Code of Civil Procedure, 1908. Act no. V of 1908 [21st March 1908]




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Code of Civil Procedure, 1908.
ACT NO. V OF 1908
[21st March 1908]

An Act to consolidate and amend the laws relating to the Procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature; It is hereby enacted as follows: -


PRELIMINARY

1.-(l) This Act may be cited as the Code of Civil Procedure, 1908.


(2) It shall come into force on the first day of January 1909.


1[(3) It extends to the whole of Pakistan.]

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) "Code" includes rules:
(2) "decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties which regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint 2[the determination of any question within section 144 and an order under rule 60, 98, 99, 101, or 103 of Order XXI] but shall not include;

(a) any adjudication form which an appeal lies as an appeal from an order, or


(b) any order of dismissal for default.

Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely dispose of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

(3) "Decree-holder" means any person in whose favour a decree has been passed or an order capable of execution has been made:

(4) "District" means the local limits of the jurisdiction of a principal civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court:

(5) "Foreign Court" means a Court situate beyond the limits of 1[Pakistan] which has no authority in 1[Pakistan] and is not established or continued by 2[the Central Government 3***]:

(6) "Foreign judgment" means the judgment of a foreign Court:

(7) "Government Pleader" Includes any officer appointed by the 4(Provincial Government] to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader :

(8) "Judge" means the presiding officer of a civil Court:

(9) "Judgment" means the statement given by the Judge of the grounds of a decree or order:

(10) "Judgment-debtor" means any person against whom a decree has been passed or an order capable of execution has been made:

(11) "Legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:

(12) "Mesne profits" of property means those profits which the person in wrongful profession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but shall not include profits due to improvements made by the person in wrongful possession:

(13) "Movable property" includes growing crops:

(14) "Order" means the formal expression of any decision of a civil Court which is not a decree:

(15) "Pleader" means any person entitled to appear and plead for another in Court, and includes an advocate, a civil and an attorney of a High Court:

(16) "Prescribed" means prescribed by rules:

(17) "Public officer" means a person falling under any of the following descriptions, namely:

(a) every Judge;

(b) [every person in the service of Pakistan].1

(c) every commissioned or gazetted officer in the military, 2[naval or airy] forces of 3[Pakistan while in the service of the State];

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, - or to preserve order, in the Court, and every person especially authorized by a Court of Justice to perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(f) every officer of 4[the 5[Government] ] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 4[the 5[Government]], or to make any survey, assessment or contract on behalf of '[the 2(Government] 1. or to execute any revenue-process, or to investigate, or to report on, any matter affecting the pecuniary interests of 1[the 2[Government], or to make, authenticate or keep any document relating to the pecuniary interests of 1[the [Government] ] or to prevent the infraction of any law for the protection of the pecuniary interest of 1[the 2[Government] ]; and

(h) every officer in the service or pay of 1[the 2[Government]], or remunerated by fees or commission for the performance of any public duty:

(18) "Rules" means rules and forms contained in the First Schedule or made under section 122 or section 125.

(19) "Share in a corporation" shall be deemed to include stock, debenture-stock, debentures or bonds; and

(20) "Signed", save in the case of a judgment or decree, includes stamped.

3. For the purposes of this Code, 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 District Court.

4.-(l) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.


(2) In particular and without prejudice to the generality of the proposition contained in subsection (1), nothing in this Code shall be deemed to limit or otherwise

affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5.-(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the 3[Provincial Government]4 * * * may, by notification in the 5(official Gazette], declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the 3[Provincial Government]*** may prescribe.

(2) "Revenue Court" in subsection (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. The following provisions shall not extend to Courts cons- Provincial Small Cause Courts Act, 1887, 1*** or to Courts exercising the jurisdiction of a Court of Small Causes Courts 3[under the said Act], that is to say,-

(a) So much of the body of the Code as relates to-

(i) Suits excepted from the cognizance of a Court of Small Causes;

(ii) The execution of decrees in such suits;

(iii) The execution of decrees against immovable property; and

(b) The following sections, that is to say,-
sections 9,
sections 91 and 92.
sections 94 and 95 3[far as they authorize or relate to-'

(i) orders for the attachment of immovable property,


(ii) injunctions.
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to Li clause (e) of
section 94] and
sections 96 to 112 and 115.
8.-Omitted by the 4.0, 1949.

[1908: ACT V]


Civil Procedure
(Part I.- Suits in General. Jurisdiction of the Courts and Res judicata)

PART I


SUITS IN GENERAL

JURISDICTION OF THL3 COURTS AND Res Judicata

9. The Courts shall (subject to the provisions herein cone tamed) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation.- A suit is which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right ma depend entirely on the decision of questions as to religious rites or ceremonies.

