Bench Book for CIVIL Courts - Proposed Chapter

Addition of the most common questions to the Bench Book, 2016

On the direction of hon’ble the Chief Justice (ref. letter #93-94/KPJA  dated 24.01.2018 ), the Academy has been working on a new chapter in the 2016 edition of the Bench Book. The new chapter will contain the most common legal questions with key judgments of the higher courts. A list of the key questions in civil law is attached herewith. Please provide your comments in the box below.

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Common Questions

Key Judgments

1

Benami transaction, its ingredients and burden of proof

  • PLD 2008 SC 146
  • 2005 SCMR 577
  • 1991 SCMR 703

2

Suit for partition, ingredients, and instrument of Partition.

  • 1993 CLC 31 Lahore
  • AIR 1930 PAT 177
  • PLD 1986 Lahore 140
  • PLD 1978 Lahore 391
  • PLD 2005 SC 972
  • 2003 CLC 394
  • PLD 1995 (W.P) Lahore 511
  • AIR 1942 Lahore 260

3

Partial partition, jurisdiction of Civil and Revenue Courts and recording of respective rights of parties, as mandated in U/O XX Rule 18 CPC, in a judgment.

  • PLD 2016 Peshawar 8

4

Injunction against a co-sharer without prayer for partition, and exceptions

  • 1989 SCMR 139
  • 2000 SCMR 780
  • 1999 CLC 598
  • 1994 CLC 2409
  • 2013 YLR 499

5

Suit for partition, Impleadment after preliminary decree

  • 2004 YLR 1019 Lahore

6

If a co-sharer has been dispossessed from land in his possession in a joint property by another co-sharer, he can file a suit under Section 9 of the Specific Relief Act, 1877 for restitution of possession or a suit for partition.

  • 1979 CLC 230
  • 1999 SCMR 2325.

7

A Civil Court has got jurisdiction to partition a constructed property even if it is assessed to land revenue provided that the construction is not subservient to agricultural purpose.

  • PLD 1965 Lahore 429
  • 1996 CLC 1692
  • 1997 SCMR 1792
  • PLD 2008 Peshawar 97
  • 2017 YLR 1217 

8

In a suit under Section 9 of the Specific Relief Act, 1877, title of parties cannot be looked into.

  • 2001 SCMR 345
  • 2012 CLC 377

 

9

Suit for specific performance: Obligation to deposit remaining balance amount on the date of institution by the plaintiff and on the first day of appearance by the defendant

  • 2017 SCMR 2022

10

A suit for specific performance, not declaration, is maintainable when a person claims to be owner of a property on the basis of an unregistered deed against a person from whom he alleges to have purchased that property.

  • PLD 2006 SC 66
  • 2002 CLC 361
  • 2011 YLR 1746

 

11

Doctrine of part performance (Section 53-A the Transfer of Property Act, 1882), necessary ingredients, and a shield to protect possession, but does not confer title on the vendee holding an unregistered deed.

  • 1992 SCMR 1265
  • PLD 1984 SC 424
  • PLD 1964 SC 456   
  •  PLD 1971 SC 114
  • 1993 SCMR 428

 

12

Suit for declaration with possession: Affixation of court fee

  • 2007 SCMR 1884

13

A declaratory decree is not binding on a person not party to a suit, but if he acquires any right in a property from any party to the suit, then he will be bound by that decree.

  • 1993 CLC 1307

14

Suit for possession, demarcation proceedings and jurisdiction of Civil Court

  • PLD 2016 Peshawar 42
  • 2016 MLD 1590
  • 2015 MLD 1360
  • 2014 SCMR 151
  • 2014 SCMR 45
  • 2009 MLR 561 Lahore
  • 2008 CLC 248 Lahore

15

Time cannot be extended under Section 148 CPC for deposit of Zar-e-Som in pre-emption cases.

  • 1997 MLD 2945

16

A vendee dying prior to institution of a pre-emption suit and neither notice Talb-e-Ishhad was served on him nor on his legal representatives, a pre-emption suit cannot be instituted against the legal representatives of the deceased nor can they be impleaded in the suit later-on, if the suit was instituted against the deceased vendee/defendant.

  • PLD 2009 SC 183

 

17

Mode of execution of decree, both in cases of joint property and in a specific khasra number, passed in a pre-emption suit.

  • 1989 SCMR 640
  • PLD 1987 Lahore 537
  • 1994 CLC 800
  •  PLD 2012 Peshawar 139

18

Law of limitation is not a formality or technicality and it cannot be made redundant.

  • 2013 CLC 597
  • 2014 CLC 1166

19

Directory and Mandatory provisions.

