SECTION 9
Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.
PLD 1992 Pesh. 87 (D.B.)
SECTION 9
Final decision with regards to civil rights ,duty, obligation and status of parties shall be that of civil court.
PLD 1995 SC 457
SECTION 9; O-7 R-11; BANKING ORDINANCE 1979 Sec 6(1) & (4)
Mere averments in plaint would not confer jurisdiction on civil court where it inherently lacked jurisdiction.Courts below correctly found that special banking court had exclusive jurisdiction –order unexceptionable .
PLD 1992 PESH 87(DB)
SECTION 10 & 151
In the absence of consolidation of suits and consolidation proceedings, evidence in one suit could not be read in the other suit.
Muzaffar Hussain Vs. Mst. Bivi
PLD 2012 Lah. 12
SECTION 12(2)
Forum of –venue-court where in to make application
1983 CLC 1948 Lah
1986 Law Notes (Lah) 431
1986 CLC 1211 Lah
SECTION 12(2)
Courts which passed the final decree means judgment against which no remedy is available and all remedies, appeals, revisions, review has been exhausted and no remedy is left.
Adjudication means the decision on merits after proper appraisal.
PLD 1995 SC 564
ALSO SEE 1994 MLD 1441 for different view.
Mere mentioning of words “Fraud”, “misrepresentation” and “want of jurisdiction” in passing judgment and decree were not sufficient – specific instances must be given.
Abdul Hameed vs. Mehmood
2001 SCMR 1316.
SECTION 12(2) & 151 C.P.C.
Judgment and decree in question was assailed by respondent under S. 12(2), C.P.C. and the same was set aside by Lower Appellate court in exercise of revisional jurisdiction ---Validity--- Court had jurisdiction to take cognizance of open fraud---No rule was required to correct/rectify a wrong---Court had always inherent powers to prevent abuse of process of law by moulding relief in appropriate cases---Provisions of S.151, C.P.C. were rightly invoked by Lower Appellate Court in aid of justice, as it was thought necessary in the circumstances of the case to prevent abuse of process of the court and to avoid a situation resulting in stalemate.
Muhammad Ismail Versus Rehmat Ali
2009 YLR 1265
Lahore-High-Court-Lahore
SECTION 12(2)
Forum: judgments and decrees of trial court were amended by High Court – Application under section 12(2) was filed before trial court – held – that as High Court passed final decrees in view of modification in its review jurisdiction, application u/s 12(2) shall lie in High Court.
Muhammad Aslam Vs. Molvi Muhammad Ishaq.
2012 SCMR 147
SECTION 20-----O-XLI, R-1
Sect. 115
Revision--- Term “case decided”---Scope---Power of revision is conferred upon High Court and the same is required to be exercised within the ambit of section 115, C.P.C.---Language used in section 115, C.P.C. empowers a court to exercise jurisdiction in “any case which has been decided”---Terms suit, judgment, order or decree have not been used in section 115, C.P.C., rather the term “case” has been used, thus the meaning cannot be restricted only to a final decision of a case---Term “case decided” is to be seen in broader concept and it can be extended to the orders made, while proceedings with the case by Trial Court, which only determined a part of the case and such determination had an effect on the rights of parties, while proceeding to ultimate decision of the case---Interlocutory order, which deals with a substantial question in controversy between parties and affect their right comes within the ambit of ‘case decided’---Powers conferred 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.
U.B.L. VS. Plastic Pack Pvt. Ltd.
2012 CLC 229 Sindh.
SECTIONS 96 & 115
S. 151---Subsequent events, taking notice of---inherent jurisdiction of Civil Court---Scope---Civil Judge had inherent powers to take notice of subsequent events and do justice to save parties from unnecessary litigation.
