where judgment is uncertain in its meaning and
finding is vague and inconclusive or where reasons are not given at all. Following are the grounds where
second appeal is competent and not otherwise.
(i) Decision being contrary to law
(ii) Decision being contrary to the usage having force of law
(iii) Decision having failed to determine some material issue of law or usage having the force of law
(iv)Substantial error or defect in procedure

Cases where second appeal is barred:

1. Small cause court’s decree where the value of suit does not exceed 25000/=
2. where the value of suit is upto 250000/= in court other than small cause

Powers of High Court to determine issues of fact

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

2. An issue of fact, necessary for the disposal of the case, has been wrongly determined by the
lower appellate court by reasons of any omission, error or defect to determine some material
issue of law.
Conclusion
To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to
whether the appeal is competent or not can only be decided by the court hearing the appeal. Appeal
may be filed against original or appellate decree passed by a court subordinate to High Court. Appeal
only lies against a decree and not against Judgment. The right of appeal is a creation of statute.

Procedure of Appeal order 41

Appeal from original decree
Memorandum of appeal must be signed and presented by
a. Party in person
b. Authorized agent
c. Authorized pleader
Memorandum of appeal must be presented to
a. The court
b. Officer authorized
Documents to be annexed with memorandum

a. Copy of decree
b. Final judgement not interim
c. Grounds of objection from pleadings or evidence numbered connectively
It is duty of officer the officer of the court to verify whether it is validly presented keeping all
requirements above stated in mind and limitation period. Grounds of objections not raised at time of
presentation of appeal shall not be heard as matter of right but with leave of court.

Date of filing of appeal is considered two ways

a. By receipt of memo of appeal

b. By refiling if memo was filed without copy of judgment
Rejection of memo of appeal at any stage with reasons and after hearing appellant
a. Not on prescribed form
b. On the grounds of rejection of plaint U 7/11
c. Rejection is a decree appealable
Return of appeal at any stage for removal of defects

a. Technical defects and irregularities in memo of appeal

b. After removal of defects it may be presented fresh
c. Amended appeal shall be signed by the judge or officer on his behalf
Stay of proceedings and execution during pendency of appeal

Court possesses power to stay proceedings and execution after the appeal is filed and mere filing does
not affect execution and proceedings of interim relief. On application of appellant court which
pronounced decree can grant stay if

a. Decree is appealable
b. If application is filed before expiry period of filing appeal
Conditions for stay

a. Sufficient cause
b. Without reasonable delay
c. Security
d. Prove that substantial loss in result of execution
Security in case of stay of execution
If the appeal is filed either at the direction of the appellate court or at the application of appellant the
court which passed the decree shall take the security for

1. Restitution of property which in future may be taken in execution of decree

2. Restitution of property which has already been taken in execution of a decree
3. Payment of the value of property which may or has been in execution of decree or order
4. due performance of the decree or order
Court shall order for stay of sale of immoveable property if the order is made in execution and judgment
debtor has deposited the decretal amount or security for decree holder’s cost.

Admission of appeal by the court

Court or officer on behalf of court shall take following procedure

a. Endorse on the memo date of presentation

b. Register the appeal in the court book
Rejection of Appeal

If on the application of the respondent, appellant fails to submit the cost for appeal or original suit as a
security before disposing of appeal and after giving reasonable opportunity court shall reject the appeal
which is not a decree and not appealable.
Notice by appellate court to court which passed the decree to order for dispatch of material regarding
suit

Notice of day of hearing appeal

a. to court which passed the decree

b. to respondent or his pleader
c. all provisions of service of summon shall be applicable
d. notice shall contain text that if respondent will not appear appeal will be heard Ex-parte
e. appeal shall be dismissed if appellant will not be appeared on the fix day
f. appeal shall be dismissed if appellant will not submit the cost to serve the notice
g. such order shall not be made before the date of hearing and if the respondent himself appears
to the court
h. appeal shall be Ex-parte if the respondent will not be appeared on the fix day
i. if the appeal is dismissed on default an application may be made for restoration
j. if the appeal is Ex-parte then application for setting aside of the Ex-parte may be made
Readmission of Appeal by application within 30 days of dismissal or knowledge against cost

a. U/R-11(2) dismissal for not submitting security for cost of appeal

b. U/R-17(1) dismissal of appeal for non appearance of Appellant
c. U/R-17(1) dismissal of appeal for non appearance of Respondent
d. U/R-18 where the cost of serving notice is not submitted by the Appellant
Rehearing of respondent after Ex-parte order against order for cost

Cross objection by respondent U/R-22

wherever the relief claimed in the suit was decreed partly in favor of plaintiff and partly in favor of
defendant and also where the original appeal is not filed by the appellant then the respondent may file
cross objections upon the points which were decided against him and may object against any party to
appeal and also to any person party to original suit by filing memo of appeal with cross objections after
getting leave to file by application within 30 days of notice of hearing of appeal. if the appeal is
dismissed or withdrawn the court will hear the cross objections even by serving notice to the opposite
parties.

Remand of case

Where the lower court has determined the suit on a preliminary issue (jurisdiction, Res-judicata or
limitation) and disposed of the suit the appellate court may after considering following points may
remand the case to that lower court for re-determining under the same number of register of civil suits.

a. Entire suit must have been disposed of by the trial court

b. Trial court has disposed of the issue at preliminary point
c. Appellate court has reversed the decree
But if the evidence on record is sufficient to pronounce the judgment appellate court may determine it
by itself.

