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Old Wednesday, October 20, 2010
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Default Civil procedure code---- notes

+++++++ CIVIL PROCEDURE CODE , 1908 ++++++++++
================================================== ===============
================================================== ===============


Civil procedure code lays down the procedure, which the courts of civil jurisdiction have to follow.
The procedural law is framed to provide the courts a uniform and unquestionable procedure to avoid diversity in dealing with civil cases.

The object of the code is clear from its preamble, the code intended to consolidate and amend the laws relating to the procedure of civil courts .

The code, being a general law, in case of conflict between the code and special law, the latter prevails over the former.

It can be concluded that civil procedure code as a civil law describes the formation of civil courts, its procedure, classification, powers and discretion of the judges.

================================================== ================================================== ======================================


PLEADING
----------------------

Pleadings are statements in writing of each party containing contentions of each party and detail of his case . Pleadijnd is defined in order 6 of the code of civil procedure as plaint or written statement.

PLAINT
-------------------

Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedyfrom court for the redressal of his grievances.


WRITTEN STATEMENT
-----------------------------------

Written statement is the statement of defence in writing and filed by the defendent, in which he deals with every material fact alleged by the plaintiff in the plaint.
Defendant can state any new facts, which he considers to be in his favour, and cn raise legal objections to the merits of the case, prescribed by various lawse.g plea of limitation , plea of estoppel, plea of res-judicata etc.

REJOINDER.
--------------------------------

Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the defendant in written statement.


ADDITIONAL WRITTEN STATEMENT
.................................................. ......................

It means further answer of the defendant, ( if court permits) which he gives in light of rejoinder.


OBJECT OF PLEADING:
-------------------------------------------------------------

The object of pleading is to bring the parties to an issue and purpose of the rules relating to pleading is to prevent the issue beig enlarged. Further that the parties themselves know what are the matters in dispute and what facts they have to prove at the trial.



WHAT SHOULD A PLEADING CONTAIN
--------------------------------------------------------------

Every pleading shall contain and contain only, a statement in a concise form of the material facts, n which the party pleading ( plaintiff or defendant) relies for his claim or defence, as the case may be.
IT shall not contain, the evidence by which they are to be proved, and it shall, when necessary, be divided into paragraphs, numbered consecutively.
Dates, sums and numbers shall be expressed in figures.



General rules of pleading
==================================

In civil procedure code order 6 deals with pleadings in general, order 7 deals with plaint, and order 8 deals with the written statement. The following is the summary of the rules comprised in orders 6,7, and 8 of civil procedure code:

1. In pleading state your whole case, in other words set forth in pleading all material facts on which you rely for your claim or defence , as the case may be.

2. In pleading state facts and not the law, if any matter of law is set out inj your opponent's pleading, do not plead to it.

3. In pleading state only the relevents facts on which you rely, and not the evidence by which tose facts are to be proved.

4. In pleading state material facts onlyand ommit immaterial and unnecessary facts, and do not plead to any matter which is not against you.

5.In pleading, state the facts of the case concisely, but with precision.

6. It is not necessary to setout the whole or any part of the document, unless the precise words thereof necessary, it is sufficient to state the effects of document as briefly as possible.

7. It is not necessary to allege any matter of fact which the law presumes in your favour or as to which the burden of proof lies upo your opponent party.

8. The party should not plead conclusion of law in pleading.

9. Legal pleas such as estoppel, limitation and resjudicata or res subjudice etc, may be pleaded in written statement.

10. In cases where the party pleading relies on any mis representation, fraud, breach of trust,wilful default, or undue influence , particulars shall be stated in the pleading.



================================================== ================================================== ======================================



ISSUES
-------------------------------------------
========================
========================

Issues are points of contest between the parties in a suit . In other words issues are those points raised from the pleadings which se a way for the court for entertaining a case and it brings the court at the right conclusion of justice. The determination of issues has great importance in the trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence to be given. Pleadings constitutes allegations to one-side or the other, and after determination which of the allegations are material for the purpose of the trial and which of them are admitted or denied, issues are framed and on the basis of these issues the parties stand the test of the trial.


