1

Principle of Res Judicata under Code of Civil Procedure

1. INTRODUCTION
The common Law doctrine of Res Judicata gives respect and finality to the Judicial decisions: This
doctrine has been incorporated in section 11, of C P.C. based on the general rule, that man shall not
be twice vexed, for the same cause. The bar of Res Judicata contained in section 11 would be fully
attracted when matter involved in second suit was the same as involved in previous litigation up to
High Court.

2. RELEVANT PROVISIONS
Following are the relevant provision of C.P.C regarding the topic of Res Judicata.
(I) Section 11 of C.P.C
(II) Cross Reference
(i) Section 151 of C.P.C
(ii) Section 403 Cr.P.C.

3. MEANING OF RES JUDICATA

"The term Res judicata Signifies, that the matter in dispute has been considered and finally settled,
and that the adjudication has a conclusive effect, upon the rights determined".

4. DEFINTITION OF RESJUDICATA
(I) According to Spencer Sower:
Res judicata means final judicial decision pronounced by a judicial tribunal having competent
jurisdiction over the cause or matter in litigation and over the parties thereto".

(II) According to justice Das Gupta

The doctrine of Res Judicata has been explained in the simplest manner by justice Das Gupta in the
case of satyadhyn vs. Deorjn Debi, in the following words.
"The principle of Res Judicata is based on the need of giving a finality to judicial decision".
5. COMMON LAW PRINCIPLE OF RES JUDICATA

The common Law principle of Res Judicata can be discussed as under.

LEADING CASE OF DUCHESS OF KINGSTONES'S CASE

In this case Sir William de Grey summarize the doctrine of res judicata in his judgment in the
following words.

"From the variety of cases relative to judgments being given in evidence in civil suit, these two
deduction seems to follow as generally true.

Firstly: Judgment, of a Court of concurrent jurisdiction, directly upon a point is conclusive between
the same parties upon the same matter directly in question in another Court.

Secondly: Judgment, of a court of exclusive jurisdiction, directly upon the point is, conclusive
between the same parties upon the same matter, coming incidentally question, in another Court.
6. BASIS OF PRINCIPLE OF RES JUDICATA
The rule of res judicata is based on the ground of public policy. If litigations between parties on the
same subject matter involving the same issue are allowed to proceed there can be no end to litigation.

(I) Case Law: Bahadur vs. Umar Hayat (PLD 1993)

"Res Judicata is based on the consideration, that it would result in hardship to individual, if he were
to be vexed twice for the same cause, and it is in the interest of state, that there should be an end to
litigation".

THE DOCTRINE OF RES-JUDICATA IS BASED ON THREE MAXIMS.

 2

(i) Namo debt lix Vexari Prouna et eaden causa:

"No man should be vexed (annoy) twice over for the same cause".

(ii) Interest republicae ut sit finislitium

"It is in the interest of the state that there should be an end to a litigation".

(iii) Resjudicata Proveritate Occipitur

"A judicial decision must be accepted as correct".

According to Sir Lawrence Jenking:

"The rule of res judicata, while foundation account of precedent is directed by a wisdom which is for
all time".
Thus the doctrine of Res Judicata is the combined result of public policy reflected in maxims (ii) and
(iii) and private justice: expressed in maxim (i) and they apply to all judicial proceeding whither-
civil or criminal. But this rule there would be no end to litigation and no security for any person, the
rights of person would be involved -endless confusion and great injustice done under cover of the
law. The principle is founded on justice, equity and good conscience.
7. REASONS FOR RES JUDICATA

Following are the reasons for the principle of Res Judicata.

(I) EFFICIENCY OF COURT
Efficiency of Court requires, that finality should be given judicial decisions and res judicata works
for this purpose.

(II) PUBLIC CONVENIENCE

It is for the public convenience, that having been tried one all litigation about that cause should be
concluded forever between those parties.

(III) MAINTENANCE OF SOCIETY

The maintenance of Public order and society requires that, what has been definitely determined by
competent tribunals shall be accepted as legal truth.

(IV) SECURITY OF RIGHTS

If the principle of Res Judicata not apply then the most important function of Government that of.
ascertaining and enforcing persons rights, would go unfulfilled.
8. PRINCIPLE OF RES JUDICATA U/S 11 C.P.C

It is not every matter decided in a former suit that can be pleaded, as res judicata in a subsequent suit,
but in order to constitute a matter res judicata the following conditions must be present.

Case Law: 2002 CLC KAR. 1620

The principle of Res Judicata is embodied in section 11 of C.P.C. by virtue of which subsequent
Court is barred to try a suit, where the matter, directly and substantially in issue, is been decided by
a Court of competent jurisdiction.

(I) ESSENTIAL INGREDIENTS/CONDITIONS FOR THE APPLICABILITY OF SECTION

11:
To apply section 11 following essentials ingredients/ conditions must be fulfilled;

(i) Same Matter in issue

All the matter in issue must be same in both the suits. The term matter means necessary facts,
constituting the claim or defense.
 3

Directly or substantially: Matter in both suits must be directly and substantially same.
"A matter shall be directly in issue which have been alleged by one party and either denied or
admitted expressly or impliedly by the other". "A matter shall be substantially i issue if it is important
and valuable for the decision of the case".

(ii) Same Parties

Both the suits must have been between the same, parties or their representatives under whom they or
any of them claim. For the purposes of res judicata a person can either be;
(i) a party or
(ii) Claim under a party i.e. privy
(iii) or be represented by a party to a suit, or
(iv) be a complete stranger

Examples: If A sues B for a declaration of title to a certain land and obtains a decree and A, then sues
C for possession and C contends that B is the owner of the land and he is in possession as tenant of
B the defense is barred by the principle of Res Judicata.

Ordinarily, a person whose name appears on the record as a plaintiff or defendant at the time of the
decision of the suit, is a party for the purposes of res judicata, but where the name is omitted in the
formal order by mistake such person will still be bound. A person who intervenes in a suit will be
considered to be a party. A judgment as such will not operate as res judicata upon some persons, even
though they may have been parties to the suit at same stage.

For Instance:
(i) A party whose name is struck off or who is discharged from the suit.
(ii) A person whose name is born on the record fraudulently and without his knowledge.
(iii) A person whose application be made a party has been refused.

(iii) Same Title

• The parties must be contesting in both the suits, under the same title;
• The term "Titles" refers to the legal capacity on interest of a party of legal personality of a
party. In order that a matter be res judicata not only should the parties be the same, but such parties
should litigating under the same title as in the former suit. The title will be the same in the following
cases.

(i) Former suit as husband's heir and subsequent suit as claimant for dower.
(ii) Former suit against firm and subsequent suit against partner thereof.

• A verdict against a man suing in one capacity will not stop him when he sues in another
capacity. Thus where a suit is brought by a person for possession of math property in the mi capacity
of an heir of the deceased mahant but the suit fails because of his failure to establish heir ship, he is
not debarred to bring another suit in the capacity of manager of the math property.

• The title of a property has nothing to do with the subject matter of the suit, or the cause of
action. All that is to be seen that the matters directly and substantially in issue must be the same in
both suits where the parties to the former suit and the subsequent suit are the same but they are not
legitimating under the same title, the decision in the former suit will not be Res Judicata in the
subsequent suit.

(iv) First suit must be DECIDED

• Such matter in issue in a subsequent suit must have been heard and finally decided by the
Court in the first suit.
 4

• The term res judicata indicates that the matter has already been adjudicated upon in a former
suit. A matter will be res judicata only if it has been heard and finally decided.

• There must be final decision of the matter. It is not sufficient for the applicability of this
doctrine that the matter was directly and substantially in issue. It is of the very essence that such
matter was heard and finally decided. A matter cannot be said to have been heard and finally decided
unless the finding on the issue was necessary for the determination of the suit and finding cannot be
said to be necessary to the decision unless the appeal lies against the finding.

• A long as a matter is pending adjudication, a court may very its earlier orders, but the parties
cannot be allowed to reopen such matter, but a court having finally decided a matter, cannot reopen
the same at a large stage of the proceedings.

• If the appeal is withdrawn dismissed in fault or dismissed on a preliminary point with the
appellate court having discussed the merits of the case, the decision of the lower court remains intact
and will continue to operate as res judicata. Further it is the decision that creates the bar and not the
decree. It is not necessary that the decision should have been incorporated in the decree.

Illustration: A sues B to recover certain property belonging to the estate of C alleging that his father
had been adopted by C's brother, D to whom the property decanted on C's death. The suit is dismissed
on the ground that the adoption is not proved. A then sues B to recover the same property claiming
it as C's bandhu. The suit is barred as res judicata. A ought to have claimed the property in the first
suit in the alternative as C's bandhu.

(v) Competency of Court

The Court which decided the former suit, means the suit which has been decided prior to the suit in
question, whether or not it was instituted prior in tame, must be competent to try the subsequent suit.
The effect of this condition is that the court which tired the former suit and the court trying the
subsequent suit should be courts of concurrent jurisdiction. The term competent as used in section II
refers to competence of the former court to try the whole of the subsequent suit. It is competence of
the former trail court that is to be established and not that of the appellate court which may have
finally determined the matter.

