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




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PART IV
SUITS IN PARTICULAR CASES


SUITS BY OR AGAINST [THE GOVERNEMNT] OR PUBLIC OFFICERS
IN THEIR OFFICIAL CAPACITY

79. * * * In a suit by or against the 2Government) the authority to be named as plaintiff or defendants as the case may be, shall be-

(a) in the case of a suit by or against the Central Government, Pakistan];

(b) in the case of a suit by or against a Provincial Government, the Province; and


80.-(l) A suit may be instituted against the Government or against a public officer, In respect of any act purporting to be done by such public officer in his official capacity, after the expiration of two months next after notice in writing has been delivered to or left at the office of-

(a) in the case of a suit against the Central Government, a Secretary to that Government;

(b) (I) In the case of a suit against the Provincial Government other than a suit relating to the affairs of a Railway, a Secretary to that Government or the. Collector of the District; and

(ii) In the case of a suit against the 8[Federal Government] relating to the affairs of a Railway, the General Manager of the Railway concerned, and in the case of a public officer, delivered to him or left at his office stating the cause of' action, the name, description of place of residence of the plaintiff and the relief which he claims ; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) Where any such suit is instituted without delivering or leaving such notice as aforesaid or before the expiration of the said period of two months or where the plaint does not contain a statement that such notice has been so delivered or left, the plaintiff shill not be entitled to any costs if settlement as regards the subject-matter of the suit is reached or the Government or the public officer concedes the plaintiff's claim, within the period of two months from the date of the institution of the suit:

Provided that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written statement.]

81.In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment, otherwise than in execution
of a decree, and

(b) where the Court is satisfied that the defendant cannot absent himself from his duty without determent to the public service, it shall exempt him from appearing in person.


82.-(l) Where the decree is against '[the 2[Government]] or Execution against a public officer in respect of any such act as aforesaid, a of decree time shall be specified in the decree within which it shall be satisfied ; and if the decree is not satisfied within the time so specified, the Court shall report the case for 'the orders of the 3(Provincial Government].

(2) Execution shall not be issued on any such decree unless it remains ununsatisfied for the period of three months computed from the date of such report.

SUITS BY ALIENS AND BY OR AGAINST FO1.ETGN RULES,
AMBASSADORS AND ENVOYS

83.-(1) Alien enemies residing [in Pakistan] with the permission of the [Central Government], an alien friends, may sue in the Courts [in the Provinces], as if they were [Citizens of Pakistan].

(2) No alien enemy residing [in Pakistan] without such permission, or residing in a foreign country, shall sue in any of such Courts.

Explanation.-Every person residing in a foreign country the Government of which is at war with 2[or engaged in military operations against] 3[Pakistan], and carrying on business in that country without a [license in that behalf under the hand 4* * * of a Secretary to the 5[Central Government] shall, for the purpose of subsection (2), be deemed to be an alien enemy residing in a foreign country.

84.-(1) A foreign State may sue in any Court [in the Province]:

Provided that such State has been recognized by the [Central Government]:

Provided, also, that the object of the suit is to enforce a private right vested in the head of such State or in any officer of such State iii his public capacity.

(2) Every Court shall take judicial notice of the fact that a foreign State has or has not been recognized by the Central Government].

85.(1) Persons specially appointed by order of the Central Government at the request of the Ruler of any foreign State, or at the request of any person competent, in the opinion of the Central Government to act on behalf of such Ruler, to prosecute or defend any suit on his behalf, shall be deemed to be the recognized agents by whom appearances acts and applications under this Code may be made or done on behalf of such Ruler.]

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of the [Ruler].


(3) A person appointed under this section may authorize or appoint persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.


86. (1) Any [Ruler of a foreign State] may, [……. With the consent of the Central Government, certified by the signature of a Secretary to that Government] but not without such consent, be sued in any competent Court.

(2)Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the 5[Ruler] may be send; but it shall not be given unless it appears to [the consenting authority] that the [Ruler];

(a) has instituted a suit in the Court against the person desiring to sue him, or


(b) by himself or another trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situated within those limits and Is to be sued with reference to such property or for money charged thereon.

(3) No such [Ruler] shall be arrested under this Code, and, except with [the consent of the Central Government] certified as aforesaid, no decree shall be executed against the property of any such [Ruler.]

