Вы находитесь на странице: 1из 12

Law 171 – Civil Procedure

Autumn Quarter, 2006

Instructor: Justice Jawad S. Khawaja

Course Description: This is a four unit course designed to introduce students to


foundational concepts and structure of the Law of Civil Procedure in Pakistan. The study
of procedural law is not just important for being better equipped for practicing law but
even more significantly because procedural justice is a cardinal, internationally
recognized and highly developed component of justice. Due process and Natural Justice
have developed to become complex and sophisticated areas of law and have a huge
bearing on the liberties and rights of citizens. The Public policy behind procedural laws
can also emerge from very diverse policy choices, ranging from a commitment to delay
reduction in adjudication to a rigorous pursuit of the truth of the matter, with time not
being of prime consideration. Similarly, the respective rights of the plaintiffs and
defendants and the rights of the litigants vis-à-vis the court can also vary from system to
system. Depending on which policy priority imbues a procedural system, its ethos,
dynamics and mechanics can thus vary quite a bit. This course will not only introduce the
students in detail to the various aspects, facets and implications of the Civil Procedural
law in Pakistan but will not only analyze and discuss the policy choices behind these laws
but also compare the policy behind and nature of the Pakistani Civil Procedural law with
other relevant international jurisdictions.

Prerequisites for this course: None.

Lectures: There will be 20 sessions. Classes will meet on Tuesdays and Thursdays from
11.30 a.m. – 13.10 p.m.

Grading:

Class Participation: 20%

Short Assignment: 20%

2 Quizzes: 20%

Final Exam: 40%


Sessions

Session 1 & 2 - Introduction to procedural law and place of procedure in


administering law.

Required Reading :
Required cases to be consulted from the case book provided.
Required CPC sections are attached with the general reading material as photocopied
statutes.

1. “Access to Justice in Pakistan” by Justice (Retd.) Fazal Karim - Pages 149 to 156.
Pages 361 to 375. This material is only meant to provide a context for a general
introductory discussion on Civil Procedure.
2. Reports of Law Commission of India. Extracts from the:
(1) 27th Report dated December 13, 1964 on the Code of Civil Procedure, 1908.
(Universal’s Compendium pages 27.7 to 27.13).
(11) 54th Report dated February 6. 1973 on the Code of Civil Procedure 1908
(Universal’s Compendium pages 54.6 to 54.7 and pages 54.9 to 54.14).
3. Halsbury’s Laws of England (Volume 37), Fourth Edition, Paragraphs 1,2,3,10,11 and
14.
4. Jurisprudence and Legal Theory by Dr. V.D.. Mahajan, Pages 485 to 488.
5. What is the role of procedure in administering law?
6. From what source do Civil Courts derive the powers exercised by them?
7. Broad steps in the conduct of a civil suit.
(a) Filing of plaint by plaintiff(s)
(b) Service of summons on defendant (s)
(c) Filing of written statement by defendant(s)
(d) Framing of issues in contention
(e) Recording of evidence, oral and documentary.
(f) Arguments advanced on behalf of the parties.
(g) Pronouncement of Judgment
(h) Drawing up of a Decree
8. 1963 S.C. 382 (kaikaus)@399
Imtiaz Ahmad vs. Ghulam Ali etc.
“I must confess that having dealt with technicalities for more than forty years, out of
which thirty years are at the Bar, I do not feel much impressed with them. I think the
proper place of procedure in any system of administration of justice is to help and not
thwart the grant to the people of rights. All technicalities have to be avoided unless it be
essential to comply with them on grounds of public policy. The English system of
administration of justice on which our own is based may be to a certain extent technical
but we are not to take from that system is defect. Any system which by giving effect to the
form and not to the substantive rights is defective to that extent. The ideal must always be
a system that gives to every person what is his.”
9. What public policy considerations could outweigh the objective of giving “to every
person what is his”.
Section 151 CPC: See 1990 Lah. 222 (Fazal Karim J.)
Syed Shahzad Husain etc. vs. Mst. Hajra Bibi etc.
- Court’s inherent power to prevent abuse of process of Court.
10. 1969 S.C. 187 (Hamood-ur-Rehman J.)
- What constitutes procedure act 192
- Retrospective application of procedural amendments.
11. 1996 Lah. 528 (Ch. Mushtaq Ahmad Khan J.)
ICIC vs. Mian Rafiq Saigol etc.
(a)What is it that procedural law is meant to achieve?
(b)Was there any abuse of process of law? If so, by whom?
(c)Was delay in adjudication of case avoidable ? How?
(d)Also see 27th Report Supra pages 27.14 and 27.15
12.CR 2512 of 2002. Mumtaz Ali vs. Shukar Din etc.
(Judgment and Questions provided)
13.W.P.11039 of 2006. Younas Ahmad Bhatti vs. Rashid Ahmad etc.
(Judgment, Documents and Questions provided)
14. Courts for Resolution of disputes of a civil nature. (Outline attached).