(II) BAR TO TRY SUBSEQUENT SUIT

Where conditions of section 11 are fulfilled, it bars the jurisdiction of a court to try a subsequent suit.

9. SCOPE OF RES JUDICATA

Said principle can be applied to proceedings other than suits viz. constitutional petitions, rent
applications, and cases before the settlement authorities. [2002 CLC Kar. 1620]

10. CONSTRUCTIVE RES JUDICATA

The doctrine of constructive Res Judicata is embodied in explanation IV to sec 11 of C.P.C. [2002
CLC 1620]

(I) MEANING OF CONSTRUCTIVE RES JUDICATA

Constructive Res Judicata, refers, that if the parties had an opportunity of asserting a ground, in
support of their claim or defense in a former suit, and have not done so, they shall be deemed to have
raised such grounds in a former suit, and it shall be further deemed, that these grounds had been heard
and decided, as if, these matters had been actually in issue.

(II) EXCEPTIONS
Following are the exceptions to the doctrine of constructive Res Judicata:
(i) Where pleas are barred by law.
(ii) Where pleas need not to be raised in the former suit:
 5

(iii) The pleas raised but not decided by the Court.

(iv) Where the matter is not in issue actually or constructively.

11. WAIVER OF RES JUDICATA

The plea of Res Judicata must be raised in the pleadings and if not so raised, it shall be deemed to
have been waived or deemed to have been raised, and decided against the party not raising it, by
virtue of doctrine of constructive Res Judicata:

12. SECTION 11 IS NOT EXHAUSTIVE

Section 11 is not exhaustive, and in its terms it applies only to suits but the principle underlying the
rule of Res Judicata can be invoked by virtue of section 151 of C.P.C.

13. CASES WHERE BAR OF RES JUDICATA MAY BE AVOIDED

Following are the cases where bar of Res Judicata may be avoided.

(i) Judgment obtained by Fraud Collusion or without Jurisdiction

A party can avoid the bar of Res Judicata by proving that the Judgment has been obtained by fraud,
or collusion or passed by a Court without jurisdiction.
(ii) Recall of Orders under Section 151
A court or tribunal may recall its orders, if it is without jurisdiction or is tainted with fraud or
collusion.

14. ON WHOM RES JUDICATA APPLIES

A decision will be Res Judicata between the following parties:
(i) Parties on opposite sides
(ii) Parties on the same sides.

(I) PARTIES ON OPPOSITE SIDES

A decision will be Res Judicata between the parties on opposite sides i.e. plaintiff and defendant.

(II) PARTIES ON SAME SIDES

A decision will be Res Judicata between the parties on the opposite sides i.e. plaintiff and defendant.
When there is more than one plaintiff involved in a suit and that suit is properly decided by the court
then the principle of Res Judicata will be applied on all the plaintiffs and .the defendant or the
defendants as the case may, be. But the dismissal of suit under Order XVII, rule 3 of C.P.C for non
production of evidence by some of plaintiffs of the case could not be made basis of Res Judicata for
the other plaintiffs. (2006 CLJ 633)

(i) Conflict of Interest

There should have been a conflict of interest between such co-plaintiff and co-defendants in the
former suit.

(ii) Necessary to decide Such Conflict

It must have been necessary, to decide such conflict, for granting relief in the suit.

(iii) Finally Decided Matter

Such conflict or matter must have been finally decided.

(iv) Party in Former Suit

Such person must have been a necessary or a proper-party, in the former suit.
Illustration: In a suit for the partition of land by A and B against C and 'D,' all the four conditions,
enumerated above are fulfilled, and a decision given in such suit, will be Res Judicata between all
these four parties.
 6

15. CONCLUSION

To conclude that Justice requires that every cause should be once fairly tried and public tranquility
demands that having been tried once all litigation about that cause should be concluded forever
between those parties. Whenever there is a judgment by a competent court inter-parties, it will
prevent a fresh suit upon the same matter. Res Judicata as inserted under section 11 of C.P.0 is of
great importance, because by applying this doctrine the sanctity and conclusiveness is given to the
decisions of the court, and the law becomes more certain. This doctrine is applicable only in civil
cases, while in criminal law parallel to this doctrine, is doctrine of dual Jeopardy. The doctrine of res
judicata is of universal application and intact a fundamental concept in the organization of every
judicial system.
Set off Code of Civil Procedure
1. Introduction
A plea of payment refers to the extinguishments of the debt prior to the raising of such debt after
such plea is raised. Set-off can only be claimed where the plaintiff and defendant are reciprocally
debtors of each other. Where a set-off is claimed the whole of it must be claimed or the balance will
be hit.

(I) Effect of Set-off

The effect to a set-off pleaded in a written statement is that such written statement shall have the
same effect as a plaint in a cross suit.

(II) Conditions, as to set-off

A defendant may claim a set-off, if the following conditions are present
i. The suit must be one for the recovery of money.
ii. The amount claimed to be set-off an ascertained sum of recovery.
iii. It must be legally recoverable.
iv. It must be recoverable by the defendant or by all the defendants, from the plaintiff or all the
plaintiffs.
v. The claim must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is
brought.
vi. Both parties must filed, in the defendants claim to set-off the same character as in the plaintiff's
suit.
vii. The claim must be made at the first hearing.

(III) Defendant's status in set-off case

The amount claimed as set-off the defendant has the status of a plaintiff and a decree can also be
passed in his favor. Where the plaintiff fails to appear his suit can be dismissed in default and ex-
parte decree, on the basis of the set-off can be passed against him.

(IV) Withdrawal of Plaintiff

Even where the plaintiff withdraw his suit, a decree can be passed against him in favor of a defendant
claiming a set-off.

(V) Time regarding set-off

The set-off should be specifically pleaded in the written statement, otherwise it may be disallowed.
It must be raised at the first hearing. As such it cannot be raised for the first time in appeal, or in
execution but the court may allow the written statement, to be amended to enable a set-off.

(VI) Time regarding set-off

A set-off can be claimed in any suit in which the relief sought is the recovery of money, as for instance
a suit on a negotiable instrument.
 7

But a suit for dissolution of partnership and accounts or a suit for redemption, or for the enforcement
of a mortgage where the right to personal decree is barred, are not money suits.

(VII) Fixed Amount Claim

The set-off should be claimed for a known and fixed amount, regardless of whether it is admitted or
denied by the plaintiff i.e. for liquidated amount.

(VII) Illustration
A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is
liable to him in compensation which he claims to set-off. The amount not being ascertained cannot
be set-off.

But where the amount has to be ascertained after taking accounts or determining the defendant's
share, set-off cannot be claimed. But the mere fact that calculation is necessary does not rendered the
claim uncertain where the defendant's claim is not f an ascertained sum he can bring a cross suit
against the plaintiff.

(IX) Equitable Set-off

Where the amount claimed is unascertained, equitable set-off may be allowed, apart from the legal
set-off permissible under this rule and a claim for this can be made in the written statement. The
'distinction between the two is that a legal set-off is claimable as a matter of right, but not so an
equitable set-off where in Court has the discretion either to adjudicate upon it or order it to be
determined by a separate suit. But the claim to equitable set-off must have arisen out, of the same
transaction. Where it arises out of a different transaction equitable set-off cannot be claimed. In
England, legal setoff was allowed by Courts of Common Law and equitable set-off by Courts of
Equity.

(X) Amount as to set-off

A sum cannot said to be legally recoverable where the plaintiff is not bound by law to pay it, or where
he is not liable to the defendant in respect of that debt.

(XI) Examples
Following are examples of claims which are not le all recoverable
(i) A claim which is barred by res, judicata.
(ii) or a claim barred by limitation on the date of the suit.
(iii) Or a claim based on a decree incapable of execution. In cases of equitable set-off a barred debt
can be pleaded.

(XII) Mutual Dealing

The claim and the set-off should be for debts due from and to the same parties in the same legal
character i.e., the dealing should be mutual.

(i) Illustration
A dies intestate and in debt to B. C takes o administration of A's effects and B buys parts of the effects
from C. In a suit for the purchase-money to C against B, the latter cannot set off the debt against the
price, for C fills two different Characters one as the vendor to B, in which he sues B and the other as
representative to A.

A joint debt and a separate debt cannot be set-off against one another unless the liability is joint and
several.

(XIII) Extent of Claim

 8

Claim should not exceed pecuniary jurisdiction of the Court. The value of the claim and the set-off
separately, should be within the Combined they exceed such limits. The same rule applies to an
equitable set-off.

(XIV) No Bar to Subsequent suit

A defendant is not bound to claim as set-off and where he omits to do so, a subsequent suit for the
same will not be barred but if a set-off is claimed, it should be for the entire amount due.

(XV) Court Fee

Court fee is payable on the full amount claimed by way of set-off legal or equitable and a counter-
claim as if such written statement were a plate. Where proper court fee has not been affixed the
defendant must be directed to do so is the case with plaint.

