TABLE OF CONTENT

INTRODUCTION
. PAGE 03
OVERVIEW OF
CPC..
PAGE 04-06
PRIVILAGE AND
DISCLOSURE. PAGE 07-10
INTERNATIONAL
ARBITRATION...PAGE
10-13
ENFORCEMENT OF
JUDGMENT/AWARDSPAGE 13-14
JURISDICATION OF CIVIL
COURT.PAGE 14-15

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Civil court procedure

Introduction:
Pakistan is governed by a written constitution; that is to say, that the
grundnorm (basic law) is collated in a basic document called the
Constitution of the Islamic Republic of Pakistan,1973, as opposed to
dispensations such as England and Israel, where there are no written
constitutions. The Constitution contains the most important rules relating to
the State and its organs. It organizes the government and defines the powers
of the organs of the State, i.e. the legislature, the executive and the judiciary.
The Constitution epitomizes the fundamental and paramount law of Pakistan,
and all public powers, including the legislative powers to make laws,
emanate from it. James Madison described the dilemma of constitutionalism
in the following words: In framing a government which is to be administered
by men, the great difficulty lies in this: you must first enable the government
to control the governed; and in the next place oblige it to control itself. The
Constitution of Pakistan seeks to achieve this ideal: a government of laws,
and not of men.
The Constitution has created a Federal Republic known as the Islamic
Republic of Pakistan, with the President as the head of the Federation, and
the Prime Minister being elected by the members of the National Assembly.
Sovereignty is distributed amongst the Centre and the provinces. Each of the
provinces has its own provincial parliament, and the provinces are
empowered to make laws pertaining to matters enumerated in the legislative
list of the Constitution. The Constitution (Eighteenth Amendment) Act, 2010
has altered the legislative list, and has granted greater autonomy and control
to the provinces. All residuary powers not reserved exclusively for the
Federation now fall within the domain of the provinces. Article 4 of the
Constitution embodies the doctrine of the rule of law. This Article confers a
right which is even more cardinal than the fundamental rights, as
fundamental rights can be suspended in the event of martial law or in a state
of emergency, yet the rights under Article 4 cannot. This Article provides the
back door to judicial access in times of emergency. The doctrine of
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separation of powers is not a hallmark of the Constitution of Pakistan,

however, the Constitution deals with the legislature, the executive and the
judiciary in separate parts and this can be deemed as an implicit recognition
of the concept of separation of powers. Pakistani law is based on the
common law of England and Wales, with an adversarial court procedure and
other common law practices such as the doctrine of precedent, also known
as the concept of stare decisis. However, recent activist tendencies exhibited
by the superior judiciary in Pakistan hint at a shift in favor of the inquisitorial
process. At present, a mix of the two prevails.

Overview of court procedure

The law of civil procedure is contained in the Code of Civil Procedure, 1908
(here in after the CPC). Its preamble states that it consolidates and amends
the law relating to the procedure of the courts of civil judicature. It is a law of
general application and therefore cannot override the express provisions of a
special Act. However, if there is no express provision which excludes the
application of the provisions of the CPC, its provisions will apply to any
proceedings of a civil nature. Section 3 of the CPC provides that the District
Court is subordinate to the High Court, and every civil court of a grade
inferior to that of a District Court, and every court of small causes, is
subordinate to the High Court and the District Court. The civil courts in each
province have been established under different statutes, titled the Civil
Courts Ordinance1962 (hereinafter the Ordinance). The Ordinance mainly
lists the classes of courts to be established for civil justice, along with
detailing the operation of these courts. All civil courts are subordinate to the
High Court and subject to the general superintendence and control of the
High Court; the District Judge has control over all civil courts within the local
limits of his jurisdiction

(i) Bringing a claim:

A suit is instituted by presentation of a plaint, which is a formal document
containing the claim of the plaintiff and the reliefs that he seeks for
redressed of his grievances. Hence, the plaint, so to speak, sets the law in
motion for the purpose of enquiry into disputes of a civil nature between two
parties.

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(ii) Parties to a suit:

Order I of the CPC makes provisions for parties to suits. All persons may be
joined in a suit as plaintiffs, in whom any right to relief with respect to the
same transaction or series of acts or transactions is alleged to exist, whether
jointly, severally or in the alternative, where if such persons brought
separate suits, any common question of law or fact would arise. However
where it appears to the court that any of plaintiffs is likely to delay and
frustrate the trial of the suit, the court may put the plaintiffs to their election,
or order separate trials, or make such other order as may be expedient.