The object of settlement of issues is to determine the material points in controversy between the parties.

Issues arises when a material proposition of fact or law affirme by one party and denied by other party.

Issues , whether raised from allegations in the pleadings or from other materials, should not be inconsistent with pleadings, the court is bound to frame the proper issues arising from the pleadings.


FRAMING OF ISSUES:
========================
========================

According to order 14 rule 1, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the written statements, if any, and after such examination of the parties as may appear necesssary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on weich the right decision of the case appears to depend.

If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule 1 , nothing in this rule requires the court to frame and record issues.


OMISSION TO FRAME ISSUES
============================

If an issue is not framed in the suit, while an allegation was made in the plaint in-respect of certain facts and challenged in written statement, the court can allow the parties to lead the evidence on such point, and would give its decision without framing that issue.



KINDS OF ISSUES:
===============================

1-- ISSUES OF FACT:

Issue of fact means any issue, which has not been determined, by a rule of law, but is to be answered, in accordance with the evidence laid before the court.

2-- ISSUES OF LAW

Issue of law means that issue, which is to be answered in accordance with the law, and not in accordance with the facts or evidences that is laid before the court.

According to order 14 rule 2, " where issues both of law and fact arise in the same suit, and the court is of the opinion, that the case or any part thereof may be disposed of on issues of law only, it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of the issues of fact untill after the issue of law have been determined".


MATERIALS FROM WHICH ISSUES MAY BE FRAMED:
==================================================


The provision regarding the materials from which issues are framed is found in order 14 rule 3, which provides that " the court may frame issues from any of the following materials :-

1. The court may frame issues from the allegations made on oath by bthe parties, or by any persons present on their behalf or made by the pleaders of such parties.

2. The court may frame issues from the allegations made in the pleadings or in answers to the interrogatories delivered in the suit.

3. The court may frame issues from the contents of the documents produced by either part ".



POWER OF COURT TO AMEND AND STRIKE-OUT ISSUES.
================================================== =


The power of the court to amend and striking-out of issues is mentioned in order 14 rule 5, which provides that, " The court may at any time before passing a decree amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. The court may also, at any time before passing a decree, strike-out any issues that appear to it to be wrongly framed or introduced.
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Res-judicata:
===============================
The doctrine of Res-judicata is enunciated in section (11) of C.P.C is in the following words:

According to section (11), "No Court shall try any suit or issue in which the matter' directly and substantially 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."

Res-judicata Meaning:
===============================

Res-judicata technically means that a matter in issue which has already been tried by competent Court, then trial

between the same parties in-respect of the same matter shall not be allowed. Res-judicata is very important doctrine of

C.P.C, it emphasis that a subject matter of the suit which has already been decided, is deemed to be decided forever,

and can't be reopened by the same parties. The rule of Res-judicata is based upon the principle that no person should

be vexed twice for the same cause of action, and the interest of the State behind this principle is that, there should be an

end to litigation.


Object of Res-judicata
================================


The object of Res-judicata is to prevent a question which has already been decided to be re-agitated. A question finally

decided at one stage of a proceeding cannot be re-agitated between the same parties or their representatives at a

subsequent stage.


Kinds of Res-judicata:
==================================

There are two kinds of Res-judicata namely; Actual Res-judicata and Constructive Res-judicata.

Actual Res-judicata:
=================================

It means a matter actually resolved by Court, between the parties in earlier suit cannot be reopened through subsequent

suit. In-other words an issue has been alleged by one party and either denied or admitted, (expressly or impliedly) by

other party in earlier suit, second suit in respect of the same matter can not be filed, and if any is filed, the same would be

hit by actual Res-judicata.