(XVI) Appeal

A preliminary order disposing of a claim to set-off is not appealable but it may be attacked.
Mesne Profit under Section 2(12) of CPC
1. INTRODUCTION
Mesne profits are profits to which a person is entitled but from, which he has been kept out by the
defendant. The profit lost to the owner of the land by reason of his having been wrongfully
dispossessed of his land. A claim for mesne profit is usually joined with the action for recovery of
the possession of the land.

2. RELEVANT PROVISION OF LAW

Relevant provision of law regarding to concerned topic are:
(i) Section 2(12) of C.P.C.
(ii) Order 2, Rule 4 and order 20 Rule 12 of C.P.C.

3. LITERAL MANNING OF MESNE PROFITS

"Mesne" means, intermediate, intervening, the middle between two extremes and especially of ranks
of time as envisaged under section 2(12).

4. DEFINITION OF MESNE PROFIT

(I) According to Section 2(12) of the C.P.C:
Mesne profits of property means "those profits which the person is wrongful possession of such
property actually received or might with ordinary diligence have received there from together with
interest on such profits but shall not include profits due to improvements made by the person in
wrongful possession".

(II) Simple Definition

It denotes damages and compensation recoverable from a person who has been wrongful possession,
it means that profit which the plaintiff has lost by reason of the wrongful act of defendant.
Example:
Mesne profit can be claimed only regarding immovable property and not for movable property.
5. EXPLANATION OF MESNE PROFIT
Calculation of Mesne Profit:
It should be awarded on the basis of actual profits which the wrong doer received or which he might
have been received with ordinary diligence.

(II) Wrongful Possession

It means that the person who has no right to possession as against the party claiming it is in wrongful
possession as against that Party for a certain purposes including mesne profits but not wrongful for
all purposes.
 9

(III) Interest on mesne profit

It includes the right to interest on the profits that proceeds on the theory that the person . in wrongful
possession appropriating income from the property himself gets the benefits of the interest of such
income.
Example: The decree holder is entitled to interest up to the date of realization of the mesne profits.

(IV) Rate of interest

To be allowed on the mesne profit in discretionary as there is no questions of any contractual rate or
any particular rate fixed by statute.

(V) Suit for recovery of mesne profit

Plaint clearly showing that plaintiff not only prayed for mesne profits for period up to the decision
of case. Court below was justified in allowing mesne profits up to date of decision of case with order
to plaintiff to pay court Fee in respect of compensation awarded to him beyond period of three years
contention that court could not award mesne profits beyond period of 3 years was repelled in
circumstances.

(VI) Mesne Profits do not effect pecuniary jurisdiction

The value of a suit for the recovery of possession and mesne profits is the value of the immovable
property plus mesne profit up to date of suit mesne profit after suit do not from rent of the cause of
action even there be a prayer in the plaint for mesne profits after suit.
6. PROOF OF MESNE PROFIT

In order to get the mesne profit of property the plaintiff will have to show
(a) that the defendant was in possession during the whole of his period for which the mesne profit
are demanded.
(b) that the possession of the defendant was wrongful (b) that the possession of the defendant was
wrongful and was not under the color of any right.

(I) Order 2, rule 4

In a suit for the recovery of immovable property may be Joined claims for mesne profit in respect of
the property claimed or any rent thereof.
(i) Example:
A suit for possession of land is however, a Bat to a subsequent suit for mesne profit of such land.

(ii) Case Law Muhammad Amin vs. Vakil Ahmad:

Held: In this case held that a claim for mesne profit cannot be allowed unless there is a demand of it.
The claim would not be included within the expression awarding possession, occupation of the
property aforesaid together with all the rights appearing thereto.

(II) Order 20 rule 12; Decree for possession of mesne profits

Under this rule, four types of decree can be passed:
(i) A final decree for possession of immovable property
(ii) A final decree for past mesne profits.
(iii) A preliminary decree directing accounts respecting past mesne profits.-
(iv) A preliminary decree directing an inquiry as to the amount of future mesne profit upto the point
specified.

7. COMPARISON UNDER INDIAN LIMITATION ACT

The defendant is liable for all mesne profits received by him or which he might with ordinary
diligence have received during the 3 years before suit and not before Article 109 of the limitation
Act.
 10

8. ASCERTAIN THE MESNE PROFIT

In order to ascertain the mesne profit, the court is to taken into account not what the plaintiff has lost
by his exclusion, but what the defendant has or reasonably might have made by his wrongful
possession mesne profit, profits of property, interests on such profits.

(i) Case Law: Granish vs. Soshi Skildar:

In this case, the court held that the mesne profits are due from the moment possession is wrongfully
held by the defendant an interest on such mesne profit is due from the day on which each instilments
becomes due. A decree which is salient as to interest must, be taken to mean that mesne profit shall
carry interest on them.

Note: Mesne profit are in the nature of damages and the right to sue for mesne profit is the right to
sue for damages. Such a right cannot be attached and sold in execution of a decree against the person
entitled to the decree under section 60.

9. Conclusion

to conclude that mesne profit is compensation which is awarded against persons in wrongful
possession of property is known as mesne profit. It can be claimed by a person entitled to actual
possession of such property. Such profits can be claimed with respect to immovable property only.
Person claiming mesne profits would have to pay court fee for arrears claimed by him without
payment of such court fee no arrear of mesne profits if any, could be awarded by claimant.
Objection to Territorial Jurisdiction
1. Introduction
The concept of jurisdiction is very important in law because the courts get power and tuthority to
inquire into facts, apply the law and decide judgments only if it has jurisdiction . One of the
restrictions / limitations upon the jurisdiction of the court is bar of territorial jurisdiction and a general
rule the decisions of the court which has no territorial jurisdiction are void but section 21 of C.P.C
provides an exception to this general rule which tells the stage and time where the opposite party of
the suit should take an objection to the territorial jurisdiction.

2. RELEVANT PROVISIONS
Following is the relevant provisions of C.P.C regarding to the
concerned topic
(I) Section 21 of C.P.C
(II) Cross Reference:
(i) 11 of Suit Valuation Act 1887

3. MEANING OF TERRITORIAL JURISDICTION

(i) According to Black's Law dictionary Meaning
"Territory over which a government or a subdivision thereof or court has jurisdiction".

(ii) According to Halsbury Second Edition; Vol.8:

"By jurisdiction is meant the authority which a court has to decide matters that are litigated before
it or to take cognizance of matters presented in a formal way for its decision".

4. REASONS FOR IMPORTANCE OF TERRITORIAL JURISDICTION

(i) To know the circumstances of the case
(ii) Convenience to the parties
(iii) To collect evidence
(iv) To execute decree against judgment debtor

5. EFFECT OF TERRITORIAL JURISDICTION

(I) General Rule
 11

The general rule of law' is that an order passed by a court not having jurisdiction is nullity in the eyes
of law.

Exceptions to the general. Rule:

(I) Exception under section 21 of C.P.C
(ii) Exception under section 11 of Suit Valuation Act, 1887

6. OBJECTIONS TO JURISDICTION UNDER SECTION 21 OF C.P.C.

(I) Time For Raising Objections
The objection to the territorial jurisdiction of the court must be taken at the earliest possible
opportunity and a decree passed by a court not having territorial jurisdiction over the subject matter
of the , suit will not be set aside if objection to the jurisdiction of the court had not been raised at the
earliest possible opportunity. [2002 CLC 159]

(II) Raising of Objections at Appellate or Revisional Stage:

(i) General Rule:
According to section 21 of C.P.C, objections as to the territorial jurisdiction of the court cannot be
raised at appellate or revisional stage.

(ii) Exception
Objection to the territorial jurisdiction can be allowed to be raised in appeal or revision proceedings
in the following circumstances

(a) Objection Raised in the Court of First Instance

• Where objection has been raised by the party in the court of first instance at the earliest
possible opportunity and in all cases where issues, are settled at or before such settlement. [2003
SCMR 686].
• This raising objection before the court o first instance which was in time, gives ,the party a
right to reasserted the same objection before the superior courts. But where party raises an objection
to the territorial jurisdiction before the court of first instance at a late stage which is rejected by the
coo then it bars the remedy against such rejection.
• Where there is a failure of a justice as a consequence of wrongful assumption of jurisdiction
by the court and this can be determine by the court by assessing the merits of the case.

7. FAILURE OF RAISING OBJECTIONS ON TIME

Where the party fails to raise an objection to the territorial jurisdiction on time then it will deemed to
have been waived such a right and the decision of the court will be res Judicata by virtue of section
11 of C.P.C.

8. PARTY WHO CAN RAISE AN OBJECTION

Only defendant party to the suit can raise an objection to the territorial jurisdiction of the court.
9. SCOPE OF SECTION 21 OF CPC

Section 21 only talks about the territorial jurisdiction of the court and it does not apply to the cases
of want to pecuniary jurisdiction.

10. Conclusion

To conclude that territorial jurisdiction is a restriction / limitation upon the jurisdiction of the court
without territorial jurisdiction is void but for this there must be an objection by the party to the
jurisdiction of the court at the earliest opportunity in the court of first instance and the objection at
the appellate or provisional stage is barred except in certain circumstances. Where party fails to raise
such an objection at the earliest opportunity than the decisions of the court shall no the void. The
 12

section 21 of C.P.C is based on principle of equity and the object is that the objections to territorial
jurisdiction should be raised in the form of preliminary objections in the court of first instance.

