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




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PART IX
SPECIAL PROVISIONS RELATING TO 6* * *
HIGH COURT

116. This part applies only to High Courts 7****


117. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to 1*** High Courts.

118. Where any 1*** High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the Court may order that the decree shall be executed forthwith except as to so much thereof as relates to the costs;

and as to so much thereof as relates to the costs, that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation.


119. Nothing in this Code shall be deemed to authorize any person on behalf of another to address the Court in the exercise of its original civil jurisdiction, or to examine witnesses, except where the Court shall have in the exercise of the power conferred by its charter authorized him so to do, or to interfere with the power of the High Court to make rules concerning advocates, vakils and attorneys.

120.(1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20.


PART X
RULES

121. The rules in the First Schedule shall have effect as if enacted in ,the body or this Code until annulled pt altered in accordance with the provisions or this Part.

122. 3[The High Courts] 4*** may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the civil Courts subject to their superintendence, and may by such rules annul, alter or ad to all of any of the rules in the First Schedule.

123 -(I) A Committee, to be called the Rule Committee, shall be constituted at J[the town which is the usual place of sitting of each of the High Courts 2. . . 30 . . referred to in section 122].

(2) Each such Committee shall consist of the following persona namely:-

(a) three Judges of the High Court established at the town at which such Committee is constituted, one of whom at least has served as a District Judge or 4**** a Divisional Judge for three years.

(b) 5 * * * * * * *

(c) 6[two advocates practising in that Court and].

(d) a Judge of a Civil Court subordinate to the High Court, 7* * * *

(3) The members of each such Committee shall be appointed by the Chief Justice 8* ** who shall also nominate one of their member to be president:

Provided that, if the Chief Justice 8*** elects to be himself a member of a Committee, the number of other Judges appointed to be members shall be two and the Chief Justice 8*** shall be the President of the Committee.

(4) Each l11ember'of any such Committee shall bold office f or such period as may' be prescribed by the Chief Justice 8* * * in this behalf; and whenever any member retires. resigns, dies or ceases to reside in the Province in which the Committee was constituted, or becomes incapable of acting as a member of the Committee, the said Chief Justice 8* * * may appoint another person to' be a member in his stead.

(5) There shall be a Secretary to each such Committee who shall be appointed by the Chief Justice 8*** and shall receive such remuneration as may be provided in this behalf [by the Provincial Government].

124. Every Rule Committee shall make a report to the High Court established at the town at which it is constituted on any proposal to annul alter or add to the rules in the First Schedule or to make new rules, and before making any rules under section 122 the High Court shall take such report into consideration.

125. * * * * * * * * * * . . . . .
126. Rules made under the foregoing provisions shall be subject to the previous approval of the Government of the Province in which the Court whose procedure the rules regulate is situate or, if that Court is not situate in any Province, to the previous approval of the 4[Federal Government].

127. Rules so made and 5[approved] shall be published in the 6[official Gazette ***], and shall from the date of publication or from such other date as may be specified have the same force and effect within the local limits of the jurisdiction of the High Court which made them, as if they had been contained in the Pint Schedule.

128.-(1) Such rules shall not be inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any maters relating to the procedure of civil Courts.

(2) In particular and without prejudice to the generality or the powers conferred by subsection (1), such rules may provide for all or any of the following matters, namely:

(a) the service of summonses, notices and other processes by post or in any other manner either generally or in any specified areas, and the proof of such service;

(b) the maintenance and custody, while under attachment or livestock and other movable property the fees pay able for such maintenance and custody, the sale of such


livestock and property and the proceeds of such sale.

(c) procedure in suits by way of counter claim, and the valuation of such suits for the purposes of jurisdiction;

(d) procedure in garnishee and charging orders either fu addition to, or in substitution for, the attachment and sale of debts ;

(e) procedure where the defendant claims to be entitled to contribution or indemnity over against any person whether a party to the suit or not;

(f) summary procedure-

(i) in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising on a contract express or implied;

on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty; or
on a guarantee, where the claim against the principle is in respect of a debt or a liquidated demand only; or on a trust; or

(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or bas been only determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant;

(g) procedure by way of originating summons;

(h) conso1idation of suits, appeals and other proceedings;

(i) delegation to any Registrar, Prothonarary or master or other official of the Court of any judicial, quasi-judicial and non-judicial duties; and

(j) all forms, registers, books, entries and accounts which may be necessary or desirable for the transaction of the business of civil Courts.