Constructive Res-judicata:
==================================

It means a matter which might and ought to have been made ground of claim or defense in a former suit, but a party

ignores it, then that issue shall be deemed to have been a matter directly and substantially in issue in such suit. In other

words if a party had an opportunity that he ought to have taken a plea (as a plaintiff or defendant) if he fails to do so, and

the matter is decided, the decision will operate as Res-judicata in-respect of all issues, which were taken, and which

ought and might have taken/ and second suit would not lie for such issue.


Essential conditions of res-judicata:
=====================================

For applicability of Res-judicata the following conditions must be present:

1. A previous suit in which the matter in issue directly and substantially should have been decided.

2. A competent Court of Civil jurisdiction should have decided it.

3. It should have been decided on merits and final decision should have been made after hearing.

4. It should contain directly and substantially same matter in issue.

5. It should have been contested between the same parties or their legal representatives, such parties are indulging

litigation under the same title, with respect to the same cause of action.
If these conditions are fulfilled then subsequently/further instituted suit shall be liable to be dismissed by application of

doctrine of Res-judicata.


Res-subjudice:
==========================

The doctrine of Res-subjudice is contained in section (10) of C.P.C in the following words: According to section (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 Pakistan having jurisdiction to grant

the relief claimed, or in any Court beyond the limits of Pakistan established or continued by the Central Government and

having like jurisdiction, or before the Supreme Court.

Res-subjudice Meaning:
=========================

Res-subjudice technically means that a matter in issue, which is already under the judicial scrutiny, then other

proceeding of trial in-respect of same matter in issue shall not be allowed.


Object of Res-subjudice:
==========================
The object of Res-subjudice is to prevent Courts of concurrent jurisdiction from trying two parallel suits, in respect of

the same matter simultaneously.


Essential Conditions of Res-subjudice:
=================================

For applicability of Res-subjudice the following conditions must be present:

1. The matter in issue subsequent suit must be the same, which is directly and substantially in issue in previously

instituted suit.

2. The previously instituted suit must be pending in the same Court or in any other Court in Pakistan, or in any Court

beyond Pakistan established with the authority of the Federal Government.

3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.

4. The parties in both suits must be the same. If these conditions are fulfilled the subsequently further instituted suit

shall be stayed by applying Res-subjudice.


Differences:
=======================
=======================

1. The doctrine of Res-judicata is contained in section (11) of C.P.C, which provides when and how it can apply, while

the doctrine of Res-subjudice is contained in section (10) of C.P.C, which provides when and how it can apply.

2. In Res-judicata the Court shall not try at all a case, which has previously tried, while in Res-subjudice the Court shall

not proceed with a case, in-respect of which a suit is already pending.

3. Res-judicata deals with cases, which have already been decided by a Court of competent jurisdiction, but Res-

subjudice deals with cases which are pending before the Court of competent jurisdiction.

4. Res-judicata prohibits second trial of the same dispute between same parties, while Res-subjudice prohibits

proceedings of two parallel suits between same parties.

Conclusion:
====================

So it can be concluded that by applicability of Res- judicata the Court shall not try a suit, which has already been tried,

on the other side by applicability of Res-subjudice the Court shall not proceed-with a suit which is already pending

before the Court of competent jurisdiction. The main spirit behind these two principles isthat no person should be call in

question twice for the same cause of action.
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Appeal:
=======================

The term appeal is an undefined term, it means the removal of a cause from an inferior court to a superior one for the purpose of testing the soundness of the decision of the inferior court. In-other words, it is a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set-aside or reversed. Appeal is the continuation of the original proceedings before a superior court. The statutory right of appeal confers the right of re-hearing the whole dispute, unless expressly restricted in scope and the appellate court is not confined to the reasons which have been given by subordinate court for its decision.

In-accordance with section (96) of CPC an appeal lies against all decrees passed by a court in the exercise of original civil jurisdiction, except consent decree, and decree passed in suit filed under section (9) of the Specific Relief Act, and a final decree, the preliminary decree of which is not challenged. Appeal also lies against an order if so provided for by section (104), or order (43) CPC.