  • PLD 1968 Quetta 15
  • PLD 1978 Lahore 498

20

Interpretation of words “May” and “Shall” in a statute.

  • PLD 1993 SC 473
  • PLD 1996 SC 182

21

The role of procedure is to help and not to thwart the grant to the people of their rights.

  • PLD 1963 SC 382
  • PLD 1975 SC 678

22

Whenever a law becomes applicable to the facts and in the circumstances of a case, it is duty of the Court to apply that law, notwithstanding such plea has or has not been raised by either party thereto.

  • 1972 SCMR 359
  • 2006 SCMR 1630
  • 2003 YLR 2040

23

A Judge is supposed to wear all the laws of the land on his sleeves so there is no difficulty in applying correct and relevant law to a situation coming up before him for judicial determination.

  • 2007 SCMR 882

  • 2011 SCMR 437

24

An entry in the revenue record interfering in rights of a person, then for the purpose its correction Civil Court has to be approached under Section 53 of the Land Revenue Act, 1967. A Revenue Officer can correct only those entries which do not touch rights of a person in land.

  • 1996 SCMR 78
  • NLR 1997 Revenue 45

 

25

Revenue record; role in dispute of title

  • PLD 1960 (W.P) Lah 181
  • 2002 CLC 1517
  • 2004 YLR 2546
  • PLD 2011 SC 657

26

Post retirement/ death emoluments like benevolent fund, group insurance, death compensation etc---whether legacy/Tarka, principle.

 

  • PLD 1991 SC 731

27

Suit for inheritance; Limitation

  • PLD 1990  SC 1
  • 2017 SCMR 1476

28

Objection as to under-valuation or over-valuation of a suit must be taken during trial before the hearing of case when issues were settled, only then an appellate Court can resolve issue of valuation of suit at the appellate stage by following the procedure laid down in Section 11 of the Suit Valuation Act, 1887.

  • PLD 1996 SC 292
  • 2006 CLC 173

29

Employees of a statutory body and a non-statutory body are not civil servants within the meaning of Section 2 of The KPK Civil Servants Act, 1973.

  • 2018 PLC(CS) 367
  • 2017PLC(CS)Note 32
  • 2017PLC(CS)Note 71

 

30

Appreciation of Evidence: Principles

  • 1986 CLC 2958
  • 1990 CLC 1064
  • 1990 CLC 1214

31

  • Admissions of fact are only relevant, and not conclusive.
  • An admission which is wrong in point of fact or is made in ignorance of legal right has no binding effect on the person making it.

        However, there are two exceptions to these principles.

  • PLD 1975 SC 311
  • PLD 1989 SC 749
  • 1984 CLC 609

 

32

Ouster of jurisdiction of Civil Court, extent and essentials.

  • PLD 1960 SC 113
  • PLD 1965 SC 671
  • PLD 1997 SC 03
  • 1987 CLC 2461
  • 1996 CLC 1382

33

Res-judicata, ingredients and applicability

  • 2003 MLD 22
  • 2010 MLD 439
  • 2010 MLD 1267

34

Petition u/s 12 (2) CPC and its forum

  • PLD 2016 Supreme Court 358
  • PLD 2013 Supreme Court 478
  • 2012 SCMR 147

35

Petition u/s 12 (2) CPC: Procedure

  • 2003 SCMR 1050

36

By virtue of rule of merger, judgment and decree of a trial court merges into judgment and decree of an appellate court, and the latter merges into judgment and decree of a revisional court.

  • PLD 1964 SC 520
  • 1992 SCMR 241

 

37

Territorial jurisdiction of a Civil Court in a suit for recovery of damages on the ground of defamation.

  • PLD 1981 Karachi 515
  • 1991 CLC Note 216
  • 2004 YLR 2525

38

Suit for damages on the basis of malicious prosecution arising out of civil litigation, necessary ingredients.

  • PLD 1990 SC 28
  • 2012 CLC 773

39

Suit for damages on the basis of malicious prosecution arising out of criminal case, necessary ingredients.

  • PLD 1994 SC 476
  • 1999 SCMR 734

40

Time limitation for submitting first execution petition is governed by Article 181 of the Limitation Act, 1908 and that for submitting fresh/ subsequent execution petition is governed by Section 48 of the CPC?

  • PLD 1990 SC 778
  • 1992 SCMR 241
  • 2013 SCMR 5

 

41

Execution proceedings: Scope of Section 51 and Order XXI Rules 37 & 40,  CPC (Arrest of judgment-debtor for recovery of money)

  • 1999 YLR 2270 Lahore
  • PLD 2000 Lahore 290
  • 2007 CLD 936
  • 2004 YLR 1540 Lahore
  • 2002YLR 2541 Lahore

42

An undertaking given by a surety during pendency of a suit on behalf of a party can be enforceable against him by means of an execution petition.

