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REJOINDER.
-------------------------------Rejoinder means answer of the plaintiff, which he gives keeping in view new facts
alleged by the defendant in written statement.
ADDITIONAL WRITTEN STATEMENT
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It means further answer of the defendant, ( if court permits) which he gives in light
of rejoinder.
OBJECT OF PLEADING:
------------------------------------------------------------The object of pleading is to bring the parties to an issue and purpose of the rules
relating to pleading is to prevent the issue beig enlarged. Further that the parties
themselves know what are the matters in dispute and what facts they have to prove
at the trial.
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ISSUES
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Issues are points of contest between the parties in a suit . In other words issues are
those points raised from the pleadings which se a way for the court for entertaining a
case and it brings the court at the right conclusion of justice. The determination of
issues has great importance in the trial of a case, because it is issues and not the
pleadings, which indicates the appropriate evidence to be given. Pleadings
constitutes allegations to one-side or the other, and after determination which of the
allegations are material for the purpose of the trial and which of them are admitted
or denied, issues are framed and on the basis of these issues the parties stand the
test of the trial.
The object of settlement of issues is to determine the material points in controversy
between the parties.
Issues arises when a material proposition of fact or law affirme by one party and
denied by other party.
Issues , whether raised from allegations in the pleadings or from other materials,
should not be inconsistent with pleadings, the court is bound to frame the proper
issues arising from the pleadings.
FRAMING OF ISSUES:
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According to order 14 rule 1, issues arise when a material proposition of fact or law
is affirmed by one party and denied by the other. Material propositions are those
propositions of law or fact which a plaintiff must allege in order to show a right to
sue or a defendant must allege in order to constitute his defence.
Each material proposition affirmed by one party and denied by the other shall form
the subject of a distinct issue. At the first hearing of the suit the court shall, after
reading the plaint, and the written statements, if any, and after such examination of
the parties as may appear necesssary, ascertain upon what material propositions of
fact or of law the parties are at variance, and shall thereupon proceed to frame and
record the issues on weich the right decision of the case appears to depend.
If the defendant at the first hearing of the suit makes no defence, then according to
order 14 rule 1 , nothing in this rule requires the court to frame and record issues.
OMISSION TO FRAME ISSUES
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If an issue is not framed in the suit, while an allegation was made in the plaint inrespect of certain facts and challenged in written statement, the court can allow the
parties to lead the evidence on such point, and would give its decision without
framing that issue.
KINDS OF ISSUES:
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1-- ISSUES OF FACT:
Issue of fact means any issue, which has not been determined, by a rule of law, but
is to be answered, in accordance with the evidence laid before the court.
2-- ISSUES OF LAW
Issue of law means that issue, which is to be answered in accordance with the law,
and not in accordance with the facts or evidences that is laid before the court.
According to order 14 rule 2, " where issues both of law and fact arise in the same
suit, and the court is of the opinion, that the case or any part thereof may be
disposed of on issues of law only, it shall try those issues first, and for that purpose
may if it thinks fit, postpone the settlement of the issues of fact untill after the issue
of law have been determined".
MATERIALS FROM WHICH ISSUES MAY BE FRAMED:
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The provision regarding the materials from which issues are framed is found in order
14 rule 3, which provides that " the court may frame issues from any of the following
materials :1. The court may frame issues from the allegations made on oath by bthe parties, or
by any persons present on their behalf or made by the pleaders of such parties.
2. The court may frame issues from the allegations made in the pleadings or in
answers to the interrogatories delivered in the suit.
3. The court may frame issues from the contents of the documents produced by
either part ".
under section 115 C.P.C. cannot be restricted only to the extent of final decision of the
case, rather it includes interlocutory orders also against which no appeal is provided.
- Valuation given in plt.200- application for appointment of receiver from to be
determined according to value given in the plaint.
1995 CLC 1874
SECTION 24
- Transfer of appeals . appellate court earlier as trial court recorded evidence of some
witnesses-had not recorded his own observation-no material order passed- still appeals
recalled from him.