Required Cases from Case book:

- Younas Ahmed Bhatti v Rashid Ahmed etc


- Syed Jalal Abbas Kazmi v. Muhammad Hayat
- Captain PQ Chemical Industries (Pvt) Ltd v Saleem Rahat
- Dr. Syed Riaz Hussain Versus National Bank of Pakistan & Others
- Malik Autos vs. Pakistan
- Engro Chemical v Hussain Dawood
- Muhammed Akbar Malik v Mashreq Bank Pakistan & Others
- Mumtaz Ali etc v Shukar Din etc
- Shahida A. Rajput Humayun Mirza

Session 3 & 4 – Jurisdiction of Civil Courts

Required Reading:

1. Access to Justice in Pakistan by Justice (Retd.) Fazal Karim. Pages 376 to 384
and pages 405 to 417.
2. Judicial Treatment of Forum Clauses in India and Pakistan by Sami U. Zafar
(PLD 1990 Journal 85)
3. 1968 S.C. 381 (Hamood-ur-Rehman J.) – Chalna Fibre Co. Ltd vs. Abdul Jaffar &
others
- S.9 CPC and Ss. 3 and 24 examined.
- Discussion: Re: Ouster of Jurisdiction of Civil Court.
4. 1993 Karachi 107 (Wajihuddin Ahmad J.) – Shafiq Hanif (Pvt.) Limited vs. BCCI
(Overseas) Limited.
- Discussion on Section 9 and 10 Order 8 Rule 6 CPC
- Express and implied ouster of jurisdiction
5. 1991 SCMR 1944 (Shafi-ur-Rehman J.) – Raja Khurshid Ali vs. Dr. Abdul Malik.
6. 2000 PLC 10 (Ch. Ijaz Ahmad J.)
Commissioner PESSI vs. Broadway Bakers.
- Section 9 and Order 7 Rule 1 CPC considered.
7. 1977 PLC 145 (Z.A. Channa J.) =PLJ 1976 Kar. 328.
Sunshine Dairies vs. Sindh ESSI etc.
- S.9 CPC discussed – implied ouster of jurisdiction of Civil Court
- 1978 Kar. 945 – M/s Standard Printing Press vs. Sindh ESSI etc.
8. Section 9 CPC
Even in cases of ouster of Civil Court’s jurisdiction by a statute, the Civil Court has
jurisdiction (subject to law) to determine if the forum established by the ousting statute
has acted in accordance with provisions of such statute.
1996 CLC 1382 (Abdul Hafiz Cheema J.)
Hakim Hafiz Mohammad Ghaus vs. Province of Punjab
Also 1997 Kar.541 (Sabihuddin Ahmad J.)
K.G. Traders vs. Collector of Customs etc.
Ouster of the Civil Court’s plenary jurisdiction by section 217 of the Customs Act was
considered in cases of malafides and illegal exercise of powers of customs officers.
9. Reference No. 515/HRC/EDO (R)
(Answer and Questions provided)
10. Sections 6, 9 & 15 to 23 CPC.
Order 7 Rules 10 CPC. Section 28 Contract Act.
11. Section 6 CPC
This section is subject to law such as the suits Valuation Act, 1887. A Civil Court, as
such, can in certain circumstances (envisaged by law)pass a decree for an amount
exceeding its pecuniary jurisdiction.
Section 1962 Dacca 214@217 ff (Chowdhury C.J.)
Farman Ali Dewan etc. vs. Mansur Ali etc.
12. 1987 SCMR 393 (Javid Iqbal J.)
State Life Insurance vs. Rana M. Saleem.
- Sections 9 and 20 CPC. Section 28 Contract Act examined. Choice of
forum.
13. 1970 S.C. 373 (Hamood-ur-Rehman J.)
M.A. Chaudhri vs. M/s Mitsui OSK Limited etc.