  • PLD 1955 Lahore 388
  • 1979 CLC 439
  • 1987 CLC 1910

43

Auction Proceedings: Determination of value and Procedure for carrying out auction in execution

  • 2012  SCMR  748    
  • 2010  SCMR  1956    
  • 2012  CLD  477 Lahore
  • 2011 C L D 280

44

Non-compliance of Section 79 CPC makes a suit not maintainable.

  • PLD 1993 SC 147
  • 2010 SCMR 115

45

A stranger can file an appeal against a decree.

  • PLD 1969 SC 65
  • 2003CLC 771

46

Review: Scope

  • 2017 SCMR 118
  • PLD 2015 SC 247
  • 2015 SCMR 1550
  • 2014 SCMR 1481
  • 2011 SCMR 998
  • 2011 SCMR 1494
  • 2010 SCMR 1036
  • 2010 SCMR 1049

47

Consolidation of suits; principles

  • PLD 2016 SC 409
  • 2010 MLD 1230

48

Similarity of causes of action in two suits for the purpose of applicability of bar contained in Order II Rule 2 (2) CPC, principle.

  • PLD 1970 SC 63
  • 2002 CLC 1784
  • 2017 CLC Note 173

49

Non-signing of pleadings and Vakalatnama is an irregularity, which is curable at any stage.

  • 1981 SCMR 687
  • PLD 2002 SC 491
  • 1990 CLC 301
  • 1995 CLC 1761

50

Rejection of plaint U/O VII Rule 11 CPC does not operate as res-judicata.

  • 2007 YLR 2459
  • 2008 CLC 1340

 

51

A request for amendment in a written statement is not permissible when its effect is to nullify an unqualified admission of certain facts of a plaint.

  • 2009 YLR 2356

52

Set-off and counter claim, distinction.

  • PLD 1983 SC 5

53

Where a defendant has been proceeded ex-parte or his defense has been struck off, even then he can participate the proceedings at any stage.

  • 1984 CLC 890
  • PLD 1994 Peshawar 161

54

A suit/execution dismissed in default in absence of both parties, the case/execution petition can be restored without notice to the defendant/judgment debtor.

  • 1972 SCMR 236
  • PLD 1972 Karachi 953

55

Date of hearing includes investigation of controversy, filing of written statement, framing of issues, taking evidence, hearing of arguments and rendering of judgment, but does not include hearing of interlocutory matters.

  • PLD 1970 Lahore 412
  • 1982 CLC 767
  • 1992 MLD 458
  • 2003 YLR 3196

56

Where a party has undertaken to produce his evidence, but later-on he is unable to produce the same, then a court can use its coercive machinery for attendance of the witnesses.

  • PLD 1973 SC 45

57

Formal defects in a plaint, meaning.

  • 2001 SCMR 148

58

A subsequent suit, filed prior to withdrawal of prior suit, is neither barred under Order XXIII Rule 1 (3) CPC nor would operate it as Res-judicata.

  • PLD 1983 SC 344

59

Actio personalis moritor cum person (a personal action dies with a person), i.e abatement of suit.

  • PLD 1967 Karachi 755

60

Plaintiff has two options to seek remedy in respect of a dishonoured cheque, viz either to file an ordinary civil suit or a suit under Order XXXVII CPC.

  • 1994 CLC 2013
  • 2014 CLC 837

 

61

Apart from three basic ingredients for grant of temporary injunction, other factors, such as conduct of parties, nature of suit, time likely to be absorbed, the stakes of parties involved, workability and reasonableness of order, have also to be taken into consideration.

  • PLD 1968 Lahore 876
  • 2008 CLC 930

 

62

When no perpetual injunction is claimed in a suit, no ad-interim injunction can be granted.

  • 1974 SCMR 519

63

A temporary injunction application can be disposed of on the basis of furnishing undertaking/security by a defendant for raising construction at his own risk and cost in a partition suit.

  • PLD 1995 SC 462
  • 2006 MLD 435

 

64

Procedure for Order XXXIX Rule 2(3) CPC

  • PLD 1952 Lahore 77
  • PLD 1992 Peshawar 130

65

Contempt proceedings are always against a named individual and cannot be enforced against official designation.

  • PLD 1992 Peshawar 130

Comments

Asalam o Alaikum...My question is that when I.O did not bother to brought on record some tangible documentary evidence and when the witness is also not been examined by the defence on such point in order to skip such documentary evidence. So, in these circumstances, whether the complainant has the right to file application before the trial court for exhibition/placing on record of attested copies of such documentary record. It is pertinent to mention here that such documentary evidence is pertaining to some other judicial record.

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