Civil Justice Unveiled: A Comprehensive Conceptual and Thematic Training Manual on the Code of Civil Procedure, 1908

Mian Zafar Iqbal Kalanauri

Advocate Supreme Court Pakistan, Arbitrator Fellow CIArb, Barrister, Mediator CEDAR, IMI, CMC, U.S.A., Master Trainer Mediation CEDAR, Legal Educator Reformist of Judicial System and Legal Education, White Collar Crime Investigator            

CHAPTER 1 – INTRODUCTION

1. How to Read and Gain Maximum Benefit from This Book

1.1 Readers should not underestimate the importance of this chapter in relation to the rest of the book. It serves as a crucial foundation, offering a comprehensive overview of procedural law and its role within the broader legal framework. Understanding this section will help readers grasp how various procedural elements function within the big picture of civil litigation.

2. Brief History of the Code of Civil Procedure, 1908

2.1 The first unified code for civil procedure in British Colonial India was introduced in 1859. Prior to that, there was no single procedural code applicable throughout the entire subcontinent. In provinces like Bengal, multiple procedural systems coexisted, leading to legal inconsistencies.

2.2 However, the 1859 code was criticized for being poorly drafted, disorganized, and incomplete. As a result, the Code of Civil Procedure, 1877, was enacted after several efforts from 1863 onward to formulate a more comprehensive legal framework. Despite these improvements, the 1877 code still required frequent amendments, leading to its complete revision and the eventual introduction of the Code of Civil Procedure, 1882.

2.3 The Code of Civil Procedure, 1908 (commonly referred to as CPC) was introduced to consolidate and amend the procedural laws governing civil courts. This revision aimed to address rigid legal provisions and resolve judicial conflicts that had arisen due to differing interpretations of the 1882 code.

2.4 The 1908 CPC was structured into two primary sections:

• Part I: The fundamental provisions of civil procedure, consisting of 158 Sections.
• Part II: The First Schedule, which sets out Rules of Procedure, categorized under Orders (I to LII).
• Additionally, Appendices A to H provide standardized forms that may be required at different stages of civil litigation.

2.5 The Special Committee responsible for drafting the CPC 1908 justified its restructuring with the following rationale:

“Our objective was to retain in the core of the Bill those provisions that are fundamental and those which extend judicial authority beyond provincial limits. In some cases, we have set out broad legal principles in the Bill while allowing the technical details to be determined by procedural rules.”

2.6 This approach allowed the Rules Schedule of the CPC to be amended separately by both the Legislature and provincial High Courts without requiring a complete overhaul of the law. This flexibility ensured that the legal framework remained adaptable to the evolving needs of different provinces.

Sir Earle Richards, a Law Member of the Special Committee, stated during the introduction of the CPC Bill:

“We do not intend to eliminate uniformity in core legal principles. However, we believe that less significant provisions should be modifiable to address emerging issues. This will allow courts to streamline legal procedures and make them more accessible to underprivileged communities.”

3. Functioning of the CPC

3.1 Various High Courts in Pakistan have exercised their powers to amend procedural rules in the Schedule of the CPC. However, whether these amendments have successfully addressed legal defects remains questionable. The numerous amendments made since 1947 suggest that the original expectation of procedural efficiency has not been fully realized.

3.2 The CPC serves as a comprehensive legal guide outlining the procedural requirements that litigants must follow during civil proceedings. Unlike criminal cases (which follow the Criminal Procedure Code), civil litigation is governed by the CPC. However, it is important to note that:

• Not everything within the CPC falls under procedural law.
• Conversely, the CPC is not the only statute dealing with civil procedure.
• Some provisions of the CPC have substantive legal implications.

3.3 The way a court applies a specific statutory provision depends on whether the provision is considered procedural or substantive. This section of the book will elaborate on:

• The difference between substantive and procedural law.
• The importance of this distinction.
• How procedure shapes civil litigation.

4. Distinction Between Substantive and Procedural Law

4.1 Courts frequently need to differentiate between substantive law (which defines rights and obligations) and procedural law (which governs the process of litigation).

4.2 Sir John Salmond defines procedural law as:

“The branch of law that governs the process of litigation. It is the law of actions and includes all legal proceedings, whether civil or criminal. In contrast, substantive law defines the rights and duties of individuals, focusing on the purpose and subject matter of legal proceedings.”

4.3 Black’s Law Dictionary provides the following definitions:

• Procedural Law: Rules that outline the steps for enforcing a right or duty in court, as opposed to defining the right or duty itself.
• Substantive Law: The area of law that creates, defines, and regulates the rights, duties, and powers of individuals and entities.

4.4 The practical significance of distinguishing procedural from substantive law is best illustrated through legal disputes. For example, in the case of A.R. Muhammad Siddik v. The South British Insurance Co. Ltd, the court had to determine whether a particular legal provision was procedural or substantive, as this classification influenced how the law was applied to the case.

4.5 The importance of procedural law cannot be understated. Civil procedural law is considered an essential tool for delivering justice. As Halsbury’s Laws of England states:

“Procedural law is complementary to substantive law. While substantive law defines rights, procedural law provides the mechanism to enforce them. It ensures that justice is delivered fairly, efficiently, and in accordance with due process.”

5. Access to Justice

5.1 Article 37(d) of the Constitution of Pakistan (1973) states:

“The State shall ensure inexpensive and expeditious justice.”

5.2 Courts exist to provide a platform for resolving disputes in a fair and orderly manner. However, access to justice is often hindered by:

• High costs of litigation.
• Lengthy legal proceedings.

5.3 The Law Commission of India (1973) identified three primary causes of delays in civil litigation:

1. Excessive time gaps between procedural stages.
2. Inefficient legal procedures that consume excessive time.
3. Case backlogs due to an overwhelmed judiciary.

5.4 To counter these challenges, countries like the UK have reformed their civil procedures. The Civil Procedure Rules (1998) introduced the Overriding Objective, emphasizing:

• Equal access to justice.
• Minimization of litigation costs.
• Timely case resolution.

5.5 In Pakistan, a similar concept exists under Section 151 of the CPC, which grants courts inherent powers to issue orders necessary to ensure justice and prevent abuse of judicial processes.

CHAPTER 2 – JURISDICTION

1. What is Jurisdiction?

1.1 In the context of civil procedure, the term jurisdiction refers to a court’s legal authority to hear and decide a case. When it is stated that a court lacks jurisdiction, it means that there is no legal mechanism allowing it to adjudicate the matter, or that another specialized forum has been designated to hear the case.

1.2 A key aspect of jurisdiction is a court’s ability to enforce its decisions through state mechanisms. A distinction must be drawn between formal legal courts, which derive their authority from statute and the Constitution, and informal forums (such as panchayats and jirgas), which operate voluntarily but lack legal enforcement powers.

1.3 Jurisdiction in its legal sense is defined by the Constitution and legislation. This chapter will discuss the various types of jurisdiction, their significance, and how they determine where a lawsuit can be filed.

2. Jurisdiction of Civil Courts in the CPC

2.1 When considering filing a civil suit, an important question arises: Which court has the authority to hear the case? The determination of jurisdiction depends on several legal principles, which are categorized as follows:

• Inherent Jurisdiction: The general authority of civil courts to adjudicate matters unless explicitly restricted.
• Pecuniary Jurisdiction: Courts are classified based on the monetary value of cases they can handle.
• Territorial Jurisdiction: A court’s authority is determined by geographic location, as specified under Sections 16 to 21 of the CPC.

2.2 Inherent Jurisdiction: Civil courts in Pakistan derive their authority from statutes, not directly from the Constitution. Section 9 of the CPC establishes the fundamental principle that civil courts have jurisdiction over all civil matters unless expressly barred by law.

Section 9 – Court to Try All Civil Suits Unless Barred:

“The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

2.3 In practical terms, this means that all civil disputes must be initiated in a civil court, except when a specific law provides otherwise.

2.4 To illustrate, consider the case of Mungo vs. WAPDA:

• Does Mungo have a legal remedy? (Tort law would suggest she does.)
• Where should she file her case?
  • Should she file it in Kasur, where her buffalo was electrocuted?
  • Should she file it in Lahore, where WAPDA’s headquarters is located?
  • Can both courts have concurrent jurisdiction?

2.5 The Civil Courts Ordinance, 1962 (CCO ’62) governs how civil courts are structured in Pakistan. It provides:

• The framework for establishing civil courts.
• How pecuniary jurisdiction is distributed among different courts.
• The territorial limits of courts’ jurisdiction.

2.6 The CCO ’62 ensures that cases are distributed efficiently across Pakistan’s civil courts to prevent backlog and delays.

3. Types of Jurisdiction in Civil Cases

3.1 The CPC establishes several subsets of jurisdiction to determine which court can hear a specific civil case:

A. Pecuniary Jurisdiction (Section 6 CPC)

• Courts are classified based on the monetary value of cases they can adjudicate.
• Example: A Civil Judge Class II can hear cases up to PKR 500,000, while a Civil Judge Class I has unlimited pecuniary jurisdiction.

B. Territorial Jurisdiction (Sections 16–21 CPC)

• Determined by geographic location of the property, defendant, or cause of action.
• Example: A lawsuit related to land disputes must be filed in the court that has jurisdiction over the location of the property.

C. Subject-Matter Jurisdiction

• Some cases require specialized courts (e.g., family courts, labor courts, banking courts).
• Example: A banking dispute must be filed before a Banking Court, not a civil court.

D. Personal Jurisdiction

• A court can exercise jurisdiction over a defendant who resides, works, or does business within its territorial limits.

4. Ouster of Jurisdiction of Civil Courts

4.1 The jurisdiction of civil courts may be barred by specific legislation. This can occur in two ways:

A. Express Ouster (Statutory Prohibition)

• Certain laws explicitly prohibit civil courts from hearing specific matters.
• Example:
  • Section 172(1) of the West Pakistan Land Revenue Act, 1967 states:

“No Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer is empowered to dispose of.”

B. Implied Ouster (Specialized Legal Forums)

• When a law establishes a special tribunal, it implicitly removes the jurisdiction of civil courts.
• Example:
  • Banking disputes must be heard by Banking Tribunals under the Financial Institutions (Recovery of Finances) Ordinance, 2001.

4.2 Case Law Example:

• In Messrs. Shafiq Hanif (Pvt.) Ltd. v. Bank of Credit and Commerce International, the Supreme Court ruled that:

“Banking Tribunals have exclusive jurisdiction over financial disputes, meaning civil courts cannot hear such cases.”

4.3 However, civil courts retain the power to determine whether a matter truly falls within a specialized tribunal’s jurisdiction.

5. Jurisdiction in Cases Involving Multiple Courts

5.1 Section 20 of the CPC outlines situations where multiple courts may have jurisdiction:

• Jurisdiction Based on Defendant’s Location:
  • If a defendant resides or conducts business in a particular city, the court in that city has jurisdiction.
• Jurisdiction Based on Cause of Action:
  • If the dispute arose in a different location, the court in that location may also have jurisdiction.

5.2 Example Case – Commercial Dispute:

• IndiCo Ltd (India) vs. PakCo (Pakistan):
  • IndiCo Ltd, an Indian company, enters into a Joint Venture with PakCo in Pakistan.
  • The contract states that Indian law will govern disputes.
  • However, the factory is located in Kasur, Pakistan.
  • If a contractual dispute arises, which court has jurisdiction?
    • The Indian court, as per contract terms?
    • The Pakistani court, since the factory is in Kasur?

5.3 Legal Implication:

• Courts must determine whether a foreign jurisdiction clause in a contract is binding or if Pakistani courts still have authority to hear the case.

Conclusion

The CPC provides a comprehensive framework for determining jurisdiction in civil cases. It outlines the rules for pecuniary, territorial, and subject-matter jurisdiction while also defining situations where civil courts lack authority due to statutory ouster. Understanding jurisdiction is critical for ensuring that lawsuits are filed in the correct forum, thereby preventing unnecessary delays and legal disputes.

CHAPTER 3 – WORKINGS OF THE CPC

1. Overview of the Code of Civil Procedure (CPC)

1.1 The Code of Civil Procedure, 1908 (CPC) is the fundamental law governing civil litigation in Pakistan. It provides the framework for civil proceedings, ensuring uniformity and fairness in the administration of justice.

1.2 The CPC outlines the procedural rules that litigants and courts must follow from the initiation of a lawsuit to its final resolution, including:

• Filing of suits
• Issuance of summons
• Presentation of evidence
• Judgments and decrees
• Execution of court orders
• Appeals and revisions

1.3 While the CPC is procedural in nature, it also contains substantive elements, particularly in rules governing jurisdiction, res judicata, and execution of decrees.

2. The Structure of the CPC

2.1 The CPC is divided into two main parts:

• Part I: Sections 1 to 158 – This part defines the fundamental principles of civil procedure.
• Part II: The First Schedule – This part contains rules of procedure, organized into Orders I to LII (1 to 52).

2.2 Appendices (A to H) provide model formats for various legal documents, such as:

• Plaints (Lawsuits)
• Written Statements (Defenses)
• Summons
• Decrees

3. Procedural vs. Substantive Law in the CPC

3.1 The CPC primarily deals with procedural law, which governs how cases are handled in court. However, some provisions also have substantive legal implications.

3.2 Key Distinctions:

• Substantive Law: Defines rights and obligations of individuals.
• Procedural Law: Establishes rules and processes for enforcing those rights.

3.3 Example:

• Right to property (substantive law) is established under property law, but the procedure to file a property dispute in court is governed by the CPC (procedural law).

4. The Role of the CPC in Civil Litigation

4.1 The CPC provides a step-by-step guide for litigants and courts to follow during civil proceedings. The major steps in a civil suit include:

Step 1: Filing of a Suit (Plaint Submission)

• A civil case begins with the filing of a plaint before the appropriate court.
• The plaintiff (complainant) must state the facts of the case, legal claims, and requested relief.

Step 2: Issuance of Summons to the Defendant

• Once the plaint is accepted, the court issues a summons to notify the defendant.
• The summons must be served properly to ensure fair proceedings.

Step 3: Filing of the Written Statement

• The defendant is required to submit a written statement in response to the allegations made in the plaint.
• Any counterclaims must also be included at this stage.

Step 4: Framing of Issues

• The court identifies key legal and factual issues that need to be resolved.
• These issues help in determining the course of the trial.

Step 5: Presentation of Evidence

• Both parties submit evidence to support their claims.
• Witnesses may be called to testify and provide oral or documentary evidence.

Step 6: Arguments and Final Hearing

• After evidence is recorded, both parties present legal arguments before the court.

Step 7: Judgment and Decree

• The court issues a judgment based on evidence and legal principles.
• A decree is passed, outlining the final decision of the court.

Step 8: Execution of the Decree

• If the judgment requires enforcement, the decree is executed by the court.

Step 9: Appeals and Revisions

• If a party is dissatisfied, they may file an appeal or revision in a higher court.

5. Interpretation and Application of the CPC

5.1 Flexibility in Procedural Application

• The CPC is not rigid; courts have the discretion to interpret procedural rules to achieve justice.

5.2 Judicial Precedents

• Courts rely on past judgments to clarify ambiguous procedural issues.

5.3 Use of Inherent Powers (Section 151 CPC)

• Section 151 of the CPC allows courts to use their inherent powers to prevent abuse of process and ensure fair trials.
• This provision ensures that justice prevails over procedural technicalities.

5.4 Distinction Between Directory and Mandatory Provisions

• Some provisions of the CPC are mandatory (must be followed), while others are directory (guidelines that allow discretion).

6. CPC and Access to Justice

6.1 Importance of Procedural Justice

• The CPC ensures due process, which is essential for fair trials and justice.
• Courts must apply procedural laws in a way that enhances access to justice.

6.2 Challenges in the Application of the CPC

• Delays in Civil Litigation:
  • The procedural complexity of the CPC often leads to delays in civil cases.
• High Cost of Litigation:
  • Legal procedures require substantial resources, making justice inaccessible to low-income litigants.

6.3 Reforms to Improve Efficiency

• Judicial Case Management: Courts are encouraged to streamline proceedings to reduce delays.
• Alternative Dispute Resolution (ADR):
  • Mediation and arbitration can help resolve disputes outside traditional litigation.

7. Execution of Civil Court Judgments

7.1 Once a court passes a judgment, its enforcement is crucial.

• Decree Execution (Order 21 CPC): Specifies how judgments are implemented.
• Types of Execution:
  • Attachment of Property (seizing assets of the losing party).
  • Sale of Property (auctioning assets to pay the winning party).
  • Arrest and Detention (in cases of non-compliance).

7.2 Challenges in Decree Execution

• Deliberate Non-Compliance: Some litigants try to delay enforcement.
• Overburdened Courts: Execution proceedings take time, causing further delays.

8. CPC and the Constitution of Pakistan

8.1 Constitutional Backing of Civil Procedure

• The CPC derives legitimacy from the Constitution of Pakistan, ensuring that civil disputes are resolved fairly.

8.2 Fundamental Rights and the CPC

• Article 10A – Right to a Fair Trial: Guarantees that civil litigation follows fair procedures.
• Article 37(d) – Expeditious Justice: Emphasizes the need for quick and effective legal remedies.

Conclusion

The CPC plays a crucial role in the administration of civil justice by outlining the procedures for legal proceedings. It provides a systematic framework for courts, ensuring fair, timely, and just outcomes. However, procedural complexities can sometimes lead to delays and inefficiencies, which necessitate continuous judicial reforms and modernization of civil procedures.

CHAPTER 4 – PARTIES TO A SUIT

1. Introduction to Parties in Civil Litigation

1.1 Every civil suit involves at least two parties:

• Plaintiff: The person who initiates the lawsuit.
• Defendant: The person against whom the lawsuit is filed.

1.2 In some cases, there may be multiple plaintiffs or defendants, depending on the nature of the dispute. Additionally, third parties may be added or substituted based on legal necessity or procedural requirements.

1.3 The Code of Civil Procedure (CPC) lays out specific rules for determining who can be a party to a lawsuit and under what conditions parties can be added, removed, or substituted.

2. Who Can Be a Party to a Civil Suit?

2.1 General Rule: Any person who has a legal right or interest in the subject matter of a lawsuit can be made a party.

2.2 Categories of Parties:

• Necessary Parties: Those without whom no effective decree can be passed.
• Proper Parties: Those whose presence is helpful but not essential for a valid judgment.

2.3 Example:

• In a property dispute, the co-owners of a disputed land are necessary parties.
• A tenant occupying a small part of the property may be a proper party.

3. Joinder of Parties (Order 1, CPC)

3.1 Joinder of Plaintiffs (Order 1, Rule 1 CPC)

• Multiple persons may join as plaintiffs if:
  • They share a common interest in the case.
  • Their legal rights arise from the same transaction.

3.2 Joinder of Defendants (Order 1, Rule 3 CPC)

• More than one person may be named as defendants if:
  • The cause of action is common to all defendants.
  • The relief sought involves multiple parties.

3.3 Illustration:

• If three people jointly own a shop and a tenant fails to pay rent, all three owners can sue together.
• If a contract breach affects multiple persons, they can join together as plaintiffs or defendants.

4. Misjoinder and Nonjoinder of Parties

4.1 Misjoinder of Parties

• Occurs when unrelated parties are wrongly included in the same suit.
• Example: Two separate property disputes between different plaintiffs should not be combined in one suit.

4.2 Nonjoinder of Necessary Parties

• Happens when a necessary party is omitted from the case.
• The court may order the missing party to be added to avoid an incomplete decree.

4.3 Legal Effect

• Misjoinder does not always invalidate a suit, but the court may order separation of claims.
• Nonjoinder of a necessary party may lead to the case being dismissed or postponed until the missing party is added.