- Choice of forum by consent of parties
- Acquiescence/submission to jurisdiction
14. 2001 CLC 1618 (Mushir Alam J.)
M.R. Transport Co. vs. National general Insurance Co. Limited.
- Whether S.47 (2) of Insurance Act ouster jurisdiction of Civil Court.
15. 1964 Kar. 149 (Manzur Qadir CJ.) FB.
S. Zafar Ahmad vs. Abdur Khaliq.
- Want of jurisdiction distinguished from error in the exercise of jurisdiction.
16. 1955 Lah. 280 (Kaikaus J.)
Henan and others vs. Fazal
Sections 16 and 20 CPC.
17. 2002 CLC 159 (Maulvi Anwar ul Haq J.)
Board of Governors, Divisional Public Jigh School vs. Sh. Fazal Hussain & Co.
- Objection to territorial jurisdiction. Sections 20 and 21 CPC.
18. Examine provisions of in respect of jurisdiction, in the:
(a) Companies Ordinance, 1984 (Sections 7 and 8)
(b) Financial Institutions (Recovery of Finances) Ordinance, 2001 (Sections 5 & 9)
(c) Banking Tribunals Ordinance, 1984 (Sections 5, 6, and 8)
(d) Social Security Ordinance, 1965 (Sections 56 to 62)
(e) Land Revenue Act, 1967 (Section 172)
(f) Cooperative Societies Act, 1925 (Section 70A)
(g) Central Depositories Act 1997 (Section 11)
And determine the impact of such provisions on the plenary jurisdiction of Civil Courts
under Section 9 CPC.
19. WAK Orient Power Co. Limited vs. Westinghouse etc.
(Material to be provided from case record)
Examine the facts of this case in the light of 2003 Karachi 382
(Sabihuddin Ahmad & Syed Ali Aslam Jafri JJ.)
Munawar Ali Khan vs. Marfari & Co.
20. Section 20 CPC
The Court within whose jurisdiction the cause of action wholly or in part arises, will have
jurisdiction in cases not covered by Sections 16 to 19 CPC.
See (DB Saeed-uz-Zaman Siddique, Iman Ali Kazi JJ).
WPIDC vs. Sh. Mohammad Amin & Co.
21. 2005 CLC 1659 (Rehmet Husain Jafri J.)
United Distributors Limited vs. Al-Syed Agrochemicals.
Sections 9 and 20 CPC considered.
What is cause of action? Did any part of the cause of action arise within the jurisdiction
of the Court.
22. 2005 YLR 3226 (Muhammad Raza Khan J.)
Hamid Shahzad vs. Mohammad Sohail.
Is the finding in this case consistent with the ratio in the case of united Distributors
Limited supra? In fact, why? Does this precedent correctly interpret section 20 CPC.
23. 2002 MLD 1783 (Anwar Zaheer Jamali J.)
Admad Nawaz etc. vs Abdul Khalique etc.
Over all effect of Sections 15 to 20 CPC seen. Term “cause of action” in the context of
section 20 CPC considered.
24. 1999 MLD 1315(Mian Mohammad Ajmal J.)
Malik Ejaz vs. Abdul Haleem
The question of jurisdiction in this case was held to be a mixed question of law and fact.
Is this finding correct? What facts would have been necessary for vesting jurisdiction in
the Court at Mardan. Keeping in view the principles on which the judgement of the Court
is founded.