Trial court fails to any material issue

Appellate court may frame issues and sends the suit for collection of evidence on that point and then try
the suit by itself.

Difference between Remand of case U/R-23 and Remand for missing of some material issueU/R-25

Whole case is sent back for trial Case is sent back for recording of evidence
Final order Interlocutory order
Case is at preliminary point Case is already been decided

Memorandum of objection on the new evidence

Opposite party may object by filing memo of objection to new objection and case is heard by the
appellate court who remanded the case.

Production of Additional Evidence in Appellate court

as a general rule appellate court cannot call for additional evidence but rule 27 is an exception to
general rule where appellate court may order for sending paper for inspection, issue commission and
examine parties by recording such reason and applying judicial discretion in the following
circumstances;

a. Where trial court had refused to record the evidence necessary

b. Where Appellate court cannot pronounce judgment without taking or requiring such additional
evidence
c. Where appellate court may require such additional evidence for any other substantial cause

Mode of recording such Additional evidence

a. By Appellate court itself

b. By Trial Court on the orders of Appellate Court
c. By another Lower Court

Points to be specifically defined to which additional evidence is recorded

Judgment in Appeal

a. After hearing both parties or their Pleaders

b. After giving notices to the parties or their pleaders
c. On some future day

Essentials of judgment

a. Concise statement of the facts of the case

b. Issues
c. Decision issue wise
d. Reasons for decision
e. Relief reversal, varied
f. Date and signature judge/judges
Q.2 What is presumption about foreign judgment and
its conclusiveness and how it is executed?
Introduction
foreign judgment is a judgment of court of a foreign country/reciprocating territory and it has a
presumption that if it is pronounced by a superior court of foreign country a certified copy of it if
presented in district court of Pakistan shall be considered as judgment by court of competent
jurisdiction and can be executed as if it were pronounced by a court of competent jurisdiction within
Pakistan but on the other hand if the court of foreign country is not superior court then the judgment by
that court of foreign country shall be treated as mere cause of action so cannot be executed without
holding a full dress trial.

Relevant provisions

Sections 13, 14, 44-A CPC

Presumption attached to a foreign judgment U/S 14 CPC

If a certified copy of foreign judgment is presented to the district court in Pakistan it shall be presumed
to be pronounced by a foreign court of competent jurisdiction and this presumption can be rebutted if
the competency is challenged by the opposite party on the any of the ground mentioned in section 13
CPC.

When judgment by foreign court is conclusive? U/S 13

1. Matter must have been directly adjudicated between same parties or parties under whom they
or any one of them claim
2. Parties must have been litigating under the same title
3. Exceptions contained in this section not attracted

When judgment is not conclusive?

1. Judgment pronounced by the court having no jurisdiction

2. Judgment has been given having no regards to merits of the case
3. It seems as the judgment is made by taking incorrect view of international law or refused to
recognize such law
4. Procedure adopted in the judgment is against natural justice
5. Judgment obtained by fraud
6. Judgment to breach any law in force in Pakistan

If the any one of the ground of section 13 from 1-6 is brought into the notice of executing court the
court shall rebut the presumption attached to the competency of the jurisdiction of foreign court.

Execution of decree U/S 44-A

If the court to which the judgment is submitted presumed that judgment is by foreign court having
jurisdiction and same is not challenged by the defendant on any ground mentioned in section 13 then
next step is to check whether the foreign judgment is by superior court of foreign court or lower court of
reciprocating territory. It is to be noted that if judgment of the foreign court presented in district court
of Pakistan then all the provisions of execution of decree by the district court shall mutatis mutandis
apply to that foreign judgment.

Notice to the judgment debtor

Such district court of Pakistan shall issue a show cause notice to the judgment debtor that why should
this judgment not executed against him.

Foreign Judgment other than by superior court of U.K or Reciprocating territory

It is worth noting that if the foreign judgment is not by superior court of the U.K or Reciprocating
territory then it can only enforced by a suit on the basis of foreign judgment and district court of
Pakistan shall treat this judgment mere cause of action and shall conduct full dress trial upon such cause
of action.
Q.3 Incidental proceedings
Relevant sections and order are

1) Section 75, 76, 77, and 78

2) Order 26 Rules 1-16

Incidental proceedings = issuing of commissions for the purposes mentioned in section 75

Purposes for issuing commission section 75

(a) Examining a person
(b) To conduct local investigation
(c) To examine and adjust accounts
(d) To make partition
Examination of a person with in Pakistan in any other Province
A) For examining a person for securing the ends of justice when the evidence of that person is
very necessary court either it’s on motion or on the application supported by affidavit by suit
party may issue commission for following reasons U/S 75-76 U/O 26 Rules 1-7
1. A person resides in court’s local jurisdiction but cannot attend the court due to sickness,
infirmity or any other inability
2. Any person who resides outside of court’s local jurisdiction
3. Any person who is about to leave that jurisdiction before the date of his examination by court
4. Any person who is due to service of state cannot attend the court.

Court may issue commission to a court other the High court in another province where the person
resides. Court to which the commission is issued shall either examine by itself or through some pleader
or any other person and shall return such commission along with evidence collected with report of such
examination to the court issuing commission.

B) For conducting local investigation and for securing the ends of justice court may issue
commission for following reasons U/S 75 Order 26 Rules 9 & 10
1. For explaining a matter in dispute
2. For ascertaining the market value of any property
3. For ascertaining amount or mesne profits or damages or annual net profits

After execution of task assigned the commission will write a report and then sign it and then return it
along with evidence to the court. Any party to the suit may examine the commissioner personally
regarding the matters referred to him and mentioned in his report or the manner in which investigation
was conducted.