Mst. Parveen Akhtar V/S Muhammad Adnan
2010 C L C 380
Lahore High Court, Lahore
S. 115---Revisional jurisdiction---Suo motu action---Limitation---Jurisdiction of High Court under S.115, C.P.C. is a supervisory jurisdiction of superintendence and control---High Court in its revisional jurisdiction can take cognizance for correction of illegalities and irregularities in judgments and orders of subordinate court as suo motu and no bar of limitation can be placed against suo motu jurisdiction of revisional court---Maximum period allowed for filing revision petition under S. 115, C.P.C. by aggrieved person is 90 days.
S. 115, proviso I & II---Expression “copies of pleadings, documents and orders”--- Scope---Copies of such documents are to be provided to the party who applies for it and it is not necessary that applicant is aggrieved or not---If any party to litigation applies under the law, the court is bound to provide the copy of the order within three days---Court is not a substitute of copying agency but the copy issued by court serves the requirement of law and revision is entertainable on the basis of copy provided by the court---Court which passes the order only has to provide the copy of impugned order.
Allah Ditta Versus Lahore Development Authority and 5 others
2012 C L CL 271
SECTION 115
If the courts below overlooked material facts or reached at an erroneous conclusion, it will be deemed as material irregularity, High Court could reverse such findings.
Muhammad Suleman V. Rasheeda Bibi
2012 CLC 79 (Lah.)
S. 115---Limitation Act (IX of 1908), S.3---Waiver of question of limitation by court not permissible---Wrong decision on question of limitation revisable sui motu by High Court under S.115, C.P.C.---Principles. The question of limitation can be considered by the court itself whether it is pleaded or not by the parties to the suit.
Zahir Hussain and 4 others Versus Bashir Muhammad and 5 others.
2012 C L C 377
Section 115
Revision “case decided” terms “Suit”, “judgment”, order or decree have not been used in Sect. 115 rather “case” has been used, thus, meaning cannot be restricted only to a final decision of a case. The term “case decided” is to be seen in broader sense and may include orders passed which determined only a part of the case.
Muhammad Musa Vs. Hamid Ali.
2012 CLC 254 (Baluchistan)
CONVERSION OF WTITS, APPEALS REVISION
Appeal which was found to be incompetent could be treated as revision and vise versa.
1991 CLC 853
“conversion of revisional petition into a constitutional petition-petitioner’s request for treating revisional petition as a constitutional petition ,declined by high court in circumstances of the case and in view of the fact that court fee required to be paid for constitutional petition had not been paid. Revisional petition was dismissed as not maintainable.
1991 CLC 1768
“constitutional petition can be converted into a revision or vise versa if it does not prejudice the right of any party and advance cause of justice instead of frustrating the same.
1991 CLC NOTE 101 AT P.82
“No limit and bar on high court to convert a revision into a constitutional petition in exercise of its discretion.
1991 SCMR 1135
“Maintainability of appeal as RFA or RSA-held, proceedings originally instituted as a writ petition cannot be treated as a first or second appeal-proceedings of one kind can ordinarily be treated as proceedings of another kind provided period of limitation does not intervene subject to further qualification that such proceedings should otherwise be competent under provisions sought to be invoked.
1988 MLD 1445
SECOND APPEAL INTO REVISION
Second appeal brought before high court exhibiting certain features which demonstrated that it fell within scope of interference under sec.115 CPC-high court should in such cases, exercise its jurisdiction under said provision of law-high court, held, should have allowed conversion of said second appeal into revision and then proceeded to see ……
PLD 1987 SC 139
“Recalling order of high court-application for-high court converting constitutional petition as rent appeal-application for recalling order of such conversion not bared or support by legal grounds, held, was not maintainable and dismissed in circumstances.
1986 MLD 95
“Second appeal-revision-objection regarding competence of civil revision not taken up before high court but taken first time in supreme court, held, objection was an afterthought –such objection if taken up in high court and found tenable high court could have treated revision as second appeal subject to the satisfaction of other requirements.