PLD 1995 Lah 89
Sect. 27, O.V, R.6, O.IX, Rs. 6 & 13.
- Setting aside exparte decree Purpose of service is that the defendant should be
heard, but he cannot be allowed to frustrate proceedings by staying away. Once
summons are duly served exparte decree can follow and execution can be levied
against defendant because then he becomes judgment debtor. Any irregularity can be
disregarded in service, if the court is convinced that the defendant had the knowledge of
proceedings.
Usman Punjwani Vs. Ayaz Ali
PLD 21012 Sindh 78.
SECTIONS 35 & 35-A C.P.C.
Ss.35 & 35-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--Costs, awarding of ---Scope---In addition to actual costs and compensatory costs, High
Court in its Constitutional jurisdiction can award compensatory costs even in excess of
twenty five thousands Rupees as prescribed under S.35-A,C.P.C.---Special costs can also
be awarded by High Court in exercise of its inherent powers---Costs including
compensatory costs as well as exemplary costs can be imposed by High Court in its
Constitutional jurisdiction.
Kawas B . Aga
Versus
City District Government, Karachi (CDGK) through Nazim-e-Ala
2010 PLD 182
Karachi-High-Court-Sindh
SECTION 47
- All questions relating to execution discharge or satisfaction of decree arising between
the parties to the suit in which the decree was passed would be determined in execution
proceedings and not by a separate suit.
1995 MLD 1943
(entire case law discussed)
Ss. 48, 151, O.IX, Rs. 8 & 9.
- O.IX Rule-9 is designed for restoration of suit whether in whole or in part dismissed
under Rule-8 and it does not speak anything for restoration of application even about an
execution petition. But the same principles will apply and applications/petitions can be
restored even under inherent powers.
Muhammad Musa
Vs.
2012 CLC 254 (Baluchistan)
Hamid Ali.
Civil Laws (Reforms) Act XIV 1994; Civil Laws (Reforms) Act XDXIII 1993.
- Revision can be filed either H.C. or Distt. Court powers of H.C. not withdrawn
by Act XIV of 1994.
PLD 1995 Lah. 31.
SECTION 144 C.P.C.
Court must remedy injury or wrong done to a party because of order of court---Procedure
was provided under S. 144 C.P.C., while power to order restitution was inherent in court
and should be exercised whenever justice demanded---Present was not a case of
restoration of possession but of restitution of possession because order of revenue
authority regarding dispossession was set aside by appellate authority declaring the same
to be illegal and without jurisdiction.
Parvaiz
Versus
Muhammad Ramzan
2009 CLC 513
Lahore-High-Court-Lahore
SECTION 150 O-39 R-2 (3).
- Breach of injunction Business of the Court granting the injunction transferred to
another court Latter Court can entertain petition.
- Transfer Includes transfer of business under Civil Courts Act. The word transfer in
Sec.150 is not inapplicable to a case where the District Judge fixed the jurisdiction of the
Court under the Civil Courts Act and transferred the whole of the business within a
certain area to it.
AIR 1923 Madras 92.
SECTION 151.
- Inherent powers withdrawal of suit on bonafide mistake on account of similarity in
the names of defendants in two suits suit to be restored under inherent powers which
can be exercised when the provisions of CPC are not in conflict.
PLD 1995 Kar. 282.
SECTION 151 & 115.
- Order passed u/s 151 CPC revision competent when court has failed to exercise its
inherent jurisdiction or where order impugned was perverse or illegal.
1995 CLC 1939.
Appellate & Revisional Jurisdiction Distinction
Revision is:
(i) Where Court has exercised jurisdiction not vested in it.
(ii) Where Court has not exercised jurisdiction vested in it.
(iii) or has acted in exercise of its jurisdiction illegally or with material irregularity.
In the case (ii) above, jurisdiction can be exercise rightly or wrongly and be corrected in
appeal only not in revision.
Appeal & Revision are different species, appeal is continuation of original suit and has
wide scope while Revision is limited to some illegality, material irregularity or
jurisdictional defect.