Status of such evidence

Evidence shall become part of the evidence and if the court becomes dissatisfied from the work of the
commissioner for any reason after reason to be recorded may order for further inquiry.

C) Court may issue commission to examine and adjust accounts along with necessary instructions
and if dissatisfied May order for further inquiry U/S 75 U/O 26 Rules 11-12.
D) Court may issue commission to make partition of immoveable property where preliminary
decree regarding partition of immoveable property has been passed to make partition
according to rights and commission shall perform following functions U/S 75 U/O 26 Rules 13-
14;
1. Divide the property into shares
2. Allotment of such shares to the parties
3. Prepare a report and sign it
4. Transmit it to the court

Court will hear the objections of the both parties then confirm, vary or set aside the report so made
and pass decree for confirmation or varied and if the court set aside the report it shall then either
issue a new commission or issue any other order which it thinks fit.
Examination of a person (witness) outside Pakistan U/S 77
Court may also issue letter of request to the court of a state under the Federal authority for such
examination and provisions of this code will mutatis mutandis apply.

Examination of a person by or at the instance of the foreign court U/S 78

Court may also issue commission at the instance of the court of foreign state for such examination and
provisions of this code will mutatis mutandis apply.
Cost incurred in these proceedings
Cost to be submitted before such proceedings in the court at time fixed by the court
Q.4 Interpleader suit
Introduction:
Interpleader suit has some peculiarity with regard to the contest on it's subject matter . It is a suit where
there must be more than one defendants and the defendants contest against each other for the
disputed property. In an interpleader suit the plaintiff holds the movable or immovable property and
files the suit only to ascertain as to whom he should deliver the property because the defendants claim
the property against each other or they interplead against each other. In every interpleader suit, there
must be some debt or sum of money or other property in dispute between the defendants only. And the
plaintiff must be a person who claims no interest therein other than for charges or costs and who is
ready to pay or deliver the property to such of the defendants as may be decided by the court to be
entitled to the property.
Interpleader suit: An interpleader suit is a suit in which the real dispute is between the defendants only
and the defendants interplead, that is plead against each other (instead of pleading against the plaintiff
as in an ordinary suit).
Illustration # 1: P is in possession of jewel box, wherein he claims no interest in it, and is ready and
willing to hand it over to the rightful owner. The box is claimed by A and B. P may file an interpleader
suit against A and B.
Illustration # 2: Where goods in the possession of a railway company are claimed by two persons
adversely to each other, and the company claims no interest in these goods (other than a lien thereon
for wharfage, demurrage and freight) it may institute an interpleader suit.

Relevant provisions:
Section 88 and Order 35

Conditions required for an Inter pleader Suit:

1. There must be some debt, sum of money, or other property - movable or immovable, in dispute
2. Two or more persons must be claiming the same property adversely to each other
3. Plaintiff must not be interested, partly or wholly, in the same property (subject matter of the
suit)
4. There must not be a suit pending wherein the rights of rival claimants can be properly
adjudicated
5. Where any suit is pending in which the rights of all parties can properly be decided, no such
interpleader suit shall be instituted
6. 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

Format of interpleader suit:

Format of all civil suits are pretty much the same but in this suit a plaintiff must adhere to these
requirements
1. the plaintiff claims no interest in the subject matter in dispute other than charges and costs
2. the claims have been made by the defendants severally
3. there is no collusion between the plaintiff and any of the defendants

Action of court when interplader suit is instituted:

At the first hearing of the suit the court may declare the plaintiff discharged from all liability to the
defendants in respect of the thing claimed, award him his costs and dismiss him from the suit, or retain
all parties until the final disposal of the suit if it thinks that justice or convenience so requires.

Person debarred from suing an interpleader suit:

An agent cannot sue his principal or a tenant his landlord for the purpose of compelling them to
interplead with persons other than persons claiming through such principal or landlord.

Procedure when the defendant is suing plaintiff:

The court where the defendant institute a suit against the plaintiff shall inform to the court where the
interpleader suit is filed by the plaintiff and the court of interpleader suit shall stay the proceedings.

Cost of interpleader suit where the proceedings stayed by the court:

The cost of interpleader suit either recoverable by the plaintiff through the defendant’suit or through
the same interpleader suit.
Q.5 Interrogatories
Relevant provision
Order 11 CPC
Discovery by interrogatories U/R (1)
Order 11 CPC allows the parties to a suit where the plaint or written statement does not disclose
sufficiently nature of the case and hereby the opposite party is allowed to discover the answer to the
questions required to understand the nature of the case by delivering interrogatories. However the
leave of the court is however required prior to the deliverance of interrogatories. A party is not entitled
to find out through interrogatories the facts constituting the evidence of opponent’s cause.