1985 SCMR 27
“Appeal filed under sec.100 not found to be competent prayer on behalf of the appellant for conversion pf appeal into revision upon plea of ignorance of amendment such application belated-held, cannot be accepted.
PLD 1984 QUETTA 52
“Second appeal against order of Majlis-e- shoora-conversion of appeal into revision –question of deficiency of court fee or limitation not involved and prayer bonafide –appeal treated as revision
PLD 1984 QUEETA 92
Constitution of Pakistan (1973)
Art.199 read wind military courts (validations of orders)ordinance(1 of 1980),s.2(2) martial law order MLA(Zone c) No.20 and Sindh rented premises ordinance(xvii 0f 1979)S.21 Writ petition-appeal-court, with a view to foster justice, can take appropriate action or adopt prohibited by any provision of law –no prohibition in law against conversion of a writ petition into an appeal –impugned orders of military Court , during pendency of writ petitions , converted by validation ordinance into orders passed under Sindh rented premises Ordinance subject to right of appeal before High court-conversion of pending writ petitions into appeals-held, in furtherance of justice and to provide fair opportunity to parties before single judge of High Court under section 21 of Sindh Rented Premises Ordinance,1979.
PLD 1982 KARACHI 130
DUTY OF COURT
Courts are required to do substantial justice-one form of proceedings, in the interest of the justice may be treated as another Revisions, appeals and constitutional petitions have to be treated one or the other, interchangeably, to meet the end of the justice
1989 CLC 1949 (KARACHI)
1980 CLC 930
SECTION 73
Exertion defective not giving particular as under O-21 R-11 but good enough for -purposes of Sec.23.
SECTION 100
Concurrent finding of fact to be reversed when important points ignored and evidence misread.
PLD 1994 SC 326
SECTION 115
No period prescribed for filing – should be filed within 90 days failing which discretion might not be exercised in petitioner’s favour on grant of unreasonable delay.
1995 SCMR 69
Scope of revisional power is vest – corresponds to remedy of certiorari.
1995 SCMR 69
Revisional court cannot interfere with discretion of a competent court unless discretion was arbitrary, fanciful & whimsical, Sec.115 confers revisional jurisdiction not High Court where subordinate court exercised jurisdiction not vested in it or failed to exercise jurisdiction vested in ti or in exercise of jurisdiction acted illegally or with material irregularity.
1995 SCMR 105
High Court’s power of “Judicial Review” under Art.199 is assumable to its jurisdiction under Sect.115 CPC except in two aspects (i) abuse or (ii) excess of power which are well recognized grounds of intervention under Art.199
1995 SCMR 105.
SECTION 115:
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
O-6, R-2 & 4.
Facts not stated in pleadings evidence lead to prove such facts will be simply ignored.
1995 MLD 1714.
O-6, R-14 & 15; O-4, R-1.
Absence of signature, verification or presentation does not affect jurisdiction of court.
AIR 1931 All. 507.
Want of verification – pleadings not void – irregularity – no affect on merits.
AIR 1932 Lah. 28.
AIR (36) 1949 All. 499.
Can be amended even after limitation.
AIR 1961 Bomb. 292.
Omission to sign by one of joint plaintiffs.
PLD 1978 Q.45.
O-6, R-17.
If the case is fixed for arguments on application under O-6 R-17 and the suit is dismissed for default, only such application can be dismissed for default and not the main suit.
PLD 1969 SC 270
CLC 1986 1441
CLC 1986 2153.
O-6, R-17.
Relief of possession being consequential to suit for declaration, amending plaint to include possession allowed.
1995 SCMR 69.
O.VI R.14 & O.XXIX R.1
Signing & Verification of pleadings of a company – Company Secretary Director or any principal officer can sign & verify pleadings – Board Resolution not necessary – just court has to be satisfied that an authorized person has signed/verified the pleadings.
Provisions of Or.VI Rules 14 & 15 and provisions of O.XXIX Rule 1 are neither contradictory nor exclusive of each other rather complimentary to each other.
