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.
S# |
Common Questions |
Key Judgments |
1 |
Benami transaction, its ingredients and burden of proof |
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2 |
Suit for partition, ingredients, and instrument of Partition. |
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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. |
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4 |
Injunction against a co-sharer without prayer for partition, and exceptions |
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5 |
Suit for partition, Impleadment after preliminary decree |
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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. |
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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. |
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8 |
In a suit under Section 9 of the Specific Relief Act, 1877, title of parties cannot be looked into. |
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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 |
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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. |
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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. |
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12 |
Suit for declaration with possession: Affixation of court fee |
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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. |
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14 |
Suit for possession, demarcation proceedings and jurisdiction of Civil Court |
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15 |
Time cannot be extended under Section 148 CPC for deposit of Zar-e-Som in pre-emption cases. |
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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. |
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17 |
Mode of execution of decree, both in cases of joint property and in a specific khasra number, passed in a pre-emption suit. |
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18 |
Law of limitation is not a formality or technicality and it cannot be made redundant. |
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19 |
Directory and Mandatory provisions. |
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20 |
Interpretation of words “May” and “Shall” in a statute. |
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21 |
The role of procedure is to help and not to thwart the grant to the people of their rights. |
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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. |
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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. |
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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. |
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25 |
Revenue record; role in dispute of title |
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26 |
Post retirement/ death emoluments like benevolent fund, group insurance, death compensation etc---whether legacy/Tarka, principle. |
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27 |
Suit for inheritance; Limitation |
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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. |
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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. |
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30 |
Appreciation of Evidence: Principles |
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31 |
However, there are two exceptions to these principles. |
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32 |
Ouster of jurisdiction of Civil Court, extent and essentials. |
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33 |
Res-judicata, ingredients and applicability |
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34 |
Petition u/s 12 (2) CPC and its forum |
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35 |
Petition u/s 12 (2) CPC: Procedure |
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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. |
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37 |
Territorial jurisdiction of a Civil Court in a suit for recovery of damages on the ground of defamation. |
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38 |
Suit for damages on the basis of malicious prosecution arising out of civil litigation, necessary ingredients. |
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39 |
Suit for damages on the basis of malicious prosecution arising out of criminal case, necessary ingredients. |
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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? |
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41 |
Execution proceedings: Scope of Section 51 and Order XXI Rules 37 & 40, CPC (Arrest of judgment-debtor for recovery of money) |
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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. |
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43 |
Auction Proceedings: Determination of value and Procedure for carrying out auction in execution |
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44 |
Non-compliance of Section 79 CPC makes a suit not maintainable. |
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45 |
A stranger can file an appeal against a decree. |
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46 |
Review: Scope |
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47 |
Consolidation of suits; principles |
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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. |
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49 |
Non-signing of pleadings and Vakalatnama is an irregularity, which is curable at any stage. |
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50 |
Rejection of plaint U/O VII Rule 11 CPC does not operate as res-judicata. |
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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. |
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52 |
Set-off and counter claim, distinction. |
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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. |
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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. |
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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. |
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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. |
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57 |
Formal defects in a plaint, meaning. |
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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. |
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59 |
Actio personalis moritor cum person (a personal action dies with a person), i.e abatement of suit. |
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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. |
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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. |
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62 |
When no perpetual injunction is claimed in a suit, no ad-interim injunction can be granted. |
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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. |
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64 |
Procedure for Order XXXIX Rule 2(3) CPC |
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65 |
Contempt proceedings are always against a named individual and cannot be enforced against official designation. |
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