(4) The Central Government9. ..may by notification in the [official Gazette] authorize a Provincial Government and any Secretary to that Government to exercise with respect to any [Ruler] named in the notification the functions assigned by the foregoing subsections to the consenting authority and a certifying officer respectively.

(5) A person may as a tenant of immovable property, sue, without such consent as is mentioned in this section, a '[Ruler) from whom he holds or claims to hold the property.

186-A. (1) No proceeding in any Court shall lie against a diplomatic agent except in a case relating to-

(a) any private immovable property situated in Pakistan held by him in his private capacity and not on behalf of the sending State for the purpose of the mission;


(b) a succession in which the diplomatic agent is Involved as executor, administrator, heir or legates as a private person and not on behalf of the sending State;

(c) any professional or commercial activity exercised by the diplomatic agent in Pakistan outside his official functions.

(2) No measures of execution shall be taken in respect of a diplomatic agent except in cases which Come under clauses (a), (b) and (c) of subsection (1) and in which such measures can be taken without infringing the inviolability of his person or of his residence.

(3) The initiation of any proceedings in a Court by a diplomatic agent shall, preclude him from invoking immunity from jurisdiction under this section in respect of any counter-claim directly connected with the principal claim.

(4) The immunity of a diplomatic agent under subsection (1) or subsection (2) may be waived by~ the sending State; and any such waiver shall be express.

(5) Waiver of immunity in respect of any proceedings shall not be held to imply waiver of immunity in respect of any measure of execution for which a separate waiver still be necessary.

(6) in this section, 'diplomatic agent' in relation to a State means the head of the mission in Pakistan of that State and includes a member of the staff of that mission having diplomatic rank.

87.[the Ruler of a foreign State] may sue, and shall be sued in the name of his State:

Provided that in giving the consent referred to in the foregoing section [the Central Government, 3*** or the Provincial Government, as the case be, may direct the any such [Ruler] shall be sued in the name of an agent or in any other name.

87-A. Suits against Rulers of acceding and merged states.]

INTERPLEADER

88. Where two or more persons claim adversely to one another the same debt, sum of money or other property movable or immovable, from another person, who claims no interest therein other than or charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of' interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself:

Provided that where any suit ii pending in which the rights of all parties can properly be decided, no such suit of interpleader shall be instituted,



PART V
SPECIAL PROCEEDINGS
ARBITRATION

89. [Arbitration] Omitted by the Arbitration Act, 1940 (X of 1940), S. 49 and Third Schedule.



SPECIAL CASE

90. Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.



SUITS RELATING TO PUBLIC MATTERS

91.(1)In the case of a public nuisance the Advocate-General, or two or more persons having obtained the consent in writing of the Advocate-General, may institute a suit, though no special damage has been caused, for a declaration and injunction or for such other relief as may be appropriate to the circumstances of the case.

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.

92.-(l) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate. General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree-


(a) removing any trustee,


(b) appointing a flew trustee ;
(c) vesting any property in a trustee ;
(d) directing accounts and inquiries ;
(e) declaring what proportion of the trust-property or of
the interest therein shall be allocated to any particular
object of the trust ;
(f) authorizing the whole or any part of the trust-property to be let sold, mortgaged or exchanged ;
(g) settling a scheme ; or
(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863. no suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsections,

93.The powers conferred by sections 91 and 92 on the Advocate-General may, 1***, be with the previous sanction of the 2[Provincial Government], exercised also by the Collector or by such officer as the 2[Provincial Government] may appoint in this behalf.

PART VI
SUPPLEMENTAL PROCEEDINGS

94.In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-

(a)issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if' he fails to comply with any order for security commit him to the civil prison;

(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;

(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;

(c)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;


95.-(1) Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section.


(a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds, or;

(b) the suit of the Plaintiff fails and it appears to the Court that there was no reasonable or probably ground
for instituting the same;

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding [ten thousand] rupees, as it deems a reasonable compensation to the defendant for the expense of injury caused to him:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or Injunction.




PART VII
APPEALS FROM ORIGINAL DECREES

96.--(l) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.

(2)An appeal may lie from an original decree passed ex-parte.

(3) No appeal shall lie from a decree passed by the Court With the consent of panics.


97. Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

98.(l) Where an more Judges, the appeal opinion of such Judges.