Punjab Agri Development & Supplies Corp. Vs. U.B.L.
PLD 2012 Lah. 61.
O. VII R.1(e)
Plaint must disclose a cause of action i.e. contain statement of material facts necessary for plaintiff to allege and prove in order to succeed in his cause.
Ch. Muhammad Siddiq vs. Faiz Mai
PLD 2012 S.C. 211
O. VII R.11
The word “shall” means that it is mandatory and the court must reject plaint if court finds any of the four clauses applicable to the plaint. Only contents of plaint to be seen but court not bound to accept them – discretion to biased judiciously.
Haji Abdul Karim Vs. Florida Builders.
PLD 2012 S.C. 247
O. VII R.11, SECTIONS 2(2)(9)11.
Rejection of plaint and dismissal of suit – distinction enumerated.
Haji Abdul Karim V. M/S Florida Builders.
PLD 2012 S.C. 247
See also PLD 2008 S.C. 371
O-7, R-11 & S.149 – Art.185(3) of Constitution.
Trial Court on the ratio of Siddiq Khan’s case (PLD 1984 SC 289) determined the exact amount of court fee and deficiency made interference declined.
1995 SCMR 911.
O-7, R-10.
Court lacking jurisdiction over subject matter of suit bound to return plaint instead of sending to Distt. Court for transfer to competent court.
Power of transfer flows out of valid institution of suit – where court to which plaint presented had no jurisdiction, pecuniary or territorial, suit cannot be deemed to be validly instituted.
1989 CLC 1405 (Lah)
AIR 1938 Sindh 124
PLD 1973 Lah. 394.
Its scope wide to cover a case in which by legislation situation arises after filing of suit.
AIR 1938 Oudh 224
PLD 1973 Note 83 (D.B)
Appellate Civil Court reaching conclusion that revenue court had no jurisdiction, it was bound to return plaint.
PLD 1985 Quretta 54.
AIR 1934 Lah. 233.
O-7, R-11.
Duty of court to examine plaint at any time without application.
PLD 1977 Kar. 747.
O-7 R-11.
On basis of averments in plaint not on basis of defence.
PLD 1966 (W.P) lah. 1050.
O-7 R-11; BANKING ORD. 1979 SEC.7 & 13.
It is defect of presentation of plaint in first instance in a wrong court which attracts O-7 R-10.
1984 CLC 1401 Kar.
Rejection of plaint barred by any law – court to examine averments as in the plaint – not inquiry needed – assume averments to be correct.
1984 CLC Kar. 513.
Court can take into consideration material other than contents of plaint.
1992 MLD 225 (Lah).
O-7, R-11.
Rejection of plaint & dismissal of suit – distinction.
Plaint not disclosing cause of action – proper way is to allow amendment – order rejecting plaint was set aside & case remanded.
1995 CLC 1982.
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 – plaintiff’s 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 month’s time – Held court while passing preemption decree under O-20, 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
In case of objection petition to attachment, investigation to claims must be conducted by the court, No separate suit for same.
PLD 1990 LAH 4 (DB)
O-21, R- 94
No stamp duty on sale certificate issued by court under O-21 R- 94 CPC in favour successful auction purchaser –sale certificate only to be registered with the sub- registrar.
1995 CLC 1922 KAR
O-22, R-3, 4 & 12
Execution petition –failure of decree holder to implead legal heirs of judgment debtor. Rule 12 excludes application of RR 3 & 4.Execution will not abate.
PLD A.Z.J.&K. 57
O-37, R-2
Even if suit not based on negotiable instruments i.e. bill of exchange, hundi, promissory note, Special court obliged to follow summary procedure of O-37 CPC on all suits before it including suits based on mortgages of all kinds on statement of accounts.
PLD 1995 SC 362
O-37, R-3
Suit based on promissory notes for recovery of amount claimed against defendant in summary manner, dispute could not be referred to arbitrator in terms of the agreement.