Interrogatories should only be allowed in relation to relevant question in the suit and should be
confined to factual matters and should not relate to conclusion of law or construction of documents.
Interrogatories may be administered as the truth or untruth of the facts contained in the pleadings. The
interrogatories which are irrelevant to the suit cannot be allowed to deliver but they might be
admissible on the oral cross examination of a witness.
Particular interrogatories to be submitted U/R (2)
After getting the permission through application from
the court, the proposed particular interrogatories shall be submitted by the party to the court. Then the
court would only determine which of the interrogatories may be administered. Then the opposite party
has to produce the documents or make the admission against interrogatories but the leave by court
should only be granted in respect of such interrogatories as are necessary for disposing fairly of the suit
for saving the cost.
Cost of interrogatories U/R (3)
when the court or in the opinion of taxing officer with or without the
application of inquiry that the delivered interrogatories have been exhibited unreasonably or at
improper length then the cost shall be paid by the party in fault.
From of interrogatories U/R (4)
Interrogatories shall be in form no 2 in appendix, with such variation as
circumstances may require.
Corporation U/R (5)
Corporation being legal entities can sue and be sued, and similarly discovery may be
obtained against a corporation. The secretary of the corporation as a rule is the person to be
interrogated but interrogatories may also be administered to any other officer of the company. An
answer to such interrogatories is binding upon the company.
Objection to interrogatories by answer U/R (6)
When the delivered interrogatories are scandalous or
irrelevant or not exhibited bonafide for the purpose of the suit or insufficient answer or incriminatory or
relate to the party’s evidence so such party can object on the delivered interrogatories.

Setting aside and striking out interrogatories U/R (7)

On receiving the interrogatories, the application may be
made within seven days for striking it out on the following grounds like un-necessary, prolix, oppressive,
vexatious etc.
Answer to interrogatories by Affidavit R (8)
The answer to interrogatories on affidavit shall be filled within ten days
or such other time as the court may allow.

Form of affidavit in answer U/R (9)

The answer to interrogatories shall be in form no 3 in appendix with
such variation as circumstances may require.
No exception to be taken U/R (10)
In every condition the affidavit shall be given if it is objected by the
party that is sufficient then such insufficiency shall be determined by the court.
Consequences of not obeying order of the court R(11)
This rule empower a court to determine whether a party should
answer an interrogatories or not and upon a party refusing to obey the order of court, if the party is
plaintiff the court may dismiss the suit and if the party is defendant the court may strike out his right of
defence.
Using answer to interrogatories at trial U/R 22
When the answer is given to interrogatories then other
party at the trail of suit cannot use in evidence one or more answer. If the party does then the court
may look at the whole of the answer and also relate to those answers which are connected with the last
mentioned answers.
Q.6 Suit by Pauper or Indigent Person
Introduction
Order 33 CPC provides suits by “Paupers” or indigent persons. It enables persons who are
too poor to pay court fee and e x e m p t s t h e m f r o m p a y i n g t h e c o u r t f e e a t t h e f i r s t
instance and allows them to prosecute their suit in forma pauperis, provided
t h e y s a t i s f y c e r t a i n conditions laid down in this order.
Relevant provisions
Order 33 CPC
A person is a ‘pauper’ or ‘indigent person’ if, (Rule 1)
i) he is not possessed sufficient means to enable him to pay the fee prescribed by law for the
plaint of such suit; or

ii) Where no such fee is prescribed, then if he is not entitled to property

w o r t h t w e n t y f i v e thousand rupees other than necessary wearing apparels and subject
matter of the suit.

Requirements for pauper application (Rule 2)

Every suit in forma paupris shall always supported by an application for permission to sue as a pauper
and such application shall contain;

i) The particulars required in regard to plaints in suits

ii) A schedule of any movable or immovable property belonging to the applicant with
the estimated value thereof shall be annexed thereto; and
iii) It shall be signed and verified in the manner prescribed for the
s i g n i n g a n d verification of pleadings (as provided in Order 6, Rules 14 & 15)

Procedure of presentation of the pauper application before the court of law (Rule 3)

The application should be presented to the Court by the applicant in person unless he is exempted from
appearing in Court, in which case the application may be presented by an authorized agent who can
answer all material questions relating to the application and who may be examined in the same manner
as the party represented by him might have been examined had such party attended in person. Where
there are two or more plaintiffs, it can be presented by any one of them.

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. (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.

Rejection of the application (Rule 5)

The court will reject an application for permission to sue as an indigent person in the
following cases;

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 any cause of action
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 interest in such subject matter

Notice to opposite party and pleader (Rule 6 & 7)

Where no ground for rejection is found relating to the pauper application the court shall give 10 day’s
notice to the following persons;

a. Opposite party
b. Pleader

To realize whether there is any objection from the other side regarding truth of the statement of
plaintiff about pauperism and shall fix day for hearing and for examination of the witnesses and at the
completion of evidence shall make memorandum of evidence.
Procedure where court admit application for pauperism (Rule 8)

a. Mark the number to the suit

b. Register the plaint
c. Deemed to be plaint in the suit
d. Shall proceed the suit in ordinary manner as court fee has been paid
e. Plaintiff shall not be liable to pay any cost other than service process

Procedure where court reject application for pauperism (Rule 9)

Court can reject the application of the plaintiff of pauperism by giving 7 days notice to appear before the
court to the plaintiff on the application of following persons;

a. Defendant
b. Pleader

Grounds for rejection of application

1. Plaintiff is guilty of vexatious and improper conduct in the course of the suit
2. Plaintiff has enough means to pay court fee
3. Plaintiff has been entered into an agreement under which any other person has obtained an
interest in the suit property.

Recovery of court fee in case plaintiff claim succeeds (Rule 10)

If the plaintiff claim succeeds court shall order to pay court fee to any party to suit and such fee shall be
recovered by Provincial Government as a charge on the suit property.

Recovery of court fee in case plaintiff claim fails, dis-paupered, withdrawn or dismissed (Rule 11)

In case plaintiff claim fails, dis-paupered, withdrawn or dismissed due to plaintiff’s failure to serve
summon on defendant because of not submitting the charges for such service or plaintiff fails to appear
on day fixed for hearing the court shall order for recovery of court fee from the plaintiff or co-plaintiff.