(iii) Procuring presence of the defendant:

The next step after the presentation of the plaint is to procure the presence
of the defendant, and the mode of doing so is provided in Order V of the CPC.
Section 27 of the CPC states that where a suit has been duly instituted, a
summons is issued to the defendant to appear and answer the claim. The
defendant is then to file his defense in the form of a written statement within
a period of 30 days of the receipt of summons. However, the court may grant
more time to the defendant to file the same at its discretion. Under Order
VIII, Rule 10 of the CPC, the court may pronounce a judgment against a party
if it fails to file the written statement within the prescribed time period.

(iv) Pre-trial proceedings and Alternative Dispute

Resolution:
The main design and object of pre-trial proceedings is to ensure that there is
expeditious and economical disposal of the suit. This stage is thus pivotal, as
it provides the parties with an opportunity to gauge and assess the strength
of their respective cases, and perhaps to narrow down the grounds of
conflict.
Methods of resolving disputes through channels other than conventional
litigation have gained wide acceptance and popularity across various
jurisdictions. Most importantly, Alternative Dispute Resolution (ADR) now
forms an indispensable plank in the reform of the civil justice system. In the
year 2002, in recognition of the fact that the provision of ADR is a necessary
prerequisite for the improvement of the investment environment in Pakistan,
reforms were introduced in the CPC to incorporate ADR. Section 89A of the
CPC is entitled Alternative Dispute Resolution, and it authorizes the court
where it considers necessary for securing the expeditious disposal of a case,
to adopt ADR methods including mediation and conciliation, with the consent
of the parties. Order X, Rule 1A of the CPC, also makes reference to ADR.
Historically, the courts have had little role to play in the procurement of
settlements, but now they seem to have, under the dispensation of Section
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89A of the CPC, a legal obligation to encourage them, and the stage to do
that is the pre-trial stage. A manifestation of this can be found in Section 7(4)
of the Muslim Family Laws Ordinance, 1961 and Section 10(3) of the Family
Courts Act, 1964 whereby an obligation has been placed on the judge
hearing the matter to try and effect reconciliation between the parties before
proceeding to the stage of recording evidence.
A detailed account of the law that governs arbitration and mediation in
Pakistan has been provided below under separate headings, yet it would be
useful to make a handful of observations about the overall effectiveness of
ADR. Lord Denning famously said in his judgment in the seminal case of
Bremer v. South Indian Shipping Corporation,17 When I was young, a
sandwich-man wearing a top-hat used to parade outside these courts,
proclaiming arbitrate, dont litigate. It was very good advice, so long as
arbitrations were conducted speedily. This statement stresses the
importance of ADR, while asserting that arbitrations serve no practical ends
if they are not conducted speedily. This precisely describes why the current
ADR framework in Pakistan is underdeveloped and at the stage of infancy.
Despite the fact that Pakistan is a signatory to the New York Convention and
that legislation has been promulgated to make the ADR structure more
attractive to investors, nevertheless ADR in Pakistan has not yet become an
expeditious method for the resolution of commercial disputes. The high
costs, and the entire process being fraught with inordinate delays, render
ADR an unattractive alternative to litigation. However, there have been
promising developments on the mediation front, as will be examined below.

(v) Framing of issues:

Under Order XIV, Rule 1 of the CPC, the court has to frame issues on all
disputed facts which are necessary for the decision of the suit. Issues arise
when a material proposition of fact is affirmed by one party and denied by
the other. Material propositions of fact are those propositions which a plaintiff
must allege in order to show that he has a right to sue, and which a
defendant must allege in order to constitute his defense.
Articles 117-129 of the Qanun-e-Shahadat Order, 1984 (hereinafter the
Qanun-e-Shahadat Order) relate to the burden of proof. In civil cases, the
court is required not only to frame the issues of law and fact, but also to
determine on which of the parties the burden to prove an issue falls.

(vi) Recording of evidence:

The question of hearing arises when the parties are at issue on a question of
fact or law. The mode of taking and recording evidence is contained in Order
XVIII of the CPC. The Qanun-e-Shahadat Order provides a comprehensive
code of general rules of evidence.
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(vii) Judgment and decree:

Section 33 of the CPC provides that, after the case has been heard, the court
shall pronounceits judgment, followed by a decree. Section 48 of the CPC
provides that the judgment debtorhas six years from the date of
pronouncement of the decree to go back to court and have thedecree
executed.