Distinguish Between order, Judgment and Decree

1. INTRODUCTION
Decision given by Court of law, are either decrees or orders. A decree always follow the Judgment,
which is pronounced by the Court, after hearing the case and can either be declaratory or executory.
Both decree and order are analogous to each other.

2. RELEVANT PROVISIONS
Following are the relevant provisions of C.P.C regarding the topic of decree and order.
>> Sec 2(2) for decree and order
>> Sec 2(14) for order
>> Sec 2(9) for Judgment
Order 20 Rule 1 to 6 for Decree and Judgment

3. DEFINITION OF DECREE: U/S 2(2) of C.P.C

A decree may be defined as under.
"Decree means the formal expression of adjudication which, so far as Court expressing it,
conclusively determine the rights of the parties, with regard to all or any of the matter in controversy
in the suit, and may be either preliminary or final."

I. ESSENTIALS OF DECREE
Following are the essentials of decree.

(i) Adjudication
The word adjudication refers to judicial determination of matter in controversy, and includes an ex-
parte determination For an adjudication to come into the scope of decree, it must be made by a court.

(ii) Given in Suit

The word suit is not defined by the code. So it may be defined in a general sense.
"Any proceedings, which is instituted by the presentation of a plaint, or which is created as a suit by
any law, than such proceedings will be deemed to be a suit."

(iii) Determination of Rights of Parties

The adjudication must determine the rights of the parties. Parties refers to persons, who are on the
record as plaintiff and defendant, and right has reference to substantive right.

(iv) Regarding all or any of the Matter in Controversy

The adjudication determining the right of parties must be with regard to all, or any of the matter in
controversy. It reference to the subject matter of the suit in dispute, and the decision of the Court may
be with regard to even one matter in controversy.

(v) Conclusive
The decision should be conclusive, so far as the Court expressing it is concerned, and it may be
conclusive even if the suit is still not disposed of i-c preliminary decree.

(vi) Formally Expressed

There must be formal expression of the adjudication. It should be precise and specify the relief
granted or other determination of the suit and names and description of the parties.

II. KINDS OF DECREE

Decree may be classified into two kinds,
 13

(i). Declaratory decree which is not capable of execution.

(ii) Executory decree which can be executed and enforced by the court.

III. CLASSES OF DECREE

Following are the different classes of decrees as contemplated by Sec. 2(2) of C.P.C

(i) Preliminary Decree

A preliminary decree declares rights and obligations of the parties leaving further matters to be
determined in subsequent proceedings and it i, conclusive in nature.

(ii) Final Decree

A final decree is one which completely disposes of the suit so far as the Court passing it is concerned.

(iii) Partly Preliminary and Partly Final Decree

A decree, may be of such a kind which is final it part and partly preliminary.

Example:
In a suit, for recovery of possession of immoveable property and rent, the part of the decree, which
directs delivery of possession of property is final but the part directing an inquiry as to rent or profit
is preliminary.

(iv) Order Rejecting a Plaint

sec 2(2) declares that order rejecting a plaint is a decree, though there is no adjudication of the rights
of the parties but by fiction of law, it is classed as decree.

(v) Determination of Questions under Certain Provisions of C.P.C

By virtue of Sec 2(2), all orders made u/s 144 and under Rules 60, 98,99, 101 and 103 of order 21
are decrees.

IV. DECREE NOT INCLUDE THE FOLLOWING

By virtue of sec 2(2), decree shall not include the following:

(i) Appellate Orders

An Adjudication, from which an appeal lies, as an appeal from an order, is not a decree.
Example:
Questions to be determined by the executing courts, u/s 47, are orders.

(ii) Dismissal in Default

Orders of dismissal of suit, in default of appearance or non-prosecution, are not decrees i.e. orders
passed under order 9 or 17 of C.P.C.

4. DEFINITION OF ORDER: u/s 2 (14) of C.P.C

"Order means the formal expression of any decision of a Civil Courts which is not a decree."

ESSENTIALS OF ORDER
Following are the essentials of order.

(i) Decision
The expression decision refers to judicial

(ii) By Civil Court

Decision must be one of Civil Court, and not of the administrative tribunals.
(iii) Formal Expression
 14

Decision given by Court, must be formally expressed i-e. It must be in writing, precise and the
language must be deliberate ,so that the execution would be possible.
(iv) Not a Decree
The definition of order, specifically excludes the decree from its ambit, and as such any adjudication
of court which is decree, cannot be a order at the same time.

II. CLASSES OF ORDER

Following are the two kinds of order
i. Final Order
ii. Interlocutory order

5. JUDGMENT U/S 2 (9)

Judgment means the statement given by the judge of the grounds of a decree or order.

I. INGREDIENTS OF JUDGMENT
Following are the ingredients of a judgment

(i) Statement given by Judge

A judgment means the judicial decision of court or judge.

(ii) Need to be in writing

It is only after the judge has reduced his decision into writing that a judgment comes into existence.
An oral pronouncement is not a judgment.

(iii) Grounds of decree or order

Every statement of grounds will not be a judgment but will be so only if such decisions can result in
a decree or an order. Findings recorded by Trial Court without referring to any evidence of the parties
and without discussing its legal effect after conscious application of mind would not withstand test
of the word judgment as defined in section 2 (9) of CPC.

II. PRONOUNCEMENT OF JUDGMENT U/ORD. 2 RULE

On completion of evidence, the Court shall fix a date, not exceeding 15 days, for hearing of arguments
of the parties.

III. JUDGMENT AND DECREE U/SEC 33

The Court after the case has been heard shall pronounce judgment and on such judgment a decree
shall follow.

The evidence which person sought to produce must not be within the knowledge of that person
seeking review after exercise of due diligence or he could not produce the same at the time when
decree was passed or order made.(NLR 2006 Civil Pesh.46) 126
6. DIFFERENCE BETWEEN DECREE AND ORDER
Following are the differences between decree and order

(i) As to Nature
Every decree is an order, but every order is not a decree.

(ii) Appeal
Ordinarily appeal lies from every decree, but order are appealable only, if provided by Sec. 104 read
with order 43

(iii) As To Second Appeal

A second appeal may lie against decree, but a second appeal shall not lie against an order passed in
appeal.
 15

(iv) Determination of Rights

Decree conclusively determines the rights of the parties, but order does not necessarily conclusively
determines the rights of the parties.

(v) Classes
Decree is of five classes as provided u/s 2(2), while order may be of final or interlocutory.

(vi) Emergence
Decree cannot be emerged into an order, but every order in a case merge into a decree.
7. DIFFERENCE BETWEEN DECREE ORDER AND JUDGMENT
I. AS TO EXECUTION
It is the decree or order which is capable of execution and not the Judgment.

II. FORM
Decree and order always follow the Judgment while the judgment contains the grounds of both decree
and order.

III. SUPERIORITY
Judgment is superior in form and if decree or order are not in accordance with it, they may be altered.

V. APPEAL
It is the decree or order which is appealable and not the judgment.

V. KINDS
Decree and order has different kinds but that is not a case with the judgment.

8. CONCLUSION
At the end I may be said, that the decision given by the judge is called judgment which contains the
grounds of decree and order.

Decree and order are analogous to each other, and by virtue of Sec. 36 of CPC provisions relating to
execution of decree are also applicable to orders. The importance of decree lies in a fact, that they
are appealable and conclusively determine the rights of the parties, while it is not necessarily the case
with the order but u/s 105 every order, whether appealable or not excepting appealable orders of
remand, can be attacked in an appeal against the final decree.
Non-Submittion of Written Statement
1. Introduction
Some provisions of Civil Procedure Code are of penal nature. If any party fails to follow these
provisions, court can resort to penal action against such party. If some party fails to present written
statement, which court has called for, court can resort to penal action against that party. It reveals
that provisions, which Civil Procedure Code has provided against such failure, are also of penal
nature.

2. Relevant Provisions
Order 8 Rule 10 of Civil Procedure Code.

3. Procedure when a party fails to present written statement

Following points are important for explanation of procedure against that party, who fails to present
written statement, which court has called for;
 16

i. Power of court
When any party from whom court has required to present written statement fails to present the same
within that time, which court has fixed, court can pronounce judgment against him or can make that
order, which court thinks fit in relation to suit.

ii. Exception
Usually court pronounces judgment or makes other suitable order against that party, who fails to
present written statement within thirty days. However, this rule is not applicable to suit against
government. Reason is that government can present written statement within period of three months.
Therefore, judgment, which is given prior to this period of three months, is considered void.

iii. Two alternatives

When defaulting party fails to present written statement within that time, which court has fixed, there
are following two alternatives for court

a. pronouncement of Judgment
Following points are important as far as pronouncement of judgment is concerned

a-i. Last opportunity

Last opportunity should be provided for presentation of written statement before pronouncement of
judgment.

-ii. Pronouncement of Judgment on basis of facts

Although court can pronounce such judgment without recording of evidence, yet it should pronounce
such judgment on basis of those facts, which are before it.