5. Addition, Substitution, and Removal of Parties

5.1 Addition of Parties (Order 1, Rule 10 CPC)

• A party may be added to a suit if:
  • Their legal rights are directly affected.
  • The case cannot be effectively decided without them.
• Example: If a new property owner inherits disputed land during an ongoing lawsuit, they can be added as a party.

5.2 Substitution of Parties

• If a party dies or transfers their legal interest, they may be substituted by their legal representative.
• Example: If a plaintiff dies, their legal heirs may continue the case.

5.3 Removal of Parties

• If a party was wrongly included, the court may remove them from the suit.

6. Representative Suits (Order 1, Rule 8 CPC)

6.1 Definition

• A representative suit allows one or more persons to file a lawsuit on behalf of a larger group with a common interest.

6.2 Conditions for Representative Suits:

• The case must involve a common legal issue affecting multiple people.
• The court must grant permission for a representative suit.
• Public notice must be given so all affected individuals are aware of the case.

6.3 Example Cases:

• Consumer Protection Cases: A group of customers sues a company for faulty products.
• Environmental Cases: Residents sue an industry for pollution affecting their community.

7. Suits by or Against Minors and Persons of Unsound Mind

7.1 Legal Representation (Order 32 CPC)

• Minors or individuals unable to represent themselves must be represented by a guardian or next friend appointed by the court.

7.2 Key Rules:

• A minor cannot file or defend a lawsuit without a legal representative.
• Any compromise or settlement involving a minor requires court approval.
• The guardian must act in the minor’s best interest.

7.3 Example:

• If a child inherits property and a dispute arises, their parent or guardian will represent them in court.

8. Suits by or Against Corporations and Associations

8.1 Legal Personality of Corporations

• A company, trust, or registered association can file or defend a lawsuit in its official name.

8.2 Key Rules (Order 29 CPC):

• A company is represented by its director, secretary, or authorized officer.
• Legal notices to a company must be sent to its registered address.

8.3 Example:

• A customer sues XYZ Pvt. Ltd. for breach of contract. The company’s managing director represents it in court.

9. Legal Representatives in Case of Death (Order 22 CPC)

9.1 When a Party Dies During a Suit

• The legal representatives of the deceased can continue the case.
• The case does not automatically end unless the cause of action is personal (e.g., defamation suits).

9.2 Procedure for Substitution:

• The legal heirs must apply for substitution within 90 days of the party’s death.
• If no substitution is made, the case may be dismissed.

10. Government and Public Officers as Parties

10.1 Suits Against the Government (Order 27 CPC)

• Special rules apply when suing the federal or provincial government.
• A legal notice must be served in advance (under Section 80 CPC).

10.2 Suits by or Against Public Officers

• If a government official is sued for actions taken in an official capacity, the government may defend the case on their behalf.

10.3 Example:

• A lawsuit against a government hospital for medical negligence must follow Order 27 CPC procedures.

11. Interpleader Suits (Order 35 CPC)

11.1 Definition

• An interpleader suit is filed when two or more parties claim the same property or money, and a neutral party wants the court to decide who is entitled to it.

11.2 Example:

• A bank holds a fixed deposit, and two individuals claim ownership. The bank files an interpleader suit asking the court to decide the rightful owner.

Conclusion

The CPC provides clear guidelines on who can be a party in civil litigation. Proper inclusion, substitution, and removal of parties ensure that lawsuits are fair and effective. Understanding who qualifies as a party is crucial for ensuring justice and preventing procedural delays or dismissals.

CHAPTER 5 – PLEADINGS

1. Introduction to Pleadings

1.1 Pleadings form the foundation of a lawsuit, as they outline the claims, defenses, and key issues in a case. They serve as the formal written statements submitted by both parties, ensuring that the court and opposing party understand the facts and legal positions of each side.

1.2 Pleadings in civil litigation include:

• Plaint (filed by the plaintiff)
• Written Statement (submitted by the defendant)

1.3 The purpose of pleadings is to:

• Clearly define the points of dispute between the parties.
• Prevent surprise arguments during the trial.
• Ensure that each party knows the claims and defenses of the other.

2. Essential Requirements of Pleadings (Order 6, CPC)

2.1 Pleadings must contain only material facts

• The parties must include all necessary facts but avoid unnecessary details.
• Example: In a property dispute, a plaintiff should state ownership history, possession status, and encroachments instead of irrelevant personal details.

2.2 Pleadings must be concise and specific

• Legal arguments or evidence should not be included at this stage.
• The focus should be on stating facts clearly.

2.3 Consistency in pleadings

• The claims made in a plaint must be consistent throughout the case.
• If a plaintiff claims Rs. 1 million in damages in the plaint, they cannot later demand Rs. 2 million without amendment.

2.4 Pleadings must not include legal conclusions

• The court will determine the legal effect of facts, so parties must avoid making legal conclusions.
• Incorrect example: “The defendant has committed fraud under Section 420 of the Penal Code.”
• Correct example: “The defendant misrepresented facts and caused financial loss.”

3. The Plaint (Order 7, CPC)

3.1 Definition

• A plaint is the document through which a plaintiff initiates a lawsuit.
• It sets out the facts of the case, legal rights, and relief sought.

3.2 Essential Components of a Plaint

• Name of the Court where the case is filed.
• Names and addresses of the parties.
• Statement of material facts.
• Legal grounds (cause of action).
• Relief claimed (e.g., damages, injunctions, specific performance).

3.3 Rejection of Plaint (Order 7, Rule 11 CPC)
A plaint may be rejected by the court if:

• It does not disclose a cause of action.
• It is barred by law (e.g., time-barred claims).
• The plaintiff fails to pay court fees.

4. The Written Statement (Order 8, CPC)

4.1 Definition

• A written statement is the defendant’s response to the plaint.
• It admits or denies the facts stated by the plaintiff and presents the defendant’s defense.

4.2 Essentials of a Written Statement

• Point-wise reply to the allegations in the plaint.
• Statement of defense (including any legal defenses).
• Counterclaims, if applicable.

4.3 Failure to Submit a Written Statement

• If a defendant fails to submit a written statement, the court may proceed ex parte and decide the case based on the plaintiff’s evidence.

5. Counterclaims and Set-Offs (Order 8, Rule 6 CPC)

5.1 Counterclaims

• A counterclaim is a claim made by the defendant against the plaintiff within the same suit.
• Example: If the plaintiff sues for breach of contract, the defendant may file a counterclaim for non-payment of dues.

5.2 Set-Off

• A set-off allows a defendant to adjust a mutual debt against the plaintiff’s claim.
• Example: If the plaintiff sues for Rs. 500,000, but owes the defendant Rs. 200,000, the defendant can claim a set-off for that amount.

6. Amendment of Pleadings (Order 6, Rule 17 CPC)

6.1 Need for Amendment

• Sometimes, new facts arise, or errors need correction in pleadings.
• The CPC allows parties to amend their pleadings with court permission.

6.2 Grounds for Amendment

• To correct clerical errors.
• To include new facts discovered later.
• To clarify vague or ambiguous statements.

6.3 Limitations on Amendments

• Amendments should not change the nature of the suit.
• A party cannot introduce a new claim that is time-barred.

7. Striking Out and Rejection of Pleadings (Order 6, Rule 16 CPC)

7.1 When can pleadings be struck out?

• The court may strike out any part of pleadings that are:
  • Scandalous or irrelevant.
  • Frivolous or vexatious (intended to harass the other party).
  • Abuse of court process.

7.2 Rejection of Pleadings

• If pleadings do not comply with legal requirements, they may be rejected by the court.

8. Role of Pleadings in Civil Litigation

8.1 Pleadings help define the scope of a case

• Courts rely on pleadings to frame issues and conduct trials.

8.2 Avoiding surprises in litigation

• Clear pleadings ensure that both parties know the exact case they must answer.

8.3 Facilitating speedy justice

• Well-drafted pleadings help in resolving cases efficiently.

Conclusion

Pleadings are the foundation of civil suits, ensuring that disputes are properly framed and decided fairly. The CPC provides clear rules for drafting, amending, and striking out pleadings, ensuring that courts focus on material facts and deliver justice efficiently.

CHAPTER 6 – INSTITUTION OF SUITS

1. Introduction to the Institution of Suits

1.1 A civil suit begins when a party (the plaintiff) formally approaches a court of law to seek redress for a grievance or violation of a legal right. The Code of Civil Procedure (CPC) provides a structured process to ensure that cases are initiated, processed, and decided efficiently.

1.2 Key principles governing the institution of suits include:

• Proper jurisdiction (territorial, pecuniary, and subject-matter jurisdiction).
• Proper parties (plaintiff and defendant).
• Proper cause of action (a legally recognized reason to sue).
• Compliance with procedural requirements (court fees, documents, and legal notices).

2. Filing of a Suit (Order 4, CPC)

2.1 Definition

• A civil suit officially commences when the plaintiff submits a plaint to the appropriate court.
• The plaint must be filed in duplicate, with court fees paid as prescribed by law.

2.2 Requirements for a Valid Suit (Section 26, CPC)
A suit is considered properly instituted when:

1. A plaint is submitted in the appropriate court.
2. The plaint clearly states the cause of action.
3. The plaintiff has paid the required court fees.
4. The court issues a summons to the defendant.

2.3 Essential Documents for Filing a Suit

• Plaint (written statement of claim).
• Affidavit verifying the plaint.
• Documents supporting the claim (e.g., contracts, title deeds, invoices).
• Power of attorney (if a representative is filing on behalf of the plaintiff).

3. Cause of Action (Fundamental Requirement for Filing a Suit)

3.1 Definition

• A cause of action refers to the legal grounds upon which the plaintiff’s claim is based.
• It must be specific and actionable under the law.

3.2 Importance of Cause of Action

• The entire suit depends on whether the cause of action is valid and justiciable.
• If the cause of action is unclear or weak, the suit may be dismissed at an early stage.

3.3 Example Cases:

• If a landlord sues a tenant for non-payment of rent, the cause of action arises when the rent is overdue.
• If a party sues for breach of contract, the cause of action arises when the contract is violated.

4. Presentation of Plaint (Order 7, Rule 1 CPC)

4.1 A plaint is the formal document that initiates a civil suit.

• It must be drafted clearly and concisely.
• It should include all material facts necessary to establish the claim.

4.2 Contents of a Plaint
A plaint must contain:

• Name of the court where the suit is being filed.
• Names and addresses of the plaintiff and defendant.
• Statement of facts (cause of action, date, and location of the dispute).
• Relief sought by the plaintiff (monetary compensation, injunction, etc.).

5. Rejection of a Plaint (Order 7, Rule 11 CPC)

5.1 Grounds for Rejection of a Plaint
The court may reject a plaint in the following cases:

• No cause of action is disclosed.
• The suit is barred by law (e.g., limitation laws).
• The plaintiff fails to pay the required court fees.
• The plaint is not properly drafted or lacks essential information.

5.2 Legal Consequences of Rejection

• If a plaint is rejected, the plaintiff may file a fresh suit after correcting the issues.
• The rejection of a plaint does not prevent the plaintiff from refiling the suit if properly drafted.

6. Issuance of Summons to the Defendant (Order 5, CPC)

6.1 Definition and Purpose

• A summons is a legal notice issued by the court to inform the defendant about the lawsuit.
• It instructs the defendant to appear in court and submit a written statement in response.

6.2 Modes of Service of Summons (Order 5, Rule 9 CPC)

• Personal delivery (court official serves the summons directly to the defendant).
• Registered post or courier service.
• Publication in newspapers (if the defendant is untraceable).

6.3 Legal Consequences of Non-Appearance

• If the defendant fails to appear, the court may proceed ex parte (without their participation).
• The plaintiff may be granted relief based on available evidence.

7. Written Statement by the Defendant (Order 8, CPC)

7.1 Purpose of a Written Statement

• A written statement is the defendant’s reply to the plaintiff’s allegations.
• It must be submitted within 30 days of receiving the summons.

7.2 Essential Elements of a Written Statement

• Admitting or denying the claims made in the plaint.
• Stating legal defenses.
• Raising objections (if any).
• Including counterclaims, if applicable.

8. Additional Pleadings and Proceedings

8.1 Replication by the Plaintiff

• If necessary, the plaintiff may file a replication to counter the defendant’s arguments.

8.2 Filing of Interim Applications

• Parties may file applications for temporary injunctions, stay orders, or appointment of receivers.

8.3 Framing of Issues

• The court identifies the key legal and factual issues that need to be determined during the trial.

9. Withdrawal of Suits (Order 23, CPC)

9.1 Right to Withdraw a Suit

• A plaintiff may withdraw a suit at any stage before the final judgment.

9.2 Effects of Withdrawal

• If a suit is withdrawn without permission to refile, it cannot be refiled on the same grounds.
• If the court allows withdrawal with permission, the plaintiff may file a fresh suit later.

10. Appeals and Revisions After Institution of Suit

10.1 Appeals Against Rejection of Plaint

• If a plaint is rejected, the plaintiff may file an appeal in a higher court.

10.2 Revisions Against Procedural Errors

• If the trial court makes an error in procedural matters, the aggrieved party may file a revision petition.

11. Importance of Proper Institution of Suits

11.1 A suit must be properly instituted to:

• Ensure timely justice.
• Prevent procedural delays.
• Protect legal rights of parties.

11.2 Courts may dismiss improperly filed suits, so compliance with CPC requirements is crucial.

Conclusion

The institution of a suit is the first and most crucial step in civil litigation. The CPC provides a structured mechanism for filing cases, issuing summons, and allowing defendants to respond. Proper compliance with procedural rules ensures that cases proceed efficiently and that the rights of all parties are protected.

CHAPTER 7 – PLACE OF SUING

1. Introduction to the Place of Suing

1.1 Determining the correct place of suing is a fundamental requirement in civil litigation. The Code of Civil Procedure (CPC) lays down clear guidelines on the appropriate court and location where a suit must be instituted to ensure fairness, convenience, and efficiency in legal proceedings.

1.2 The place of suing is determined based on:

• Territorial jurisdiction (where the cause of action arose or where the defendant resides).
• Pecuniary jurisdiction (the monetary value of the claim).
• Subject-matter jurisdiction (specific courts designated for particular types of cases).

2. Territorial Jurisdiction (Sections 16–20, CPC)

2.1 Definition

• Territorial jurisdiction refers to the geographic area within which a court has the authority to hear and decide a case.

2.2 General Rule (Section 20 CPC)

• A civil suit must be filed in a court within the jurisdiction where:
  • The defendant resides or conducts business.
  • The cause of action arose (where the dispute occurred).

2.3 Example:

• If a contract is breached in Lahore, the plaintiff can file a suit in Lahore even if the defendant lives in Karachi.
• If a property dispute arises in Islamabad, the case must be filed in Islamabad courts.

3. Place of Suing for Immovable Property (Section 16 CPC)

3.1 General Principle

• Suits related to immovable property (such as land disputes, mortgage cases, or partition suits) must be filed in the court that has jurisdiction over the property’s location.

3.2 Cases Covered Under Section 16 CPC:

• Recovery of immovable property.
• Partition of immovable property.
• Foreclosure or redemption of a mortgage.
• Determination of property rights or claims.

3.3 Exception to Section 16 (Proviso Clause)

• If multiple properties in different jurisdictions are involved in one suit, the plaintiff may file the case in any one of the jurisdictions where part of the property is located.

4. Place of Suing for Movable Property and Compensation Claims (Section 19 CPC)

4.1 Suits Relating to Movable Property

• If a dispute involves movable property (e.g., vehicles, machinery, or goods), the suit may be filed where:
  • The defendant resides.
  • The property is currently located.

4.2 Compensation Claims for Wrongful Acts

• If a claim is made for compensation due to a wrongful act (e.g., defamation, negligence, or fraud), the plaintiff can file the suit in the court where:
  • The wrongful act occurred.
  • The defendant resides or conducts business.

4.3 Example:

• If a journalist publishes defamatory content in Karachi, but the affected party lives in Lahore, the suit can be filed in either Karachi or Lahore.

5. Place of Suing When There Are Multiple Defendants (Section 20 CPC)

5.1 General Rule

• When multiple defendants are involved, a suit may be filed in a court where:
  • Any one of the defendants resides or conducts business, if they are all involved in the same cause of action.

5.2 Example:

• If three business partners, living in Islamabad, Peshawar, and Lahore, jointly breach a contract, the plaintiff can file the suit in any of these cities.

5.3 Exception to Multiple Defendant Rule

• If the court determines that suing in a particular jurisdiction is unreasonable or inconvenient, it may transfer the case to a more suitable court.

6. Special Jurisdiction Rules for Government and Corporations

6.1 Suits Against the Government (Section 80 CPC)

• A lawsuit against a government department must be filed in the jurisdiction where the government office concerned is located.
• A legal notice must be served to the government office before filing the suit.

6.2 Suits Against Companies and Corporations

• If a business is sued, the case must be filed in a court where the company has its registered office or where its main operations are conducted.

6.3 Example:

• If a bank headquartered in Karachi has a dispute with a customer in Multan, the case can be filed in either Karachi or Multan, depending on the nature of the dispute.

7. Transfer of Suits (Section 22–25 CPC)

7.1 Right to Request Transfer of Suit

• If a case is filed in a court that is inconvenient or unfair to one party, the suit may be transferred to a more appropriate court.

7.2 Who Can Request Transfer?

• A party can apply to:
  • The High Court to transfer a case from one subordinate court to another.
  • The Supreme Court to transfer a case between courts in different provinces.

7.3 Grounds for Transfer of Suit

• Bias or conflict of interest in the original court.
• Convenience of the parties (e.g., a plaintiff with disabilities may request a transfer to a closer court).
• Expediency of justice (to avoid unnecessary delays).

8. Place of Suing in Cross-Border Cases

8.1 Jurisdiction for International Disputes

• If a contract or agreement involves parties from different countries, the suit may be filed in:
  • The country where the contract was signed.
  • The country where the business was conducted.
  • The jurisdiction specified in the contract’s dispute resolution clause.

8.2 Example:

• If a Pakistani company enters into an agreement with an Indian supplier, and the contract specifies that disputes will be settled in Dubai, then the suit must be filed in Dubai’s courts.

9. Importance of Choosing the Right Jurisdiction

9.1 Filing a case in the correct jurisdiction is crucial because:

• It ensures fair access to justice.
• It prevents delays and unnecessary legal costs.
• It avoids dismissal of suits due to improper jurisdiction.

9.2 Legal Consequences of Filing in the Wrong Jurisdiction

• If a suit is filed in the wrong court, the case may be dismissed or transferred, causing delays and additional expenses for the parties.

Conclusion

The place of suing plays a crucial role in civil litigation. The CPC provides clear rules for determining the appropriate territorial, pecuniary, and subject-matter jurisdiction. Filing a case in the correct jurisdiction ensures efficient legal proceedings and access to justice.

CHAPTER 8 – THE DOCTRINE OF RES SUB JUDICE AND RES JUDICATA

1. Introduction

1.1 The doctrines of Res Sub Judice and Res Judicata are legal principles that ensure judicial efficiency and prevent repetitive litigation.

1.2 Res Sub Judice (Section 10, CPC) prevents multiple lawsuits on the same issue from proceeding in different courts simultaneously.

1.3 Res Judicata (Section 11, CPC) bars re-litigation of issues that have already been decided by a competent court.

1.4 These doctrines promote:

• Judicial efficiency by preventing courts from handling repetitive cases.
• Finality of judgments, ensuring that litigation does not continue indefinitely.
• Protection against harassment, preventing parties from being sued repeatedly for the same matter.

2. Res Sub Judice (Section 10, CPC) – Stay of Suit

2.1 Meaning and Purpose

• Res Sub Judice (Latin: “under judicial consideration”) means that if a suit is already pending before a court, a second suit on the same issue cannot proceed.
• This prevents conflicting judgments and ensures that multiple courts do not handle the same dispute.

