Civil Prcedure Code 1908
Civil Prcedure Code 1908
Civil Prcedure Code 1908
the First Schedule to the Civil Procedure Code, 1908. Here are the relevant provisions under
Order 21
A decree is the final judgment of a court in a civil suit. It is a court order that binds the parties to
the suit and determines their rights and obligations.
The names of the parties to the suit: This is to ensure that the decree is clear and unambiguous
and that the parties can be identified.
The cause of action on which the suit is based: This is to ensure that the court has jurisdiction to
hear the case and that the parties have a valid claim.
The relief granted by the court: This is the order of the court that determines the rights and
obligations of the parties.
The costs of the suit: This is the amount of money that the losing party must pay to the winning
party.
Types of Decrees:
Original decree: This is a decree that is made by the court at the first instance. This means that
the court hears the case from beginning to end and makes a final judgment.
Declaratory decree: This is a decree that declares the rights of the parties to the suit. It does not
order the parties to do anything.
Preliminary decree: This is a decree that is made by the court before the final decree. It is a
temporary order that is made to preserve the rights of the parties or to ensure that the final decree
is effective.
Final Decree: A final decree is the ultimate decision of the court that completely disposes of the
case, settling all the rights and liabilities of the parties. Once a final decree is passed, the case is
concluded.
Partly Preliminary and Partly Final Decree: This type of decree combines both preliminary and
final aspects. It disposes of certain matters while leaving other issues to be resolved in
subsequent proceedings.
Decree of Specific Performance: A decree of specific performance orders a party to fulfill its
contractual obligations and carry out a particular act or performance.
Doctrine of Res Judicata:
The doctrine of Res Judicata is a legal principle that prevents the same matter from being re-
litigated between the same parties or parties claiming under them once it has been conclusively
decided by a competent court. It ensures the finality and conclusiveness of court judgments,
promoting judicial economy, avoiding conflicting decisions, and protecting parties from harassment
through endless litigation on the same issue.
The doctrine applies when the matter in question has already been decided in a previous
suit between the same parties or parties claiming under them.
The previous judgment on the matter becomes conclusive and final, serving as a bar to any
further litigation on the same issue.
For Res Judicata to apply, the following conditions must be met: (a) identity of the matter
directly and substantially in issue, (b) identity of parties or parties claiming under them, (c)
competent court in both the previous and subsequent suits, and (d) final decision in the
previous suit.
Relevant Provision from CPC:
Section 11: Res Judicata
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such Court."
Estoppel is a legal principle that prevents a person from denying or contradicting something that
they have previously said or done. The doctrine is based on the idea that it would be unfair to
allow a person to change their position after the other party has relied on their previous statements
or actions.
Estoppel by representation: This occurs when a person makes a representation to another person,
and the other person relies on that representation. For example, if a person tells a bank that they
have a certain amount of money in their account, and the bank then lends the person money
based on that representation, the person will be estopped from denying that they had the money in
their account.
Estoppel by conduct: This occurs when a person's actions lead another person to believe
something, and the other person relies on that belief. For example, if a person repeatedly acts as if
they own a certain property, and the other person then buys the property from them, the person
will be estopped from denying that they owned the property.
The Civil Procedure Code of 1908 Pakistan contains several provisions that deal with estoppel.
These provisions are found in Sections 11, 12, and 13 of the CPC.
Section 11 of the CPC provides that a final judgment passed by a court of competent jurisdiction is
conclusive as to the rights of the parties thereto. This means that a party cannot relitigate the
same issue in a subsequent lawsuit, even if they try to bring the case in a different court.
Section 12 of the CPC provides that the doctrine of res judicata applies to both civil and criminal
cases. This means that a person cannot be tried for the same crime twice, even if they are
acquitted in the first trial.
Section 13 of the CPC provides that the doctrine of res judicata does not apply to cases where
there has been a mistake or error in the previous judgment. This means that a party can bring a
subsequent lawsuit if they can prove that the previous judgment was wrong.
Rejection of Plaint
Relevant Provision from CPC:
Order 7, Rule 11: Rejection of Plaint
"The plaint shall be rejected in the following cases: (a) where it does not disclose a cause of
action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c)
where the relief claimed is properly valued, but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-
paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from
the statement in the plaint to be barred by any law."