Required Cases from case book:

- Captain PQ Chemical Industries (Pvt) ltd v Saleem Rahat


- Mushtaq Ahmed v Mst Saeedi etc
- Kafait Ullah V Great Wall Drilling
- Sultan Lakhani vs National Bank of Pakistan
- Muhammad Riaz vs. Anwar Yahya and 3 others
- TAQ Enterprises Cargo Services v Aafza Industries etc
- United Foam Industries (Pvt) Limited v. Mian Javed Amir
- Sheikh Combined Industries v. Mian Javed Amir and 6 others
- CH. Muhammad Islam v Mst Perveen Akhtar etc
- M/S Precision casting (pvt) Ltd & Others vs M/S Homeworthy Panels(pvt)
Limited & Others
- C.A Waheed v. Aftab Ahmed
- Mumtaz Ali etc v Shukar Din etc
- Salamat Ali etc v Khair-ud-Din etc

- Ss. 6,9,15 to 23 Order 7 Rule 10 CPC, Articles 4, 175 and 202 of the
Constitution. Section 115 CPC.

Session 5, 6 & 7 – Restraints on bringing continuing suits

Required Reading:

1. Access to Justice in Pakistan


Justice (r) Fazal Karim
Pages 384 to 405
2. 1949 Lah. 16. (Cornelius J)
Mohammad Afza vs. Sardar Begum
Section 10 and Section 151 CPC
3. 1956 Lah. 245 (Kaiaus J.)
Allahbad vs. Mohammad Ali and others.
Section 11 CPC – “between the same parties” examined.
4. 1955 Lah. 140 (Kaikaus J.)
Bahadur Ali and another vs. Amir Ullah Khan
- Section 11 CPC effect of a decision rendered by a forum of exclusive
jurisdiction
- Question of jurisdiction and resjudicata
5. 2004 CLD 334 (Mushir Alam J.)
Hassan Ali Rice Export Co. vs. Flame Maritime Ltd.
- Section 10 & 11 CPC and Section 34 Arbitration Act.
- Meaning of the term “former suit”
6. 1990 Lah. 222 (Fazal Karim J.)
Syed Shahzad Husain etc vs. Mst. Hajra Bibi etc
- Suit may be dismissed summarily under Section 151 CPC where there is
abuse of Court process.
7. 1987 SCMR 527
Aziz Ahmad etc. vs. Mst Hajra Bibi etc.
Order 99 Rule 9, Order 2, Abuse of Court process considered. The principle that “no one
is to be vexed twice for the same cause of action”, examined.

Required Cases from case book:

- LDA and Another vs Muhammad Tariq Niaz


- C.A Waheed v Aftab Ahmed
- Kafait Ullah v Great Wall Drilling Company etc
- Mst. Samia Begum vs M. Ashraf
- Younas Ahmed Bhatti v Rashid Ahmed etc
- Inayat Ali v Al- Fayyaz Fabrics (pvt) Limited

Ss. 10, 11, 12, & 13 CPC, Order 2 Rule 2, Order 23 Rule 1 (3) CPC Section 47 CPC,
Section 144 CPC, Order 22 Rule 9 CPC, Order 7 Rule 11 CPC. Oder 9 Rule 9 CPC.
Sections 83, 84, 86A, 80, 91, 92 CPC Section 34 Arbitration Act. Order 21, Rule 103
CPC.

Session 8 – Parties to Suit

Required Reading:

1. 1955 Lah. 644 (Kaikaus J.)


Mohammad Ishaq vs. Mrs. Jamila Begum and others.
Order 1 Rules 3 and 10 CPC
2. Humayun Mirza vs. Shahida Rajput etc.
(Materials to be provided from record of case)
3. 1954 Lah. 406(Kaikaus J.)
Gul Mohammad and another vs. Mir Zaman and another.
Order 1 Rule 10, Order 2 Rule 2 CPC. Terms “necessary party” and “proper party”
examined.
4. 1954 Dacca 158 (Ibrahim J.) Ch. 1955 Lah. 644
Atar Ali vs. Abed Ali and others
- Order 1 Rule 10 CPC
- Comparison with ratio in 1954 Lah. 406
5. Mushtaq Ahmad vs. District Judge (7348/95)
Order 32, Section 147, Minor/Guardian ad litrim

Required Cases from case book:

- Innayat Ali v Al-Fayyaz Fabrics (pvt) Limited

Order 1, Order 3, Order 22, Order 27 and Order 28 to Order 33, Order 44
CPC Section 11 Expl. VI.