-iii. Pronouncement of Judgment though recording of evidence

In appropriate cases, court can pronounce judgment after recording of evidence. However, suit can
be decreed without recording of further evidence when defaulting party admits material facts.

b. Making of other fit order

No-doubt court posses’ discretion to pronounce judgment against defaulting party. However, such
punitive action should only be taken in severe circumstances; in alternative to such punitive action,
court can adopt following procedure

b-i. Awarding of cost

Court can award costs and can grant an adjournment.

b-ii. Ex-party evidence

Court can first initiate proceeding to record ex-part evidence and can then pronounce judgment after
recording of evidence.

b-iii. Right to appear

Before passing of ex-part decree, defaulting party can appear at any stage, but he does not possess
right to present written statement.

b-vi. Right of Cross-examination

Defaulting party can cross-examine witnesses of plaintiff during recording of such ex-part evidence.

iv. Amended written Statement

Rule, which has been provided against that party, who fails to present written statement within that
time, which court has fixed, is also applicable to presentation of amended written statement.

Conclusion
 17

To conclude, it can be stated that above-mentioned procedure can only be adopted when some
conditions have already been fulfilled. These conditions are that defendant should have been duly
served, should have been provided copy of plaint, and should have been directed by court to present
written statement within fixed time.
Inherent Powers of Court
1. Introduction
Every court, whether civil or criminal, in the absence of prohibition of procedure is to be deemed to
possesses inherent powers embodied in its constitution as may be necessary, to do justice and to undo
the wrong, in the course of administration of justice. The inherent powers of the court a fairly wide
to serve the ends of justice.

2. Relevant Provisions
Following is the relevant provision of CPC regarding inherent power of Court
i. Section 151 of Code of Civil Procedure
Cross Reference:
i. Section 561-A Cr.P.C
ii. Section 16 of General Clauses Act
iii. Art 183 and 199 of 1973 Constitution of Pakistan

3. Meaning of Inherent Power

“An authority possessed, without its being, derived from another”.

4. Inherent Power of Court u/s 151

Sec 151 does not confer any new power upon a court but only save its inherent powers to do right
and undo wrong.

5. Nature of Inherent Power

Jurisdiction of Court u/s 151 is not additional or alternate, and when alternate remedy is available,
the inherent jurisdiction cannot be entertained.

6. Inherent Powers of the Court

The court has the following inherent powers
i. To postpone the hearing of suits pending the decision of a selected action
ii. To stay cross suits on the ground of convenience.
iii. To ascertain whether the proper parties are before it.
iv. To inquire whether a plaintiff is entitled to sue as an adult.
v. To entertain the application of a third person to be made a party.
vi. To allow a defense in formal pauperism.
Vii. To decide one question and to reserve another for investigation, it did not require any provision
of the code to authorizes a judge to do what in this matter was justice and for the advantage of the
parties.
viii. To remand a case to which order 41, order 23 or order 41, order 25 applies.
ix. To stay the drawing up of the court’s own orders or to suspend their operation, if the necessities
of justice so require.
x. To apply the principles of res judicata to cases not falling within section 11 of the code.
xi. To add a party, or to transpose parties, or where the appeal is filed against a dead person or persons
to allow the appellant to add legal representatives of the deceased as parties in a proper case.
xii. To modify a scheme prepared by itself under section 92.
xiii. To set aside a court sale on the ground of the minority of the purchaser.
xiv. To order security for costs in a revision application in a proper case.
xv. To direct restitution.

7. When inherent powers may be used u/s 151

 18

Courts can exercise inherent powers u/s 151 in the following circumstances.

i. In absence of express provisions of law

Inherent powers can only be exercised by the court when there is no express provision in the code.

ii. To give effect to any order under CPC

Inherent power may be exercised by the court to give effect to any order under CPC.

iii. To prevent abuse of Process of any Court

Court may exercise powers u/s 151 to prevent abuse of process of any court.

iii-a. Meaning of abuse of process

The term abuse of process of any court has not been defined by the code. It may be define as under
“Misuse and colorable use of the powers and procedure or usurpation of jurisdiction not vested in the
court.”

ii-b. Who may commit abuse of process of court?

Abuse of process of court may be committed either
a. By the court or
b. By the party

iv. To secure ends of justice

Inherent powers may be exercised by the court, to secure ends of justice, and it necessarily means,
justice administered by the court, and not justice in abstract sense.

8. Limitation or Restrictions against the arbitrary exercise of Inherent power

Following are the restrictions on the inherent powers of the court

i. Inherent power can’t be extended to make a new law on the subject
ii. It cannot be used against the express intention of the legislature.
iii. It cannot override the express provision of law
iv. It cannot be used where there is remedy is provided
v. Inherent powers should not affect the substantive rights of the parties.
vi. It should not be exercised, to assist a party guilty of laches or delay.

9. Instances of Inherent Powers

Following are some of the instances of inherent powers of court u/s 151 cpc

i. Correction of Error
Court can correct error in the judgment and decree, or even correct its own order, or to recall an
erroneous order in an appropriate case.

ii. Issuance of Injunctions

Court may issue injunction in cases not falling under order 59 Rule 1.

iii. Determination of Jurisdiction

Courts have inherent power to determine the question of their own jurisdiction, and it may also set
aside an order passed without jurisdiction.

iv. Production of Additional Evidence

Court in exercise of its inherent jurisdiction under section 151 may allow production of additional
evidence for doing justice between the parties.
 19

10. Appeal
Order passed u/s 151 is not appealable, unless they fall within the definition of decree or an
appealable order.

11. Revision
Generally revision will not be competent against order u/s 151 but in appropriate cases revision may
lie.

12. Limitation Period

The law of limitation will not bar the exercise of inherent powers.

Conclusion

By the above discussion it can be said that the courts have inherent powers to take all steps to execute
its own order, as this power flows from the jurisdiction itself. The power u/s 151 is discretionary in
nature, though this discretion has to the exercised only to secure ends of Justice. Section 151 is
exercise able only with respect to procedural matters and an application may be filed u/s 151, but in
a proper case, a second application can be barred by Res Judicata.
Plaint and its necessary contents
Introduction
Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts about his cause
of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be
present in plaint.
What is Plaint?
Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his cause of action
and other necessary particulars to seek remedy from court for redressed of his grievances.

Necessary Contents of Plaint

Followings are the necessary contents of plaint;

(i) Plaint should contain name of that court in which suit is brought.
(ii) Plaint should contain name, description and residence of plaintiff.
(iii) Plaint should contain name, description and residence of defendant.
(iv) When plaintiff or defendant is minor or person of unsound mind, plaint should contain a
statement to that effect.
(v) Plaint should contain those facts, which have constituted cause of action. In addition to this, it
should also be described in plaint when cause of action has arisen.
(vi) Plaint should contain those facts, which show the court has jurisdiction.
(vii) Plaint should contain that relief, which plaintiff claims.
(viii) When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should
contain that amount, which has been so allowed or so relinquished.
(ix) Plaint should contain statement of value of subject-matter of suit not only for purpose of
jurisdiction, but also for purpose of court-fees.
(x) Plaint should contain plaintiff’s verification on oath.

Conclusion
To conclude, it can be stated that plaint plays important role throughout whole trial of any civil suit.
It is admitted principle that no plaintiff can go beyond his plaint. Therefore, no plaintiff can demand
what is not claimed in his plaint. Similarly no plaintiff can produce any evidence, which is beyond
his plaint.
 20

Appeal and its kinds under CPC

1. Introduction
Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is made to
some superior court against decision of subordinate court. Basic object of appeal is to test soundness
of decision of lower court. Appeal may be filed against original decree, or against decree passed in
appeal.

2. Relevant Provisions
Following are the relevant Provisions regarding appeal and second appeal
(i) Section 96, 97, 98, 99, of CPC for 1st Appeal
(ii) Section 100, 101, 102, 103 of CPC for 2nd appeal
(iii) Cross Reference
(a) Section 17, 18 of West Pakistan Civil court ordinance II of 1962
(b) Order 41, 42 of CPC

3. Meaning of Appeal
“Appeal means removal of a cause from inferior to a superior court for the purpose of a testing
soundness of decision of an inferior court”.

4. Definition of Appeal
“Judicial examination of the decision by a higher court of the decision of the inferior court”.

5. Right of Appeal
Every person has given right of appeal against decree. However, right of appeal is not an inherent
right. Rather it can only be availed where it is expressly granted by law. Appeal lies against a decree
and not against a judgment.

6. Nature of Right of Appeal

Rights of appeal are substantive right and they are not mere matters of procedure. Right of appeal is
governed by the law prevailing at the date of the suit and not by law that prevails at the date fo the
decision or at the date of filling of the appeal.

7. Appeals from a decree

An appeal lies under section 96 CPC only from a decree because the decree marks the stage at which
the jurisdiction of the court which the appeal is made begins. As such unless a decree is drawn up,
no appeal lies from a mere finding, but if the finding amount to a decree, an appeal would lie.