1995 CLC 1024
O-37, R-3 – Art.185(3) 0f Constitution .
Defendant was allowed loan on furnishing Bank guarantee equal to suit amount – Revision to the extent of bank guarantor remained unsuccessful. Keeping in view defence raised in application for leave and law laid down in Fine Textile Mills VS Haji Umar (PLD 1963 SC 163) appeal was accepted-order of H.C and trials court as to bank guarantor set aside – defendant was prepared to offer any solvent security to satisfaction of court-leave defend granted on furnishing any solvent security to satisfaction of trial court . 1995 SCMR 925
ORDER 37
Object & spirit of O -37 – neither unislamic nor inequitable.
PLD 1993 LAH 224
Object to secure ends of justice-claim based on negotiable instruments –no need to prove consideration if execution of notice not denied.
PLD 1993 LAH 244 H.N (h)
ORDER 37 –RULE 1& 2
Suit shall be decreed where failure of appearance or omission to apply for leave However, where leave is refused plaintiff has to prove his case.
PLD 1987 LHO 101
ORDER 37 – RULE 1&2
Leave to defendant refused even when following pleas raised – on confirmation slips defendant’s signature forged –suit barred from last deposit beyond 3 years – mortgage deed relating to different loan from different branch – penal interest wrongly claimed- blank pronote fraud by bank.
PLD 1990 LAH 99
Leave refused even on following pleas: signatures obtained on blank documents, statement of A/C incorrect , letters of guarantee not properly stamped, promotes contain exorbitant interest against islam etc.
PLD 1989 KAR 371
ORDER 37- RULE 2
Suit in summary jurisdiction for refund of security from defendant leave not sought within 10 days –application dismissed-suit decreed –defendant’s claim that plaintiff had embezzled large sum of money and had filed suit for recovery of same of no avail to defendant because he has still to established that plaintiff embezzled money refund of security till defendant’s suit is decided.
1995 SCMR 45
O. XXXVII R. 2 & 3
Limitation Act (IX of 1908) Sect. 5
Suit for recovery based on Promisory Note – delay in filing leave application on the ground that trial court was on leave for nine days due to Winter holidays – held – delay of every single day has to be explained sufficiently, otherwise, the object of summary proceedings will be defeated. Furthermore, only Presiding Officer happened to be on leave while office remained open for filing/institution during this period. Petition for leave is time barred as delay not sufficiently explained.
Muhammad Naeem V. Muhammad Javed Iqbal
2012 CLC 175 (Peshawar).
ORDER 37- RULE 3
Guarantors claimed that they had claimed denial of liabilities by several letters , and notice to bank –it was duty of bank to deny and controvet same – no such step taken by bank-silence of bank would seriously reflect adversely, leave granted.
1994 CLC 1404 KAR
ORDER 37- RULE 3
Leave was granted subject to depositing amount in question in court or bank-challenged this order in writ –validity in condition - no current valuation of mortgaged property available on record nor plaintiffs claimed its depreciation –petition converted into appeal and the same was allowed to the extent that defendant would deposit cash of specified amount for defending suit within 20 days.
1994 SCMR 512
ORDER 37- RULE 3
Leave- according to bank’s own record value of pledged stock Rs.800,000/- and mortgaged land about 400,000/- at the time pledge/mortgage-value of land must have arisen manifold-claim amount adequately secured- without additional security unconditional leave to be granted.
1989 MLD 1090 LAH
ORDER 37- RULE 3
Imposing condition on leave discretionary must be exercised in judicial and reasonable manner.
1983 CLC 2828 LAH
ORDER 37- RULE 3
Conditions for leave-depositing half money in cash or furnishing bank guarantee harsh-may furnish security instead.
1992 CLC 1705 LAH (Malik Qayyum)
ORDER 37 – RULE 3
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 operative- defendant 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)