Abdul Razzak v. Lal Bux
2012 CLC 4 (Sindh) (DB).
- Revision is not a matter of right and cannot be equated with right of appeal which is a
substantive right.
PLD 1996 Kar. 68
ORDERS
O-1 R-10
- Misdescription of parties not fatal can be corrected by court at any time.
1986 CLC 2987
PLD 1985 SC 438
PLD 1988 Kar. 362
AIR 1933 B200
PLD 1976 Lah. 269
PLJ 1975 1016
O-1 R-10
- Public at large already impleaded in application for grant of succession certificate
any body could assist trial court even without making application.
1995 CLC 1553
O-1 R-10
- Necessary party not impleaded technicalities cannot be allowed to unsuit a party on
technical grounds case remanded for impleading.
1995 SCMR 1748
O-3 R-1 & 2; O-6 R-1; O-6 R-14 &15; O-7 R-10; O-29 R-1; O-33 R-3.
- Defective signing or presentation or plaint by person not holding power of attorney
no violation irregularity curable.
PLD 1973 Lah. Note 33 P-41.
O-3, R-2 & SEC.96.
- Plea of minority not raised in written statement. It can be raised and decided at
appellate stage it is duty of the court to apply such law even through plea has not been
raised.
1995 CLC 175 (Lah).
O-4, R-1.
- Omission to comply with requirements of present action can be cured if in good faith.
AIR 1931 All. 507.
O-6, R-1.
- Pleadings of parties would not control or govern applications of correct law to
establish or prove facts.
1992 SCMR 417.
- Deviation from pleadings no application for amendment of plaint as to correct the
facts plaintiff could not take advantage of legal principle that admission contrary to
record was not binding. No evidence could be lead contrary to pleadings.
PLD 1995 Lah. 113.
O-6, R-2.
- Where a claim never made in pleadings no amount of evidence could be looked into
in poof of such facts.
1995 CLC 1906
- While applying provisions of O.VII, R.11 C.P.C., Court was not entitled to look into
the grounds of defence, other documents and written statement. Only the contents of the
plaint are to be perused.
Ch. Nazir Ahmad Vs. Ali Ahmad
PLD 2012 Lahore 18 (D.B)
- Suit for damages by a welfare society/association claim of damages for mental torture,
agony and distress Plaint was rejected.
PLD 2012 Sindh 29
O-9, R-4; SEC.151, 115.
- Restoration of revision dismissed for non prosecution petitioner has to explain the
absence of all concerned including his own as well as his counsel.
PLD 1995 Lah. 31.
- Case should not be dismissed for default in early hours of the day.
PLD 1966 Lah. 356.
- While dismissing for non-appearance exigency of lawyers has to be seen.
PLD 1966 SC 461,467.
- Taking harsh view while dismissing in default.
PLD 1955 F.C. 178.
- Decision should be on merits.
PLD 1965 SC 651 at P.655.
O-9, R-8.
- Dismissal of suit for non appearance of plaintiff plea of misconception of actual date
plaintiffs counsel did not appear as witness hence dairy or brief not produced
plaintiff did not stand to gain anything by being negligent carelessness of a counsel in
failing to appear in the absence of his client has often been condoned immovable
property of considerable value involved case was remanded for decision on merits.
1993 CLC 1313 (Lah).
O. XII R.11.
- Incompetent suit should be buried as soon as possible if incompetence is based on any
express or implied embargo under any law Sometimes, suit may not be specifically
barred by law in express terms Trial court should reject suit under Inherent Powers,
The condition of only reading the averment of the plaint and nothing else is applicable
when O.VII Rule-11 is to be applied and not under inherent powers.
Ilyas Ahmad
Vs. Muhammad Munir etc.
PLD 2012 Sindh 92.
O. XII R.16.
- Judgment on Admission plaintiff upon application can move for judgment on
admission whether relating to who suit or partially, likewise, defendant can also move for
dismissal of suit wholly or partially However, if admission is only by one of the
defendants only it will have no bearing on the others case.