Order 7, Rule 10: Return of Plaint
"Where the plaint is returned under Rule 10, the plaintiff may, subject to the law of limitation, bring
a fresh suit in respect of the subject-matter of such plaint."
Rejection of Plaint:
Occurs at the initial stage of a lawsuit when the plaintiff submits the plaint to the court.
Happens due to legal deficiencies or non-compliance with procedural requirements.
Leads to the dismissal of the entire suit.
The plaintiff is not allowed to proceed further unless the court grants an opportunity to
amend the plaint and remove the deficiencies.
Reasons for rejection may include lack of cause of action, undervaluation of relief,
insufficiency of stamp duty, or the suit being barred by law.
It is a final decision that ends the suit unless the plaintiff successfully amends the plaint to
rectify the deficiencies.
Return of Plaint:
Occurs after the court examines the plaint and finds that it falls within the jurisdiction of
another court.
Happens when the court lacks jurisdiction over the subject matter of the suit.
Results in the transfer of the proceedings to the proper court having jurisdiction over the
matter.
The plaintiff can refile the plaint in the appropriate court, subject to the law of limitation.
It does not lead to the dismissal of the suit; instead, it allows the plaintiff to continue the
legal proceedings in the appropriate court.
Remedies against Order of Ex Parte Decree:
If a party believes that they have been adversely affected by an ex parte decree, they can seek
remedies to challenge or set aside the decree. In Pakistan, the relevant provisions of the Civil
Procedure Code, 1908 (CPC) outline the remedies available in such cases:
1. Application for Setting Aside Ex Parte Decree:
Order 9, Rule 13: Setting Aside Decree Passed Ex Parte
"In any case in which a decree is passed ex parte against a defendant, he may apply
to the Court by which the decree was passed for an order to set it aside, and if he
satisfies the Court that the summons was not duly served, or that he was prevented
by any sufficient cause from appearing when the suit was called on for hearing, the
Court shall make an order setting aside the decree as against him upon such terms
as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day
for proceeding with the suit."
2. Limitation Period for Filing the Application:
Order 9, Rule 13A: Limitation for Setting Aside Decree Passed Ex Parte
"No application for setting aside a decree shall be entertained by the Court after the
expiry of thirty days from the date of the decree sought to be set aside."
3. Appeal against Decree:
Order 43, Rule 1(r): Appeals from Orders
An appeal can be filed against the decree passed ex parte, challenging its legality
and correctness before the appropriate appellate court.
4. Review of Decree:
Order 47, Rule 1: Application for Review of Judgment
In exceptional cases where there is a discovery of new evidence or a mistake
apparent on the face of the record, a party may apply for a review of the ex parte
decree.
5. Restoration of Suit:
Order 9, Rule 9: Consequence of Dismissal for Default
If the defendant's application for setting aside the ex parte decree is allowed, the
court may restore the suit to its original position and allow the defendant to
participate in the proceedings.
Setting Aside Ex Parte Decree
The Civil Procedure Code, 1908 (CPC), provides specific grounds on which a party can apply for
setting aside an ex parte decree. The relevant provision is:
Section 34 of the CPC provides that a suit on a negotiable instrument may be instituted in a
summary way. This means that the suit may be filed without the need for a written statement of
claim. The suit may be filed by the holder of the negotiable instrument.
The plaintiff must file the following documents with the court:
The negotiable instrument.
A copy of the negotiable instrument.
An affidavit stating that the plaintiff is the holder of the negotiable instrument.
An affidavit stating that the defendant is liable on the negotiable instrument.
The court will then issue a summons to the defendant. The summons will require the defendant to
appear in court and answer the plaintiff's claim.
The defendant may file an affidavit in response to the plaintiff's claim. The affidavit may deny the
plaintiff's claim or it may raise a defense to the claim.
The court will then hear the case and decide whether the plaintiff is entitled to payment on the
negotiable instrument.
If the court finds that the plaintiff is entitled to payment, it will enter a judgment in favor of the
plaintiff. The judgment will order the defendant to pay the plaintiff the amount of money due on the
negotiable instrument.
The relevant provisions of the CPC that deal with the summary procedure on negotiable
instruments are found in Sections 34 to 38.
The following are some of the advantages of the summary procedure on negotiable instruments:
It is a quick and easy way to recover money on a negotiable instrument.