2.2 Essential Conditions for Res Sub Judice

A suit is barred under Section 10, CPC if:

1. Two or more suits exist between the same parties.
2. The matter in issue is identical in both suits.
3. The earlier suit is pending before a competent court.
4. The second suit is before a court of concurrent jurisdiction.

2.3 Legal Effect of Res Sub Judice

• The second suit does not get dismissed, but it is stayed (put on hold) until the earlier suit is decided.

2.4 Example

• A files a suit against B in a Lahore court regarding ownership of land.
• B later files a suit in a Karachi court regarding the same land.
• The Karachi court must stay the proceedings under Section 10, CPC.

3. Res Judicata (Section 11, CPC) – Finality of Judgment

3.1 Meaning and Purpose

• Res Judicata (Latin: “a matter already judged”) states that once a court has decided a case, the same dispute cannot be reopened between the same parties.
• This ensures finality in litigation and prevents wastage of judicial resources.

3.2 Essential Conditions for Res Judicata

A case is barred under Section 11, CPC if:

1. The issue in both cases is identical.
2. The same parties (or their legal representatives) are involved.
3. The first case was decided by a competent court.
4. The earlier judgment was final and binding.
5. The matter was directly in issue and was decided on merits.

3.3 Example of Res Judicata

• A sues B for breach of contract, and the court rules in favor of B.
• A cannot file another suit against B for the same breach of contract.
• The first case’s judgment is final and binding under Res Judicata.

4. Differences Between Res Sub Judice and Res Judicata

Feature	Res Sub Judice (Section 10, CPC)	Res Judicata (Section 11, CPC)
Meaning	Prevents multiple suits on the same issue while one is pending.	Prevents re-litigation of a matter already decided.
Time of Application	Applies when a case is pending in court.	Applies after a case has been decided.
Legal Effect	The second suit is stayed until the first case is resolved.	The second suit is dismissed outright.
Objective	Prevents simultaneous litigation of the same dispute.	Ensures finality of judgments and avoids re-litigation.

5. Exceptions to Res Judicata

5.1 Res Judicata does not apply in the following cases:

• Appeals and Reviews: A party may challenge the judgment in a higher court.
• Fraud or Collusion: If the earlier judgment was obtained through fraud, Res Judicata does not apply.
• New Evidence: If significant new evidence arises that was not available earlier, a fresh suit may be allowed.
• Jurisdictional Error: If the first court lacked jurisdiction, the judgment does not bar future litigation.

5.2 Example:

• If a party wins a case based on false documents, the other party can file a fresh case to challenge the fraud.

6. Constructive Res Judicata

6.1 Meaning and Application

• Constructive Res Judicata prevents a party from raising claims that could have been included in the earlier case but were not.
• A party must bring all related claims together in one suit, rather than filing multiple cases for the same dispute.

6.2 Example:

• A sues B for non-payment of rent but does not mention damage to the property.
• Later, A tries to file a separate suit for property damage.
• The second suit will be barred under Constructive Res Judicata because both issues could have been raised in the first suit.

7. Public Interest Litigation (PIL) and Res Judicata

7.1 Does Res Judicata Apply to PIL?

• Public Interest Litigation (PIL) cases involve matters of public concern, such as environmental issues or human rights violations.
• The principle of Res Judicata does not apply strictly to PIL cases because new issues may arise affecting public welfare.

7.2 Example:

• A PIL case challenging pollution by a factory does not bar future cases if the pollution worsens or new violations occur.

8. Importance of Res Sub Judice and Res Judicata

8.1 Benefits of Res Sub Judice

• Prevents simultaneous litigation.
• Avoids conflicting judgments from different courts.

8.2 Benefits of Res Judicata

• Ensures finality of cases.
• Protects parties from harassment through repeated lawsuits.
• Saves judicial time and resources.

8.3 Judicial Observations on Res Judicata

• In Daryao v. State of U.P., the Indian Supreme Court held that:

“A decision by a competent court must be treated as final and binding to prevent unnecessary litigation.”

Conclusion

The doctrines of Res Sub Judice (Section 10, CPC) and Res Judicata (Section 11, CPC) are fundamental to judicial efficiency and legal certainty. Res Sub Judice prevents multiple ongoing suits, while Res Judicata ensures finality of judgments. These principles reduce legal harassment, save court time, and promote consistency in judicial decisions.

CHAPTER 9 – FOREIGN JUDGMENTS

1. Introduction to Foreign Judgments

1.1 A foreign judgment refers to a decision given by a court outside Pakistan in a case involving civil matters.

1.2 Recognition and enforcement of foreign judgments are crucial for international trade, dispute resolution, and the protection of rights across different legal jurisdictions.

1.3 The Code of Civil Procedure (CPC), 1908, under Section 13 and Section 14, establishes rules for:

• When a foreign judgment is recognized in Pakistan.
• When a foreign judgment can be enforced in Pakistani courts.
• The conditions under which a foreign judgment may be challenged.

2. Recognition of Foreign Judgments (Section 13, CPC)

2.1 General Rule

• Section 13 of the CPC states that a foreign judgment is conclusive and binding in Pakistan unless it falls under certain exceptions.
• It means that if a competent foreign court decides a civil matter, the judgment will generally be accepted as final and binding in Pakistan.

2.2 Conditions for Recognition
A foreign judgment will be recognized in Pakistan if:

1. It was delivered by a competent court.
2. It was decided on the merits of the case.
3. It was based on correct legal principles.
4. The judgment does not violate public policy in Pakistan.

2.3 Example:

• A UK court grants a monetary decree against a Pakistani company.
• If the UK court had jurisdiction over the case, the judgment can be recognized in Pakistan.

3. Exceptions to Recognition of Foreign Judgments (Section 13 CPC)

A foreign judgment will not be recognized in Pakistan if:

3.1 Lack of Competent Jurisdiction (Section 13(a))

• If the foreign court had no legal authority over the parties or the subject matter, its judgment will not be valid in Pakistan.
• Example:
  • A court in France gives a ruling against a Pakistani company that never conducted business in France.
  • The judgment is not binding in Pakistan because the French court lacked jurisdiction over the Pakistani company.

3.2 Judgment Not on Merits (Section 13(b))

• If the foreign court dismissed a case without hearing evidence or deciding the dispute on substantive legal grounds, it cannot be enforced in Pakistan.
• Example:
  • A US court dismisses a contract dispute for procedural technicalities without examining the actual claims.
  • This judgment will not be valid in Pakistan.

3.3 Judgment Against Pakistani Law (Section 13(c))

• A foreign judgment will not be recognized if it is based on a law that is contrary to the laws of Pakistan.
• Example:
  • A foreign court allows interest rates beyond the limits prescribed in Pakistan’s banking laws.
  • Such a judgment cannot be enforced in Pakistan.

3.4 Judgment Obtained by Fraud (Section 13(d))

• If the judgment was obtained through misrepresentation or fraud, it will not be enforceable.
• Example:
  • A party hides critical evidence from the foreign court to get a favorable ruling.
  • The Pakistani courts can refuse to recognize the judgment.

3.5 Violation of Natural Justice (Section 13(e))

• If the defendant was not given a fair chance to present their case, the judgment will not be valid.
• Example:
  • A Canadian court gives a decision without informing the Pakistani defendant about the case.
  • This judgment violates natural justice and cannot be enforced in Pakistan.

3.6 Judgment Contrary to Public Policy (Section 13(f))

• If a foreign judgment violates fundamental laws or public policy in Pakistan, it will be rejected.
• Example:
  • A foreign court grants a divorce decree that conflicts with Islamic law.
  • The judgment may not be valid in Pakistan.

4. Presumption of Correctness of Foreign Judgments (Section 14 CPC)

4.1 Burden of Proof

• Section 14 CPC states that courts in Pakistan will presume a foreign judgment to be correct, unless proven otherwise.
• However, if the defendant challenges the judgment, they must prove that it falls under one of the exceptions in Section 13.

4.2 Example:

• A UAE court gives a decree against a Pakistani businessman.
• If the businessman claims the UAE court lacked jurisdiction, he must provide evidence to support this argument.

5. Enforcement of Foreign Judgments (Section 44-A, CPC)

5.1 Procedure for Enforcement

• A foreign judgment from a recognized country can be enforced in Pakistan through execution proceedings.
• The party seeking enforcement must file an application in a Pakistani court along with:
  • A certified copy of the foreign judgment.
  • Proof that the judgment falls within CPC rules.

5.2 Reciprocity Rule

• Section 44-A CPC allows enforcement of foreign judgments from reciprocating territories (countries that also recognize Pakistani court decisions).
• Example:
  • If the UK recognizes Pakistani judgments, then UK judgments can be enforced in Pakistan under Section 44-A.

5.3 Non-Reciprocal Countries

• If a foreign judgment comes from a non-reciprocating country, the claimant must file a fresh suit in Pakistan, using the foreign judgment as evidence.

6. Distinction Between Recognition and Enforcement

Aspect	Recognition	Enforcement
Definition	Accepting the judgment as valid	Implementing the judgment in Pakistan
Legal Effect	Acknowledges that the foreign decision is binding	The court takes legal steps to execute the judgment
Applicable Sections	Section 13 & 14 CPC	Section 44-A CPC
Example	A UK court rules on a contract dispute	A Pakistani court enforces the monetary award

7. Defenses Against Enforcement of a Foreign Judgment

A defendant can challenge enforcement by proving:

1. The judgment was given by a court without jurisdiction.
2. The judgment is against Pakistani law or public policy.
3. The judgment was obtained through fraud or unfair means.
4. The defendant was denied a fair trial in the foreign court.

8. Importance of Recognizing Foreign Judgments

8.1 Facilitating International Trade

• Enforcing foreign judgments ensures smooth commercial transactions between countries.

8.2 Preventing Re-Litigation

• Once a case is decided abroad, parties should not litigate the same issue again in Pakistan.

8.3 Promoting Global Legal Cooperation

• Mutual recognition of judgments strengthens judicial cooperation between nations.

Conclusion

The CPC provides clear guidelines on the recognition and enforcement of foreign judgments in Pakistan. Section 13 CPC outlines when foreign judgments are binding, while Section 44-A CPC governs their execution. However, Pakistani courts will reject judgments that violate public policy, natural justice, or jurisdictional limits. This legal framework ensures international legal cooperation while protecting national legal sovereignty.

CHAPTER 10 – PLACE OF TRIAL

1. Introduction to Place of Trial

1.1 The place of trial in civil cases refers to the specific court where the hearing and proceedings of a suit take place. The Code of Civil Procedure (CPC), 1908, provides clear guidelines for determining which court has the authority to conduct a trial.

1.2 The main factors that determine the place of trial include:

• Territorial jurisdiction (where the cause of action arose).
• Pecuniary jurisdiction (based on the monetary value of the claim).
• Subject-matter jurisdiction (which court has competence over the case type).

1.3 The correct place of trial is crucial because:

• It ensures fair access to justice for all parties.
• It prevents unnecessary delays and legal complications.
• It avoids forum shopping, where litigants try to file cases in favorable courts.

2. Territorial Jurisdiction and Place of Trial

2.1 General Rule for Territorial Jurisdiction

• Section 20 of the CPC provides that a suit must be filed in a court where:
  • The defendant resides, carries on business, or personally works for gain.
  • The cause of action (dispute) arose, either wholly or partially.

2.2 Suits Relating to Immovable Property (Section 16 CPC)

• Cases involving land, houses, or buildings must be tried in the court having jurisdiction over the property’s location.
• Example:
  • A dispute over land in Lahore must be filed in the Lahore Civil Court, even if the parties live elsewhere.

2.3 Suits Relating to Movable Property (Section 19 CPC)

• Cases concerning movable assets (such as vehicles, machinery, or goods) can be tried:
  • In the court where the defendant resides.
  • In the court where the property is located.

2.4 Suits for Breach of Contract (Section 20 CPC)

• A suit related to contract disputes can be tried:
  • Where the contract was made.
  • Where the contract was supposed to be performed.
  • Where the defendant resides or conducts business.
• Example:
  • A contract signed in Islamabad, but performed in Karachi, can be tried in either city.

3. Change of Place of Trial (Transfer of Cases) (Sections 22-25 CPC)

3.1 Right to Request Transfer of Case

• A party may request a case transfer if the place of trial is unfair or inconvenient.

3.2 Grounds for Transfer of Suit (Section 22 CPC)

• The defendant may apply for a change of court if:
  • The case was filed in a court that does not have proper jurisdiction.
  • The case should have been filed in a more appropriate court.

3.3 Transfer by the High Court (Section 24 CPC)

• The High Court has the authority to:
  • Transfer a case from one subordinate court to another.
  • Transfer a case from one district to another.

3.4 Transfer by the Supreme Court (Section 25 CPC)

• The Supreme Court may transfer cases between different provinces if it is necessary for:
  • Justice and convenience of the parties.
  • Avoiding bias or undue influence in the lower courts.

3.5 Example:

• If a case is filed in Quetta but the defendant resides in Peshawar, the Supreme Court may transfer the case to a neutral location if justice demands it.

4. Special Considerations for Place of Trial

4.1 Cases Involving Multiple Defendants

• If a case involves multiple defendants living in different cities, it can be filed in a court where any one of the defendants resides.

4.2 Government Cases

• Suits against government departments must be filed where the concerned government office is located.

4.3 Commercial Disputes and Arbitration

• If a contract specifies a particular place of trial, parties are generally bound to that location unless the court decides otherwise.

5. Importance of Determining the Correct Place of Trial

5.1 Ensuring Fairness

• Filing a case in the correct court ensures that both parties have equal access to legal proceedings.

5.2 Avoiding Delays

• Incorrect filing leads to case transfers, causing delays and additional expenses.

5.3 Preventing Forum Shopping

• Choosing a court based on fairness rather than convenience prevents parties from manipulating the legal process.

Conclusion

The CPC provides clear rules on the place of trial to ensure that cases are tried in appropriate courts. Sections 16–25 CPC govern territorial jurisdiction, and Sections 22–25 CPC allow for transfers in exceptional circumstances. Following these rules ensures justice is served efficiently and fairly.

CHAPTER 11 – THE DOCTRINE OF LIS PENDENS

1. Introduction to Lis Pendens

1.1 Lis Pendens is a Latin term meaning “a pending lawsuit.” This doctrine prevents one party from transferring or selling property that is subject to litigation while the case is still ongoing.

1.2 The doctrine is based on the principle that when a dispute over a property is pending before a court, any changes to ownership during the trial should not affect the court’s ability to deliver justice.

1.3 Legal Basis in Pakistan

• Section 52 of the Transfer of Property Act, 1882, incorporates the Doctrine of Lis Pendens, stating:

“During the pendency of any suit in which rights to immovable property are directly in question, such property cannot be transferred or otherwise dealt with by any party so as to affect the rights of the other parties under any decree that may be passed in the suit.”

1.4 Purpose of the Doctrine

• Prevents fraudulent transfers to defeat the outcome of a case.
• Maintains the status quo of the disputed property.
• Protects the interests of both parties involved in the litigation.

2. Essential Conditions for Lis Pendens

For Lis Pendens to apply, the following conditions must be met:

2.1 A Suit or Proceeding Must Be Pending

• The case must be before a competent court at the time of the transfer.
• The litigation must relate to immovable property.

2.2 The Suit Must Be Relating to Rights in Immovable Property

• The case must directly affect ownership, possession, or any legal interest in the property.
• Example:
  • If A files a suit against B claiming ownership of land in Lahore, B cannot sell the land to C during the trial.

2.3 The Property Must Be Identifiable

• The property must be specifically described in the lawsuit.

2.4 The Transfer Must Take Place During the Pendency of the Suit

• If a property transfer happens before the case is filed, Lis Pendens does not apply.
• If the transfer occurs after the court has given its final judgment, Lis Pendens no longer applies.

2.5 The Transfer Must Affect the Rights of the Other Party

• The transfer must impact the outcome of the case.
• If the transfer is unrelated to the dispute, the doctrine does not apply.

3. Legal Effect of Lis Pendens

3.1 A transfer made during a pending suit does not affect the rights of the plaintiff or the final decree of the court.

3.2 The purchaser of the property (third party) is bound by the court’s decision, even if they were not originally a party to the suit.

3.3 Example:

• A files a case against B claiming ownership of a piece of land.
• While the case is ongoing, B sells the land to C.
• Later, the court rules in favor of A.
• C loses ownership rights, even though they were not part of the lawsuit.

4. Exceptions to the Doctrine of Lis Pendens

4.1 Cases Where Lis Pendens Does Not Apply

• Transfers made before the lawsuit began.
• Transfers made with court permission.
• Transfers made in good faith without knowledge of litigation (though proving lack of knowledge is difficult).

4.2 Example of an Exception

• If a person buys property in good faith, without knowing of any pending case, and the seller had not been served legal notice, the buyer may not be affected by the final decision.

5. Relation Between Lis Pendens and Fraudulent Transfers

5.1 Prevention of Fraud

• The doctrine prevents defendants from transferring property to third parties to escape legal consequences.
• Courts have the power to invalidate such fraudulent transfers.

5.2 Difference Between Lis Pendens and Fraudulent Transfers

Feature	Lis Pendens	Fraudulent Transfer
Definition	Applies when a lawsuit about immovable property is pending.	Occurs when property is transferred with the intent to deceive creditors or plaintiffs.
Effect	The new buyer is bound by the court’s decision.	The transaction itself can be declared void.
Focus	Protects judicial proceedings from interference.	Prevents dishonest practices in property transfers.

6. Judicial Interpretations of Lis Pendens

6.1 Courts have upheld Lis Pendens to prevent unjust enrichment and protect litigants.

6.2 Key Case Law:

• Muhammad Akram v. Mst. Zainab (PLD 1982 SC 117)
  • The Supreme Court held that any transfer of disputed property during litigation is subject to the final decision of the court.
• Fazal Karim v. Abdul Ghani (2001 SCMR 1493)
  • The judgment reaffirmed that buyers must check property records before purchasing land, or they risk losing it if a case is pending.

7. Practical Implications of Lis Pendens

7.1 Protection for Plaintiffs

• Ensures that property remains available for enforcement of the court’s decree.

7.2 Responsibilities of Buyers

• Purchasers should verify land records and conduct due diligence before buying property.

7.3 Impact on Real Estate Transactions

• Banks and financial institutions also check property records to avoid granting loans on disputed properties.

8. Conclusion

The Doctrine of Lis Pendens is a critical legal principle that prevents property owners from undermining court proceedings through transfers. It ensures justice and fairness in property disputes by maintaining the status quo until the final verdict is given. Any transfer made during litigation is subject to the court’s final ruling, and buyers must be cautious when purchasing disputed properties.

CHAPTER 12 – THE DOCTRINE OF ESTOPPEL

1. Introduction to the Doctrine of Estoppel

1.1 Estoppel is a legal principle that prevents a person from contradicting a previous statement, action, or representation if another party has relied on it to their detriment.

1.2 The doctrine of estoppel aims to:

• Ensure consistency in legal proceedings.
• Prevent fraud and unfair advantage.
• Protect individuals who act in reliance on a representation.

1.3 Legal Basis in Pakistan

• Section 115 of the Evidence Act, 1872, governs estoppel and states:

“When one person has, by his declaration, act, or omission, intentionally caused or permitted another to believe a thing to be true and to act upon such belief, he shall not be allowed to deny the truth of that thing in any suit or proceeding between himself and such person.”

1.4 Example of Estoppel:

• A landlord tells a tenant that they can extend their lease for another year.
• The tenant, relying on this statement, invests money in renovating the shop.
• Later, the landlord tries to evict the tenant, claiming the lease is over.
• The landlord is estopped from denying the extended lease because the tenant relied on his representation.