Session 9 – Pleadings, institution of suits and provisions relating to the respective


pleas of parties

Required Reading:

- Orders 6, 7 and 8, Order 11 CPC. Appendix A CPC. High Court Rules,


Order 13 Rule 1 CPC & Order 7 Rule 14 CPC.

Required Cases from case book:

- Mst. Samia Begum v M. Ashraf

Session 10 – Summons to parties to a suit; their appearance etc. and consequences


for non appearance
- Issues

Required Reading for Summons:

- Ss. 27 and 28 CPC, Order 5 and Order 9 CPC High Court Rules and
Order amendment.

Required Reading for Issues:

- Orders 14 and 15 CPC


Session 11 – Evidence in Proof of positions respectively taken by parties

Required Reading:

- Documentary: Orders 11 to 14 CPC


- Oral: Orders 18 & 19 CPC

Required Cases from case book:

- Kafait Ullah V Great Wall Drilling company etc

Session 12 – Arguments, Judgement and Decree

Required Reading:

- Order 20 CPC

Required Cases from case book:

- Inayat Ali v Al – Fayyaz Fabrics (Pvt) Limited


- City Education Board v Mst. Maqbool Nasreen

Session 13 & 14 – Types of cases categorized separately by CPC on account of


special features

Required Reading:

- Suits on mortgages: Order 34 CPC


- Interpleader suits Order 35 CPC
- Cases stated for opinion of Court Order 36 CPC
- Suits on negotiable instrument Order 37 CPC

Required Cases from case book:

- Younas Ahmed Bhatti v Rashid Ahmed etc


- Muhammad Younas v Muhammad Akram etc
- Feroze Din v Barkat Ali
- Metro Flex Industries vs Government of Pakistan

Session 15 – Interlocutory matters of special significance, dealt with separately in


CPC

Required Reading:

1. Arrest and attachment before judgment: Order 38 CPC


2. Temporary injunctions: Order 39 CPC
3. Receivers: Order 40 CPC
4. Adjournments: Order 17 CPC
5. Commissions: Order 26 CPC

Required Cases from case book:

- Shahida A. Rajput Humayun Mirza


- Habib Bank Limited vs Perfect Traders
- Kafait Ullah vs Great Wall Drilling Company etc
- Waqar Aziz vs Muhammad Irfan Butt and another
- Arrest and attachment before judgment: Order 38 CPC
- Temporary Injunctions: Order 39 CPC
- Recievers: Order 40 CPC
- Adjournments: Order 17 CPC
- Commissions: Order 26 CPC

Session 16 – Appeals from original decrees, appellate decree and Orders

Required Reading:

- Order 41 to Order 43 CPC, pauper appeals Order 44 CPC.


Session 17 & 18 – Revision and review

Required Reading:

- Sections 114 and 115 CPC, Order 47 CPC.

Session 19 – Procedure in litigation of a civil nature in Courts and forums other


than the ordinary Civil Courts

Required Reading:

- Financial Institutions (recovery of Finances) Ordinance, 2001


- Companies Ordinance 1984
- Privatization Ordinance
- Cooperative Societies Act
- Conciliation Courts Ordinance
- Family Courts Act, 1964
- Small Cause Courts Act
- Rent Restriction Ordinance
- Writ jurisdiction under Article 199 of the Constitution
- Consumer Protection Act

Session 20 – Execution of decrees

Required Reading:

- Sections 36 to 74 CPC and Order 21 CPC


- Stay of execution
- Arrest and detention of judgement debtor
- Attachment of property
- Investigation of claims and objections
- Sale of property of judgement debtor
(a) Movable Property
(b) Immovable Property
- Possession of immovable property

Оценить