8. Kinds of Appeal
Appeal may be classified not following two kinds.

1st Appeal
Generally, first appeal shall lie from every decree passed by any court exercising original jurisdiction
to the court authorize to hear appeal from the decisions of such court.

(8.1) Forum of Appeal

First appeal lies to the District court, if the value of the subject matter of the suit is below Rs. Two
lakhs, and to the high court in all other cases.

(8.2) Person who may Appeal

Only such persons, who are party to the suit, or who are adversely affected by the decree may appeal;
Stranger to suit or proceedings is not prohibited by CPC 1908 from filling an appeal against an order
whereby he was aggrieved.
 21

(8.3) Person otherwise competent to file appeal

Following persons are also competent to file an appeal

(i) legal representatives of the party after such persons have been impleaded as party,
(ii) Transferee of the interest of party,
(iii) Any person claiming under a party
(iv) Any person represented by a party
(v) A benamidar on behalf of a real owner,
(vi) A guardian on behalf of a minor
(vii) Government (Federal or Provincial)

(8.4) Appeal against interlocutory order

An appellate court does not have the benefit of the evidence which has to be recorded in the suit
under appeal and as it does not have such benefit, it cannot give a conclusive finding on any issue
which turns on evidence and it should also not given such a finding because if it did so, it would
prejudice the trial court’s appreciation of evidence.

(8.5) Jurisdiction of Appellate court

The appellate court has got the jurisdiction to adjudicate upon a matter only if there is either an appeal
pending or cross-objections field by the respondents. The court could not suo motu interfere with the
judgment of the trial judge which was subject to its appellate jurisdiction. Any order so passed is
without jurisdiction and hence a nullity. The objection on this ground can be taken at any time and
in any proceedings.

(8.6) Decisions in Appeal under section 98

All decisions in an appeal shall be made by the majority and if no majority is established which
necessary to alter or reverse the decree appealed from, then the decree shall stand confirmed. It is the
right of the first appellate court to come to a conclusion different from that of trial court on re-
appraisal of evidence.

(i) Reference to other judges where no majority

When a court consisting of more than two judges and an appeal is heard by its bench of two judges
and they differ on a point of law, they may refer that point to the other judges of the same court and
then the matter shall be decided according to the majority, including judges who refer that matter.

(8.7) Effect of irregularity under section 99

Decision which is correct on merits, and within the jurisdiction of the court making it, should not be
set-up by an appeal, merely on the grounds of technical or immaterial defects i.e mis-joinder of parties
etc.

2nd Appeal
Generally, Second appeal lies to the High Court, from every decree passed in an appeal, by a court
subordinate to lie High Court. It lies only on grounds mentioned in section 100 CPC but not on
question of fact.

(9.1) Grounds for Second Appeal

It is settled proposition of law that second will lie where judgment is uncertain in its meaning and
finding is vague and inconclusive or where reasons are not given at all. Following are the grounds
where second appeal is competent and not otherwise.

(i) Decision being contrary to law

A decision contrary to law is open to interference in second appeal, and the decree may be amended
to bring it in conformity with legal requirements.
 22

(ii) Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage, which is distinguished
from general law. A usage having the force of law should be ancient, invariable, certain and
reasonable.

(iii) Decision having failed to determine some material issue of law or usage having the force of
law
The failure to determine, some material issue of law or usage having the force of law, by the lower
court, is a good ground for second appeal.

(iv) Substantial error or defect in procedure

Where there is a substantial error or defect in procedure, provided by CPC 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 merits, it can be a ground for second appeal.

(9.2) Interference barred in Second Appeal

(a) Finding of fact is not susceptible to interference in second appeal.

(b) Plea not raised wither in written statement or even in appeal below, could not be taken up in
second appeal by the High Court.
(c) Delivery of possession is a question of fact and cannot be interfered with in second appeal.
(d) Findings of fact by first appellate court cannot be challenged in second appeal, particularly when
no erroneous approach to the case or findings of fact is shown to have been made by first appellate
court.
(e) The question of adverse possession may not necessarily of a document, particularly revenue
record, is a question of law.
(f) Concurrent findings of fact by two lower court cannot be challenged in second appeal ever if it is
erroneous or a different conclusion is possible.
(g) Where lower courts arrived at a finding of a fact after thoroughly perusing, assessing and
appreciating evidence the point cannot be reopened in second appeal.

(9.3) Allowing Revision to be treated as second appeal

The High Court has allowed the revision to be treated as second appeal. The only point in issue is
from what date this revision should be treated to be converted into a second appeal.

(a) from the date a misconceived civil revision petition was instituted
(b) from the date is request was made for its conversion or
(c) from the date it was allowed to be converted and registered as a second appeal

(9.4) Effect of Subsequent change of law on second appeal

If , according to law in force at the time of the filing of a suit, the ultimate decision of such an action
was open to appeal or to second appeal, the right to prefer an appeal there from is not affected by
subsequent change of law abolishing the appeal of modifying its form, unless it is so provided
expressly in the enacting statue or followed by necessary implication from its terms.

(9.5) Restrictions or urging irrelevant grounds

According to order 41 rule 2, no ground can be urged at the hearing of the appeal which had not been
set forth in memorandum of appeal.

(9.6) Raising Fresh Pleas

Parties are bound by case, which arises on their pleadings which have been inquired into by trial
court. A plea which should have been taken in trial court but was not taken, cannot be raised for first
time in second appeal.
 23

It is for the parties to take up necessary pleas and have necessary issues framed in the trial court. If
they do not so, they cannot ask the appellate court to remand case for recasting of issue and retrial on
new pleas.

(9.7) Dismisal of Appeal for default

Through second appeal may lie from an appeal decree passed ex-parte, no second appeal lies from
an order dismissing an appeal for default, on the ground that such an order is not a decree.

(9.8) Cases where second appeal is barred

Section 102 provides that no second appeal shall lie in the following suits

(a) Suit of a nature cognizable by court of small causes

A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts of small
causes. It may be tried either by small cause court or by a civil court, and in that case second appeal
is barred by section 102 of CPC.

(b) Suits where value does not exceed Rs. 25,0000

NO second appeal, shall lie in any other suit, where the value of the subject nature of the original suit
does not exceed Rs. 2,50000.

(9.9) Powers of High Court to determine issues of fact

IN second appeal the High Court may determine an issue of fact.

(i) where there is sufficient evidence, on the record, for determining issue of fact, necessary for the
disposal the lower appellate court.
(ii) An issue of fact, necessary for the disposal of the case, has been wrongly determined by the lower
appellate court by reasons of any omission, error or defect as referred in section 100(I)(b) of CPC.

Conclusion
To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to
whether the appeal is competent or not can only be decided by the court hearing the appeal. Appeal
may be filed against original or appellate decree passed by a court subordinate to High Court. Appeal
only lies against a decree and not against Judgment. The right of appeal is a creation of statute.
Review and its Grounds under CPC
Introduction
Civil Procedure code has granted right of reviews, but this right has been made subject to procedure,
conditions and limitations, which have been prescribed in rules of order 47 of Civil Procedure Code.
Right of review is a substantive right, the main object of which is to enable the courts to correct
errors, in the decisions pronounced by them. If the decree or an order or made on the basis of some
record and there has been some mistake or error apparent on the face of record or some new and
important matter or evidence is discovered after the passage of decree or order or another such
sufficient reasons, the application of review, may be made by the aggrieved party.

2. Relevant Provisions
Section 114, Order 41 Rule 1 of CPC

3. Initiation of Review Proceedings

The review proceedings will be initiated, on the application of an aggrieved party or person, i.e party
or person who has legal grievance.
4. Court in which Review application can be filed

An application for review shall lie to the following authorities.

 24

(i) Review application against decree or order of High Court

When decree or order, against which reviewed is prayed, is that of High Court, review application
should be filed before any judge of High Court.

(ii) Some judge or his successor

When the decree or order is that of court, other than High Court, it shall be reviewed by same judge
or his successor, if the review application is filed by aggrieved person on the following grounds

(a) Discovery of new and important matter or evidence, or

(b) A clerical or arithmetical mistake, apparent on the face of the decree

5. Grounds of Review
Review application can be filed on basis of either of following grounds

(i) Appealable Decree or Order

When any person is aggrieved by a decree or order and appeal is allowed against such decree or
order, but appeal is not filed, review application can be filed against such decree or order.

(ii) No Right of Appeal allowed

Where no right of appeal is allowed to an aggrieved party, he can file a review application.

(iii) Discovery of new and important matter or evidence

When new and important matter or evidence is discovered, but such matter or evidence was not
within knowledge of aggrieved person or such matter or evidence could not be produced by aggrieved
person at that time when decree or order was passed, review application can be filed.

(iv) Mistake or error

When any mistake or error is apparent on face of record, and not require any extra evidence to
establish it, than a review application can be filed.

(v) Any other sufficient Ground

Party may apply for review, an order or decree when there is any other sufficient ground or reason,
review application can be filed.

6. Rejection of Application of Review

Application for review may be rejected

(i) Where it appears to the court, that there is no sufficient reason for review.
(ii) Where an application for review is heard by more than one judges, and the court is equally
divided.