2. Essential Elements of Estoppel

For estoppel to apply, the following conditions must be met:

2.1 Representation or Conduct

• A person must have made a statement, acted in a certain way, or failed to act when required.
• The representation can be oral, written, or implied by conduct.

2.2 Reliance by Another Party

• The second party must have reasonably relied on the statement or action.

2.3 Change in Position Due to Reliance

• The second party must have acted in a way that changes their legal or financial status.

2.4 Unfair Harm if Estoppel is Not Applied

• If the first party is allowed to deny their previous statement, the second party would suffer legal or financial harm.

3. Types of Estoppel

The doctrine of estoppel is divided into various types, each applicable to different legal situations.

3.1 Estoppel by Record

• Prevents a party from denying facts established by a prior judgment or ruling.
• Example:
  • A court previously ruled that A owes B Rs. 500,000.
  • A cannot later argue that he does not owe B any money.

3.2 Estoppel by Conduct (Promissory Estoppel)

• Arises when a party makes a promise and another party acts on it.
• Example:
  • A company promises an employee a promotion if they complete a project.
  • The employee works extra hours to finish the project.
  • If the company fails to promote the employee, estoppel may prevent them from denying the promise.

3.3 Estoppel by Representation

• Prevents a party from denying a fact they previously stated to be true.
• Example:
  • A seller falsely tells a buyer that land is free from legal disputes.
  • The buyer purchases the land based on this assurance.
  • The seller cannot later claim that the land had a legal dispute.

3.4 Proprietary Estoppel

• Applies when a person relies on a property-related assurance and suffers a loss if the assurance is denied.
• Example:
  • A father tells his son he will inherit a family business.
  • The son rejects other job offers to manage the business.
  • If the father later denies the inheritance, the son can claim proprietary estoppel.

4. Exceptions to the Doctrine of Estoppel

Estoppel does not apply in the following cases:

4.1 When the Representation Was Illegal

• A person cannot be estopped from denying an illegal act.
• Example:
  • A company falsely tells an employee that tax evasion is legal.
  • The employee cannot later claim estoppel to justify illegal tax practices.

4.2 When Both Parties Had Equal Knowledge of Facts

• Estoppel applies only when one party was misled.
• If both parties knew the truth, estoppel cannot be claimed.

4.3 When There Was No Clear Reliance

• If a party did not act based on the representation, estoppel does not apply.

4.4 Estoppel Cannot Override Law

• Estoppel cannot be used to contradict statutory provisions.
• Example:
  • A minor signs a contract and later claims he was not legally bound due to age.
  • The doctrine of estoppel cannot force him to uphold the contract, as the law protects minors from binding agreements.

5. Estoppel in Civil and Contractual Disputes

5.1 Estoppel in Contract Law

• If a person makes a promise that another party relies on, they may be estopped from going back on their word, even if there was no formal contract.
• Example:
  • A landlord verbally agrees to reduce rent for six months.
  • The tenant pays the reduced amount.
  • Later, the landlord demands full rent for those six months.
  • Estoppel prevents the landlord from contradicting his earlier promise.

5.2 Estoppel in Civil Litigation

• If a party takes a certain position in a case, they cannot later change their position to gain an unfair advantage.
• Example:
  • A defendant admits in one case that a contract exists.
  • They cannot deny the contract’s existence in another case involving the same contract.

6. Judicial Interpretations of Estoppel

6.1 Courts in Pakistan have frequently upheld the doctrine of estoppel to ensure fairness and prevent injustice.

6.2 Key Case Law:

Muhammad Ismail v. Abdul Majid (PLD 1999 SC 1025)

• The Supreme Court ruled that if a party knowingly allows another to act in reliance on their words, they are bound by their statement.

Government of Pakistan v. Zamir Ahmed (PLD 1988 SC 53)

• The court held that estoppel does not apply when it contradicts statutory law.

7. Importance of Estoppel in Legal Proceedings

7.1 Prevents Fraud and Misrepresentation

• Estoppel ensures that people cannot take advantage of their own false statements.

7.2 Encourages Honesty and Good Faith

• It promotes trust and reliability in commercial and civil transactions.

7.3 Protects Rights of Innocent Parties

• Ensures that people who act in reliance on a promise or statement are not unfairly disadvantaged.

8. Conclusion

The Doctrine of Estoppel plays a vital role in ensuring fairness and consistency in legal matters. It prevents individuals from going back on their words or actions when others have relied on them. While it has broad applications in contract law, property disputes, and civil litigation, it cannot override statutory law or be used to justify illegal conduct.

CHAPTER 13 – THE DOCTRINE OF ELECTION

1. Introduction to the Doctrine of Election

1.1 The Doctrine of Election is a legal principle that requires a person to choose between two inconsistent rights or claims. Once a choice is made, the individual cannot later claim the other option.

1.2 This doctrine is based on the principle that:

• A person cannot enjoy the benefits of two contradictory rights.
• Once an election is made, it is final and binding.
• It prevents a party from acting unfairly by choosing both options.

1.3 Legal Basis in Pakistan

• Section 35 of the Transfer of Property Act, 1882, incorporates the doctrine of election and states:

“When a person who is given an option to choose between two inconsistent rights accepts one of them, he cannot later assert the other.”

1.4 Example of Election:

• A will gives B the option to choose between:
  1. A piece of land, or
  2. A sum of Rs. 1 million.
• If B chooses the land, they cannot later claim the money as well.

2. Essential Elements of the Doctrine of Election

For the doctrine of election to apply, the following conditions must be met:

2.1 Two Inconsistent Rights Must Exist

• The person must be given two choices, but selecting one automatically cancels the other.
• Example:
  • A tenant is offered either an extended lease or financial compensation.
  • If they accept the lease, they cannot later demand the compensation.

2.2 The Individual Must Have a Free Choice

• The election must be made voluntarily, without coercion or fraud.

2.3 The Individual Must Have Knowledge of Both Choices

• A person cannot be forced to make an election if they are unaware of both options.

2.4 The Choice Must Be Final and Binding

• Once a choice is made, it cannot be revoked later.

3. Applications of the Doctrine of Election

3.1 In Property Law

• When a property transfer includes a condition where the recipient must choose between two conflicting benefits, they must accept one and give up the other.
• Example:
  • A father leaves his daughter either a house or a factory in his will.
  • She must choose one and cannot later claim both.

3.2 In Contract Law

• A party to a contract cannot accept benefits under one term and then challenge another related term.
• Example:
  • A person accepts a settlement amount in a contract dispute.
  • Later, they cannot claim additional compensation for the same dispute.

3.3 In Civil Litigation

• If a party pursues one legal remedy, they cannot later seek another inconsistent remedy for the same matter.
• Example:
  • A buyer sues for return of money after a seller fails to deliver goods.
  • The buyer cannot later sue to demand the goods instead.

4. Waiver and Election

4.1 Difference Between Waiver and Election

Feature	Waiver	Election
Definition	Giving up a right voluntarily.	Choosing between two inconsistent rights.
Effect	The right is permanently lost.	One right is accepted; the other is given up.
Example	A landlord waives late fees for rent.	A tenant chooses between compensation or renewal of lease.

4.2 When Waiver Becomes an Election

• If a party deliberately refuses to act on a right, courts may consider it an election to give up that right.

5. Exceptions to the Doctrine of Election

The doctrine does not apply in the following cases:

5.1 When Both Rights Can Be Exercised Together

• If the rights are not contradictory, election is not necessary.
• Example:
  • A person can claim both damages for breach of contract and compensation for financial loss, if both are legally allowed.

5.2 When Election Was Made Under Mistake or Fraud

• If a party chooses an option due to deception, they can later challenge it.
• Example:
  • A person chooses one inheritance option without knowing the full value of the other.
  • If they were misled, they may be allowed to reconsider their choice.

5.3 When the Law Provides an Exception

• Courts may allow a party to change their election if justice demands it.

6. Judicial Interpretations of the Doctrine of Election

6.1 Courts in Pakistan have upheld the doctrine to prevent unfair advantages and maintain legal consistency.

6.2 Key Case Law:

Mst. Zainab v. Ghulam Qadir (PLD 1975 SC 92)

• The Supreme Court held that once a party chooses one legal remedy, they cannot later demand another conflicting remedy.

Abdul Karim v. Muhammad Ashraf (2000 SCMR 1043)

• The court ruled that a person who voluntarily accepts benefits under one clause of a contract cannot later challenge the contract’s validity.

7. Practical Importance of the Doctrine of Election

7.1 Prevents Legal Manipulation

• Ensures that people cannot change their stance to gain an unfair advantage.

7.2 Encourages Fairness in Transactions

• Helps in contract enforcement and avoids disputes over conflicting rights.

7.3 Protects Stability in Legal Proceedings

• Ensures that court decisions and settlements remain final.

8. Conclusion

The Doctrine of Election ensures that individuals choose between inconsistent rights and remain bound by their choice. It is widely applied in property law, contracts, and litigation to prevent unfair legal practices. However, exceptions exist where fraud, mistake, or legal provisions allow reconsideration. The doctrine plays a crucial role in maintaining fairness and legal certainty.

CHAPTER 14 – THE DOCTRINE OF SET-OFF AND COUNTERCLAIM

1. Introduction to Set-Off and Counterclaim

1.1 The doctrines of Set-Off and Counterclaim allow a defendant in a civil suit to claim an amount against the plaintiff instead of filing a separate suit.

1.2 These doctrines:

• Reduce unnecessary litigation by allowing both claims to be resolved in the same suit.
• Promote judicial efficiency by avoiding multiple cases for related disputes.
• Ensure fairness by allowing defendants to defend themselves through a valid monetary claim.

1.3 Legal Basis in Pakistan

• Order 8, Rule 6 of the Code of Civil Procedure (CPC), 1908, governs Set-Off.
• Order 8, Rule 6-A of the CPC governs Counterclaims.

1.4 Example of Set-Off and Counterclaim:

• A sues B for Rs. 500,000 as unpaid rent.
• B claims A owes him Rs. 200,000 for property repairs.
• B can claim set-off or file a counterclaim for Rs. 200,000 in the same suit.

2. Doctrine of Set-Off (Order 8, Rule 6 CPC)

2.1 Meaning of Set-Off

• Set-Off means that the defendant claims a legally recoverable amount against the plaintiff, reducing or eliminating the plaintiff’s claim.
• Example:
  • A supplier sues a buyer for Rs. 100,000 unpaid invoices.
  • The buyer claims the supplier delivered defective goods worth Rs. 50,000.
  • The buyer can claim set-off of Rs. 50,000, reducing the payable amount to Rs. 50,000.

2.2 Essential Conditions for Set-Off

Set-Off applies if:

1. The claim is for money (not goods or services).
2. The claim is legally recoverable.
3. Both claims relate to the same transaction.
4. The plaintiff and defendant are legally bound to each other.
5. The claim is within the jurisdiction of the court.

2.3 Types of Set-Off

(A) Legal Set-Off

• The claim must be for an ascertained sum of money.
• Example:
  • A creditor sues a debtor for Rs. 1,00,000, and the debtor claims that the creditor owes them Rs. 40,000 under an earlier agreement.
  • The court allows set-off, reducing the net claim to Rs. 60,000.

(B) Equitable Set-Off

• The defendant’s claim must arise from the same transaction and relate to fairness.
• Example:
  • A construction company sues a client for Rs. 5 million in unpaid bills.
  • The client claims Rs. 2 million damages for poor construction.
  • The court allows equitable set-off to balance the claims.

3. Doctrine of Counterclaim (Order 8, Rule 6-A CPC)

3.1 Meaning of Counterclaim

• A counterclaim is a separate claim filed by the defendant against the plaintiff in the same lawsuit.
• Example:
  • A landlord sues a tenant for non-payment of rent.
  • The tenant counterclaims for Rs. 50,000 in security deposit refund.

3.2 Essential Conditions for a Counterclaim

1. The counterclaim must be related to the original suit.
2. It can be for money, goods, or damages.
3. It must be filed before the written statement is submitted.
4. The court must have jurisdiction over the counterclaim.

3.3 Difference Between Set-Off and Counterclaim

Feature	Set-Off	Counterclaim
Definition	A claim made by the defendant to reduce the plaintiff’s claim.	A separate claim filed by the defendant against the plaintiff.
Nature	Defensive (reduces plaintiff’s claim).	Aggressive (asserts a new claim).
Scope	Limited to monetary claims.	Can be monetary or non-monetary.
Example	Defendant claims Rs. 50,000 from Plaintiff’s Rs. 1,00,000 claim.	Defendant sues Plaintiff for breach of contract in the same suit.

4. Legal Consequences of Set-Off and Counterclaim

4.1 If Set-Off is Successful:

• The court reduces the amount owed by the defendant.
• Example:
  • Plaintiff sues for Rs. 1 million, but defendant claims Rs. 400,000 set-off.
  • If set-off is approved, the plaintiff receives Rs. 600,000 instead of Rs. 1 million.

4.2 If Counterclaim is Successful:

• The defendant can recover damages from the plaintiff.
• Example:
  • A bank sues a customer for Rs. 500,000 loan repayment.
  • The customer counterclaims Rs. 200,000 for unauthorized charges.
  • If the counterclaim succeeds, the customer pays only Rs. 300,000.

5. Exceptions to the Doctrine of Set-Off and Counterclaim

5.1 When Set-Off Does Not Apply

Set-Off cannot be claimed if:

• The claim is unrelated to the plaintiff’s claim.
• The defendant’s claim is uncertain or unascertained.
• The claim is for services rather than money.

5.2 When Counterclaims Are Not Allowed

A counterclaim will be rejected if:

• It is not connected to the original dispute.
• It is filed after the defendant has submitted their defense.
• It is outside the jurisdiction of the court.

6. Judicial Interpretations of Set-Off and Counterclaim

Kashif Traders v. Punjab Bank (PLD 2005 SC 234)

• The Supreme Court ruled that a counterclaim must be directly related to the original suit and filed before the written statement.

Mian Rafiq v. National Insurance Co. (2011 SCMR 1122)

• The court held that set-off applies only when the amount is certain and legally recoverable.

7. Practical Importance of Set-Off and Counterclaim

7.1 Saves Time and Legal Costs

• Allows parties to settle all claims in one trial instead of filing multiple suits.

7.2 Reduces Unnecessary Litigation

• Encourages parties to resolve disputes efficiently without separate lawsuits.

7.3 Ensures Fairness in Legal Disputes

• Prevents one party from gaining an unfair advantage by allowing the defendant to present legitimate claims.

8. Conclusion

The doctrines of Set-Off and Counterclaim are essential in civil litigation as they prevent multiple lawsuits and promote fair dispute resolution. Set-Off reduces the plaintiff’s claim, while Counterclaim allows the defendant to assert their own claim against the plaintiff. Both doctrines enhance judicial efficiency and fairness, ensuring that all parties’ rights are protected within the same legal proceeding.

CHAPTER 15 – THE DOCTRINE OF RESTITUTION

1. Introduction to the Doctrine of Restitution

1.1 The Doctrine of Restitution ensures that when a judgment or order is reversed or modified, the party that benefited from the earlier decision must return what they wrongfully gained.

1.2 Legal Basis in Pakistan

• Section 144 of the Code of Civil Procedure (CPC), 1908) provides the legal framework for restitution, stating:

“Where and in so far as a decree or an order is varied or reversed, the court which passed the decree shall cause restitution to be made so far as it has been wrongfully enforced.”

1.3 Purpose of the Doctrine

• To restore the affected party to the position they would have been in if the incorrect decision had not been enforced.
• To prevent unjust enrichment due to judicial errors.
• To maintain fairness in the judicial system.

2. Essential Elements of Restitution

For restitution to apply, the following conditions must be met:

2.1 A Court Order Must Have Been Executed

• Restitution applies only when a party has already benefited from an order or decree that is later set aside or modified.

2.2 The Order Must Be Reversed or Modified

• If the original judgment is overturned in appeal, revision, or review, the party who wrongfully benefited must return the gains.

2.3 The Party Seeking Restitution Must Have Suffered Loss

• The applicant must prove that they suffered financial or legal harm due to the wrongful execution of the earlier order.

3. Scope of Restitution Under Section 144 CPC

Restitution may involve:

• Returning money paid under an incorrect decree.
• Restoring property wrongfully taken under a reversed order.
• Compensating for losses suffered due to the wrong execution of a decree.

3.1 Example of Restitution

• A obtains a court decree against B for the possession of a house.
• B is evicted based on the decree.
• Later, an appeal reverses the decree, declaring that the house legally belongs to B.
• Under Section 144 CPC, B has the right to claim restitution and regain possession of the house.

4. Difference Between Restitution and Compensation

Feature	Restitution	Compensation
Definition	Restoring a party to their original position after an incorrect order is reversed.	Providing monetary relief for damages suffered.
Focus	Undoing wrongful benefits received under an incorrect judgment.	Paying for losses due to negligence or harm.
Example	Returning land taken under a wrongful decree.	Awarding damages for breach of contract.

5. Limitations and Exceptions to Restitution

5.1 Restitution Does Not Apply If:

• The judgment was not executed before being reversed.
• The loss was not caused directly by the wrongful execution of the decree.
• A third party acquired rights in good faith before the judgment was reversed.

5.2 Example Where Restitution Is Denied:

• If a house is sold to a third party before the judgment is reversed, the original owner may not be able to claim restitution if the buyer had no knowledge of the dispute.

6. Judicial Interpretations of Restitution

Muhammad Shafi v. Abdul Haq (PLD 1980 SC 45)

• The Supreme Court ruled that when an order is reversed, the benefiting party must return what they wrongfully received.

Rafiq v. State (1992 SCMR 1104)

• The court held that restitution is not an additional remedy, but a legal right under Section 144 CPC.

7. Importance of the Doctrine of Restitution

7.1 Ensures Fairness and Justice

• Prevents wrongful gain by ensuring that reversed judgments do not benefit one party unfairly.

7.2 Restores Confidence in the Judicial System

• Ensures that errors in legal decisions do not permanently harm any party.

7.3 Prevents Unjust Enrichment

• Protects individuals from suffering financial loss due to court errors.

8. Conclusion

The Doctrine of Restitution is a fundamental principle that ensures fairness in civil litigation. Section 144 CPC provides a clear legal basis for restoring parties to their original position when a judgment is reversed. This doctrine prevents wrongful enrichment and ensures that justice is upheld by correcting errors in judicial decisions.

CHAPTER 16 – THE DOCTRINE OF CAVEAT

1. Introduction to the Doctrine of Caveat

1.1 The Doctrine of Caveat is a legal principle that allows a person to prevent court proceedings from being decided without their knowledge. It ensures that no adverse orders are passed against a party without giving them a fair opportunity to be heard.

1.2 Legal Basis in Pakistan

• Section 148-A of the Code of Civil Procedure (CPC), 1908) governs the concept of a caveat, stating:

“Where any person is apprehensive that an order may be passed against them, they may file a caveat to ensure they are heard before any such order is made.”

1.3 Purpose of the Doctrine

• To protect the rights of a party who anticipates legal action against them.
• To ensure natural justice and prevent ex parte orders.
• To give advance notice to the court about a potential dispute.

2. Meaning and Definition of Caveat

2.1 Definition

• A caveat is a formal legal notice filed by a person to prevent a court from passing an order without hearing them.

2.2 Example:

• A landlord anticipates that a tenant may file a suit for an injunction against eviction.
• The landlord files a caveat in court, ensuring they are notified and given a chance to present their case before any injunction is granted.

3. Essential Features of a Caveat

3.1 Right to File a Caveat

• Any person with a direct legal interest in a dispute can file a caveat.
• It is commonly used in property disputes, contract disputes, and injunction matters.

3.2 Legal Notice to the Opposing Party

• When a caveat is filed, the court must inform the opposing party before granting any ex parte orders.

