Civil Procedure — Code of Civil Procedure 1908
The Code of Civil Procedure 1908 (Act V of 1908) regulates the procedure of civil courts in Pakistan. The Code is divided into a body of 158 sections (governing substantive procedural matters) and a First Schedule of 51 Orders with associated Rules (governing detailed working). Sections may be amended only by Parliament/Provincial Assembly; Rules may be amended by the High Courts under § 122.
A suit is a civil proceeding instituted by the presentation of a plaint (Order VII Rule 1) seeking adjudication of a legal right. Every suit must be instituted in the court of lowest grade competent to try it (Section 15) and within the limitation period prescribed by the Limitation Act 1908.
Jurisdiction
Civil courts have inherent jurisdiction to try all suits of a civil nature except those expressly or impliedly barred (Section 9). Jurisdiction is classified into:
- Pecuniary — based on the value of the subject matter.
- Territorial — § 16 (immovable property), § 17 (multiple properties), §§ 19–20 (other suits).
- Subject matter — e.g. probate suits, family matters (now under the Family Courts Act 1964).
Section 11 lays down res judicata — once a matter has been finally decided by a competent court, it cannot be re-litigated between the same parties.
Pleadings (Order VI)
Pleadings are the formal allegations of parties. Order VI Rule 1 defines pleading as "plaint or written statement". Fundamental rules:
- State facts, not law.
- State material facts only — facta probanda, not facta probantia.
- State facts in a concise form.
- Verify the pleading.
The plaint (Order VII) must show particulars — court, parties, cause of action, jurisdictional facts, valuation, and relief claimed. Defects in plaint lead to rejection under Order VII Rule 11.
The written statement (Order VIII) must be filed within 30 days (extendable to 90), denying allegations specifically; vague denial amounts to admission (Rule 5).
- Section 9 — civil court jurisdiction; presumption in favour.
- Section 10 — res sub judice (stay of subsequent suit on identical issues).
- Section 11 — res judicata.
- Section 15 — court of lowest grade.
- Section 80 — two-month notice to government before suit.
- Section 89A — alternative dispute resolution.
- Section 100 — second appeal on substantial question of law.
- Section 115 — revision by High Court.
- Section 151 — inherent powers.
Stages of a civil suit
| Stage | Provision | Description |
|---|---|---|
| Institution | O. IV r. 1 | Presentation of plaint with court fee |
| Service of summons | O. V | On defendant within 30 days |
| Written statement | O. VIII | Within 30/90 days |
| Discovery, interrogatories | O. XI | Disclosure of documents |
| Framing of issues | O. XIV | Court frames issues of fact/law |
| Examination of witnesses | O. XVIII–XIX | Evidence on commission allowed |
| Arguments | O. XVIII r. 2 | Oral arguments |
| Judgment & decree | O. XX | Within 30 days of hearing |
| Execution | O. XXI | Detailed 106-rule code |
| Appeal | §§ 96–112 | First/Second appeal |
Interim and provisional remedies
- Temporary injunction (Order XXXIX rr. 1–2) on conditions of (i) prima facie case, (ii) irreparable injury, (iii) balance of convenience.
- Attachment before judgment (Order XXXVIII).
- Appointment of receiver (Order XL).
- Commission for local investigation, examination of accounts, etc. (§§ 75–78, Order XXVI).
Appeals, revision and review
- First appeal: § 96 — from original decree to next superior court.
- Second appeal: § 100 — to High Court, only on substantial question of law.
- Letters Patent Appeal (LPA): intra-court appeal within High Court (where preserved).
- Revision: § 115 — High Court may revise any non-appealable order of a subordinate court that has exercised jurisdiction not vested, failed to exercise jurisdiction, or acted with material irregularity.
- Review: § 114, O. XLVII — by the same court on discovery of new evidence, mistake apparent on record, or other sufficient reason.
A favourite exam question is "Distinguish revision from appeal." Remember: appeal lies as of right against decrees; revision is discretionary, lies only against orders by subordinate courts, deals with jurisdictional errors under § 115, and the High Court will not interfere unless the order causes manifest miscarriage of justice.
Execution (Order XXI)
Order XXI — the longest in the Code with 106 Rules — governs execution. Modes include attachment and sale of property, arrest and detention of judgment-debtor, appointment of receiver, and delivery of specific movable/immovable property. Section 60 lists property exempt from attachment.
Alternative dispute resolution
Section 89A (inserted by the CPC (Amendment) Ordinance 2002) empowers courts to refer matters to arbitration, mediation or conciliation with the parties' consent. Pakistan now also has the Alternate Dispute Resolution Act 2017 and provincial mediation statutes that reinforce ADR.
Inherent powers (§ 151)
Section 151 preserves the inherent power of the court to make orders necessary for the ends of justice or to prevent abuse of process. It cannot be invoked where a specific provision exists, but it remains a residual safety valve in Pakistani jurisprudence — see Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382.