7. Order of Rejection non-Appealable

No appeal lies, from on order rejecting an application for review.

8. Limitation Period Application of Review

The application for review provides period of 90 days from date of the decree or order except in case
mentioned in sec 161 and 162 of limitation act 1908 which respectively deal with the review of
judgment or decree of the small causes court and the High Court.

Conclusion
To conclude that court possesses dis cretionary power to allow review application. However, it is
necessary that such power should be exercised judicially.
 25

Rejection of Plaint and its Grounds

1. Introduction
It is a first duty of court, before which a suit is instituted to properly examine the plaint, for the
purpose of determining, whether it should be returned, or rejected and in order to determine, the
question of rejection it is the responsibility the court to take consideration other materials too, order
7 Rule 11 of CPC narrate cases where plaint should be rejected.

2. Relevant Provisions
Following are the relevant Provisions

(i) Order 7 Rule 11 of CPC

(ii) Cross Reference ; (a) Section 148, 149 of CPC , (b) Order 41 Rule 3 of CPC, (c) Section 4, 6, 12,
28 of Court fees act 1870 , (d) Section 11 of suit valuation act 1877

3. Rejection of Plaint under Order 7 Rule 11

Text of order 7 Rule 11 of CPC
(a) Where it does not disclose a cause of action
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct
the valuation within a time to be fixed by the court, fails to do so,
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being require by the court to supply the requisite stamp-paper within a
time to be fixed by the court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law

4. Modes of Rejecting Plaint

A plaint may be rejected either by
(i) An application of the defendant
(ii) Suo motu by the court if it is liable to be rejected under order 7 Rule 11.

5. Grounds of Rejecting Plaint

Following are the grounds of rejecting plaint under order 7 Rule 11 of CPC
(i) Plaint not disclosing cause of action
It is a duty of plaintiff that he must be described the cause of actions in his plaint. He must be written
of plaint, when arises cause of action and where arises cause of actions. The court readily exercise
the power to reject a plaint if it does not the disclose any cause of action.
(ii) Claimed relief is under valued
If the court is of opinion that the plaintiff valuation of suit is fictitious, it can require him to make a
correct valuation, and shall allow time for correction and can reject a plaint on his failure to do so.
(iii) Plaint is insufficiently stamped
Every suit is instituted by filing of the plaint one of the requirements for the proper institution of the
suit is that the plaint must be properly stamped for the purposes of the court fees under the court Fee
Act, 1870. If the plaint is insufficient stamp, the court reject the plaint under order 7 rule 11 of CPC
and give a sufficient time to solve the cause of failures.

Conclusion
I say, I include that for purpose of determination whether plaint discloses a cause of action or not,
court has to presence that every-averment made in the plaint is true, power to reject a plaint under
order 7 Rule 11 must be exercised only if the court comes to conclusion that even if all the allegations
made in the plaint are proved, plaintiff would not be entitled to any relief what so ever.
Jurisdiction of Civil Courts
1. Introduction
 26

The concept of jurisdiction is very important in law, because the courts get the power, and authority,
to inquire into facts, apply the law and decide judgment only, if it has jurisdiction. Section 9 of CPC
provides generally the maximum extent of jurisdiction of the civil court. The term jurisdiction itself
means the limit, under which the court gets the power and authority to administer the justice, so it
cannot be ultimate. Civil courts are courts of ultimate jurisdiction in a sense, that the ultimate decision
with regard to civil matters, not within the jurisdiction of other courts, will be that of civil courts.

2. Relevant Provisions
Section 9 of CPC (Civil Procedure code)

Cross Reference
i. Section 6, (2) and 15 to 25 CPC
ii. Section 151 of CPC
iii. Order 7 Rule 10, 11 of CPC

3. Meaning of Jurisdiction
The term jurisdiction may be defined as under
”Jurisdiction refers to the (legal) authority to administer justice in accordance with means provided
by law and subject to the limitations imposed by law”.

4. Kinds of Jurisdiction
There are following kinds of jurisdiction
i. Subject matter jurisdiction
ii. Pecuniary Jurisdiction
iii. Territorial Jurisdiction
iv. Personal Jurisdiction

5. Jurisdiction conferred upon civil Courts

Civil courts have jurisdiction, to try all suits, of civil nature i.e, Suits which involves the assertion or
enforcement of a civil right.

i. Suit involving right to property or office

According to explanation to section 9, all suits involving right to properly or office, are suits of civil
nature, except those, which only involves a decision on question as to religious rites or ceremonies.

7. Determination of Jurisdiction
Under section 151, civil courts have inherent power to decide the question of their own jurisdiction.

8. Limitation / Bars upon jurisdiction of Civil Courts under CPC

Under CPC following limitations are created upon the jurisdiction of civil courts.
i. Absolute Bars.
ii. Conditional Bars
iii. Special bars

I. Absolute Bars
Following are the absolute bars as discuss in CPC

i. Res Sub-Judice under Section 10

Section 10, prevents a subsequent Court, to try a suit in which the matter directly and substantially
in issue, is also directly and substantially in issue, in a former suit between the same, parties, under
the same title and such suit is pending.

ii. Res Judicata under section 11

 27

Where there is a judgment inters parties, it will prevent a fresh suit between them regarding the same
matters.

iii. Questions to be determined by court executing decree under section 47

All question arising, between the parties to the suit in which the decree was passed, shall be
determined by the court executing decree, and not by a separate suit.

iv. Restitution under section 144

No suit shall be instituted, for the purpose of obtaining any restitution or other relief, which could be
obtained by application.

v. Suit to include the whole claim under order 2 Rule 2

Every suit shall include the whole of claim, but where a plaintiff omits to sue, in respect of, or
intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.

vi. Decree against Plaintiff by default bars fresh suit under Order 9 Rule 9
Where a suit is dismissed, due to the default of the plaintiff, then the plaintiff is precluded from
bringing a fresh suit, in respect of the same cause of action.

vii. An insolvent Person under order 22 Rule 9

An insolvent person is barred from filling a suit.

viii. Withdraw of suit or Abandonment of Part of claim under order 23 Rule 1

At any time, after the institution of a suit, the plaintiff may withdraw his suit, or abandon part of this
claim, as against all or any of the defendants. No fresh suit can be instituted on the same subject
matter or claim, as has been withdrawn or abandoned.

II) Conditional Bars

Following are the conditional bars, upon the jurisdiction of the civil courts.

i. Suit by Alien under section 83

Alien residing in Pakistan, can only sue in the court of Pakistan, when they get the permission, from
the Federal government.

ii. Suit by Foreign states under section 84

A foreign state, may sue in any court in Pakistan, if it has been recognized by the Federal government.

III) Special Bar

Following are the special bars upon the jurisdiction of civil courts

i. Suit for Breach of trust under section 92

In case of any breach of an express of constructive trust, created for the public purposes, of a
charitable or religious nature, a suit can be filed by the Advocate general, or two or more person
having an interest in the trust, and having obtained the consent in writing, of the Advocate general.

9. Suits of which cognizance is expressly or impliedly barred

Besides, the bars contained in the provisions of CPC the cognizance of some suits are barred either
expressly or impliedly under other laws.

I) Express bars
Express bars means, bars under express enactment of statute, Criminal, Revenue and Family matters
are the express bars upon the jurisdiction of civil courts.
 28

II) Implied Bars

Section 9 of CPC recognizers the doctrine of implied bar of jurisdiction, the Act of state, public policy
and special tribunals are the implied bars on jurisdiction of Civil Courts.

10. Effect of exclusion of jurisdiction under section 9

Exclusion of jurisdiction of civil courts not to be readily inferred, but must be explicitly expressed or
clearly implied. Where jurisdiction was excluded, even then civil court would have jurisdiction to
examine cases where Provisions of the Act had not been compiled with or statutory Tribunal had not
acted in conformity with fundamental principles of judicial procedure.

Conclusion

To conclude that by virtue of section 9 of CPC civil courts have jurisdiction to determine all suits of
civil nature. The jurisdiction of civil courts cannot be ultimate, because the provisions of CPC bars
jurisdiction of certain cases itself, and there are other bars also under other laws and thus the
jurisdiction of the courts.
Return of Plaint under Code Civil Procedure
1. Introduction
It is a general principle of law that courts cannot entertain a suit, unless they have jurisdiction to do
so. When a suit is instituted in one court and if opinion of court is that it has no jurisdiction to entertain
the suit, the plaint should be returned to the plaintiff under order 7 Rule 10 CPC, for presentation to
the proper court.

2. Meaning of Plaint
Plaint is not defined by the code, so it has to be taken in an ordinary sense “It is a written memorial
tendered to a court in which the plaintiff sets forth –the cause of action and seeks Judgment and relief
from the Court”.

3. Relevant Provisions
Following are the relevant provisions regarding the topic of return of plaint
Order 7 Rule 10 C.P.C
Cross Reference
Section 6 to 25 of Code of Civil Procedure
Section 11 of suit valuation Act 1887.