Tanvir Ahmad Vs. Malir Development Authority
PLD 2012 Sindh 66
O.XIII, R.1.
- Plaintiffs after closing of oral evidence seeking permission to produce documents not
appended due to inadvertence - documents sought to be produced were not even relied
upon under O.XIII R.1. The situation does not fall under inadvertence no good cause
has been shown.
Nasrullah Khan Vs. Mst. Bashiran Bibi
2012 CLC 234 Lah.
O-14, R-2.
- Issue of limitation being mixed question of law and fact, in case of suit for dissolution
of partnership and rendition of accounts suit cannot be dismissed on preliminary issue
case was rightly remanded by High Court.
PLD 1995 SC 629.
O.18 R.18 C.P.C.
- Report of local inspector on the basis of which judgment and decree was reversed not
challenged at any stage Leave to appeal refused.
Islam Din v. Sarfraz Hussain
2001 SCMR 1225
O-19, SECT.30, O-18 AFFIDAVITS.
- Affidavit can only be considered when filed on direction of court.
- In affidavit information obtained from others I am informed and add and verily
believe it to be true.
PLD 1995 Lah. 98.
O-20 R-14 (i) & O-23 R-3.
- Suit for preemption decreed by consent in application for compromise no time fixed
for payment of preemption money trial court fixed for payment of preemption money
trial court fixed one months time Held court while passing preemption decree under O20, R-14 was required to specify date for deposit of money. Failure to deposit by
preemptor suit was rightly dismissed.
1995 SCMR 1426.
O-21, R-1.
- Mode of paying money in satisfaction of decree decree holder would certify such
payment upon legal notice from executing court.
PLD 1995 Lah. 107.
O-21, R-2(i)
- Adjustment/satisfaction of decree in whole or in part outside court judgment debtor
is required to certify such adjustment to court within 90 days from time of adjustment.
PLD 1995 SC AJ&K 83
O-21, R-11
- Defect or non verification of execution petition not fatal, application not void merely
irregularity not affecting merits of case.
PLD 1984 AJ&K 57.
- Date of previous execution petition not mentioned- defect not material
AIR 19924 CAI 398
O-21, R-58, 59 & 62
- Leave. Court must , prime facie, find from application and affidavit , that there is
reasonable material making incumbent on plaintiff, to prove consideration , or there
exists a plausible defence , or some specific question of fact or lae requiring
investigation.
PLD 1963 SC 168
1975 SCMR 398
1973 SCMR 100
ORDER 37- RULE 3
- Case decided- does not mean decision of the entire suit it may relate to the decision
of interlocutory matter- old view has been abounded vide AIR 1943 LAH 65.
1992 SCMR 718 at page 725(E)
ORDER 37- RULE-3
- Suit decreed against principal debater while unconditional leave granted to guarantor
suit to continue as bank had the legitimate right against the guarantor.
1992 SCMR 718 at page 724 para (9)
PLD 1978 KAR 263
ORDER 37 RULE 3
- Leave for guarantor guarantor not issued any negotiable instrument to warrant
summary proceedings-guarantee indemnity bonds not negotiable instruments Summary
procedure not applicable.
1992 SCMR 718 HN (B) AT P 724 para 9
ORDER 37 RULE 3
- Court can grant or refuse leave but same must be sought within 10 days of services-in
case of failure or refusal by court, court can summarily decree suit and averment in plaint
to be deemed admitted by defendant where defendant failed to seek leave within 10 days
court justified to pass decree defendant estopped from subsequently saying he had not
been properly served and no copy of plaint annexed with summons
PLD 1993 LAH 224 HN(C)
ORDER 37 RULE 3&4
- Leave granted on certain conditions conditions not fulfilled leave not operativedefendant not applying for leave court ampowed to decree suit taking averments o plaint
as admitted.
PLD 1984 KAR 127
EXPARTE SEETING ASIDE
O-37,R-4 &O-IX,R-13
- Exparte decree under o-37 cannot be set aside under o-9 R-1. it has to be within four
corners of O-37 R -4.