3.3 Duration of a Caveat

• A caveat remains valid for 90 days from the date of filing.
• If no legal proceedings are initiated within 90 days, the caveat automatically expires.

3.4 Duty of the Court

• If a caveat is filed, the court cannot pass an order affecting the caveator without first notifying them and allowing them to be heard.

4. Procedure for Filing a Caveat (Order 11 CPC)

4.1 Who Can File a Caveat?

• Any person who anticipates legal action against them.
• Commonly filed in injunction applications, property disputes, and appeals.

4.2 Where to File a Caveat?

• It should be filed in the court where the legal proceedings are likely to be initiated.

4.3 Contents of a Caveat Application
A caveat must contain:

• Name and address of the caveator (person filing the caveat).
• Details of the anticipated legal action.
• The court where the caveat is filed.
• Signature of the caveator or their lawyer.

4.4 Notice to the Opposing Party

• The court must notify the party likely to initiate proceedings.

5. Legal Effect of Filing a Caveat

5.1 Protection Against Ex Parte Orders

• The court cannot grant an injunction, stay order, or any relief without hearing the caveator.

5.2 Ensures Equal Opportunity to Present Arguments

• Both parties get a fair chance to present their case.

5.3 Speeds Up Legal Proceedings

• Avoids unnecessary delays caused by ex parte injunctions and later modifications.

6. Difference Between a Caveat and an Injunction

Feature	Caveat	Injunction
Purpose	Prevents an ex parte order	Prevents an action from being carried out
Who Files It?	A person who anticipates legal action against them	A person who wants to stop an action
Effect	Ensures the caveator is heard before an order is passed	Prevents the defendant from doing a certain act

7. Situations Where a Caveat Can Be Used

7.1 Property Disputes

• If a person anticipates an injunction against selling land, they can file a caveat.

7.2 Commercial and Contractual Disputes

• If a company expects a legal dispute over a contract, it can file a caveat.

7.3 Appeals and Revisions

• A party that expects an appeal against a judgment can file a caveat to ensure they are heard.

8. Limitations and Exceptions to a Caveat

8.1 When a Caveat Cannot Be Filed

• A caveat cannot be filed if there is no actual legal dispute.
• It does not apply to criminal cases.

8.2 If No Case Is Filed Within 90 Days

• The caveat automatically expires if no legal action is initiated within 90 days.

8.3 Does Not Prevent a Suit From Being Filed

• A caveat does not stop the opposing party from filing a case; it only ensures the caveator gets a hearing before any order is passed.

9. Judicial Interpretations of the Doctrine of Caveat

Mst. Rubina v. Asif (PLD 2007 SC 118)

• The Supreme Court ruled that a caveat ensures natural justice by giving all parties an opportunity to be heard before an order is passed.

Karachi Development Authority v. Qasim Builders (PLD 1999 SC 304)

• The court held that caveats are essential in civil litigation to prevent unfair ex parte orders.

10. Practical Importance of the Doctrine of Caveat

10.1 Ensures Fair Legal Process

• Prevents courts from issuing orders without hearing both sides.

10.2 Saves Time and Legal Costs

• Reduces the need for appeals against ex parte orders.

10.3 Protects Property and Business Interests

• Prevents individuals from losing property or assets due to sudden injunctions.

11. Conclusion

The Doctrine of Caveat is a crucial legal safeguard under Section 148-A CPC that protects individuals from adverse court orders being passed without their knowledge. It ensures fairness, prevents ex parte decisions, and upholds natural justice. While a caveat does not stop legal action, it guarantees that the caveator gets a fair opportunity to present their case before any order is issued.

CHAPTER 17 – THE DOCTRINE OF RES GESTAE

1. Introduction to the Doctrine of Res Gestae

1.1 The Doctrine of Res Gestae is a legal principle that allows certain statements or acts made during an event to be admitted as evidence, even if they are technically hearsay.

1.2 Meaning of Res Gestae

• Res Gestae is a Latin term meaning “things done” or “the events that occurred”.
• It refers to spontaneous statements, reactions, or actions that happen during or immediately after an incident, making them reliable and admissible as evidence.

1.3 Legal Basis in Pakistan

• Article 21 of the Qanun-e-Shahadat Order, 1984 governs Res Gestae and states:

“Statements that are part of the same transaction or event are admissible as evidence.”

1.4 Purpose of the Doctrine

• To admit spontaneous and natural statements that are directly linked to an event.
• To prevent fabricated or manipulated evidence from being used in court.
• To ensure that the full context of an event is presented for a fair trial.

2. Essential Elements of Res Gestae

For a statement or action to be considered part of Res Gestae, the following conditions must be met:

2.1 The Statement or Act Must Be Spontaneous

• It must be made immediately after or during the event.
• Example:
  • A person who sees a car accident shouts in shock, “The red car ran the red light!”
  • This statement is admissible because it was spontaneous and part of the event.

2.2 The Statement Must Be Connected to the Main Event

• It must relate to the same incident and not be an independent remark.

2.3 The Statement Must Be Made by a Participant or Witness

• Statements made by bystanders or victims may be admissible if they had direct knowledge of the event.

2.4 The Statement Must Be Made Without Time to Fabricate

• There should be no opportunity to plan or manipulate the statement.
• Example:
  • A person being attacked screams for help and identifies the attacker.
  • This is admissible under Res Gestae.

3. Application of Res Gestae in Criminal Cases

Res Gestae is most commonly applied in criminal law, particularly in cases of:

• Murder
• Robbery
• Accidents and sudden violence

3.1 Statements of Victims Before Death

• If a victim makes a statement before dying, identifying their attacker, it may be admissible.
• Example:
  • A person who is stabbed in a market shouts, “Ali stabbed me!” before collapsing.
  • This statement is admissible because it was spontaneous and related to the crime.

3.2 Statements Made by Witnesses During the Crime

• If a witness immediately reacts to a crime, their statement is admissible.
• Example:
  • During a bank robbery, a customer screams, “That man has a gun!”
  • The statement is admissible because it was part of the event.

3.3 Statements Made by Accused Persons

• If a person accused of a crime makes a spontaneous admission, it may be admissible.
• Example:
  • A suspect caught with stolen goods shouts, “I didn’t mean to steal it!”
  • This statement may be used against them.

4. Application of Res Gestae in Civil Cases

4.1 Res Gestae is also applicable in civil disputes, especially in:

• Car accident claims
• Property disputes
• Defamation cases

4.2 Example in a Civil Case

• A driver crashes into another car and immediately exclaims, “I didn’t see the red light!”
• This statement is admissible as evidence in a negligence claim.

5. Difference Between Res Gestae and Hearsay

Feature	Res Gestae	Hearsay
Definition	Spontaneous statements or acts made during or immediately after an event.	Statements made by someone who did not witness the event directly.
Admissibility	Generally admissible under the law.	Usually inadmissible, unless it meets certain exceptions.
Example	A person yells, “That car hit the pedestrian!” right after witnessing an accident.	A person says, “I heard from someone else that the car hit the pedestrian.”

6. Exceptions to the Doctrine of Res Gestae

6.1 Statements Made After a Delay

• If a statement is made after a significant time gap, it may not be admissible.
• Example:
  • A victim waits 3 hours after an attack to make a statement.
  • This may not be considered Res Gestae.

6.2 Statements Made Under Influence or Pressure

• If the statement was made under coercion, threats, or while intoxicated, it may not be reliable.

6.3 Opinion-Based Statements

• A witness’s opinion or speculation is not admissible under Res Gestae.

7. Judicial Interpretations of Res Gestae

State v. Abdul Kareem (PLD 1984 SC 56)

• The Supreme Court held that a statement made by a victim immediately after an attack is admissible, as it forms part of the same transaction.

Muhammad Hanif v. State (PLD 1993 SC 211)

• The court ruled that Res Gestae statements are reliable because they are made without the opportunity for fabrication.

8. Practical Importance of the Doctrine of Res Gestae

8.1 Strengthens Criminal Investigations

• Allows police and courts to use immediate witness statements as evidence.

8.2 Prevents Manipulation of Evidence

• Ensures that only genuine, spontaneous statements are admitted.

8.3 Reduces Unfair Acquittals

• Helps in convicting guilty persons by admitting reliable, real-time statements.

9. Conclusion

The Doctrine of Res Gestae is a crucial exception to the hearsay rule, allowing courts to admit spontaneous statements made during an event. It ensures that immediate, truthful reactions are considered as evidence, strengthening both criminal and civil trials. However, the doctrine has limitations, as delayed or opinion-based statements may not be admissible.

CHAPTER 18 – THE DOCTRINE OF CONSTRUCTIVE RES JUDICATA

1. Introduction to the Doctrine of Constructive Res Judicata

1.1 The Doctrine of Constructive Res Judicata prevents a party from raising issues in a new suit that could have been raised in an earlier case but were not.

1.2 This doctrine is an extension of the principle of Res Judicata (Section 11 of the CPC), which bars re-litigation of matters that have already been decided.

1.3 Legal Basis in Pakistan

• Explanation IV to Section 11 of the Code of Civil Procedure (CPC), 1908) states:

“Any matter which might and ought to have been made a ground of defense or attack in the former suit shall be deemed to have been constructively in issue.”

1.4 Purpose of the Doctrine

• To prevent fragmented litigation.
• To ensure that all relevant issues are decided in one suit.
• To stop parties from abusing the judicial process by filing multiple suits on the same matter.

2. Meaning and Application of Constructive Res Judicata

2.1 General Meaning

• If a party had the opportunity to raise an issue in a previous case but failed to do so, they cannot raise it in a new case.

2.2 Example:

• A sues B for ownership of land but does not challenge B’s legal title in that suit.
• The court dismisses A’s claim.
• Later, A files a new case challenging B’s legal title.
• The new case is barred by Constructive Res Judicata because A could have raised this issue in the first suit but did not.

3. Essential Elements of Constructive Res Judicata

For the doctrine to apply, the following conditions must be met:

3.1 The First Suit Must Have Been Decided on Merits

• A previous case must have been heard and decided on substantive issues.

3.2 The Second Suit Must Involve the Same Parties or Their Legal Representatives

• The parties in both cases must be the same or closely related.

3.3 The Issue in the Second Suit Could Have Been Raised in the First Suit

• If a party had the chance to raise an issue in the first case but failed to do so, they cannot raise it later.

4. Difference Between Res Judicata and Constructive Res Judicata

Feature	Res Judicata	Constructive Res Judicata
Definition	Prevents re-litigation of an issue that has already been decided.	Prevents raising an issue that could have been raised earlier but was not.
Scope	Based on matters that were actually litigated.	Based on matters that were not raised but could have been.
Example	A property dispute is decided in Court. The losing party cannot file the same suit again.	A party fails to raise a claim in the first suit and tries to file a second suit for that claim.

5. Practical Application of Constructive Res Judicata

5.1 In Property Disputes

• If a person sues for ownership of land but does not challenge the validity of the sale deed, they cannot later file a new suit challenging the sale deed.

5.2 In Contract Disputes

• If a person sues for breach of contract but does not claim compensation for damages, they cannot later file a separate suit for damages.

5.3 In Employment and Service Matters

• If an employee challenges termination of employment but does not raise a claim for unpaid salary, they cannot later file a case for unpaid salary.

6. Exceptions to Constructive Res Judicata

6.1 Fraud or Misrepresentation

• If the first case was based on fraud, the second case is not barred.

6.2 Lack of Jurisdiction

• If the first case was decided by a court without jurisdiction, the second suit is allowed.

6.3 Violation of Fundamental Rights

• If a second case involves constitutional rights, the doctrine does not apply.

7. Judicial Interpretations of Constructive Res Judicata

Abdul Ghani v. Muhammad Yousaf (PLD 1983 SC 200)

• The Supreme Court ruled that a party cannot raise issues in a new suit that could have been raised in an earlier one.

Mst. Parveen v. Government of Punjab (2015 SCMR 84)

• The court held that Constructive Res Judicata applies to prevent misuse of the legal system.

8. Importance of Constructive Res Judicata

8.1 Prevents Multiple Lawsuits

• Ensures that all issues related to a dispute are decided in one case.

8.2 Saves Time and Judicial Resources

• Avoids repeated hearings on the same matter.

8.3 Ensures Finality of Legal Decisions

• Once a case is decided, it cannot be reopened with different arguments.

9. Conclusion

The Doctrine of Constructive Res Judicata ensures that all issues related to a case are raised in the first suit, preventing multiple lawsuits on the same matter. This doctrine promotes judicial efficiency and ensures that litigants do not misuse the legal system by withholding claims for later litigation.

CHAPTER 19 – THE DOCTRINE OF ALTERNATIVE DISPUTE RESOLUTION (ADR)

1. Introduction to Alternative Dispute Resolution (ADR)

1.1 Alternative Dispute Resolution (ADR) refers to a set of legal processes used to resolve disputes outside the traditional court system. It includes methods such as mediation, arbitration, conciliation, and negotiation.

1.2 Purpose of ADR:

• To provide faster and cost-effective dispute resolution.
• To reduce burden on courts by resolving disputes outside litigation.
• To promote amicable settlements between parties.

1.3 Legal Basis in Pakistan

• Section 89-A of the Code of Civil Procedure (CPC), 1908) recognizes ADR as a mechanism for resolving disputes.
• The Arbitration Act, 1940, governs arbitration proceedings in Pakistan.
• The Small Claims and Minor Offenses Courts Ordinance, 2002, encourages ADR for small disputes.

2. Methods of Alternative Dispute Resolution

ADR includes various methods; each suited for different types of disputes.

2.1 Mediation

• A neutral third party (mediator) helps the disputing parties reach a voluntary settlement.
• The mediator does not impose a decision but facilitates negotiation.
• Common in: Family disputes, business conflicts, and contract disputes.

2.2 Arbitration

• A dispute is referred to a neutral arbitrator who makes a binding decision.
• Faster and more flexible than court litigation.
• Common in: Commercial contracts, labor disputes, and international trade matters.

2.3 Conciliation

• Similar to mediation but involves a conciliator who actively suggests solutions.
• Less formal than arbitration.
• Common in: Labor disputes, trade disputes, and employment matters.

2.4 Negotiation

• Parties communicate directly or through legal representatives to settle a dispute.
• No third-party involvement.
• Common in: Business agreements, debt settlements, and divorce settlements.

3. Legal Recognition of ADR in Pakistan

3.1 ADR Under the Code of Civil Procedure (CPC), 1908

• Section 89-A CPC empowers courts to refer cases to ADR.
• Courts may recommend ADR before starting trial.

3.2 The Arbitration Act, 1940

• Governs arbitration agreements and enforcement of arbitral awards.
• Binding nature: Arbitration decisions are legally enforceable.

3.3 ADR in Commercial Disputes

• Many business contracts in Pakistan include arbitration clauses.
• Example: A construction contract may specify that any disputes will be resolved through arbitration instead of courts.

4. Comparison of ADR and Traditional Litigation

Feature	ADR	Traditional Litigation
Time Required	Faster, resolved within months	Can take years
Cost	Less expensive	High legal fees
Confidentiality	Private	Public record
Flexibility	More flexible, parties have control	Rigid court procedures
Binding Decision?	Mediation/conciliation – not binding	Arbitration – binding

5. Advantages of ADR

5.1 Saves Time and Costs

• Avoids lengthy court proceedings.
• Reduces legal expenses.

5.2 Encourages Amicable Settlements

• Helps maintain business relationships and family harmony.

5.3 Less Formal and More Flexible

• No strict procedural rules like court litigation.

5.4 Private and Confidential

• Unlike court cases, ADR keeps disputes out of public records.

6. Limitations of ADR

6.1 Not Suitable for All Cases

• Criminal cases and constitutional matters cannot be resolved through ADR.

6.2 Enforcement Challenges

• In some cases, one party may refuse to comply with ADR agreements.

6.3 Power Imbalances May Affect Fairness

• If one party is economically or legally stronger, they may pressure the weaker party into accepting an unfair settlement.

7. Judicial Support for ADR in Pakistan

7.1 Supreme Court Decisions on ADR

• The Supreme Court of Pakistan has encouraged ADR to reduce court backlog.

7.2 Key Case Law

Pakistan Steel Mills v. Al-Tuwairqi Steel (PLD 2016 SC 150)

• The Supreme Court ruled that arbitration agreements must be honored to avoid unnecessary litigation.

State v. Abdul Rauf (2018 SCMR 945)

• The court encouraged mediation in family disputes to protect social harmony.

8. Role of ADR in Business and Commercial Disputes

8.1 Why Businesses Prefer ADR?

• Faster resolution helps avoid financial losses.
• Ensures business relationships are not damaged by prolonged court battles.

8.2 Common ADR Clauses in Business Contracts

• Many companies include arbitration or mediation clauses in agreements.
• Example:
  • A construction contract may include:

“Any disputes arising under this contract shall be referred to arbitration.”

9. Future of ADR in Pakistan

9.1 Growing Recognition of ADR

• Pakistani courts are increasingly referring cases to ADR mechanisms.

9.2 Need for ADR Awareness and Training

• Lawyers and judges need specialized ADR training to handle cases efficiently.

9.3 Legislative Reforms for ADR

• Modernizing arbitration laws and creating ADR centers will improve dispute resolution.

10. Conclusion

The Doctrine of Alternative Dispute Resolution (ADR) is an essential tool for resolving disputes quickly, cost-effectively, and amicably. ADR is recognized under Pakistani law and is particularly beneficial in commercial, contractual, and family disputes. However, criminal and constitutional cases cannot be resolved through ADR. As ADR gains recognition, its implementation in Pakistan needs further legal reforms and awareness.

CHAPTER 20 – THE DOCTRINE OF INJUNCTIONS

1. Introduction to the Doctrine of Injunctions

1.1 An injunction is a court order that prevents a party from performing a specific act or compels them to perform a certain duty. It is a discretionary relief granted by the court to prevent irreparable harm.

1.2 Purpose of Injunctions:

• To protect legal rights and prevent irreparable damage.
• To maintain the status quo until a legal dispute is resolved.
• To ensure that justice is not defeated by a party’s wrongful actions.

1.3 Legal Basis in Pakistan

• Sections 52–57 of the Specific Relief Act, 1877, govern injunctions.
• Order 39, Rules 1 & 2 of the Code of Civil Procedure (CPC), 1908, regulate temporary injunctions.

2. Types of Injunctions

Injunctions are classified into three main categories:

2.1 Temporary Injunction (Interim Injunction)

• Granted for a limited period to preserve the rights of the parties until a final decision is made.
• Legal Basis: Order 39, Rules 1 & 2, CPC.
• Example:
  • A court issues an injunction to stop the demolition of a house until property ownership is decided.

2.2 Permanent Injunction

• A final court order permanently preventing or compelling an action.
• Legal Basis: Section 54, Specific Relief Act, 1877.
• Example:
  • A court permanently bans a factory from releasing toxic waste into a river.

2.3 Mandatory Injunction

• A court compels a party to perform a specific duty rather than just restraining them.
• Legal Basis: Section 55, Specific Relief Act, 1877.
• Example:
  • A court orders a builder to remove illegal construction from disputed land.

3. Grounds for Granting an Injunction

To obtain an injunction, the applicant must prove:

3.1 Prima Facie Case Exists

• The plaintiff has a strong legal basis for their claim.
• Example:
  • If a person claims ownership of land, they must provide legal documents to support their case.

3.2 Irreparable Loss Will Occur Without Injunction

• The injury cannot be compensated by money alone.
• Example:
  • If a historical building is at risk of illegal demolition, no monetary compensation can restore it.

3.3 Balance of Convenience

• The court considers which party will suffer greater harm if the injunction is granted or denied.
• Example:
  • If stopping a construction project will cause greater harm than allowing it to continue, the court may refuse the injunction.