(viii) Guidelines for improvement of the civil justice

system:
The civil process is sometimes referred to as inefficacious and tedious. The
Judicial Policy,2009 has sought to remedy these criticisms and has suggested
that banking, tax, duty and suchsimilar cases should be dealt with in an
expeditious manner, and should be disposed of within sixmonths. The Judicial
Policy also provides that priority must be given to cases of a
commercialnature that relate to trade and investment for which special laws
and special courts have beenestablished. An example of this is that banking
matters go to Banking Courts under the FinancialInstitutions (Recovery of
Finances) Ordinance, 2001. It has been suggested that such casesshould be
dealt with on a fast-track basis in order to improve the overall efficiency of
the justicesystem. The courts have been directed to dispose of frivolous
cases at the earliest possible stagein order to save the precious time of the
court and to preserve the integrity of the system.

Privilege and disclosure

Disclosure and production of documents:
Order VII Rule 14 of the CPC relates to the disclosure/production of
documents on which the plaintiff sues. This rule divides the plaintiffs
documents in two different categories, namely:
The documents on which the party bases its claim or defence; and
The documents on which the party relies as evidence of his claim or
defence.
The documents described in the first category must be produced with the
plaint or the written statement. If this is not done as prescribed by the Rule,
then the plaintiffs cannot produce the documents at a later stage except by
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way of obtaining leave of the court under Order VII, Rule 18. In case of the
defendant, although he too is bound by the said provision and must produce
such documents with the written statement, no penalty has yet been
provided in the event of his non-compliance. The documents described in the
second category have to be entered in a list which is to be annexed with the
plaint, irrespective of whether they are in the plaintiffs possession or not. If
the documents are in possession of the plaintiff, they should be fi led along
with the plaint, as per the requirement in Order VII, Rule 14. If this is not the
case, all such documents are to be produced at the first date of hearing of
the suit, as required under Order XIII, Rule 1. If the plaintiff later on relies on
a document that is not in his possession, he should specify the same in the
list annexed. These provisions are to be strictly complied with. Order VII, Rule
18 provides the penalty for non-compliance with the requirements
expounded above: it is that a document which should have been produced
with the plaint, or should have been entered in the list of reliance, but which
is not so produced or entered, cannot without leave of the court, be received
on his behalf at the date of hearing of the evidence. Nevertheless, the court
is empowered to order production of documents in the power and possession
of a party at any time that the suit is pending adjudication. An order of that
nature will not be made as a matter of course. It should be governed by
sound judicial discretion, and keeping in mind the following facts: ability of
the plaintiff to produce the document at the proper stage; reasons for nonproduction being good or bad; nature and authenticity of the document itself;
and whether an intention of delaying the proceedings is the cause of default
of the plaintiff to produce the document at an earlier stage. The court may
require any person present in court to give evidence or to produce a
document, then and there in his possession or power, and if the person so
required is a party to the suit and refuses to do so without lawful excuse, the
court may pronounce judgment against him, or make such order in relation
to the suit as it thinks fit. The powers of the court in relation to ordering the
production of documents can extend to privileged documents in possession
of the Government or any third party. In such cases, privilege can only be
claimed by filing an affidavit with the court. The court can deal with the
document as it deems fit, unless validity of the cause is determined. In some
instances, however, a third party can refuse to disclose documents that are
in his possession for some other person.

Access to court files and documents:

All documents, evidence and court proceedings essentially form part of the
public record by virtue of Article 85(3) of the Qanun-e-Shahadat Order. The
only exception to this is if the information contained is privileged or
confidential, disclosure of which is prohibited either by virtue of law or by
persons furnishing that information. Thus, in the ordinary course of events,
all the information provided to the court is available on record.
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Lawyers ethics and conflicts of interest:

Legal ethics comprise the chained relationship of the lawyer to his clients, to
his professional brethren, to the court and to the public. In Pakistan, the law
that governs the professional ethics of lawyers is contained in The Legal
Practitioners and Bar Councils Act, 1973 and The Pakistan Legal Practitioners
and Bar Council Rules, 1976 made there under. Section 55 of the Act
empowers the Pakistan Bar Council to make rules that regulate the standard
of professional conduct and etiquette to be observed by advocates. The
provisions as embodied in the canons of professional conduct prescribed for
the advocates are contained in Chapter VII of the Rules. These rules are
divided into four broad categories, namely: conduct with regard to other
advocates; conduct with regard to clients; conduct with regard to the court;
and conduct with regard to the public. Further, at Rule 175A, it is provided
that any violation of the canons of professional conduct and etiquette
contained in Chapter VII by an advocate shall be deemed as professional
misconduct, making him liable for disciplinary action. Punishment for any
such misconduct is detailed in Section 41 of the Act, and it includes
suspension of the advocate from practice for such period as may be deemed
fit, or removal of the advocate from the roll of advocates. The most
fundamental aspect of the conduct of lawyers in relation to their clients is
that they must avoid any conflict of interest with their client. Further, it is
provided that a lawyer must not accept professional employment adverse to
a client, with reference to a matter in which he has obtained confidential
information from the client. At the time of accepting professional
employment, an advocate should disclose his relation, if any, with the
adverse party. Further, being an officer of law, an advocate is not expected
to advise the violation of any law.

Client confidentiality and privilege:

Trust is the hallmark of the lawyer-client relationship, and the overarching
principle of attorney client privilege constitutes the very foundation of that
trust and reliance. The principle of confidentiality of client information is
deeply entrenched in the canons of professional ethics of lawyers. This
principle protects the confidential communications between a client and his
legal adviser for the dominant purpose of legal advice. An evidentiary
privilege is a rule of evidence that allows the holder of the privilege to refuse
to provide evidence about a certain matter, or to bar such evidence from
being disclosed or used in judicial proceedings. An exposition of this
evidentiary privilege in Pakistan is found in Article 12 of the Qanun-eShahadat Order. It expressly provides that no-one shall be compelled to
disclose to the court any confidential communication which has taken place
between him and his legal adviser, unless the person communicating such
evidence offers himself as a witness. In such an instance, he can only be
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compelled to disclose any communication as may appear to the court

necessary in order to explain any evidence which he has given, but no other.
The essence of the principle of confidentiality is also contained in Article 9 of
the Qanun-e-Shahadat Order. It expounds that an advocate is obliged not to
disclose any communication made to him by his client, even if there are no
legal proceedings pending or apprehended, but any communication in
furtherance of an illegal design is not protected, nor can this privilege extend
to any fraud or crime committed since the commencement of his
employment as advocate. The object behind these rules is to instill
unrestricted and unbounded confidence in a persons professional agent, and
that the communication he so makes to him should be kept secret.
The Qanun-e-Shahadat Order also contains provisions detailing the
disclosure of confidential information. Article 6 of the Order prohibits any
person from giving evidence derived from unpublished official records
relating to any affairs of the State, except with the permission of the officer
at the head of the concerned department. Article 7 of the Order relates to
privileged official communications, and it provides that no public officer can
be made to disclose communications made to him in official confidence when
he considers that such disclosure would prejudice public interests. Further, a
magistrate or a police officer cannot be compelled to disclose the source of
information pertaining to an offence.

Costs:
Section 35 of the Code leaves it to the discretion of courts to award costs of
and incidental to a suit, subject to conditions and limitations set by the law.
Costs awarded can be actual or compensatory.
Actual costs can be awarded to reimburse the expenses incurred by a
successful litigant in the assertion of his rights before the court.
Compensatory costs, on the other hand, can be granted under Section 35A of
the Code, in a case of false or vexatious claim. Where costs are awarded
wrongly and beyond the limit prescribed, their payment may be exonerated.
After withdrawal of suit on the condition of payment of costs, a fresh suit on
the same cause of action will not be competent where default was made on
payment. It is settled in law that a suit for recovery of costs is not
competent. In practice, the discretion granted under Sections 35 and 35A is
rarely exercised, and parties are made to bear their own costs of litigation.