4. Grounds for return of Plaint

Court shall return a plaint on the following ground

i. Court has no jurisdiction

The term jurisdiction refers to the legal authority, to administer justice in accordance with the means
provided by law and subject to the limitation imposed by law. When the court has no jurisdiction,
plaint should be returned.

ii. Objection to jurisdiction

If party has any objection as to jurisdiction of the court, it should be raised as early as possible and
any objection to jurisdiction should be dealt with under rule 19 of order 7.

iii. Subsequently acquired jurisdiction

If at the time of institution of suit, Court has no jurisdiction but subsequently acquires jurisdiction,
then the suit will be deemed to have been properly instituted from the date, the court gets jurisdiction.

iv. One part of plaint is within and other part outside the jurisdiction of Court
 29

When plaint consists of two parts, one of which is within the jurisdiction of the court and the other
is outside the jurisdiction of the court, and then is such case two views prevailed. According to one
view the court should return the plaint outside its jurisdiction and continue with the part within its
jurisdiction.
Another view is that Court should not return the plaint but strike out under Order 6 Rule 16 of CPC
that portion of the plaint, which is not within its jurisdiction.

v. Determination of jurisdiction
In order to determine, whether the court has jurisdiction, the suit as originally framed and instituted,
has to be looked into.

5. Scope
Order 7 Rule 10 of CPC will be applicable only, when the suit is pending before the court. Provisions
of Rule 10 are mandatory in nature.

6. Time for returning of Plaint

The plaint may be returned at any stage of the suit and even in appeal or revision.

7. Procedure on Returning Plaint

On returning plaint the judge shall endorse following on the plaint
i. Date of presentation and return of plaint
ii. Name of the party presenting it.
iii. Brief statement of reasons for returning it.

8. Two courses to plaintiff on return of plaint

On return of plaint, plaintiff has the following options
i. He may file a new suit or
ii. He may amend the same plaint and present it in the court

9. Applicability of Order 7 Rule 10

Order 7 Rule 10 of CPC is applicable only to suits and not to the application.

10. Limitation
For the purpose of limitation, the date of institution of the suit is the date when the plaint is
represented to the court, having jurisdiction.

11. Appeal
An order of returning a plaint is appealable, hut second appeal is barred.

13. Conclusion

By the above discussion, it can be said, that jurisdiction of court is necessary, to obtain adjudication,
and decision of court without jurisdiction, is a nullity in the eye of law, and not binding of anyone,
though this is subject to the exceptions u/s 21 CPC and u/s 11 of suit valuation Act 1887. Jurisdiction,
of the court is initially determined by the recitals in the plaint and where civil court does not have
jurisdiction it shall return the plaint under order 7 Rule 10 CPC.
Return of Plaint under Code Civil Procedure
1. Introduction
It is a general principle of law that courts cannot entertain a suit, unless they have jurisdiction to do
so. When a suit is instituted in one court and if opinion of court is that it has no jurisdiction to entertain
the suit, the plaint should be returned to the plaintiff under order 7 Rule 10 CPC, for presentation to
the proper court.
 30

2. Meaning of Plaint
Plaint is not defined by the code, so it has to be taken in an ordinary sense “It is a written memorial
tendered to a court in which the plaintiff sets forth –the cause of action and seeks Judgment and relief
from the Court”.

3. Relevant Provisions
Following are the relevant provisions regarding the topic of return of plaint
Order 7 Rule 10 C.P.C
Cross Reference
Section 6 to 25 of Code of Civil Procedure
Section 11 of suit valuation Act 1887.

4. Grounds for return of Plaint

Court shall return a plaint on the following ground

i. Court has no jurisdiction

The term jurisdiction refers to the legal authority, to administer justice in accordance with the means
provided by law and subject to the limitation imposed by law. When the court has no jurisdiction,
plaint should be returned.

ii. Objection to jurisdiction

If party has any objection as to jurisdiction of the court, it should be raised as early as possible and
any objection to jurisdiction should be dealt with under rule 19 of order 7.

iii. Subsequently acquired jurisdiction

If at the time of institution of suit, Court has no jurisdiction but subsequently acquires jurisdiction,
then the suit will be deemed to have been properly instituted from the date, the court gets jurisdiction.

iv. One part of plaint is within and other part outside the jurisdiction of Court
When plaint consists of two parts, one of which is within the jurisdiction of the court and the other
is outside the jurisdiction of the court, and then is such case two views prevailed. According to one
view the court should return the plaint outside its jurisdiction and continue with the part within its
jurisdiction.
Another view is that Court should not return the plaint but strike out under Order 6 Rule 16 of CPC
that portion of the plaint, which is not within its jurisdiction.

v. Determination of jurisdiction
In order to determine, whether the court has jurisdiction, the suit as originally framed and instituted,
has to be looked into.

5. Scope
Order 7 Rule 10 of CPC will be applicable only, when the suit is pending before the court. Provisions
of Rule 10 are mandatory in nature.

6. Time for returning of Plaint

The plaint may be returned at any stage of the suit and even in appeal or revision.

7. Procedure on Returning Plaint

On returning plaint the judge shall endorse following on the plaint
i. Date of presentation and return of plaint
ii. Name of the party presenting it.
iii. Brief statement of reasons for returning it.

8. Two courses to plaintiff on return of plaint

 31

On return of plaint, plaintiff has the following options

i. He may file a new suit or
ii. He may amend the same plaint and present it in the court

9. Applicability of Order 7 Rule 10

Order 7 Rule 10 of CPC is applicable only to suits and not to the application.

10. Limitation
For the purpose of limitation, the date of institution of the suit is the date when the plaint is
represented to the court, having jurisdiction.

11. Appeal
An order of returning a plaint is appealable, hut second appeal is barred.

13. Conclusion

By the above discussion, it can be said, that jurisdiction of court is necessary, to obtain adjudication,
and decision of court without jurisdiction, is a nullity in the eye of law, and not binding of anyone,
though this is subject to the exceptions u/s 21 CPC and u/s 11 of suit valuation Act 1887. Jurisdiction,
of the court is initially determined by the recitals in the plaint and where civil court does not have
jurisdiction it shall return the plaint under order 7 Rule 10 CPC.
Kind of Suits brought into Civil Courts
1. Introduction
Disputes can be either of criminal nature or of civil nature. Disputes of criminal nature are resolved
by criminal courts while disputes of civil nature are resolved by civil courts. Under Civil Procedure
Code, suits of civil nature can be brought against civil courts as far as jurisdiction of civil courts over
suits of civil nature is concerned.

2. Relevant Provision
Section 9 of Civil Procedure code 1908

3. Basis of Section 9 of CPC

The basis of section 9 lies in the maxim ubi jus ibi remedium (where there is right there is remedy).
Civil rights like the freedom of speech, liberty, religion, Association, office etc., are guaranteed by
the constitution. So, the infringement of these rights shall result the remedy, which is asked from
civil courts.

4. Nature of Suit
For determination of jurisdiction of the court, the nature of suit is determined on basis of pavements
made in the plaint and not on the basis of defense.

5. What kind of Suits can be brought into civil courts?

Here following points are important

i. Suits of Civil Nature

Disputes are either of a civil nature or not of a civil nature Section 9 of Civil Procedure code, 1908,
only empowers a court to entertain suits of civil nature. A suit of a civil nature is a proceeding the
object of which is enforcement of rights and obligations of citizens.

ii. Bar against Jurisdiction

Against jurisdiction of civil courts, bar is that civil courts cannot exercise jurisdiction when
cognizance of suits of civil nature by civil courts is barred. Such bar can be express or implied.
 32

a. Express bar
Civil courts do not have jurisdiction to try suits of civil nature when cognizance of such suits is
expressly barred. Legislature can restrict or modify jurisdiction of civil courts to try suits of civil
nature through express legislation or through necessary enactment. For example, West Pakistan Land
Revenue Act, 1967 has placed bar jurisdiction of civil courts to adjudicate upon any matter in which
powers of adjudication has been given to revenue authorities.

b. Implied Bar
There can be implied bar against jurisdiction of civil courts to try suits due to principles of law or
public policy. For example, jurisdiction of court to try suit can be implicitly barred when suit relates
to act of state or when adjudication of some matter is against public policy or when special tribunal
is created for adjudication of some matter.

iii. Which suits are suits of civil nature?

To determine suits of civil nature, following points are important.

a. Suit about right to property or office

When some right to property or office is contested in a suit, such suit is considered suit of civil nature.
However, explanation is that a proceeding, which only relates a decision on questions about religious
rites or ceremonies, cannot be considered suit of civil nature.

b. Civil Proceeding
Civil proceeding involves assertion or enforcement of civil right and is considered is process for
recovery of individual right or redress of individual wrong. It reveals that object of civil proceeding
is enforcement of civil rights and obligations of citizens. Such proceeding is considered suit of civil
nature.

c. Determination of some Proceeding as suit of civil nature

Proceeding can be determined as suit of civil nature through subject matter of some suit and not
through status of parties to suit.

Conclusion

To conclude, it can be stated that civil procedure code has granted general jurisdiction to civil court
to try all suits of civil nature. No-doubt bar has also been provided against such general jurisdiction
of civil court. However, civil courts have been exempted from such bar in specific circumstances.