4. Cases Where Injunctions Are Not Granted

Courts will not grant an injunction in the following cases:

4.1 When Monetary Compensation Is Sufficient

• If damages can be fully compensated with money, the court will not issue an injunction.
• Example:
  • If a contractor fails to deliver a project on time, the court may award monetary damages instead of an injunction.

4.2 Injunction Against Public Interest

• If granting an injunction will harm public welfare, the court will refuse.
• Example:
  • A court will not stop the construction of a hospital unless serious legal violations are proven.

4.3 Injunction Against a Completed Act

• Injunctions are preventive, not corrective. If an act has already been completed, an injunction is useless.
• Example:
  • If a disputed building is already demolished, the court cannot grant an injunction to stop its demolition.

5. Procedure for Obtaining an Injunction

To apply for an injunction, the plaintiff must:

Step 1: File an Application

• Submit an application under Order 39, Rule 1 & 2, CPC.
• Attach relevant documents and affidavits.

Step 2: Court Issues a Notice

• The court notifies the defendant and sets a date for a hearing.
• In urgent cases, the court may grant an ex parte injunction (without hearing the other party).

Step 3: Hearing and Court Order

• Both parties present their arguments and evidence.
• The court decides whether to grant or reject the injunction.

6. Consequences of Violating an Injunction

If a party disobeys an injunction, they may face:

6.1 Contempt of Court

• Punishment: Fine or imprisonment under contempt laws.
• Example:
  • A company continues selling banned products despite an injunction and is fined by the court.

6.2 Damages and Compensation

• The affected party can claim damages for losses suffered due to the violation.
• Example:
  • A builder illegally constructs a building despite an injunction. The court orders them to pay damages to the affected party.

7. Judicial Interpretations of Injunctions

7.1 Key Case Law in Pakistan

Mian Abdul Haq v. Province of Punjab (PLD 1994 SC 34)

• The Supreme Court ruled that injunctions must only be granted when there is clear evidence of irreparable harm.

Shaukat Ali v. State (PLD 2002 SC 312)

• The court held that injunctions should not be granted when damages can be adequately compensated by money.

8. Importance of Injunctions in Civil Litigation

8.1 Protects Legal Rights

• Prevents unauthorized use of property, breach of contract, and violation of rights.

8.2 Ensures Fairness and Justice

• Stops wrongful acts before they cause irreversible damage.

8.3 Maintains Public Order

• Prevents disputes from escalating by maintaining the status quo.

9. Conclusion

The Doctrine of Injunctions is an essential tool in civil litigation. It prevents harm, protects rights, and ensures fair legal outcomes. Courts grant injunctions only when necessary, balancing legal rights, convenience, and public interest. However, injunctions cannot be used as a substitute for financial compensation or to stop actions that have already been completed.

CHAPTER 21 – THE DOCTRINE OF INDEMNITY AND GUARANTEE

1. Introduction to Indemnity and Guarantee

1.1 Indemnity and Guarantee are legal agreements that provide financial security and risk protection in contracts.

1.2 Purpose of Indemnity and Guarantee:

• To protect a party from financial loss.
• To ensure that contractual obligations are fulfilled.
• To promote trust in commercial transactions.

1.3 Legal Basis in Pakistan

• Sections 124–147 of the Contract Act, 1872, govern indemnity and guarantee contracts.

2. The Doctrine of Indemnity

2.1 Meaning of Indemnity

• Indemnity means compensating for loss or damage caused to another party.
• The indemnifier agrees to compensate the indemnified party in case of loss.

2.2 Legal Definition (Section 124, Contract Act, 1872)

“A contract of indemnity is a contract in which one party promises to save the other from loss caused by the conduct of the promisor or any third party.”

2.3 Essential Elements of Indemnity

1. A contract must exist between two parties.
2. The indemnifier promises to compensate for loss.
3. The loss must be caused by the indemnifier or a third party.

2.4 Example of Indemnity

• A car insurance company agrees to pay for damages if the insured car is in an accident.

3. Rights and Liabilities of Parties in Indemnity

3.1 Rights of the Indemnified Party (Section 125, Contract Act)

The indemnified party has the right to:

• Recover all damages incurred.
• Recover legal costs in defending a claim.
• Claim compensation for any financial loss suffered.

3.2 Liabilities of the Indemnifier

• The indemnifier is legally bound to pay for any loss covered under the indemnity contract.

4. The Doctrine of Guarantee

4.1 Meaning of Guarantee

• A guarantee is a legal promise to fulfill another party’s obligation if they fail to do so.
• Example: A bank guarantees a loan taken by a businessman. If the businessman fails to repay, the bank is liable.

4.2 Legal Definition (Section 126, Contract Act, 1872)

“A contract of guarantee is a contract to perform the promise or discharge the liability of a third party in case of their default.”

4.3 Essential Elements of a Guarantee

1. Three parties must be involved:
   • Principal debtor (who takes the loan or obligation).
   • Creditor (who gives the loan or benefit).
   • Surety (Guarantor) (who promises to pay if the principal debtor defaults).
2. A valid obligation must exist.
3. The guarantee must be in writing.

5. Rights and Liabilities in a Contract of Guarantee

5.1 Rights of the Surety (Guarantor)

• The surety has the right to recover money paid on behalf of the debtor.
• If the principal debtor repays the loan, the surety is discharged from liability.

5.2 Liabilities of the Surety

• The surety is responsible only if the principal debtor fails to perform.

6. Difference Between Indemnity and Guarantee

Feature	Indemnity	Guarantee
Number of Parties	Two (Indemnifier and Indemnified)	Three (Creditor, Principal Debtor, Surety)
Liability	Only the indemnifier is liable	The surety is liable only if the debtor defaults
Scope	Covers losses caused by an event	Ensures performance of a contract
Example	Car insurance	Bank loan guarantee

7. Legal Consequences of Indemnity and Guarantee

7.1 If an Indemnifier Fails to Compensate:

• The indemnified party can sue for breach of contract.

7.2 If a Surety Refuses to Pay a Guaranteed Debt:

• The creditor can enforce the guarantee in court.

8. Judicial Interpretations in Pakistan

8.1 Supreme Court Cases on Indemnity

• Muhammad Ayub v. National Insurance Co. (PLD 1998 SC 112)
  • The court ruled that an indemnifier must fulfill obligations as per contract terms.

8.2 Supreme Court Cases on Guarantee

• Bank of Punjab v. Ahsan Traders (2010 SCMR 843)
  • The court held that a bank guarantee must be honored unless fraud is proven.

9. Importance of Indemnity and Guarantee in Business and Banking

9.1 Protects Against Financial Loss

• Helps businesses and individuals avoid large financial risks.

9.2 Ensures Contractual Performance

• Guarantees loan repayments and contract execution.

9.3 Promotes Trust in Commercial Transactions

• Encourages businesses to operate with financial security.

10. Conclusion

The Doctrine of Indemnity and Guarantee plays a vital role in risk management and contract enforcement. Indemnity protects against financial loss, while Guarantee ensures contract fulfillment. Both doctrines promote trust in financial and business transactions and are legally enforceable in Pakistan under the Contract Act, 1872.

CHAPTER 22 – THE DOCTRINE OF CONTRIBUTION AND SUBROGATION

1. Introduction to Contribution and Subrogation

1.1 The doctrines of Contribution and Subrogation apply in financial and insurance matters where multiple parties share liability or where one party takes over another’s legal rights after compensation is paid.

1.2 Purpose of Contribution and Subrogation:

• To ensure fair distribution of liability among multiple responsible parties.
• To allow an insurer or party that pays for a loss to recover from the actual wrongdoer.

1.3 Legal Basis in Pakistan

• Sections 69–72 of the Contract Act, 1872, govern the principles of contribution and subrogation.
• The Insurance Ordinance, 2000, also recognizes subrogation in insurance claims.

2. The Doctrine of Contribution

2.1 Meaning of Contribution

• Contribution ensures that when multiple parties are equally liable for a debt or obligation, they share the financial burden proportionally.

2.2 Legal Definition (Section 69, Contract Act, 1872)

“A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it, is entitled to be reimbursed by the other.”

2.3 Essential Elements of Contribution

1. Multiple parties must be jointly liable for a debt or obligation.
2. One party pays more than their fair share.
3. The paying party has the right to recover from others.

2.4 Example of Contribution

• Three business partners take a loan together.
• One partner repays the entire loan on behalf of all.
• The paying partner can recover the proportionate amount from the other two partners.

3. Rights and Liabilities Under Contribution

3.1 Rights of the Paying Party

• Can demand equal contribution from co-debtors.
• Can sue for reimbursement if co-debtors refuse to pay.

3.2 Liabilities of Co-Debtors

• Each co-debtor is responsible for their share of the debt.
• If a debtor refuses to pay, the paying party can take legal action.

4. The Doctrine of Subrogation

4.1 Meaning of Subrogation

• Subrogation occurs when one party (such as an insurer) compensates another and then assumes their legal rights against the responsible party.

4.2 Legal Definition (Section 70, Contract Act, 1872)

“Where a person lawfully does something for another without the other’s knowledge, the other is bound to compensate the person if they derive a benefit.”

4.3 Essential Elements of Subrogation

1. A party pays for a loss or liability on behalf of another.
2. The paying party assumes the legal rights of the injured party.
3. The paying party seeks compensation from the actual wrongdoer.

4.4 Example of Subrogation

• An insurance company pays a car owner for damages caused by an accident.
• The insurer then files a lawsuit against the reckless driver to recover the amount.

5. Types of Subrogation

5.1 Contractual Subrogation

• Occurs when a contract (such as an insurance policy) allows subrogation.
• Example: A home insurance contract allows the insurer to recover damages from a negligent tenant.

5.2 Equitable Subrogation

• Arises automatically under law, even if there is no contract.
• Example: A bank repays a customer’s debt and then seeks recovery from the customer’s employer.

6. Differences Between Contribution and Subrogation

Feature	Contribution	Subrogation
Definition	Sharing liability among co-debtors.	Transferring legal rights after paying a debt.
Purpose	Ensures fairness in shared obligations.	Allows recovery from the responsible party.
Parties Involved	Multiple co-debtors.	Insurer, insured, and third party.
Example	Three partners share a loan repayment.	An insurance company sues a negligent driver after paying a claim.

7. Legal Consequences of Contribution and Subrogation

7.1 If a Co-Debtor Refuses to Pay Their Share

• The paying debtor can sue the non-paying co-debtor for reimbursement.

7.2 If an Insurer Fails to Recover Through Subrogation

• The insured cannot claim additional compensation from the at-fault party.

8. Judicial Interpretations in Pakistan

8.1 Supreme Court Cases on Contribution

• Muhammad Amin v. Asif Traders (PLD 1996 SC 214)
  • The court ruled that when a joint liability exists, all parties must share the burden fairly.

8.2 Supreme Court Cases on Subrogation

• State Life Insurance v. Ahmed Khan (2003 SCMR 872)
  • The court held that an insurance company can recover damages from a negligent party after compensating the insured.

9. Importance of Contribution and Subrogation in Commercial and Insurance Law

9.1 Prevents Unfair Financial Burdens

• Ensures debt and liabilities are fairly distributed among responsible parties.

9.2 Reduces Litigation Costs

• Encourages settlements between co-debtors and insurers without court intervention.

9.3 Protects the Rights of Insurers and Creditors

• Allows insurers to recover payments from the actual wrongdoer.

10. Conclusion

The Doctrine of Contribution and Subrogation plays a crucial role in financial and insurance transactions. Contribution ensures fairness in shared obligations, while Subrogation allows a paying party to recover from the actual wrongdoer. Both doctrines promote financial stability and legal fairness under the Contract Act, 1872, and insurance laws in Pakistan.

CHAPTER 23 – THE DOCTRINE OF NECESSITY

1. Introduction to the Doctrine of Necessity

1.1 The Doctrine of Necessity is a legal principle that allows an unlawful act to be justified if it is necessary to prevent greater harm. It is often used in constitutional, criminal, and emergency laws to justify actions that would otherwise be illegal.

1.2 Purpose of the Doctrine of Necessity:

• To provide legal justification for actions taken in emergencies.
• To ensure the continuation of law and order when legal norms cannot be strictly followed.
• To allow governments and individuals to act in the public interest during crises.

1.3 Legal Basis in Pakistan

• The doctrine has been recognized in constitutional and criminal law.
• Judicial precedents have established its application in emergencies and extraordinary situations.

2. Historical Background of the Doctrine of Necessity

2.1 Origin of the Doctrine

• The doctrine originates from Roman law and was later adopted in English common law.

2.2 Famous Case in English Law

• R v. Dudley and Stephens (1884)
  • Shipwrecked sailors killed and ate a cabin boy to survive.
  • The court rejected the necessity defense, stating that personal survival does not justify murder.

2.3 Development in Constitutional Law

• The doctrine has been used to justify emergency measures taken by governments.
• Courts have sometimes upheld extraordinary actions taken for the greater good.

3. Application of the Doctrine of Necessity in Pakistan

The doctrine has been used in constitutional, criminal, and administrative matters.

3.1 Constitutional Law: Justification of Military and Emergency Rule

• Pakistan’s courts have applied the Doctrine of Necessity to validate unconstitutional acts in times of political crisis.
• Famous Case: Dosso v. State (PLD 1958 SC 533)
  • The Supreme Court validated the martial law of General Ayub Khan, stating that necessity justified deviation from the Constitution.
• Famous Case: Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657)
  • The Supreme Court upheld General Zia-ul-Haq’s martial law under the Doctrine of Necessity.
• Famous Case: Asma Jillani v. Government of Punjab (PLD 1972 SC 139)
  • The court rejected the Doctrine of Necessity, declaring Yahya Khan’s martial law illegal.

3.2 Criminal Law: Defense Against Criminal Liability

• A person can avoid criminal punishment if their unlawful act was necessary to prevent a greater harm.
• Example in Self-Defense:
  • If a person kills an attacker in self-defense, the act is justified under necessity.
• Example in Public Safety:
  • A doctor performs an emergency surgery without patient consent to save a life.

3.3 Administrative Law: Government Actions During Crises

• The government may take extraordinary measures during disasters, pandemics, or war.
• Example:
  • During the COVID-19 pandemic, governments imposed lockdowns and travel bans despite affecting personal freedoms.

4. Limitations and Criticism of the Doctrine of Necessity

While the Doctrine of Necessity allows flexibility, it has major legal and ethical limitations.

4.1 Cannot Be Used to Justify Arbitrary Actions

• Governments cannot abuse the doctrine to violate fundamental rights.

4.2 Should Be Applied Only in Genuine Emergencies

• The doctrine cannot be misused to suppress democracy or personal liberties.

4.3 Must Be Temporary

• Emergency measures should be lifted once the crisis is over.

4.4 Controversy Over Use in Pakistan

• Critics argue that courts have misused the doctrine to justify military rule.

5. Difference Between Doctrine of Necessity and Doctrine of Self-Defense

Feature	Doctrine of Necessity	Doctrine of Self-Defense
Definition	Justifies unlawful acts to prevent greater harm.	Justifies the use of force to protect oneself.
Scope	Applies in constitutional, criminal, and administrative law.	Applies mainly in criminal law.
Example	Martial law declared to prevent state collapse.	A person kills an attacker in self-defense.

6. Judicial Interpretations of the Doctrine of Necessity

6.1 Supreme Court Cases in Pakistan

State v. Dosso (1958)

• Martial law justified on grounds of necessity.

Asma Jillani v. Government of Punjab (1972)

• Doctrine of Necessity rejected, and Yahya Khan’s rule declared illegal.

Zafar Ali Shah v. Pervez Musharraf (2000)

• Musharraf’s military takeover validated under the Doctrine of Necessity.

7. Importance of the Doctrine of Necessity

7.1 Maintains Stability During Emergencies

• Allows governments to take immediate action in national crises.

7.2 Provides Legal Justification for Urgent Actions

• Courts recognize necessity as a defense in extraordinary circumstances.

7.3 Protects Public Interest

• Ensures that laws are not rigidly applied in life-threatening situations.

8. Conclusion

The Doctrine of Necessity plays a crucial role in legal and political decision-making. While it allows extraordinary measures during crises, it must be applied carefully to prevent misuse. Courts must ensure that the doctrine is not used as an excuse for unconstitutional actions but only for genuine emergency situations.

CHAPTER 24 – THE DOCTRINE OF LOCUS STANDI

1. Introduction to the Doctrine of Locus Standi

1.1 The Doctrine of Locus Standi determines who has the legal right to file a case in court. It ensures that only a person with a direct legal interest in a dispute can initiate legal proceedings.

1.2 Purpose of Locus Standi:

• To prevent frivolous lawsuits.
• To ensure that only the affected party can seek relief.
• To maintain judicial efficiency by limiting access to courts to those with genuine legal standing.

1.3 Legal Basis in Pakistan

• Article 199 of the Constitution of Pakistan, 1973, governs locus standi in constitutional petitions.
• Order 7, Rule 11 of the Code of Civil Procedure (CPC), 1908) allows courts to dismiss cases where the plaintiff lacks locus standi.

2. Meaning and Importance of Locus Standi

2.1 Definition

• Locus Standi means the legal capacity of a person to approach the court for relief.
• If a person is not directly affected by an issue, they do not have the right to file a case.

2.2 Example of Locus Standi

• If a tenant is illegally evicted, only that tenant has locus standi to file a case.
• A random citizen cannot challenge the eviction, as they are not directly affected.

2.3 Importance of Locus Standi

• Prevents unnecessary litigation.
• Ensures only genuine grievances are heard by courts.
• Protects judicial time and resources.

3. Application of Locus Standi in Different Areas of Law

Locus standi applies in various areas of law, including civil, criminal, constitutional, and administrative law.

3.1 Civil Cases

• Only a person whose rights are affected can file a civil suit.
• Example: A buyer can sue a seller for breach of contract, but a third party cannot interfere.

3.2 Criminal Cases

• Criminal prosecution is the responsibility of the state, but victims may also have standing.
• Example: A victim of theft has locus standi to file a police complaint, but a bystander does not.

3.3 Constitutional Law and Public Interest Litigation (PIL)

• Normally, only aggrieved persons can file a constitutional petition.
• However, in Public Interest Litigation (PIL), any public-spirited citizen can approach the court.

4. Exceptions to the Doctrine of Locus Standi

Although locus standi restricts who can file a case, there are exceptions where third parties can approach the court.

4.1 Public Interest Litigation (PIL)

• Allows a person to file a case in the interest of society.
• Example: A lawyer files a petition to stop illegal deforestation, even if they are not personally affected.

4.2 Habeas Corpus Petitions

• Any person can file a petition for the release of a detained individual.
• Example: If a person is illegally detained by police, a friend or relative can file a habeas corpus petition.

4.3 Constitutional Petitions Against Government Actions

• Citizens can challenge unconstitutional laws and policies.
• Example: A person challenges an unconstitutional tax law, even if they are not directly affected.

5. Difference Between Locus Standi and Public Interest Litigation (PIL)

Feature	Locus Standi	Public Interest Litigation (PIL)
Who Can File?	Only an affected person.	Any public-spirited individual.
Purpose	To protect individual rights.	To protect public rights and social justice.
Example	A tenant sues a landlord for wrongful eviction.	A lawyer challenges environmental pollution laws.

6. Judicial Interpretations of Locus Standi in Pakistan

6.1 Key Case Law in Pakistan

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court ruled that any citizen has locus standi to challenge unconstitutional acts of the government.

Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632)

• The court held that locus standi applies strictly in private matters but can be relaxed in cases of fundamental rights violations.

7. Importance of Locus Standi in Legal Proceedings

7.1 Ensures Genuine Claims Are Heard

• Prevents the court system from being misused by unrelated parties.

7.2 Protects Judicial Resources

• Saves time and money by limiting access to courts to affected individuals.

