SECURITY FOR COSTS
1.- (1) Where at any stage of a suit it appears to the Court that a sole plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are residing out of [Pakistan] and that such plaintiff does not or that no one of such plaintiffs does possess any sufficient immovable property within [Pakistan] other than the property in suit the Court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant.
(2) Whoever leaves [Pakistan] under such circumstances as to afford reasonable probability that he will not be forthcoming whenever he may be called upon topay costs shall be deemed to be residing out of [Pakistan] within the meaning of sub-rule (1).
(3) On the application of any defendant in a suit for the payment of money, in which the plaintiff is a woman, the Court may at any stage of the suit make a like order if it is satisfied that such plaintiff does not possess any sufficient immovable property within [Pakistan].
2.- (1) In the event of such security not being furnished within the time fixed, the Court shall make an order dismissing the suit unless the plaintiff or plaintiffs are permitted to withdraw therefrom.
(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside, and,. If it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security, costs or otherwise as is thinks fit, and shall appoint a day for proceeding with the suit.
(3) The dismissal shall not be set aside unless notice of such application has been served on the defendant.
Commissions to Examine Witnesses
1. Any court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the Court or who is from sickness or infirmity unable to attend it.
2. An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
3. A commission for the examination of a person who resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person whom the Court thinks fit to execute it.
4.-(1) Any Court may in any suit issue a commission for the examination of -
a) any person resident beyond the local limits of its jurisdiction;
b) any person who is about to leave such limits before the date on which he is required to be examined in Court; and
c) [any person in the service of the [State] ] who cannot, in the opinion of the Court, attend without detriment to the public service.
(2) Such commission may be issued to any Court, not being a High Court, within the local limits of whose jurisdiction such person resides, or to any pleader or other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the commission shall be returned to itself or to any subordinate Court.
5. Where any Court to which application is made for the issue of commission for the examination of a person residing at any place not within[Pakistan] is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.
6. Every Court receiving a commission for the examination of any person shall examine him or cause him to be examined pursuant thereto.
7. Where a commission has been duly executed it shall be returned, together with the evidence taken under it, to the Court from which it was issued, unless the order for issuing the commission has otherwise directed, in which case the commission shall be returned in terms of such order; and the commission and the return thereto and the evidence taken under it shall (subject to the provisions of the next following rule) form part of the record of the suit.
8. Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party against whom the same is offered unless-
a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or unable from sickness or infirmity to attend to be personally examined, or exempted from personal appearance in Court, or is a [person in the service of the [State]] who cannot, in the opinion of the Court attend without detriment to the public service, or
b) the Court in its discretion dispenses with the proof of any of the circumstances mentioned in clause (a) and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the cause for taking such evidence by commission has ceased at the time of reading the same.
Commissions for Local Investigations
9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount or any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the [Provincial Government] has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10.-(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) The report of the Commissioner and the evidence taken by him (but ot the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
Commission to examine Accounts
11. In any suit in which an examination or adjustment of accounts is necessary, the Court may issue a commission to such person as it thinks fit directing him to make such examination or adjustment.
12.-(1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination.
(2) The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit.
Commissions to make Partitions
13. Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.
14.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners(where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court; and the Court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.
15. Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a time to be fixed paid into Court by the party at whose instance or for whose benefit the commission is issued.
16. Any commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-
a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;
b) call for and examine documents and other things relevant to the subject of inquiry;
c) at any reasonable time enter upon or into any land or building mentioned in the order.
17.- (1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of [Pakistan] and for the purpose of this rule the Commissioner shall be deemed to be a civil Court.
(2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process a sit considers reasonable and proper.
18.- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence.
[Commissions issued at the instance of Foreign Tribunals.
19.- (1) If a High Court is satisfied -
a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,
b) that the proceeding is of a civil nature, and
c) that the witness is residing within the limits of the High Court's appellate jurisdiction.