10. No Court shall proceed With the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in 1[Pakistan] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[Pakistan] established or continued by 2[the Central Government 3***] and having like jurisdiction, or before 4[the Supreme Court].

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in 1[Pakistan] from trying a suit founded on the same cause of action.


11. No Court shall try 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.

Explanation I.- The expression "former suit" shall denote a Suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as $0 a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly, or impliedly by the other.

Explanation 1V.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue -in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating.

12. 1[(1)] Where a plaintiff is preclude by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

1[(2) Where a person challenges the validity of a judgment, decree or order on the pica of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit.]

13. A foreign judgment shall be conclusive as to any matter When thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except;

(a) Where it has not been pronounced by a Court of competent jurisdiction;


(b) Where LI has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of 2[Pakistan] in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) Where it has been obtained by fraud;


(f) Where it sustains a claim founded on a breach of any law in force in 2[Pakistan).

14. The Court shall presume, upon the production of any document purporting to be 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; but such presumption may be displaced by proving want of jurisdiction.

15. Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Subject to the pecuniary or other limitations prescribed by any law, suits;

(a) for the recovery of immovable property- with or without rent or profits;
(b) for the partition of Immovable property;
(c) for foreclosure, sale or redemption In the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or Interest in immovable property;
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment;
shall be instituted in the Court within the local limits of whose jurisdiction the property is situated '[, or, in the case of suits referred to in- clause (c), at, at the place where the cause of action his wholly or partly arisen: -

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate 1[or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen) or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Explanation.- In this section "property" means property situate in 2[Pakistan].

17. Where a suit is to obtain relief respecting, or compensation for wrong to immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: -

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.

18.-(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon 1iroceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the-local limits of its jurisdiction:

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under subs section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been consequent failure of justice.

19. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted -at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in '[Karachi], beats B in 1[Quetta]. B may sue A either in I[Quetta or 1[Karachi].

(b) A, residing in [Karachi] published in [Quetta] statements defamatory of B. B may sue A either in [Quetta] or in [Karachi].

20. Subject to the limitations aforesaid, every suit shall be in a Court within the local limits of whose jurisdiction.

(a) the defendant-, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either of the Court is given, or the defendants who reside, or carry on business, or personally work as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.


Explanation I.- Where a person has- a one place and also a temporary residence shall be deemed to reside at both places in action arising at the place where he residence.

Explanation II.-A corporation shall be deemed to carry on business at its sole or principal office in '[Pakistan] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.


Illustrations

(a) A is a tradesman in [Lahore]. B carries on business in [Karachi]. B, by his agent in [Lahore], buys goods of A and requests A to deliver them to the [Pakistan International Airways]. A delivers the goods accordingly in [Lahore]. A may sue B for the price of the goods either in [Lahore] where the cause of action has arisen or in [Karachi] where B carries on business.

(b) A resides at [Murree], B at [Lahore], and C at [Karachi]. A, B and C being together at [Bahawalpur] B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at [Bhawalpur], where the cause of action arose. He may also sue them at [Lahore], where B resides, or at [Karachi], where C resides: but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.


21. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.

22. Where a suit may be instituted in any one.- of two or more Courts and is instituted in one of such Courts, any defendant after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (ii any), shall determine in which of the several Courts having jurisdiction be suit shall proceed.

23. (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court.


(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts arc subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate.

24.-..(l) On the application of any of the parties and after notice to the parties and after hearing such of be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or subordinate to it and competent same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under subsection (1) the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of' this section, and Assistant Judges shall be deemed to District Court.

(4) The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of' such suit, be deemed to be a Court of Small Causes,

124-A.-(1) Where any suit is transferred udder section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the., suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.

(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the' application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceeding is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located.]"

25. 1* * * * * *

INSTITUTION OF SUITS

26. Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.




SUMMONS AND DISCOVERY

27. Where a suit has been duly instituted, a summons may defendants, be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

28.-(1) A summons may be sent for service in another summons. Province to such Court and in such manner as may be prescribed by rules in force in that Province.

(2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

29. Summonses 2[and other processes] issued by any Civil or

Revenue Court situates 1[outside] 2[Pakistan] may be sent to the Courts 3[in] 4[Pakistan] and served as if they 5[were summonses] issued by such Courts:

6[Provided that the Courts issuing such summonses [or processes] have been established or continued by the authority of the Central Government or that the Provincial Government [of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to 10[such Courts.]

30. Subject to such conditions and limitations as may be prescribed, the Court may, at any. time, either of its own motion or on the application of any party: -

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;


(b) attach and sell his property;
(c) impose a fine upon him not exceeding [two thousand] rupees;
(d) order him to furnish security for his appearance and in default commit him to […..] prison.
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