Interim relief:
Interim relief in Pakistan is regulated by the Code of Civil Procedure, 1908
but is granted at the courts discretion. Section 151 of the Code relates to
the courts inherent powers and its explanation follows that the inherent
powers have not been conferred by the Code, but are inherent to the court
by virtue of its duty to do justice between parties before it. It is under this
section that most applications for interim relief are made. This section can be
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pressed into service for securing the ends of justice or preventing abuse of
the process of court. Accordingly the court can grant injunctions, vacate a
mistaken order, order restitution, correct its own mistake, etc. However,
proceedings cannot be pursued under Section 151 where there are other
remedies available for securing redress. This inherent power is only to be
exercised where there is no other provision or procedure for providing
redress or rectifying a clear injustice. Rules under Order 39 specifically deal
with injunctions and interlocutory orders in relation to property and
contracts. Injunctions granted under Rules 1 and 2 in the absence of the
defendant cannot ordinarily exceed 15 days. Where the injunction has been
granted after hearing the parties or after notice to the defendant, it will
cease to have effect on expiration of six months unless extended by court.

International arbitration
Litigation remains the principal method for resolving disputes in Pakistan,
primarily because the Arbitration Act, 1940 (hereinafter the Act) has been
viewed as involving inefficient and tedious processes. However, introduction
of new laws on the subject, albeit during subsistence of the Act, have been
viewed as a welcome advance. Although arbitration finds no mention in the
Constitution, it has been referred to in Section 89A of the Code. The said
section grants the court power to resort to arbitration, conciliation or
mediation for the expeditious disposal of cases. The procedural framework
for the exercise of this power can be found in the Arbitration Act, 1940.
However, certain special laws surpass the jurisdiction of the court under the
Act. These laws provide their own dispute-resolution mechanisms and
include: the Punjab Consumers Protection Act, 2005; Cooperative Societies
Act, 1925; Companies Ordinance, 1984; and Small Claims and Minor
Offences Courts Ordinance, 2002.
Most of the law on domestic and international arbitral awards in Pakistan has
developed under the Arbitration (Protocol and Convention) Act 1937 and the
1940 Act. While the former has been repealed by the Recognition and
Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011
and is only applicable to foreign awards made before 14 July 2005, the
latter still holds sway.

Arbitration Act, 1940:

The Act provides three schemes: a) arbitration without intervention of court;
b) arbitration with court intervention; and c) arbitration in a suit pending
before court. A written agreement is a prerequisite under the Act, although a
formal document is not necessary. Terms and conditions must be stated
unequivocally, and in view thereof parties will not be allowed to get out of an
unfavorable agreement. Under the Act, parties agreeing to have their dispute
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resolved through arbitration are bound to proceed to arbitration, even

though such arbitration may be held abroad. The court has the power to
appoint or remove arbitrators or umpires where, for instance: there is a
disagreement as to appointment; the arbitrator neglects or fails to fulfi l his
duty; in case of death of the arbitrator; or in the event of misconduct by the
arbitrator. Courts may also decline to enforce the award where: there is a
defect floating on the face of the awards; the award is beyond the scope of
reference; or it is in contradiction with well-settled legal principles.36 While
the Act does not specify the matters capable/incapable of resolution, it is
settled law that matters of criminality or public policy cannot be referred to
arbitration. An award will acquire legal effect only when it is made a rule of
court through the procedure envisioned in the Act. It is the arbitrators
responsibility to fi le the award in court upon direction from any party to the
arbitration, or from court. Thereafter, he must serve notice upon the parties
to inform them of filing. The primary object of notice is to enable the parties
to file their objections or to move the court for setting the award aside. An
award not made a rule of court does not by itself create or transfer any
interest in property, and as such does not require registration. While the
arbitrator cannot give a second award, the court can direct the arbitrator to
give award afresh.
The Act has been criticized for involving highly technical proceedings that
are time-consuming and which defeat the purpose of choosing an informal
mechanism for speedy disposal of disputes. In light of the said difficulties, a
Bill for a new consolidated arbitration law based on the UNCITRAL Model Law
was introduced in Parliament and is still pending before the National
Assembly. The Bill endeavors to introduce an all-encompassing law that
incorporates domestic arbitration, international commercial arbitration,
recognition and enforcement of foreign arbitral awards, and settlement of
international investment disputes.