It may, subject to the provisions of rule 20, issue a commission for the examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule (1)-
a) by a certificate signed by the consular officer of the foreign country of the highest rank in [Pakistan] and transmitted to the High Court through the [Central Government], or
b) by a letter of request issued by the foreign Court and transmitted to the High Court through the [Central Government] or
c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding.
20. The High Court may issue a commission under rule 19 -
a) upon application by a party to the proceeding before the foreign Court or
b) upon an application by a law officer of the [Provincial Government] acting under instructions from the [Provincial Government].
21. A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or, where *** the witness resides within the local limits of [the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.
21. The provisions of rules 6, 15, 16, 17 and 18 of this Order in so far as they are applicable shall apply to the issue, execution and return of such commissions, and when any such commission has been duly executed it shall be returned, together with the evidence taken under it, to the High Court, which shall forward it to the [Central Government] along with the letter or request for transmission to the foreign Court].
SUITS BY OR AGAINST [THE [GOVERNMENT]] OR PUBLIC OFFICERS
IN THEIR OFFICIAL CAPACITY
1. In any suit by or against [the [Government]], the plaint or written statement shall be signed by such person as [the [Government]] may, by general or special order, appoint in this behalf, and shall be verified by any person whom [ the [Government]] may so appoint and who is acquainted with the facts of the case.
2. Persons being ex officio or other wise authorised to act for [the [Government]] in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code maybe made or done on behalf of [the[Government]].
3. In suits by or [against the [Government]] instead of inserting in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be sufficient to insert [the appropriate name as provided in section 79, ***].
[4. The Government] pleader in any Court shall be the agent of the [Government] for the purpose of receiving processes against the [Government] issued by such |Court.]
5. The Court, in fixing the day for [the [Government]] to answer to the plaint, shall allow a reasonable time for the necessary communication[with the [Government]] through the proper channel, and for the issue of instructions to the [[Government] pleader] to appear and answer on behalf of [the [Government]] *** and may extend the time at its discretion.
6. The Court may also, in any case in which the [ [ Government] pleader] is not accompanied by any person on the part of [the [Government]] who may be able to answer any material questions relating to the suit, direct the attendance of such a person.
7.- (1) Where the defendant is a public officer and, on receiving the summons, considers it proper to make a reference to [the [Government]] before answering the plaint, he may apply to the Court to grant such extension of the time fixed in the summons as may be necessary to enable him to make such reference and to receive orders thereon through the proper channel.
(2) Upon such application the court shall extend the time for so long as appears to it to be necessary.
8.- (1) Where [the [government]] undertakes the defence of a suit against a public officer [the Government] pleader], upon being furnished with authority to appear and answer the plaint, shall apply to the Court, and upon such application the Court shall cause a note of his authority to be entered in the register of civil suits.
(2) Where no application under sub-rule (1) is made by [the [Government] pleader] on or before the day fixed in the notice for the defendant to appear and answer, the case shall proceed as in a suit between private parties:
Provided that the defendant shall not be liable to arrest, nor his property to attachment otherwise than in execution of a decree.
8.A. No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from the [Government] or where the [Government] has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity.
8B. In this Order "[Government]" and "[Government] pleader" means respectively-
a) in relation to any suit by or against *** the Central Government, or against a public officer in the service of that Government, the Central Government and such pleader as that Government may appoint whether generally or specially for the purposes of this Order:
b) * * * * * * * * * *
c) in relation to any suit by or against a Provincial Government or against a public officer in the service of a Province, the Provincial Government and the Government pleader, or such other pleader as the Provincial Government may appoint, whether generally or specially for the purposes of this Order.]
SUITS INVOLVING ANYSUBSTANTIAL QUESTION AS TO THE
INTERPRETATION OF CONSTITIONAL LAW
1. In any suit in which it appears to the Court that [ any substantial question as to the interpretation of constitutional law] is involved, the Court shall not proceed to determine the question until after notice has been given to the [Attorney-General for Pakistan] if the question of law concerns the Central Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government.