7.3 Prevents Political or Vexatious Litigation

• Stops people from filing cases to harass opponents or for personal gain.

8. Conclusion

The Doctrine of Locus Standi ensures that only those with a direct legal interest can file a case. However, exceptions exist, especially in Public Interest Litigation (PIL) and human rights cases. Courts must carefully balance the need to restrict frivolous cases while also allowing access to justice in cases of public importance.

CHAPTER 25 – THE DOCTRINE OF WAIVER

1. Introduction to the Doctrine of Waiver

1.1 The Doctrine of Waiver is a legal principle that states a person who knowingly and voluntarily gives up a legal right cannot later claim it.

1.2 Purpose of the Doctrine of Waiver:

• To ensure fairness in legal transactions.
• To prevent individuals from changing their position after voluntarily giving up a right.
• To promote certainty in contracts and litigation.

1.3 Legal Basis in Pakistan

• Sections 63 & 64 of the Contract Act, 1872, govern the waiver of contractual rights.
• Order 2, Rule 2 of the Code of Civil Procedure (CPC), 1908), recognizes the principle in litigation.
• Constitutional cases may involve waiver of fundamental rights, but courts often do not allow it.

2. Meaning and Elements of Waiver

2.1 Definition

• Waiver occurs when a person voluntarily gives up a known legal right.
• Once a right is waived, the person cannot later enforce it.

2.2 Essential Elements of Waiver

1. A legal right must exist.
2. The right holder must have full knowledge of the right.
3. The waiver must be voluntary and intentional.
4. The waiver can be express (written) or implied (by conduct).

2.3 Example of Waiver

• A tenant agrees not to claim compensation for repairs in a lease agreement.
• Later, the tenant cannot sue the landlord for reimbursement.

3. Types of Waiver

3.1 Express Waiver

• A written or spoken agreement to give up a right.
• Example: An employee signs an agreement stating that they will not claim overtime pay.

3.2 Implied Waiver

• Waiver can be inferred from conduct or actions.
• Example: A creditor repeatedly accepts late payments from a borrower.
• The creditor waives their right to strict deadlines.

3.3 Waiver in Contracts

• A party agrees not to enforce a contractual right.
• Example: A supplier allows a customer extra time to make payments.

3.4 Waiver in Litigation

• If a party does not raise an issue in the initial stage of a case, they may lose the right to argue it later.
• Example: A defendant does not object to jurisdiction in the trial court.
• They cannot raise it in appeal.

4. Legal Consequences of Waiver

4.1 Loss of Legal Rights

• Once waived, a right cannot be enforced later.
• Example: If an insurance company accepts late premium payments without objection, it waives the right to cancel the policy for delay.

4.2 No Waiver of Fundamental Rights

• Courts do not allow individuals to waive constitutional or fundamental rights.
• Example: A person cannot voluntarily give up their right to life or liberty.

4.3 Cannot Be Revoked Once Given

• A waiver must be clear and final.
• Example: A landlord agrees not to charge rent for three months.
• Later, the landlord cannot demand payment for that period.

5. Difference Between Waiver and Estoppel

Feature	Waiver	Estoppel
Definition	Voluntary surrender of a legal right.	Prevents a person from denying a previous representation.
Intent	The person knowingly gives up the right.	The person’s past action creates reliance.
Example	A company waives late fees for payments.	A landlord promises to reduce rent and then cannot deny it.

6. Exceptions to the Doctrine of Waiver

6.1 Waiver Must Be Clear and Unambiguous

• If a waiver is uncertain, it cannot be enforced.

6.2 Waiver Cannot Violate Public Policy

• A person cannot waive a right that affects public interest.

6.3 Waiver Must Be Lawful

• Illegal rights cannot be waived.
• Example: A worker cannot waive their right to minimum wage under labor laws.

7. Judicial Interpretations of Waiver in Pakistan

7.1 Key Case Law in Pakistan

Mian Bashir v. Habib Bank (PLD 1998 SC 142)

• The Supreme Court ruled that a person who voluntarily waives a contractual right cannot later claim it.

Gul Ahmed v. Government of Pakistan (PLD 2005 SC 543)

• The court held that fundamental rights cannot be waived through private agreements

8. Importance of the Doctrine of Waiver

8.1 Promotes Certainty in Contracts

• Helps businesses avoid disputes over waived terms.

8.2 Prevents Frivolous Litigation

• Ensures that individuals do not unfairly claim rights after waiving them.

8.3 Encourages Fair Legal Practices

• Protects parties from abuse of legal technicalities.

9. Conclusion

The Doctrine of Waiver is a fundamental principle in contract and litigation law. It ensures that once a person voluntarily gives up a right, they cannot later enforce it. However, waivers must be clear, lawful, and not against public policy. Courts in Pakistan have strictly enforced waivers in contracts but do not allow waiver of fundamental rights..

CHAPTER 26 – THE DOCTRINE OF SEVERABILITY

1. Introduction to the Doctrine of Severability

1.1 The Doctrine of Severability states that if a part of a law, contract, or legal document is invalid, the remaining valid parts can still be enforced.

1.2 Purpose of the Doctrine of Severability:

• To ensure that entire laws or contracts are not invalidated due to a minor defect.
• To uphold legally valid provisions while removing unconstitutional or illegal sections.
• To maintain judicial efficiency and legislative intent.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, recognizes severability in unconstitutional laws.
• Contract Act, 1872, allows severance of unlawful contract terms.

2. Meaning and Application of Severability

2.1 Definition

• Severability means that if a part of a legal document is void, the rest can still be enforced, provided it remains functional.

2.2 Example of Severability in Constitutional Law

• If a law contains both constitutional and unconstitutional provisions, courts can strike down the unconstitutional parts while keeping the rest valid.

2.3 Example of Severability in Contracts

• A business contract has a restrictive clause that is illegal.
• The court may remove the illegal clause while enforcing the rest of the contract.

3. Application of the Doctrine of Severability

Severability applies in constitutional law, contracts, and administrative decisions.

3.1 Severability in Constitutional Law

• If a law has unconstitutional provisions, only those provisions will be struck down, not the whole law.
• Example:
  • A new law restricts free speech and also provides for fair election reforms.
  • The court invalidates the speech restrictions but keeps the election reforms valid.

3.2 Severability in Contracts

• If a contract has an illegal or unfair term, the court can remove that term while keeping the rest valid.
• Example:
  • A job contract includes a clause preventing the employee from ever working for a competitor.
  • The court removes the restrictive clause but keeps the rest of the contract valid.

3.3 Severability in Administrative Decisions

• If part of a government decision is unlawful, the rest of the decision can still be enforced.
• Example:
  • A government policy includes both legal and illegal conditions.
  • The court strikes down the illegal part but allows the valid policies to remain in force.

4. Conditions for Applying the Doctrine of Severability

For severability to apply, the following conditions must be met:

4.1 The Remaining Part Must Be Capable of Standing Alone

• If the valid portion can function independently, it can be upheld.
• Example:
  • If a law on trade restrictions has one unconstitutional clause, the rest can remain valid.

4.2 The Legislature’s Intent Must Support Severability

• The court must consider whether lawmakers intended the valid portion to stand alone.

4.3 The Removal of the Invalid Part Must Not Change the Law’s Purpose

• If removing the invalid part makes the law meaningless, the whole law may be struck down.

5. Difference Between Doctrine of Severability and Doctrine of Repugnancy

Feature	Severability	Repugnancy
Definition	Invalid portions of a law are removed while the rest remains valid.	A law that contradicts a higher law is entirely struck down.
Effect	Partial invalidation.	Complete invalidation.
Example	A tax law has one unconstitutional clause; only that clause is removed.	A provincial law contradicting federal law is struck down entirely.

6. Limitations of the Doctrine of Severability

6.1 If the Entire Law Depends on the Invalid Part

• If removing the unconstitutional part destroys the law’s main purpose, the whole law is struck down.

6.2 If the Legislature Would Not Have Passed the Law Without the Invalid Part

• If the court believes lawmakers would not have passed the law without the unconstitutional part, the law is invalid.

6.3 If the Remaining Part Becomes Unworkable

• If removing the invalid portion makes the law confusing or incomplete, severability cannot apply.

7. Judicial Interpretations of the Doctrine of Severability in Pakistan

7.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that only unconstitutional parts of a law should be struck down, not the entire law.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court upheld the constitutional parts of a law while removing provisions that violated fundamental rights.

Moulvi Tamizuddin Khan v. Federation of Pakistan (PLD 1955 FC 240)

• The court ruled that if the main structure of a law is unconstitutional, the entire law must be struck down.

8. Importance of the Doctrine of Severability

8.1 Protects Legislative Intent

• Ensures that valid parts of a law remain in force instead of being unnecessarily struck down.

8.2 Prevents Legal Chaos

• If an entire law is declared void due to one defect, it may create confusion. Severability prevents this.

8.3 Maintains Rule of Law

• Ensures that courts do not unnecessarily interfere with legislative functions.

9. Conclusion

The Doctrine of Severability ensures that only the unconstitutional or illegal parts of a law, contract, or decision are removed while keeping the valid parts intact. This doctrine is crucial in constitutional law, contract law, and administrative decisions, as it prevents the unnecessary invalidation of entire laws or agreements. However, it applies only when the remaining part of the law can function independently and aligns with legislative intent.

CHAPTER 27 – THE DOCTRINE OF LEGITIMATE EXPECTATION

1. Introduction to the Doctrine of Legitimate Expectation

1.1 The Doctrine of Legitimate Expectation is a legal principle that protects individuals from arbitrary or unfair actions by public authorities. It ensures that if a government or authority makes a promise or follows a consistent practice, individuals affected by it can expect fair treatment and continuity.

1.2 Purpose of the Doctrine of Legitimate Expectation:

• To ensure fairness and transparency in government actions.
• To protect individuals from sudden and unfair policy changes.
• To uphold trust between the government and the public.

1.3 Legal Basis in Pakistan

• Recognized under administrative and constitutional law.
• Article 4 of the Constitution of Pakistan, 1973, guarantees that individuals must be treated in accordance with the law.
• Courts have applied this doctrine in cases where public authorities deviated from established practices or promises.

2. Meaning and Application of Legitimate Expectation

2.1 Definition

• Legitimate expectation arises when a public authority makes a representation or follows a practice that creates an expectation in individuals that they will be treated in a certain way.

2.2 Example of Legitimate Expectation in Public Administration

• A government regularly grants tax exemptions to a certain industry.
• If the government suddenly removes the exemption without notice, affected businesses may challenge the decision based on legitimate expectation.

2.3 Example of Legitimate Expectation in Employment Law

• A public servant is promised a promotion based on existing policies.
• If the policy is suddenly changed without fair reasoning, the employee can claim legitimate expectation.

3. Types of Legitimate Expectation

3.1 Procedural Legitimate Expectation

• The expectation that proper procedure will be followed before making a decision.
• Example: If a government regularly consults business groups before changing tax laws, but suddenly changes the law without consultation, businesses can challenge the decision.

3.2 Substantive Legitimate Expectation

• The expectation that a promised benefit or right will be granted.
• Example: If a university guarantees scholarships to top students, but later refuses to grant them without reason, students can claim legitimate expectation.

4. Conditions for Legitimate Expectation to Apply

For a legitimate expectation to be legally valid, the following conditions must be met:

4.1 Clear and Unambiguous Promise or Practice

• There must be a clear representation or established practice by a public authority.
• Example: A government agency repeatedly renews permits for businesses without issues.

4.2 Expectation Must Be Reasonable

• The expectation must be based on logical and legal grounds.
• Example: Expecting a government job without applying for it is not reasonable.

4.3 No Overriding Public Interest Against It

• The expectation cannot override national interest or legal requirements.
• Example: If a government promised low electricity tariffs, but economic conditions force price increases, legitimate expectation may not apply.

5. Legal Consequences of Legitimate Expectation

5.1 When a Public Authority Fails to Meet Legitimate Expectations

• Individuals can challenge the decision in court through judicial review.

5.2 Remedies Available

• Courts may order:
  • Reinstatement of a benefit or policy.
  • Compensation for losses suffered.
  • A fair hearing before any adverse decision is made.

5.3 When Legitimate Expectation Does Not Apply

• If the government clearly stated that a policy was temporary.
• If the expectation conflicts with public interest or national security.

6. Difference Between Legitimate Expectation and Promissory Estoppel

Feature	Legitimate Expectation	Promissory Estoppel
Definition	A public authority must fulfill reasonable expectations created by its past conduct.	A party is prevented from going back on a promise if another party relied on it.
Scope	Applies mainly in administrative law.	Applies mainly in contract and commercial law.
Example	A university promises to keep tuition fees fixed but later raises them.	A landlord promises to extend a lease but later refuses.

7. Judicial Interpretations of the Doctrine of Legitimate Expectation in Pakistan

7.1 Key Case Law in Pakistan

Pakistan International Airlines (PIA) v. Employees Union (PLD 1996 SC 214)

• The Supreme Court ruled that a government organization must follow its own employment policies unless a valid reason exists to change them.

Muhammad Aslam v. Government of Punjab (PLD 2005 SC 543)

• The court held that government authorities cannot arbitrarily revoke a long-standing policy without due process.

Sugar Mills Case (2018 SCMR 1201)

• The court ruled that a government’s sudden change in taxation policy without notice violated the principle of legitimate expectation.

8. Importance of the Doctrine of Legitimate Expectation

8.1 Ensures Fairness in Public Administration

• Protects individuals and businesses from arbitrary government actions.

8.2 Strengthens Rule of Law

• Ensures that public authorities cannot change policies without justification.

8.3 Promotes Trust in Government Policies

• Encourages investment and stability by ensuring that government commitments are honored.

9. Conclusion

The Doctrine of Legitimate Expectation ensures that public authorities honor their promises and established practices unless there is a valid reason to change them. Courts use this doctrine to prevent unfair treatment and maintain transparency in government decisions. However, it does not apply if the expectation conflicts with public interest or legal authority.

CHAPTER 28 – THE DOCTRINE OF COLOURABLE LEGISLATION

1. Introduction to the Doctrine of Colourable Legislation

1.1 The Doctrine of Colourable Legislation is a legal principle that prevents a legislature from enacting a law that indirectly achieves something it cannot do directly.

1.2 Purpose of the Doctrine of Colourable Legislation:

• To ensure that laws remain within the constitutional limits of legislative power.
• To prevent legislatures from bypassing constitutional restrictions through indirect methods.
• To maintain the separation of powers between the executive, legislature, and judiciary.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the division of legislative powers between the federal and provincial governments.
• Article 8 states that laws violating fundamental rights are void, preventing legislatures from making unconstitutional laws.
• Courts in Pakistan have struck down laws that disguise an unconstitutional action under a legal form.

2. Meaning and Scope of Colourable Legislation

2.1 Definition

• A law is colourable if it appears to be within legislative power but in reality, achieves an unconstitutional objective.
• The doctrine is based on the principle that what cannot be done directly cannot be done indirectly.

2.2 Example of Colourable Legislation

• A provincial government cannot impose an income tax (as it is a federal subject).
• Instead, the province introduces a “processing fee” that has the same effect as a tax.
• This is colourable legislation because it achieves taxation indirectly.

2.3 Scope of the Doctrine

• It applies only to legislative actions (laws passed by the government).
• It does not apply to executive actions or policy decisions.

3. Principles Governing Colourable Legislation

3.1 The True Nature of the Law Must Be Examined

• Courts look beyond the wording of the law to determine its real purpose.
• Example: If a law claims to regulate businesses but effectively bans them, it may be unconstitutional.

3.2 If the Law Seeks to Evade Constitutional Restrictions, It Is Invalid

• A law must not bypass constitutional limitations through disguised means.

3.3 The Doctrine Is Based on the Separation of Powers

• The legislature must act within its constitutional limits and cannot assume powers belonging to the executive or judiciary.

4. Application of the Doctrine of Colourable Legislation

4.1 In Constitutional Law

• If a law violates the division of powers, it may be struck down as colourable legislation.
• Example: A provincial government attempts to regulate banking, which is a federal subject.

4.2 In Taxation Law

• A government imposes a “service charge” that functions as an indirect tax.
• If the legislature has no power to tax, this may be colourable legislation.

4.3 In Fundamental Rights Cases

• If a law appears to be for public welfare but actually restricts fundamental rights, it may be challenged.
• Example: A law banning political rallies under the pretense of “public safety”.

5. Tests to Identify Colourable Legislation

Courts use certain tests to determine if a law is colourable:

5.1 Purpose Test

• Does the actual effect of the law differ from its stated purpose?

5.2 Competency Test

• Is the legislature competent to make this law under the Constitution?

5.3 Consequence Test

• Does the law lead to an unconstitutional outcome despite appearing legal?

6. Difference Between Colourable Legislation and Ultra Vires

Feature	Colourable Legislation	Ultra Vires
Definition	A law that indirectly achieves something unconstitutional.	A law that exceeds the legal powers of the authority that created it.
Focus	Focuses on hidden legislative intent.	Focuses on whether the law was within legislative power.
Example	A province imposing an indirect tax by calling it a “fee”.	A local government trying to regulate immigration (a federal subject).

7. Judicial Interpretations of Colourable Legislation in Pakistan

7.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a disguised tax imposed by a province was unconstitutional.

Moulvi Tamizuddin Khan v. Federation of Pakistan (PLD 1955 FC 240)

• The court held that a constitutional amendment cannot be introduced in a way that bypasses legal procedures.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• A law restricting freedom of association was struck down because its real purpose was political suppression.

8. Importance of the Doctrine of Colourable Legislation

8.1 Protects Constitutional Integrity

• Ensures that legislatures do not exceed their powers.

8.2 Prevents Abuse of Power

• Stops governments from bypassing constitutional restrictions through indirect means.

8.3 Maintains the Rule of Law

• Ensures that laws remain within the legal framework of the Constitution.

9. Conclusion

The Doctrine of Colourable Legislation is essential to prevent legislative fraud and protect constitutional boundaries. Courts use this doctrine to strike down laws that attempt to achieve unconstitutional objectives through indirect means. Legislatures must act within their legal limits and cannot bypass constitutional restrictions through disguised methods.

CHAPTER 29 – THE DOCTRINE OF PITH AND SUBSTANCE

1. Introduction to the Doctrine of Pith and Substance

1.1 The Doctrine of Pith and Substance is a legal principle used by courts to determine the true nature and validity of a law when there is a conflict over legislative authority.

1.2 Purpose of the Doctrine of Pith and Substance:

• To ensure laws are judged by their core intent rather than technical wording.
• To resolve conflicts between federal and provincial legislation.
• To uphold laws that are constitutionally valid, even if they incidentally touch upon another legislative domain.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, divides legislative powers between federal and provincial governments.
• Courts apply the Doctrine of Pith and Substance when there is a dispute over whether a law falls within the legislative authority of a particular government.

2. Meaning and Scope of Pith and Substance

2.1 Definition

• Pith means the “essential character” of a law, and substance means its “real purpose and effect.”
• The doctrine ensures that a law is examined based on its true intent rather than minor overlaps with other legislative domains.

2.2 Example of Pith and Substance in Legislative Power

• The federal government has the power to regulate banking, while provinces regulate land laws.
• A province introduces a law affecting bank foreclosures on property.
• Even if the law touches banking matters, if its main intent is land regulation, it remains valid under provincial power.

2.3 Scope of the Doctrine

• It applies only in cases where a law slightly overlaps another legislative domain.
• It does not apply if a law completely violates the legislative division.

3. Principles Governing the Doctrine of Pith and Substance

3.1 The Dominant Purpose of the Law Must Be Determined

• Courts look at the actual purpose of the law rather than its incidental effects.

3.2 Incidental Effects Do Not Invalidate a Law

• If a law primarily belongs to a valid legislative domain, but indirectly affects another subject, it is still valid.