Recognition and Enforcement (Arbitration Agreements and

Foreign Arbitral Awards) Act 2011:
Pakistan, a party to the New York Convention (hereinafter the Convention),
first gave effect to the Convention with the promulgation of the Recognition
and Enforcement (Arbitration Agreements and Foreign Arbitral Awards)
Ordinance, 2005 (hereinafter the REA Ordinance) with a view to promoting
foreign direct investment in the country. The REA Ordinance was later
presented before the National Assembly and promulgated as the Recognition
and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act,
2011 (hereinafter the REA Act) with a view to protecting foreign direct
investment in the country.
All foreign awards and international arbitration agreements are subject
matter for the REA Act. The REA Act confers exclusive jurisdiction on the High
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Courts to adjudicate matters brought in relation to it. This provision

altogether eliminates the role of Civil Courts, expediting the process by
excluding a delay-ridden system. Section 4(2) of the REA Act limits the
courts power to carry on legal proceedings in matters covered by an
arbitration agreement to cases where the arbitration agreement is null and
void, inoperative or incapable of being performed. Recognition and
enforcement of an award may only be refused on grounds provided in Article
V of the Convention, i.e. when the Pakistani court determines that the
arbitration tribunal lacked jurisdiction, or that the arbitration agreement was
invalid.39 For matters that fall within the ambit of the REA Act, the
Convention indicates the law of the country where the award was made as
the applicable law. The REA Act leans heavily towards upholding the sanctity
of an arbitration agreement, and leaves little room to wriggle out of it.

The Arbitration (International Investment Disputes) Act

2011:
The International Centre for the Settlement of Investment Disputes (ICSID)
provides facilities for conciliation and arbitration of investment disputes
between contracting States and nationals of other States, under the
Convention for the Settlement of Investment Disputes (hereinafter the SID
Convention). The SID Convention was transposed into Pakistani law with the
promulgation of the Arbitration (International Investment Disputes) Act 2011
(hereinafter the AIIDA) in order to secure foreign investments and bring
transparency in the settlement of investment disputes. The High Courts in
Pakistan play a considerably important role in the recognition and
enforcement of awards granted under the SID Convention. Parties seeking
recognition and enforcement of an award must register it with the High
Court. The award can be registered for pecuniary obligations granted there
under, and reasonable costs of and incidental to registration. It is significant
to note that if pecuniary obligations imposed under the award have been
satisfied partly, then registration will only relate to the part which remains
unsatisfi ed. If the obligation has been satisfied completely, the award is not
liable to be registered. Once an award is registered, it has the same force
and effect as a judgment of the High Court for the purposes of enforcement
in respect of the pecuniary obligations imposed therein. However, one
important caveat lies in Section 5, which states that Sections 3 (Registration
of Award) and 4 (Effect of Registration) will bind the Government, but not in a
manner in which a judgment would not be enforceable against the
Government. Although the AIIDA provides High Courts with significant
discretion, by providing a clear framework for enforcement, the law grants
essential security to investors.

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Foreign arbitral bodies:

Pakistani courts also have experience in handling arbitral awards made
under the Rules of Arbitration of the International Chamber of Commerce.
Awards are granted by an impartial tribunal, which can be enforced pursuant
to implementation of the New York Convention in the country.

Mediation:
Aside from mediation facilitated by a court under Section 89A of the Code,
two important institutions have also marked their place in Pakistan. With the
support of the Sindh High Court and financial backing from the International
Finance Corporation (IFC)/World Bank Group, the first reliable ADR institution
was set up in Pakistan in 2007 in the form of the Karachi Centre for Dispute
Resolution (hereinafter the KCDR). The KCDR provides mediation services
to a wide array of clients including private parties and Government entities.
The KCDRs primary objective is to institutionalize ADR with the help of its
accredited mediators. In 2012, a Memorandum of Understanding was signed
between the KCDR and the Karachi Chamber of Commerce with the intention
of providing members of Karachis business and industrial community with a
forum to resolve their disputes through ADR. All mediation proceedings
before the KCDR are subject to international standard rules and codes of
ethics governing mediation. In view of the success of KCDR, the Lahore
Chamber of Commerce & Industry (hereinafter the LCCI), in collaboration
with International Finance Corporation, established the LCCI Mediation Centre
to provide mediation services to local and foreign companies in relation to
business disputes. The LCCI Mediation Centre offers its services through
more than two dozen accredited mediators enrolled with LCCI and trained by
CEDR, a UK-based company.

Enforcement of judgments/awards
Enforcement of foreign judgments:
The expression foreign judgment means the judgment of a foreign court,19
and foreign court means a court situated beyond the territorial limits of
Pakistan, which has no authority in Pakistan and is not established or
continued by the Government of Pakistan. A party that has obtained a
foreign judgment has the option of getting that judgment enforced under
Section 44A of the CPC. It provides that a certified copy of a foreign decree
may be filed in a District Court, and such a decree may be executed in
Pakistan as if it had been passed by that District Court. Section 44A,
however, relates only to judgments/decrees that have been passed by a
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superior court of the United Kingdom or the court of a reciprocating state.