129. Notwithstanding anything in this Code, any High Court 1*** may make such rules not inconsistent with 2[its Letters Patent] to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code.

130. * * * * * * *

131. Rule made in accordance with section 129 1* * * shall be published in the 2[official Gazette * * *] and shall from the date of publication or from such other date as may be specified have the force of law.



PART XI
MISCELLANEOUS

132.-(1) Women who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court.

(2) Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this Code.

133.-(1) The 2[provincial Government] may, by notification in the [official Gazette], exempt from personal appearance in Court any person whole rank, in the opinion of such Government, entitles him to the privilege of exemption.

(2) The names and residences of the persons so exempted shall, from time to time, be forwarded to the High Court by the [Provincial Government] and a list of such persons shall be kept in such Court, and a list of such persons as reside within the local limits of the jurisdiction of each Court subordinate to the High Court shall be kept in such subordinate Court.

(3) Where any person so exempted claims the privilege of such exemption and it is consequently necessary to examine him by party requiring his evidence pays the costs of that commission, unless the party requiring his evidence pays such costs.

134. The provisions of sections 55, 57 and 59 shall apply, so far as may be, to all persons arrest under this Code.

135. (1) No Judge, Magistrate or other judicial office shall be liable to arrest under civil process while going to, presiding in, or returning from, his Court.

(2) Where any matter pending before a tribunal jurisdiction having jurisdiction therein, or believing in good faith that it has such jurisdiction, the parties thereto, their pleaders, mukhtars, revenne-agents and recognized agents, and their witnesses acting in obedience to a summons, shall be exempt from arrest under civil process other than process issued by such tribunal for contempt of Court while going to or attending such tribunal for the purpose of such matter, and while returning from such tribunal.

(3) Nothing in subsection (2) shall enable a judgment-debtor to claim exemption from arrest under an order for immediate execution or where such judgment-debtor attends to show cause why he should not be committed to prison in execution of a decree.

l35-A.-(I) No person sha1l be liable to arrest or detention in prison under civil process: -

[(a) If he is member of Legislature 4 *** 5 *** during the continuance of any meeting of such Legislature 6**]

[b) If he is member of any committee of such [Legislature 6* *], during the continuance of any meeting of such committee;

5* * * * * *

and during the fourteen days before and after such meeting of sitting.

(2) A person released from detention under subsection (1) shall, subject to the provisions of the said subsection, be liable to re-arrest and to the further detention to which he would have been liable if he had not been released under the provisions of sub-section (1)]

136.-(1) Where an ap1ilication is made that and person shall be arrested or that property shall be attached under any provision of this Code not relating to the execution or decree, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made the Court may in its direction, issue a warrant or arrest or make an order of attachment and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situated a copy of the warrant of orders, together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by Court subordinate to itse1f, and shall inform the Court which issued or made such warrant or order of the arrest or attachment

(3) The Court making an arrest under this location shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

137. (1) The language which, on the commencement of this Code, is the language of any Court subordinate to a High Court shall continue to be the language of such subordinate Court until the [Provincial Government] otherwise directs.

(2) The [Provincial Government] may declare what shall be the language of any such Court and in what character applications to and proceedings in such Courts shall be written.

(3) Where this Code requires or allows anything other than the recording or evidence to be done in writing in any such Court, such writing may be in English; but if any party or his pleader is unacquainted with English a translation into the language of the Court shall, at his request, be supplied to him; and the Court shall make such order as it thinks fit in respect of the payment or the costs of such translation.

138. The [High Court] may, by notification in the [official Gazette] direct with respect to any] judge specified in the notification or failing under a description act forth therein, that evidence in cases in which an appeal is allowed shall be taken down by him in the English language and in manner prescribed.

(2) Where a Judge is prevented by any sufficient reason from complying with a direction under subsection (1), he shall record the reason and cause the evidence to be taken down in writing from his dictation in open Court.