Recovery of court fee in case plaintiff dies in a pauper suit

In the case where plaintiff dies the court shall order for recovery of court fee from deceased’s estate.

Satisfaction of charge upon the suit property when plaintiff’s claim succeeds (Rule 14)

Court shall send a copy of suit decree to the Collector to recover court fee from the person liable to pay
as an arrear of land revenue.

Bar on subsequent application to sue as pauper in the same matter (Rule 15)

A plaintiff is not allowed to present a subsequent application for pauper in case his claim is rejected in
the same matter.

Bar on subsequent application to sue as ordinary suit

Unless plaintiff not submit the cost incurred in a pauper application by the defendant in opposing claim
under pauperism, plaintiff is not allowed to sue as ordinary manner in the same matter.

Pauper Appeals
Introduction

Any person entitled to appeal against any decree or judgment who is unable to pay the fee required for
memorandum of appeal may present memo of appeal supported by an application of pauperism and for
this purpose provisions of CPC for pauper suit shall apply.

Relevant provisions

Order 44 CPC

Requirement for Pauper appeal

a. Decree is contrary to law or

b. to some usage having the force of law or
 c. is otherwise erroneous or unjust

Inquiry regarding the 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.

Exemption from inquiry

if the applicant was allowed to sue or appeal as a pauper in the Court fro whose decree the appeal is
preferred no further inquiry in respect of his pauperism shall be necessary unless the Appellate Court
sees cause to direct such inquiry.
Q.7 Precept
Introduction:
Precept in simple terms means a command, instruction, or order intended as an authoritative rule of
action. In legal terms, Precept means ‘a legal direction by one court to another court.”The Precept Order
is normally issued by one court, while executing a decree, to another court of other area to attach the
property of the judgment debtor situate in that area. In other words, if a property to be attached is
situate in the area of another court’s territorial jurisdiction, and then the court which passed the decree
can issue a precept order to that court to attach that property of the judgment debtor. Every court has
its jurisdiction within the limits of its territorial area and not beyond that. Therefore the court which
passed the decree shall have power to issue such Precept order to another court to attach the property
of the judgment debtor property which situate within its territorial jurisdiction.
Relevant provisions:
Section 46 of CPC
Literal meaning:
It is a letter of request by a court which passed a decree requesting another court having jurisdiction
over the subject matter adjudicated upon to attach the said property belonging to a judgment debtor.
Who may apply for precept?
The decree holder is the person who may apply for precept and it is worth noticing that applying for
precept is not independent right but a step towards execution of decree.
Competency of court to which the precept is made:
The court to which the precept is made must be competent regarding its territorial, subject matter as
well as pecuniary jurisdiction.
Powers of the court to which precept is made:
The court to which the precept is made by the trial court is empowered
1. To attach the property of the judgment debtor and the attachment takes effect from the date
the precept is made.
2. To sale the attached property upon the request, instruction or order of trial court who made the
precept upon a request by the decree holder.
Duration of attachment under precept:
The property so attached under the precept remains attached for two months until extended by the
court making precept.
Conclusion:
A precept is not an Execution petition. It is only intended to enable the Decree holder to obtain an
interim attachment when it is apprehended that he would be deprived of the fruits of the decree. It is a
request, by the court, which passed the decree to another court by which attachment has been made.
The attachment in pursuance of a precept is limited to two months unless it is extended further. The
Decree holder necessarily files an execution petition in the court, which has attached the property for
sale of the property. Every application for issue of a precept shall be in the form of an interlocutory
application by assigning proper reasons.
Q.8 What is Review, who may apply for review and
what are the grounds for filing an application for
review?
Introduction
Civil Procedure code has granted right of reviews, but this right has been made subject to procedure,
conditions and limitations, which have been prescribed in rules of order 47 of Civil Procedure Code.
Right of review is a substantive right, the main object of which is to enable the courts to correct errors,
in the decisions pronounced by them. If the decree or an order or made on the basis of some record and
there has been some mistake or error apparent on the face of record or some new and important
matter or evidence is discovered after the passage of decree or order or another such sufficient reasons,
the application of review, may be made by the aggrieved party.
Relevant provisions
Section 114 Order 47
Grounds of Review
1. Appealable Decree or Order
When any person is aggrieved by a decree or order and appeal is allowed against such decree or
order, but appeal is not filed, review application can be filed against such decree or order.
2. No Right of Appeal allowed
Where no right of appeal is allowed to an aggrieved party, he can file a review application.
3. Discovery of new and important matter or evidence
When new and important matter or evidence is discovered, but such matter or evidence was
not within knowledge of aggrieved person or such matter or evidence could not be produced by
aggrieved person at that time when decree or order was passed, review application can be filed.
Note evidence must be relevant and such nature that would if not allowed effect the decree or
order and party has to show strict proof regarding this ground otherwise application is liable to
be rejected by the court.
4. Mistake or error
When any mistake or error is apparent on face of record, and not require any extra evidence to
establish it, than a review application can be filed.
5. Any other sufficient Ground
Party may apply for review, an order or decree when there is any other sufficient ground or
reason, review application can be filed.
Forum of Review
An application for review shall lie to the following authorities.
(i) Review application against decree or order of High Court
When decree or order, against which reviewed is prayed, is that of High Court, review application should
be filed before any judge of High Court.
(ii) Same judge or his successor
When the decree or order is that of court, other than High Court, it shall be reviewed by same judge or
his successor.
Rejection of Application of Review
(i) Where it appears to the court, that there is no sufficient reason for review.
(ii) Where an application for review is heard by more than one judges, and the court is equally divided.
Order of Rejection non-Appealable
No appeal lies, from an order rejecting an application for review.
Restoration of review application
When application for review is rejected for non appearance of applicant then court application by the
applicant may restore it and shall serve a notice to the defendant.
Limitation Period Application of Review
The application for review provides period of 90 days from date of the decree or order except in case
mentioned in sec 161 and 162 of limitation act 1908 which respectively deal with the review of
judgment or decree of the small causes court and the High Court.
Conclusion
To conclude that court possesses discretionary power to allow review application. However, it is
necessary that such power should be exercised judicially.
Q.9 Set off
Set –off may be defined as the extinction of two person’s reciprocal debts against each other. Set off
happens when both the plaintiff and defendant are debtors as well as creditors against each other. It is a
reciprocal recovery of debts of two persons.