PLD 1984 KAR 127
ORDER 37- RULE 4
- There is wide power of court to set aside exparte decree u/o 38 R-4-only embargo is
special circumstances-circumstances beside being good cause or sufficient cause have to
be of special nature.
PLD 1984 KAR 127
PLD 1993 LAH 244
ORDER 37-RULE 4
- Order sought to be set aside consent order no special circumstances made out
application dismissed.
PLD 1984 KAR 127
(SUIT FOR DAMEGES)
O-37 (scope)
- Suit for damages outside the purview of order 37 CPC.
1992 CLC 1913 KAR at 1915-A
- Directors hold fiduciary relationship qua the company.
PLD 1992 SC 276
O-38, R-5
- Attachment before judgment, application as well as reply must be supported by
affidavit-reply not supported by affidavit contents application deemed not converted.
1995 MLD 1707 LAH
O-39, R-1
- Plaintiff himself showing monetary compensation adequate relief-not entitled to
discretionary relief of specific performance.
PLD 1977 KAR 191
- No attempt made to show balance of convenience on side of the plaintiff- loss found
to be assessable in money-injunction not granted.
PLD 1979 KAR 668
O-39, R-1 & 2, R-2(2)
- Court while granting temporary injunction can impose conditions-these conditions are
not to be either similar to security or the conditions may be imposed u/s 151 or sec. 94
CPC and reference of such provisions should be clearly made.
PLD 1995 LAH 117
O-39 R-1 &2 (3);O-41 R-5; Contempt of Court Act Sec 3
- Stay order and injunction distinction injunction is not effected unless it is
communicated stay is operative the moment it is issued.
PLD 1949 LAH 100 (F.B)
1974 SCMR 509
PLD 1978 KAR 152
O-39, R-1 & 2
- Entitlement to grant interim injunction in the absence of any determination of amount
due as distinguished from amount claimed petitioner entitled to interim injunction.
1995 CLC 1877
O-39 R-2 (3)
- Punishment for disobedience under O-39 R-2(3) can only be determined and awarded
by the court which had ordered the issuance of the injunction and not by a court to which
the suit has been transferred.
AIR 1914 Calcutta 815
O-39 R-2 SEC.150 OF CPC
- Breach of injunction business of the court granting the injunction transferring to
another court later court can entertain petition.
- Transfer-includes transfer of business under civil courts Act. The word transfer in Sec
150 is not applicable to a case where the District judge fixed the jurisdiction of court
under the civil courts act and transferred the whole of the business within a certain area of
it.
AIR 1923 Madras 92
O-39 R-2 (3)
- Civil courts have no jurisdiction to take action against a person not party to suit.
However, high court has such jurisdiction.
1988 CLC 1370 LAH
PLD 1964 Daaca 276
PLD 1975 LAH 126
O-39 R-2(3)
- No person is bound to obey a direction which is unlawful nor can he be held liable for
refusing to obey it
PLD 1975 LAH 126
O-39, R-2(3) read with
W.P Land Revenue act sec .81&
Constitution Art.204;187, contempt of court act 1976 sec.6.
- Contempt against public servants who discharge their official duties and pass order
adversely affecting the right of one party was disapproved and condemned by Supreme
Court.
- Stay/injunction must be clear leaving no room for ambiguity.
- Govt. officials should not be summoned in contempt proceedings when they are not
the main party in the suit.
PLD 1995 SC 572
O-39, R-4-A
- No successive stay orders can be issued.
1984 CLC 2048 KAR
- Payment of govt. dues - stay orders stay granted by high court till disposal of
petition-order to that extent would be read as contemplating disposal of the petition with
six months.
1989 CLC 1160
O-41, R-27
- Addl. Evidence cannot be to fill up lacuna in the case can be read only when(i)
requested by court (ii) for proper adjudication.
1995 CLC 1889
O.XIII, R.1 & 2.
- It is mandatory for the parties to file all documents at the first date of hearing.
Discretion in Rule 2 is subject to condition of good cause
Muhammad Musa
Vs.
Hamid Ali
2012 CLC 254 (Baluchistan)