Who may appeal:
=======================

As an appeal is a continuation of the suit only such persons who were parties to the suit and who are adversely affected by the decree may appeal. A person who was not a party to the suit cannot appeal against the decree, unless such person is adversely affected, and is permitted by the Appellate Court to file an appeal.

Forum of Appeal:
=======================

The right of appeal is a substantive right, forum of appeal is a matter of governed by procedural law.


Powers of Appellate Court:
==========================

An appelate court may either confirm, vary, or reverse the decree or pass the order of remand of the case.



Revision:
=====================

Revision means re-examination of cases which involve the illegal assumption, non-exercise or irregular exercise of Jurisdiction.
Revisional jurisdiction does not confer any substantive right, and the right of revision is merely a privilege granted to a party. In Revision the court can interfere, if the case brought before it is a decided case by subordinate court, and when the same is not appealable. If this condition is fulfilled, the revisional court may interfere to check, where the subordinate court has:

(a) exercised a jurisdiction not vested in it, or

(b) failed to exercise a jurisdiction vested in it, or

(c) acted in exercise of its jurisdiction illegally or with material irregularity.



Difference between appeal and revision:
======================================

Basic difference between an appeal and a revision is that appeal is a right of party, but revision is a discretionary power of court. An appeal is continuation of the proceedings, in effect the entire proceedings are before the appellate court and it has power to review the evidence subject to statutory limitations prescribed. But in the case of a revision whatever powers the revisional authority may or may not leave, it have no power to review the evidence unless the statute expressly confers on it that power.



REVIEW:
=======================

Review means consideration, inspection or re-examination of a subject or thing. According to section (114) of CPC, any person aggrieved by a decree or order from which an appeal is allowed but not filed, or a decree or order from which no appeal is allowed, can file a review petition in the same court which passed such decree or order on the following grounds:

1. When new and important matter or evidence is discovered which after the exercise of due diligence was not within his knowledge, or could not be produced by him at the time when the decree or order was passed;

2. When there is any mistake or error apparent on the face of the record;

3. When there is any other sufficient reason.
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Imran Bhai, what is your age?
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Mesne Profit:
======================================

Mesne Profit" those profits which a person in wrongful possession of some property actually received or might, with ordinany diligence, have received therefrom. But it shall not include profits due to improvements made by the person in wrongful possession. To claim mesne profit the plaintiff has to prove that the defendant was in wrongful possession of property.The test of ascertaining the amount of mesne profits is not what the plaintiff has lost but what the defendant has or might reasonably have made by his wrongful possession.


================================================== ================================================== ======================================

Cause of Action
==============================

The expression cause of action are facts which show the infringement of the rights of a person. Literally cause means reason or right, and action means suit, "reason for filing a suit". In-other words it means causes in shape of facts which give rise to a party to file a suit. Cause of action is a factual situation that entitles one person to obtain a remedy in court from another person. It is infact a group of essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit.


================================================== ================================================== ======================================

Preliminary Decree:
============================

Preliminary Decree means a decree in which further proceedings have to be taken before the suit can be completely disposed-off. A prelimlnany decree declare the rights and obligations of the parties leaving further matters to be determined in subsequent proceedings. In a preliminary decree the court adjudicates upon the rights of the parties, and before passing of the final decree takes steps to enable compete disposal. Ordinarily preliminary decrees are passed in suits; for possession through partition immoveable property, for redemption of mortgaged property, and for rendition of accounts. When any party is aggrieved by a preliminary decree does not appeal therefrom he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

"The difference between final decree and preliminary decree is'that" final decree completely dispose-off the suit while preliminary decree does not.
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thank you so much,thats a really useful post. can you provide me notes on suing of suits i.e sec. 15-24. I really need it.
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