Illustration: A files a suit for recovery of money amounting to Rs. 25,000 against B . B says that A took a
loan from him, amounting to Rs. 20,000 which is legally recoverable from A by a separate suit. And
claims set off of Rs. 20,000 from the claim of A amounting to Rs.25, 000. If the claim of set off is proved
and if the claim is not barred by the law of limitation or resjudicata, B need not to pay the whole amount
of claim of A . Making minus of Rs.20, 000 as set off , from the claim of A amounting to Rs. 25,000 , B
needs to pay only the rest amount of Rs.5,000 to A . This is called set off.

Relevant provisions:

The doctrine of set-off is provided by the Order-8, Rule-6, of Civil Procedure Code.

Legal requirements for a claim of set off:

1. The suit must be for recovery of money.

2. The amount claimed for set off must be ascertained sum of money.
3. The sum of money, claimed for set off must be legally recoverable. Winnings in a wager cannot
be claimed in a set off.
4. The amount of money to be set off must not exceed the pecuniary jurisdiction of court.
5. The sum claimed must be recoverable by all the defendants against the plaintiff if there are
more than one defendant.
6. The sum claimed must be recoverable from all the plaintiffs by the defendant if there are more
than one plaintiff.
Character of the parties:
Both the plaintiff and defendant must fill same character as they fill in the plaintiff’s suit. The rules
relating to a written statement by a defendant apply to a written statement in answer to a claim of set-
off.

Time for claiming set off:

The defendant may, at the first heating of the suit, but not afterwards unless permitted by the Court,
presents a written statement containing the particulars of the debt sought to be set-off.
Equitable Set off:
The provisions of Rule 6 given above are for Legal Set off. However, these provisions are not exhaustive.
This means that a set off is still possible in certain situations even when some of the above conditions
are not satisfied. For example, in a transaction whereby goods are exchanged for services as well as
payment, the defendant may be allowed to claim a set off for an uncertain amount for damaged goods.
In a suit by a washerman for his wages, the defendant employer should be able to set off the price of
the clothes lost by the plaintiff. In such a case, driving the plaintiff to file another suit would be unfair. A
set off in such situations is called an Equitable Set off.

Point of distinction between legal set off and Equitable set off:

Legal set off Equitable set off

1. Sum must be ascertained. 1. Sum need not be ascertained.

2. Claim need not originate from the same 2. Claim must origination from the same
transaction. transaction.
3. Legal set off can be claimed as a right by the 3. Equitable set off cannot be claimed as a right
defendant and the court is bound to but by court's discretion.
adjudicate upon the claim
4. Court fee must be paid on set off amount. 4. No court fee is required.

5. The amount must not be time barred. 5. The amount may be time barred. However, if
the defendant's claim is time barred, he can
claim only as much amount as is given in the
plaintiff's claim.
Q.10 Suit by or on behalf of minor and person of
unsound mind
Minor/person of unsound mind is not allowed to sue any person by himself as law considers him/her as
not mature enough. For this reason he is presumed to be under the care of court of law and it is the
duty of the court to make sure that such minor while filing a case against another person is represented
by fit and proper person as a guardian or next friend.

Relevant provisions

Order 32 Rule 1, 2, 5-16

Procedure for filing suit on behalf of minor/unsound minded plaintiff

A suit on behalf minor/person of unsound mind is always brought under the name of minor/ person of
unsound mind through the next friend.

Who is next friend?

a) The person who initiates and institute a suit on behalf of minor/person of unsound mind
b) A person who looks after the interests of the minor/person of unsound mind

Consequences for filing the suit without next friend

Court either on the application of the defendant or by suo moto, shall

a) Take the plaint off the file

b) Order the pleader or person presenting the minor/person of unsound mind to pay the cost

Court after issuing notice to the person presenting the case of minor/person of unsound mind and
hearing the plaintiff side, shall make any order which he thinks fit.

Procedure where defendant does not object minority or unsoundness

Where defendant being aware of the fact of minority/unsound mindedness does not object the decree
would be binding upon the defendant.

Procedure where objection is satisfied by the plaintiff and suit is represented through next friend

In the case where dispute arises relating to minority after objection is satisfied the matter would be
treated as preliminary issue and determined by the court.

Procedure of application by the defendant where the suit is filed without next friend

Defendant is duty bound to present a list of relatives of the plaintiff along with the application
supported by affidavit, verifying the fact that proposed guardian has no interest in the suit adverse to
that of minor/unsound mind person and is a fit person to act as next friend while challenging the
minority/ unsound mindedness.

Notice regarding appointment of next friend or guardian by the court

Before appointing any person as a guardian court must serve a notice to the minor/person of unsound
mind as well as natural guardian or father or person declared as guardian of the minor or unsound mind
person.