2. The Court may at any stage of the proceedings order that the Central Government or a provincial Government shall be added as a defendant in any suit involving [any substantial question as to the interpretation of constitutional law] if the [Attorney-General for Pakistan] or the Advocate-General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
3. Where under rule 2 Government is added as a defendant in a suit [the Attorney-General] the Advocate General or the Government shall not be entitled to or liable for costs in the Court which ordered the addition unless the Court having regard to all the circumstances of the case for any special reason otherwise orders .
4. In the application of this Order to appeals the word " defendant" shall be held to include a respondent and the word "suit" an appeal.
SUITS BY OR AGAINST MILITARY [OR NAVAL]MEN [OR AIRMEN]
1. - (1) Where any officer, [soldier, sailor or airman] actually [in the service of the State] in [such] capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stead.
(2) The authority shall be in writing and shall be signed by the officer, [soldier, sailor or airman] in the presence of (a) his commanding officer, or he next subordinate officer, if the party is himself the commanding officer, or (b) where the officer, [soldier, sailor or airman] is serving in military [naval] [or air force] staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall counter sign the authority which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that he authority was duly executed, and that the officer, [soldier, sailor or airman] by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the suit in person.
Explanation - In this Order the expression "commanding officer" means the officer in actual command for the time being of any regiment, corps, [ship] detachment or depot to which the officer, [soldier, sailor or airman] belongs.
2. Any person authorised by an officer, [soldier, sailor or airman] to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer, [soldier, sailor or airman] could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer, [soldier, sailor or airman].
3. Processes served upon any person authorised by an officer, [soldier, sailor or airman] under rule 1 or upon any pleader appointed as aforesaid by such person shall be as effectual as if they had been served on the party in person.
SUITS BY OR AGAINST CORPORATIONS
1. In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.
2. Subject to any statutory provision regulating service of process, where the suit is against a corporation the summons may be served -
a) on the secretary, or on any director, or other principal officer of the corporation , or
b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.
3. The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.
SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON
BUSINESS IN NAMES OTHER THAN THEIR OWN
1.- (1) Any two or more persons claiming or being liable as partners and carrying on business in [Pakistan] may sue or be sued in the name of firm (if any) of which such persons were partners at the time of the accruing of the cause of action and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were at the time of the accruing of the cause of action partners in such firm, to be furnished and verified in such manner as the Court may direct.
(2) Where persons sue on sued as partners in the name of their firm under sub-rule (1) it shall in the case of any pleading or other document required by or under this Code to be signed verified or certified by the plaintiff or the defendant suffice if such pleading or other document is signed, verified or certified by any one of such persons.
2.- (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting a firm on whose behalf the suit is instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may upon an application for that purpose, be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint:
Provided that all the proceedings shall nevertheless continue in the name of the firm.
3. Where persons are sued as partners in the name of their firm, the summons shall be served either -
a) upon any one or more of the partners, or
b) at the principal place at which the partnership business is carried on within [Pakistan] upon any person having, at the time of service, the control or management of the partnership business there,
as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without [Pakistan]:
Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within [Pakistan] whom it is sought to make liable.
4. - (1) Notwithstanding anything contained in section 45 of the Contract Act, 1872, where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have -
a) to apply to be made a party to the suit, or
b) to enforce any claim against the survivor or survivors.
5. Where a summons is issued to a firm and is served in the manner provided by rule 3, every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and in default of such notice, the person served shall be deemed to be served as a partner.
6. Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless continue in the names of the firm.
7. Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business no appearance by him shall be necessary unless he is a partner of the firm sued.
8. Any person served with summons as a partner under rule 3 may appear under protest, denying that he is a partner, but such appearance shall not preclude the plaintiff from otherwise serving a summons on the firm and obtaining a decree against the firm in default of appearance where no partner has appeared.
9. This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the Court and on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.
10. Any person carrying on business in a name or style other than his own name may be sued in such name or style as if it were a firm name; and so far as the nature of the case will permit, all rules under this Order shall apply.