The court shall presume, upon the production of a certified copy of a foreign
judgment, that such judgment was pronounced by a court of competent
jurisdiction unless the contrary appears on the record.21 Enforcement under
Section 44A is subject to the exceptions listed in Section 13 of the CPC,
which states that a foreign judgment operates as res judicata. It provides
that a foreign judgment would be conclusive in relation to any matter directly
adjudicated upon between the same parties, expect where: it has not been
pronounced by a court of competent jurisdiction; it has not been given on the
merits of the case; it is against international law or against the law of
Pakistan in cases in which such law is applicable; the proceedings in which
the judgment was obtained are opposed to natural justice; it has been
obtained by fraud; or it sustains a claim founded on a breach of any law in
force in Pakistan. It is, however, important to note that the provisions of
Section 44A do not apply to arbitration awards, even if such an award is
enforceable as a decree or judgment.
A foreign judgment can create obligations but, as a general rule, it is not
executable by itself except in circumstances enumerated in Section 44A.
When the judgment has not been passed by a superior court of the United
Kingdom or of a reciprocating state, the only way of enforcing it is to file a
suit on the basis of the foreign judgment/decree, treating it as a cause of
action under Section 13 of the CPC. Again, Section 13 does not apply to
foreign awards. Sections 13, 14 and 44A of the CPC symbolize the deeply
rooted principle of private international law that a foreign judgment is
recognizable on the principles of comity and reciprocity.

Cross-border litigation:
A freezing injunction can be sought before the commencement of
proceedings, during the course of proceedings, and after judgment has been
obtained, to prevent the disposal of assets before the judgment is enforced.
Freezing orders can be granted by the court in respect of overseas
proceedings in certain limited circumstances. Freezing orders preserve
assets for enforcement purposes and also render assistance in asset-tracing
claims, by ordering the party subject to the freezing order to disclose the
details of its assets.
In Pakistan, the enforcement of freezing orders passed by a foreign court
would be governed by the same principles that have been expounded above,
under the heading of Enforcement of judgments/awards. A freezing order is
not executable by itself, and would not be binding unless the courts in

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Pakistan are moved for its recognition and execution following the procedure
detailed above.

Jurisdiction of Civil Court

The word jurisdiction signifies the scope of power and authority .Jurisdiction
is the extant of the power which is conferred upon the court by its
constitution to try a proceeding .It is a power of a court to hear and
determine a cause, to adjudicate or exercise judicial power in relation to it.

Classification of Jurisdiction:
I.
II.
III.
IV.

Subject matter Jurisdiction

Pecuniary jurisdiction
Territorial Jurisdiction
Personal Jurisdiction

I.

Subject matter Jurisdiction

It refers to the nature of the claim made and the competency of
the court to entertain a claim of such nature.

II.

Pecuniary Jurisdiction
A jurisdiction of a court which is fixed by legislative order, in
accordance with the West Pakistan Civil Courts Ordinance (ii of
1962).It is necessary that court passing the decree must have
pecuniary jurisdiction over the consideration being allowed by it.

Determination of pecuniary jurisdiction :

Suit Valuation Act 1887
West Pakistan Civil Courts Ordinance ii of 1962
Pecuniary Jurisdiction of civil courts:
Jurisdiction of civil judge of 1st class is unlimited regarding value
of the suit
Jurisdiction of Civil judge of 2nd class is limited up to 2,00,000
Jurisdiction of Civil judge of 3rd class is limited up to 1,00,000

III.

Territorial Jurisdiction

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Territorial jurisdiction is the power of a tribunal or authority considered

with reference to the territory within which is to be exercised. It means
the geographical limits within which that authority must act
Section 15-19 of the code regulate territorial jurisdiction in
respect of dispute concerning immoveable property
Section 20 of the code which regulates determination of
jurisdiction relating to contract provides that a suit may be
instituted where cause of action wholly or partly arises.

IV.

Personal Jurisdiction

By virtue of provisions of section 19 and 20; a civil court has

jurisdiction to entertain suits against a person residing, caring on
business or personally working for gain within its territorial limits.

THE END

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