Qualification to be a next friend/guardian

1. Sound minded
2. Major
3. Is not defendant in the suit
4. Has no interest adverse to the plaintiff
Procedure where Next friend/guardian appointed or declared by competent authority

Where Next friend/guardian is appointed or declared by competent authority then such person shall act
as same but court may by reason to be recorded for the welfare and interest of the plaintiff order any
other person to be next friend.

Co-plaintiff as next friend

Where no other relative is found then court may appoint any co-plaintiff as next friend.

Officer of the court as next friend

Where neither any fit or willing relative is found nor any co-plaintiff is present then court shall appoint
any pleader of the court or any other person as next friend.

Consent of guardian/next friend

Court shall not appoint any guardian without his consent and such consent shall be presumed to be
given unless expressly refused.

Retirement of the next friend

A person acting as a next friend may seek retirement by application supported by affidavit to the court
and also following the procedure

1. Provide a fit person in his place

2. Giving security for cost already incurred
3. Person recommended has no interest adverse to the plaintiff

Removal of the next friend

A next friend can be removed on the application by minor or by defendant or court by himself on the
following reasons;

1. Adverse interest
2. Fail/ avoid performing his duty as next friend
3. Leave Pakistan during pendency of the suit
4. Any other sufficient cause

The suit proceedings shall remain stayed until the appointment of new guardian in case retirement or
removal or death of the guardian.

Suit against minor and person of unsound mind

A minor or a person of unsound mind can only be sued through a guardian appointed by the court i.e.
guardian Ad-litem (guardian for the suit). If a minor/person of unsound mind is not represented by fit
and proper guardian Ad-litem then the decree obtained against them would be nullity in the eyes of law.

Relevant provisions

Order 32 Rules 3-16

Procedure for appointment of guardian Ad-litem

A guardian Ad-litem is appointed by court either at the application of

1. Plaintiff or
2. Defendant

Procedure on application of Plaintiff

It is the duty of the plaintiff to file a plaint with the list of relatives of minor/person of unsound mind and
other persons with their addresses who are prima facie more likely to be capable of acting guardian Ad-
litem In suit against minor or a person of unsound mind and if the plaintiff fails to furnish such list of
relatives the plaint may be dismissed.

Procedure where the defendant pleads minority/unsound mind

Where the defendant pleads minority/unsound mind then it is the court who shall determine the issue
relating to guardian Ad-litem.

Verification by Affidavit

Every application either made by plaintiff with list of relatives or by the defendant pleading minority
shall be supported by affidavit verifying the fact that the proposed guardian has no interest in the suit
adverse to the minor or person of unsound mind and regarding his fitness.

Notice regarding appointment of guardian by the court

Before appointing any person as a guardian court must serve a notice to the minor/person of unsound
mind as well as natural guardian or father or person declared as guardian of the minor or unsound mind
person.

Qualification to be guardian

5. Sound minded
6. Major
7. Is not plaintiff in the suit
8. Has no interest adverse to the defendant

Procedure where guardian appointed or declared by competent authority

Where guardian is appointed or declared by competent authority then such person shall act as same but
court may by reason to be recorded for the welfare and interest of the plaintiff order any other person
to be guardian.

Co-defendant as guardian

Where no other relative is found then court may appoint any co-defendant as next friend.

Officer of the court as next friend

Where neither any fit or willing relative is found nor any co-defendant is present then court shall
appoint any pleader of the court or any other person as guardian for that minor.

Consent of guardian

Court shall not appoint any guardian without his consent and such consent shall be presumed to be
given unless expressly refused.

Retirement of the guardian

A person acting as a guardian may seek retirement by application supported by affidavit to the court and
also following the procedure

4. Provide a fit person in his place

5. Giving security for cost already incurred
6. Person recommended has no interest adverse to the plaintiff

Removal of the guardian

A guardian can be removed on the application by minor or by plaintiff or court by himself on the
following reasons;
 5. Adverse interest
6. Fail/ avoid performing his duty as next friend
7. Leave Pakistan during pendency of the suit
8. Any other sufficient cause

The suit proceedings shall remain stayed until the appointment of new guardian in case retirement or
removal or death of the guardian.

Compromise on behalf of minor or unsound mind

Relevant Provisions
Order 32 rule 7, section 147 of code of civil procedure 1908

Capacity of minor regarding suit

Minor is incompetent
a- Minor cannot sue
b- Minor cannot be sued

Who is minor?
Section 3 of majority act 1870 Minor is a person who has not attained the age of 18 years.

Compromise on behalf of minor/unsound mind

General rule No compromise shall be made on behalf of minor.
Exception
Compromise may be made on behalf of minor with leave of court. SCMR 2007 SC 1684

Who may compromise on behalf of minor/unsound mind person?

Following are the persons who may compromise on behalf of minor
a- Next friend
b- Guardian and ad-litem appointed by the court
c- Natural guardian
Procedure
a) Application for leave of court
b) Application must be made in concerned court
c) Application must be made by next friend, guardian or ad-litem or natural guardian
d) Agreement or compromise can only be made on the express leave of court.