(2)Where there is no such judgment varying or reversing the decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two Judges belonging to a Court consisting of more than two Judges, and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

1[(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent any High Court.].

99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of - action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court


APPEALS FROM APPEALATE DECABRIS

100.-(l) Save where otherwise expressly provided - in the body of this Code or by any ocher law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:

(a) the decision being contrary to law or to some usage having the force of law.
(b) the decision having failed to determine some material issue of law or usage having the force of law
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time
being in force, which may possibly have produced error or defect in the decision of the case upon the
merits.

2[(2) * * * *

101. No second appeal shall lie except on the grounds mentioned in section 100.

3[102. No second appeal shall lie,-

(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed [twenty-five thousand] rupees; and

(b) in any other suit, when the amount or value subject matter of the original suit does not exceed 4[two hundred fifty thousand] rupees.

103. In any second appeal the High Court may, if the evidence on the record is sufficient determine any issue of fact necessary for the disposal of the appeal 5[which has not been determined by the lower appellate Court or which has been wrongly determined by such Court by reason -of any illegality, omission, error or defect such as is referred to in subsection (1) of section 100].

APPEALS PROM ORDERS

104.-(1) An appeal. shall lie from the following orders, and save as otherwise express1y provided In the body of this Code or by any law for the time being in force, from no other orders: -

2[f) an order under section 35-A;
(ff) an order under section 47;]
(g) an order under section 95;
(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is express1y allowed by rules:

3[Provided that no appeal shall lie against any order specified in clause (f) 4save on the ground that no order, or an order for the payment of a Jess amount, ought to have been made].

(2) No appeal shall lie from any order passed in appeal under this section.

105.-(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appeared from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appea11ies does not appeal there from, he shall thereafter be precluded from disputing its correctness.

106. Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

GENERAL PROVISIONS RELATING TO APPEALS

107.-(1 ) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:-

(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in' respect of suits instituted therein.

108. The provisions of this Part relating to appeal from original decrees shall, so far as may be, apply to appeal-

(a) from appellate decrees, and


(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.


APPEALS TO THE [SUPREME COURT]

3[109. An appeal from a judgment decree or final order of a High Court shall lie to the Supreme Court -

(a) if the amount or value or the subject-matter or the dispute in the court of first instance was and also in appeal is (unless varied by an Act or Parliament) fifty thousand rupees or upward and the judgment decree or final order appealed from has varied or set aside the judgment decree or final order of the Court immediately below; or

(b) it the judgment, decree or final order involves directly or indirectly, some claim or question respecting property or the like amount or value and the judgment, decree of final order appealed from has varied of set aside the judgment decree or final order of the Court immediately below; or

(c) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.]

110. [Omitted by Federal Adaptation of Laws Order (P.O.4 of 1975) w.e.f 1st August 1975]

111. Notwithstanding anything contained in section 109, no appeal shall lie to 4[the Supreme Court]

(a) from the decree or order of one Judge of a High Court 5***, or of one Judge of a Division Court, or of two or more Judges of such High .Court, or of a Division Court, constituted by two or more Judges of such High Court, where such Judges are cqua11y divided in opinion and do not amount in number to a majority of the whole of the Judges of the High Court at the time being; or

(b) from any decree from which under section 102 no second appeal lies.

111.A.-[Omitted by the Federal Court Act, 1941 (XXI of 1941), S. 2.]

112.-2[(1) Nothing contained in this Code shall be deemed-

(a) to affect the powers of the Supreme Court under Article 3[191 of the Constitution or any other provision thereof] ; or

(b) to interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.]

(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.


PART VII

REFERENCE REVIEW AND REVISION

113. Reference to High Court. - Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit.

114. [Review.-(1) Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order. And the Court may make such order thereon as it thinks fit.

(2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court.]

115.-1[(1 )} The High Court may call for the record of any case which bas been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears

(a) to .have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit;

2[Provided that where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court.]

3[Provided further that such application shall be made within ninety days of the decision of the subordinate Court] 4[which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months],

5[(2) The District Court may exercise the powers conferred on the High Court by subsection (I) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject-matter whereof does not exceed the limits of the appellate jurisdiction of the District Court.

(3) If any application under subsection (l) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under subsection (2) by the District Court.]


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