It does not require a written statement of claim.
The court can decide the case without a trial.
Grounds for restoration of an appeal which was dismissed for non-
prosecution under the Civil Procedure Code, 1908 (CPC) of Pakistan:
Section 41 of the CPC provides that an appeal dismissed for non-prosecution may be restored on
the following grounds:
1. That the appellant was prevented by sufficient cause from prosecuting the appeal. This means
that the appellant was prevented from prosecuting the appeal due to some valid reason, such as
illness or travel.
2. That the appellant was ignorant of the dismissal of the appeal. This means that the appellant was
not aware that the appeal had been dismissed.
3. That the appellant was misled by his or her pleader. This means that the appellant's pleader gave
the appellant incorrect information about the status of the appeal.
To restore an appeal which was dismissed for non-prosecution, the appellant must file an
application for restoration of the appeal with the appellate court.
The application must be made in writing and must state the grounds on which the appeal is being
restored. The application must also be accompanied by an affidavit from the appellant stating the
facts on which the application is based.
The appellate court will then hear the application and decide whether to restore the appeal. The
appellate court will consider the following factors in making its decision:
Whether the appellant was prevented by sufficient cause from prosecuting the appeal.
Whether the appellant was ignorant of the dismissal of the appeal.
Whether the appellant was misled by his or her pleader.
If the appellate court finds that the appellant had a sufficient reason for not prosecuting the
appeal, it will restore the appeal. This means that the appeal will be reheard by the appellate
court.
The relevant provisions of the CPC that deal with the restoration of appeals which were
dismissed for non-prosecution are found in Sections 41 to 43.
Section 5 of the Limitation Act, 1908 of Pakistan:
Section 5 of the Limitation Act, 1908 provides for the extension of the limitation period for filing a
suit or application in certain cases. The section states that the court may extend the limitation
period if it is satisfied that the applicant had sufficient cause for not filing the suit or application
within the prescribed period.
The following are some of the grounds on which the court may extend the limitation period:
That the applicant was prevented by sufficient cause from filing the suit or application within the
prescribed period. This means that the applicant was prevented from filing the suit or application
due to some valid reason, such as illness or travel.
That the applicant was ignorant of the facts on which the suit or application is based. This means
that the applicant was not aware of the facts that gave rise to the claim.
That the applicant was misled by his or her pleader. This means that the applicant's pleader gave
the applicant incorrect information about the limitation period.
To apply for an extension of the limitation period, the applicant must file an application with the
court. The application must be made in writing and must state the grounds on which the extension
of the limitation period is being sought. The application must also be accompanied by an affidavit
from the applicant stating the facts on which the application is based.
The court will then hear the application and decide whether to extend the limitation period. The
court will consider the following factors in making its decision:
Whether the applicant had sufficient cause for not filing the suit or application within the prescribed
period.
Whether the applicant was prejudiced by not being able to file the suit or application within the
prescribed period.
If the court finds that the applicant had sufficient cause for not filing the suit or application within
the prescribed period and that the applicant will be prejudiced by not being able to file the suit or
application within the prescribed period, it may extend the limitation period.
The relevant provisions of the Limitation Act that deal with the extension of the limitation period are
found in Sections 4 to 13.
Distinction between Res Judicata and Res Subjudice:
1. Meaning:
Res Judicata: Refers to a matter that has been finally decided by a competent court and
cannot be re-litigated between the same parties in subsequent proceedings.
Res Subjudice: Refers to a matter that is currently pending before a court and awaiting a
final decision, and parties cannot raise the same issue in another court until the pending
proceedings are concluded.
Res Judicata: The matter has already been finally decided in a previous lawsuit.
Res Subjudice: The matter is currently under consideration and has not yet been finally
decided.
3. Applicability:
Res Judicata: Applies after a matter has been conclusively decided, preventing parties from
re-opening the same issue in future litigation.
Res Subjudice: Applies when a matter is still pending and prohibits simultaneous
proceedings on the same issue in another court.
4. Purpose:
Res Judicata: Aims to promote judicial finality, prevent multiple and contradictory
judgments, and ensure certainty and stability in legal matters.
Res Subjudice: Aims to avoid conflicting judgments and ensures that a court has the
opportunity to fully and finally decide the matter before it.