139. In the case of any affidavit under this Code-
(a) any Court or Magistrate, or
(b) any officer or other person whom a High Court may appoint in this behalf, or ;
(c) any officer appointed by any other Court which the [Provincial Government] has generally or specially empowered in this behalf, may administer the oath to the deponent:

140.--(1) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the Court, whether it be exercising its original or its appellate jurisdiction, may if it thinks fit and shall upon request of either party to such cause, summon to its assistance, in such manner as it may direct or as may be prescribed two competent assessors; and such assessor shall attend and assist accordingly:

(2) Every such assessor shall receive such fees to for his attendance, to be paid by such of the parties as the Court may direct or as may be prescribed.

141. The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

142. All orders and notices served on or given to any person under the provision or this Code shall be in writing.

143. Postage, where chargeable on a notice, summons or letter issued under this Code and forwarded by post and the fee for registering the same, shall be paid within a time to be fixed before the communication is made:

Provided that the [Provincial Government] 2* * * may remit such postage~ or fee or both or may prescribe a scale of court-fees to be levied in lieu thereof.

144.-(1) Where and in so far as a decree is varied or reversed the Court of first instance shall on the application of any party entitled to any benefit by way of restitution or otherwise cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree of such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of cost and for the payment of interested damages, compensation and mesne profits, which are properly consequential on such variation or reversal.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under subsection(1)

145. Where any person has become liable as surety:

(a) For the performance of any decree or any part thereof; or

(b) For the restitution of any property taken in execution of a decree, or

(c) For the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 47;

Provided that such notice: as the Court in each case thinks sufficient has been given to the surety.

146. Save as otherwise provided by the Code or by any law for the time being in force where any proceeding may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.

147. In all suits to which any person under disability is a party, any consent or agreement as to any proceeding shall, if liven or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such period, were under no disability and had given such consent or made such agreement.


148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may, in its discretion, from time to, time, enlarge such period, even though the period originally fixed or granted may have expired.

149. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee is payable, to pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee is payable, shall have the same force and effect as if such fee had bee paid in the first instance.

150. Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.

151. Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

152. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

153. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shal1 be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

154. [Omitted by Ordinance (27 of 1981), Second Sched., item 46(11)].

155. [Omitted by ibid].

156. Rep. by the Second Repealing and Amending Act 1914 (XVII of 1914), s.3 and Second Schedule.

157. Notifications published, declarations and rules made, places appointed, agreements filed, scales prescribed, forms framed, appointments made and powers conferred under Act VIII of 1859 or under any Code of Civil Procedure or any Act amending the same or under any other enactment hereby repealed shall, so far as they are consistent with this Code, have the same force and effect as if they had been respectively published, made, appointed, filed, prescribed, framed and conferred under this Code and by the authority empowered thereby in such behalf.

158. In every enactment or notification passed or issued before the commencement of this Code in which reference is made to or to any Chapter or section of Act VIII of 1859 or any Code of Civil Procedure or any Act amending the same or any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Part, Order, section or rule.




ORDER I

PARTIES SUITS

1. All persons may be joined in one suit as Plaintiffs in whom any right to [relief in respect of or transaction or series of acts or transactions is alleged to exit, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.

2. Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the Court may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.

3. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, Whether jointly, severally or in the alternatively, where, if separate suits were brought against such persons, any common quest on of law or fact would arise.

4. Judgment may be given without any amendment-

5. It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.

6. The plaintiff may, at his option, join as same suit nil or any of the persons severally, severally, liable on any one contract, including exchange, hundis and promissory notes.

7. Where the plaintiff is in doubt as to the person from whom be is entitled to obtain redress, he may join two or more defendants in order that the question as to winch of the defendants is liable, and to what extent, may be determined as between all parties.

8. (l) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

9. No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in the matter in controversy so far as regards the rights and interests of the parties actually before it.

10. (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the teal matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court unless the as may be the plaint thinks fit, effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where a defendant is added, the plaint shall, Court otherwise directs, be amended. in such manner necessary, and amended copies of the summons and of shall be served on the new defendant and, if the Court on the original defendant.

(5) Subject to the provisions of the (IX of 1908], section 22, the proceedings added as defendant shall be deemed to service of the summons.

11. The Court may give the conduct of the suit to such person as it deems.

12. (l) here there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other, in any proceedings; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

13. Alt objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently, arisen, and any such objection not so taken shall be deemed to have been waived.

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