Effect of that compromise with leave of the court

2006 YLR 1577
A compromise made by guardian on behalf of minor is binding on minor.
Effect of that compromise with leave of the court
Compromise made without leave of the court is not void but voidable(at the option of the minor/unsound person)

Effect of compromise made by fraud

A minor can challenge the compromise in the court on the ground that it was made fraudulently. SCMR
2007 SC 168

Time of compromise
a) During suit
b) Subsequent to decree
c) At appeal stage
Q.11 Suit by Alien
Relevant provisions:
Section 83 of CPC
Classification of Alien:
a. Alien friend: Those who resides in a country to which their mother land is at friendship.
b. Alien Enemy: Those who resides in a country to which their mother land is at war.
c. Alien Enemy residing in a foreign country: Every person residing and carrying on business
without a license of the Central Government in a foreign country at war with Pakistan, is for this
purpose, deemed to be an alien enemy residing in a foreign country.
1. Conditions to sue as alien by Alien friend:
Alien friends may sue in any Court of competent jurisdiction as if they were citizens of Pakistan.
2. Conditions to sue as alien by Alien Enemy:
Alien enemies can sue with the permission of the Central Government provided they are residing in
Pakistan.
3. Alien Enemy residing in a foreign country:
Alien enemies residing in a foreign country as defined above with the permission of the Central
Government can sue in any Court of Pakistan having competent jurisdiction.
Q.12 Suit against the government or public officer or
by the government
Relevant provisions
Section 79-82 order 27 CPC

Name of Parties to the suit

a) A suit by or against the federal government is filed in the name of Pakistan
b) A suit by or against the provincial government is filed in the name of concerned province
c) A public officer is to be sued personally and not in his public name unless he is a corporation
sole.
Procedure of suit filed against govt or public officer
a) With notice U/S 80(1) CPC
b) Without notice U/S 80(2) CPC
Institution of suit With notice U/S 80(1) CPC
A suit against government or public officer may be filed by giving notice to such government or public
officer two months before such filing.
To whom notice is to be served?
1. In case suit is against federal government notice is to be served to the secretary of the state.
2. In case suit is against provincial government notice is to be served to either to the secretary of
the province concerned or to the collector of the district.
3. In case suit is against Railway the notice is to be served to the General Manager
4. In case suit is against public officer notice is to be served to such public officer or left at his office
Contents of notice
1. Cause of Action
2. Description and name of plaintiff
3. Relief claimed
Object of the notice
To give sufficient time to government or public officer that it/he may consider the position and decide
whether claim of the plaintiff should be accepted or defended.
Note:
Where at the expiration of period of two months and plaintiff claim remains unsatisfied the plaintiff is
then allowed to institute a suit.
Plaint under section 80(2)
Plaint in case notice served but claim remains unsatisfied must contain statement of delivery of such
notice.
Institution of suit without notice/without statement of delivery of notice U/S 80(2)
Court shall allow not less than three months to the defendant for written statement.
Procedure by the government/public officer as a plaintiff/defendant
A) Signing of Plaint and written statement
In any suit by or against government, plaint or written statement should be signed by the person, whom
government appoints in this behalf through general or special order.
B) Verification of Plaint and written statement
In any suit by or against government, plaint or written statement should be verified by that person,
whom government appoints in this behalf through general or special order and who is familiar with facts
of case.
C) Fixing of day for appearance on behalf of Government
In fixing day for government to answer plaint, court should allow reasonable time for necessary
communication with government through proper channel and for issuance of instructions to
government pleader to appear and answer on behalf of Government. Even court possesses discretion to
extend such time.
D) Extension of time
When defendant is public officer and he considers it proper to make a reference to government before
answering plaint and he applies for extension of time so that he can make such reference and can
receive orders, court should extend time for answering to plaint.
Procedure in suits against Public officer
If government undertakes defense of some suit against public officer, government pleader should apply
to court at the time when he is furnished with authority to appear and answer plaint. And court should
enter note of his authority in register of civil suits. But if such application is not filed, case is considered
to be as suit between private parties.

Execution proceeding by or against Government or

Public officer
Time for execution of Decree
When decree is against some public officer in respect of that act, which he has done in his official
capacity, time should be specified in decree within which decree should be satisfied.
Reporting of case
When such decree is not satisfied within specified time, court should report case for orders of provincial
government.
Execution after reporting of case
Execution should not be issued on any such decree unless it remains unsatisfied for period of three
months, and this period is computed from that date when case is reported for order of provincial
government.
Arrest/Attachment of property of public officer
Public officer is not liable to arrest or his property is not liable to attachment in that suit, which is filed
against him in his official capacity. However, he can be liable to arrest or his property can be liable to
attachment in execution of decree.
Law regarding cost
Plaintiff is not entitled to cost
a) If the issue is resolved within two months after institution of the suit
b) If the claim of the plaintiff is accepted within the two months after the institution of the suit
Q.13 When foreign states may sue?
Relevant provisions

Section 84 and 85 CPC

Every foreign state is allowed to sue in any court in the provinces of Pakistan through its employees who
are its agent. The acts of such agents are binding upon the state if such acts are authorized or ratified by
state.

Conditions for filing such suit

1. State recognized by federal government;

2. Enforcement of private right vested in the head of state or any office of such state in public
capacity

What is private right vested in head of state?

The rights which are not of a political or territorial nature. A foreign state can file a suit against any
person in Pakistan but it cannot file a suit against another state in relation to a political matter.

Judicial notice by court of Pakistan

Every court shall take judicial notice of the fact that a foreign state has or has not been recognized by
the federal government.

Who may prosecute/defend on behalf of foreign ruler?

At the request of the ruler of any foreign state

1. Persons specially appointed by federal government prosecute or defend

2. Any competent person may apply to federal court to prosecute or defend

Powers of recognized agents of foreign rulers

1. To verify and sign pleadings

2. To delegate their powers to any other person

Appointment after the institution of suit is valid although new appointee has not signed the pleadings.