3.3 The Law Must Be Examined as a Whole

• Courts analyze the entire legislation rather than just isolated sections.

4. Application of the Doctrine of Pith and Substance

4.1 In Constitutional Law

• If a federal law affects a provincial matter or vice versa, courts analyze whether the main purpose of the law is constitutional.
• Example:
  • A federal law regulating telecommunications also affects provincial employment regulations.
  • If the main purpose is to regulate telecom, the law is upheld under federal jurisdiction.

4.2 In Taxation Laws

• If a province imposes a financial duty that resembles a tax, but its primary objective is regulation, it remains valid.
• Example:
  • A provincial government introduces a licensing fee for certain businesses.
  • If the fee indirectly raises revenue but is mainly for regulation, it is valid under provincial power.

4.3 In Criminal Laws

• If a provincial law affects criminal procedure, which is a federal subject, but its core aim is to enforce a valid provincial matter, it remains valid.
• Example:
  • A province regulates gambling within its territory.
  • Even if some criminal penalties are imposed, the law is upheld because its primary purpose is gambling regulation, which is a provincial matter.

5. Tests to Determine Pith and Substance

Courts apply various tests to determine the dominant character of a law:

5.1 Subject Matter Test

• What is the main subject of the law?

5.2 Incidental Effects Test

• Does the law primarily belong to one legislative category, even if it affects another category indirectly?

5.3 Intention Test

• What was the legislature’s true intent in passing the law?

6. Difference Between Pith and Substance and Colourable Legislation

Feature	Pith and Substance	Colourable Legislation
Definition	Determines the true nature of a law when powers overlap.	Prevents legislatures from passing unconstitutional laws indirectly.
Effect	Law is upheld if its core purpose is constitutional.	Law is struck down if it disguises an unconstitutional act.
Example	A province regulates property even though it affects banking.	A province imposes an illegal tax by calling it a “fee”.

7. Judicial Interpretations of Pith and Substance in Pakistan

7.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court upheld a provincial law that affected federal taxation but was primarily about sugar industry regulation.

Province of Punjab v. Ziaullah Khan (PLD 1995 SC 152)

• The court ruled that a provincial law affecting labor regulations was valid because its main focus was public welfare.

Pakistan Tobacco Co. Ltd v. Government of Sindh (PLD 2001 SC 452)

• The Supreme Court applied the Pith and Substance doctrine to uphold a provincial law regulating tobacco sales, even though it indirectly affected trade and commerce (a federal subject).

8. Importance of the Doctrine of Pith and Substance

8.1 Prevents Unnecessary Invalidation of Laws

• Ensures that useful laws are not struck down due to minor overlaps.

8.2 Protects Legislative Powers

• Allows federal and provincial governments to legislate effectively within their constitutional domains.

8.3 Ensures a Balanced Federal Structure

• Promotes cooperation between federal and provincial legislatures.

9. Conclusion

The Doctrine of Pith and Substance is an essential tool for resolving conflicts over legislative powers. It ensures that laws are judged based on their core purpose rather than minor technical overlaps. Courts in Pakistan apply this doctrine to uphold constitutionally valid laws, ensuring a smooth functioning of the legislative system.

CHAPTER 30 – THE DOCTRINE OF ECLIPSE

1. Introduction to the Doctrine of Eclipse

1.1 The Doctrine of Eclipse is a constitutional principle that states if a law is inconsistent with fundamental rights, it becomes unenforceable but does not entirely disappear. If the inconsistency is later removed, the law becomes valid again.

1.2 Purpose of the Doctrine of Eclipse:

• To ensure that laws inconsistent with fundamental rights are not immediately struck down but remain dormant.
• To allow such laws to be revived if the constitutional inconsistency is removed.
• To prevent unnecessary invalidation of pre-constitutional laws.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that laws inconsistent with fundamental rights are void to the extent of the inconsistency.
• The doctrine applies mainly to pre-constitutional laws, meaning laws that existed before the Constitution was enacted.

2. Meaning and Scope of the Doctrine of Eclipse

2.1 Definition

• Eclipse means that a law remains in existence but is overshadowed by constitutional provisions and cannot be enforced until the inconsistency is removed.

2.2 Example of the Doctrine of Eclipse

• A colonial-era law restricts freedom of speech.
• When the Constitution guarantees free speech, the old law becomes unenforceable.
• If the Constitution is later amended to allow such restrictions, the law becomes valid again.

2.3 Scope of the Doctrine

• Applies only to laws that existed before the Constitution (pre-constitutional laws).
• Does not apply to laws made after the Constitution came into force.

3. Principles Governing the Doctrine of Eclipse

3.1 The Law Is Not Completely Void

• A law inconsistent with fundamental rights is only inoperative, not abolished.

3.2 If the Inconsistency Is Removed, the Law Revives

• If the Constitution is amended to remove the conflict, the law becomes valid again.

3.3 Only Affected Persons Can Challenge the Law

• Only individuals whose fundamental rights are violated can challenge the law.

4. Application of the Doctrine of Eclipse

4.1 In Constitutional Law

• If a pre-constitutional law violates fundamental rights, it is not struck down but remains inactive.
• Example:
  • A law from 1945 imposes a restriction on property ownership.
  • After the 1973 Constitution guarantees property rights, the law becomes inoperative.
  • If the Constitution is later amended to allow such restrictions, the law is revived.

4.2 In Fundamental Rights Cases

• If a law limits free speech before the Constitution guarantees it, the law is eclipsed.
• If the Constitution later permits restrictions, the law becomes active again.

4.3 In Administrative and Criminal Laws

• If a pre-constitutional law imposes criminal penalties contrary to fundamental rights, it becomes unenforceable.
• Example:
  • A British-era law punishing peaceful protests is eclipsed after the Constitution guarantees freedom of assembly.

5. Difference Between the Doctrine of Eclipse and Doctrine of Severability

Feature	Doctrine of Eclipse	Doctrine of Severability
Definition	A law is temporarily inoperative due to inconsistency with fundamental rights.	Only the unconstitutional part of a law is removed, while the rest remains valid.
Effect	The law is revived if the inconsistency is removed.	The invalid part of the law is struck down, and the rest continues to exist.
Example	A law restricting free speech before the Constitution becomes inactive.	A tax law with an unconstitutional provision is upheld after removing that provision.

6. Limitations of the Doctrine of Eclipse

6.1 Does Not Apply to Post-Constitutional Laws

• If a law is made after the Constitution and violates fundamental rights, it is completely void, not eclipsed.

6.2 Cannot Revive a Law If a Court Declares It Void

• If a law is declared unconstitutional by the Supreme Court, it cannot be revived.

6.3 Does Not Apply If the Law Is Inherently Unconstitutional

• If a law is completely against the Constitution, it is struck down permanently.

7. Judicial Interpretations of the Doctrine of Eclipse in Pakistan

7.1 Key Case Law in Pakistan

Government of Pakistan v. Abdul Wali (PLD 1960 SC 514)

• The Supreme Court applied the Doctrine of Eclipse to a pre-constitutional law restricting freedom of expression.
• The law remained in existence but was unenforceable after the Constitution guaranteed free speech.

Federation of Pakistan v. Iqbal Ahmad (PLD 1985 SC 180)

• The court ruled that a pre-constitutional law affecting property rights was inoperative due to constitutional guarantees.
• When property laws were amended, the law became enforceable again.

Moulvi Tamizuddin Khan v. Federation of Pakistan (PLD 1955 FC 240)

• The court rejected the Doctrine of Eclipse for post-constitutional laws, stating that new laws violating fundamental rights are completely void.

8. Importance of the Doctrine of Eclipse

8.1 Ensures Continuity of Legal Framework

• Prevents unnecessary invalidation of old laws.

8.2 Balances Fundamental Rights with Legal Stability

• Allows the Constitution to override old laws without removing them permanently.

8.3 Protects Pre-Constitutional Laws

• Ensures that laws made before the Constitution are not completely erased but remain inactive unless revived.

9. Conclusion

The Doctrine of Eclipse ensures that pre-constitutional laws conflicting with fundamental rights are not struck down but remain unenforceable until the inconsistency is removed. It protects legal continuity while allowing the Constitution to override outdated laws. However, it does not apply to laws made after the Constitution, which are directly void if unconstitutional.

CHAPTER 31 – THE DOCTRINE OF STARE DECISIS

1. Introduction to the Doctrine of Stare Decisis

1.1 The Doctrine of Stare Decisis is a fundamental legal principle that means “to stand by decisions and not disturb settled matters.” It ensures that courts follow previous judicial decisions (precedents) to maintain consistency and stability in the law.

1.2 Purpose of the Doctrine of Stare Decisis:

• To ensure consistency and predictability in legal rulings.
• To promote judicial efficiency by relying on established legal principles.
• To maintain public trust in the legal system by preventing arbitrary decisions.

1.3 Legal Basis in Pakistan

• Article 189 of the Constitution of Pakistan, 1973, states that decisions of the Supreme Court are binding on all lower courts.
• Article 201 states that High Court rulings are binding within their jurisdiction.

2. Meaning and Scope of Stare Decisis

2.1 Definition

• Stare Decisis requires courts to follow established judicial decisions when deciding similar cases.

2.2 Example of Stare Decisis in Judicial Practice

• If the Supreme Court rules that a law banning public protests is unconstitutional, all lower courts must follow this ruling in similar cases.

2.3 Scope of the Doctrine

• Applies to all courts within the same jurisdiction.
• Ensures uniform interpretation of the law.

3. Types of Precedents in Stare Decisis

3.1 Binding Precedents (Obligatory)

• Decisions of higher courts must be followed by lower courts.
• Example:
  • If the Supreme Court rules that a tax law is unconstitutional, lower courts must follow this ruling.

3.2 Persuasive Precedents (Advisory)

• Not legally binding but may influence decisions in other courts.
• Example:
  • A decision by the UK Supreme Court may be cited in Pakistani courts but is not binding.

3.3 Overruling Precedents

• A higher court may change or overturn a previous decision.
• Example:
  • If the Supreme Court later finds its previous ruling incorrect, it can issue a new judgment that replaces the old one.

4. Principles Governing the Doctrine of Stare Decisis

4.1 Decisions of the Supreme Court Are Binding on All Lower Courts

• Article 189 of the Constitution makes Supreme Court judgments binding on all lower courts.

4.2 High Court Decisions Are Binding Within Their Jurisdiction

• Article 201 of the Constitution states that High Court decisions apply within the respective province.

4.3 A Court Cannot Ignore a Binding Precedent

• If a binding precedent exists, a lower court must follow it unless it is overturned by a higher authority.

4.4 Precedents May Be Overruled in Exceptional Circumstances

• If a previous ruling is contrary to justice or a new legal principle emerges, the Supreme Court may overrule its own decision.

5. Application of Stare Decisis in Different Areas of Law

5.1 In Constitutional Law

• Courts follow past interpretations of constitutional provisions.
• Example:
  • The Supreme Court ruled that fundamental rights cannot be suspended indefinitely.
  • All lower courts must follow this precedent.

5.2 In Criminal Law

• A precedent on bail conditions must be followed in similar cases.
• Example:
  • If a High Court grants bail under specific conditions, all lower courts in that province must follow the same conditions.

5.3 In Civil Law

• Contract and property laws must be applied consistently based on past decisions.
• Example:
  • If the Supreme Court interprets a property law in a certain way, all lower courts must apply the same interpretation.

6. Exceptions to the Doctrine of Stare Decisis

6.1 If the Precedent Was Based on an Incorrect Interpretation of Law

• A court may refuse to follow a precedent if it was wrongly decided.

6.2 If Social or Legal Circumstances Have Changed

• A precedent may be overruled if societal values or laws have evolved.

6.3 If the Precedent Conflicts with Fundamental Rights

• Courts may refuse to follow a precedent if it violates fundamental rights.

6.4 If There Are Conflicting Precedents

• If two different judgments exist on the same issue, courts may decide which one to follow.

7. Difference Between Stare Decisis and Judicial Activism

Feature	Stare Decisis	Judicial Activism
Definition	Courts follow previous decisions for consistency.	Courts actively interpret the law to bring change.
Purpose	To maintain stability in the legal system.	To ensure laws evolve with societal needs.
Example	A court follows an old ruling on property rights.	A court strikes down a law it considers unfair.

8. Judicial Interpretations of Stare Decisis in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court held that lower courts must follow Supreme Court decisions to ensure uniformity in law.

State v. Zafar Ali (PLD 1993 SC 662)

• The court ruled that High Court decisions are binding within their territorial jurisdiction.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court clarified that judicial precedents must be followed unless there is a compelling reason to depart from them.

9. Importance of the Doctrine of Stare Decisis

9.1 Ensures Stability and Predictability in Law

• Helps lawyers and judges apply the law consistently.

9.2 Reduces Uncertainty in Legal Matters

• Ensures that legal principles remain uniform across cases.

9.3 Improves Judicial Efficiency

• Saves time by relying on established legal principles instead of re-examining issues in every case.

9.4 Maintains Public Trust in the Judiciary

• Ensures that court decisions are based on legal principles rather than personal opinions.

10. Conclusion

The Doctrine of Stare Decisis is essential for consistency and stability in legal decisions. Courts in Pakistan follow binding precedents set by higher courts to maintain uniformity in law. However, precedents may be overruled in exceptional cases if they are found to be incorrect or outdated. The doctrine ensures a reliable and fair legal system by requiring courts to follow previous rulings unless a valid reason exists to change them.

CHAPTER 32 – THE DOCTRINE OF PROSPECTIVE OVERRULING

1. Introduction to the Doctrine of Prospective Overruling

1.1 The Doctrine of Prospective Overruling is a legal principle that allows courts to overrule a previous decision but apply the new ruling only to future cases, without affecting past decisions based on the old ruling.

1.2 Purpose of the Doctrine of Prospective Overruling:

• To avoid injustice to people who relied on old laws or precedents.
• To ensure smooth legal transitions without disrupting past rulings.
• To promote judicial flexibility by allowing courts to correct past errors without affecting previous judgments.

1.3 Legal Basis in Pakistan

• Recognized in constitutional and judicial review cases.
• The Supreme Court of Pakistan has applied this doctrine in landmark rulings.

2. Meaning and Scope of Prospective Overruling

2.1 Definition

• Prospective Overruling means that when a court overrules a past decision, the new rule applies only to future cases and does not affect cases that were decided under the old rule.

2.2 Example of Prospective Overruling

• The Supreme Court changes the interpretation of a tax law.
• The new ruling applies only to future tax cases, while past cases based on the old interpretation remain valid.

2.3 Scope of the Doctrine

• Applied in constitutional and public law cases.
• Ensures judicial corrections do not unfairly harm individuals who relied on previous legal rulings.

3. Principles Governing Prospective Overruling

3.1 Only the Supreme Court Can Use This Doctrine

• Lower courts cannot apply prospective overruling.
• The doctrine is reserved for cases of national legal importance.

3.2 Applies Only to Constitutional and Public Law Matters

• The doctrine does not apply to criminal cases where retrospective punishment is prohibited.

3.3 Protects Legal Certainty and Public Trust

• Ensures that people who followed the old law are not unfairly punished when the law changes.

4. Application of the Doctrine of Prospective Overruling

4.1 In Constitutional Law

• If the Supreme Court overrules a previous interpretation of the Constitution, the new interpretation applies only to future cases.
• Example:
  • A new ruling changes how fundamental rights are interpreted.
  • The change applies to future legal cases but does not affect past rulings.

4.2 In Taxation and Economic Laws

• If a tax law interpretation changes, businesses that followed the old rule are not penalized for past compliance.
• Example:
  • A court overrules a previous interpretation of corporate tax deductions.
  • The new ruling applies only to future tax assessments.

4.3 In Administrative and Regulatory Laws

• If a court overrules a law affecting government policies, the new rule applies prospectively to avoid disruption.
• Example:
  • A change in environmental regulations applies only to future cases.

5. Difference Between Prospective Overruling and Retrospective Overruling

Feature	Prospective Overruling	Retrospective Overruling
Definition	A new legal rule applies only to future cases.	A new legal rule applies to both past and future cases.
Effect on Past Cases	Past cases decided under old law remain valid.	Past cases may be reopened or overturned.
Example	A court changes a tax interpretation but applies it only to future tax assessments.	A court changes a ruling and allows past cases to be reconsidered.

6. Limitations of the Doctrine of Prospective Overruling

6.1 Cannot Be Applied in Criminal Law

• Criminal laws cannot be changed retrospectively, as it would violate the principle “No punishment without law”.

6.2 Applies Only to Judicial Decisions, Not Legislation

• The doctrine cannot be used to delay the enforcement of a new law passed by the legislature.

6.3 Cannot Overrule Fundamental Rights Violations

• If a past decision violates fundamental rights, it may need to be overruled retrospectively.

7. Judicial Interpretations of Prospective Overruling in Pakistan

7.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court applied prospective overruling in a tax law case to ensure that past taxpayers were not unfairly penalized.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court ruled that a new constitutional interpretation would apply only to future elections.

State v. Muhammad Saifullah (PLD 1993 SC 662)

• The Supreme Court used prospective overruling in an administrative law case, ensuring government policies remained stable while new legal principles were applied.

8. Importance of the Doctrine of Prospective Overruling

8.1 Ensures Fairness in Legal Changes

• Protects individuals who followed old laws from unfair punishment.

8.2 Prevents Legal Chaos

• Avoids mass invalidation of past judgments and transactions.

8.3 Allows Courts to Correct Past Errors Without Disrupting Society

• Gives courts the flexibility to update laws without creating confusion.

9. Conclusion

The Doctrine of Prospective Overruling allows courts to change legal interpretations while protecting past cases decided under old rulings. This doctrine ensures judicial flexibility, fairness, and legal stability. It is primarily used in constitutional and administrative law cases to prevent retrospective injustice while allowing for legal evolution.

CHAPTER 33 – THE DOCTRINE OF LIFTING THE CORPORATE VEIL

1. Introduction to the Doctrine of Lifting the Corporate Veil

1.1 The Doctrine of Lifting the Corporate Veil allows courts to look beyond the legal identity of a corporation and hold its owners, directors, or shareholders personally liable for its actions.

1.2 Purpose of the Doctrine of Lifting the Corporate Veil:

• To prevent fraud and abuse of corporate identity.
• To ensure that businesses are not used as a cover for illegal activities.
• To protect creditors, investors, and other stakeholders from corporate misconduct.

1.3 Legal Basis in Pakistan

• The Companies Act, 2017, provides rules regarding corporate liability.
• The courts have applied this doctrine in cases of fraud, tax evasion, and illegal business activities.

2. Meaning and Scope of Lifting the Corporate Veil

2.1 Definition

• A corporation is a separate legal entity from its owners. However, in certain cases, courts may disregard this separation and hold the individuals behind the corporation liable.

2.2 Example of Lifting the Corporate Veil

• A business owner creates multiple companies to avoid paying debts.
• The court lifts the corporate veil and holds the owner personally liable for the debts.

2.3 Scope of the Doctrine

• Applies in cases of fraud, tax evasion, misrepresentation, and other illegal activities.
• Does not apply to legitimate corporate transactions.

3. Principles Governing the Doctrine of Lifting the Corporate Veil

3.1 Corporate Entity Is Normally Separate from Owners

• A company is a legal person with its own rights and liabilities.
• Shareholders are not personally liable for corporate debts.

3.2 The Veil Can Be Lifted in Cases of Fraud or Wrongdoing

• Courts can ignore the corporate structure if it is used for illegal purposes.

3.3 The Veil Can Be Lifted for Tax Evasion or Public Interest

• If a company hides income to avoid taxes, authorities can pierce the corporate veil.

4. Situations Where Courts Lift the Corporate Veil

4.1 Fraud or Misrepresentation

• If a company is created to deceive creditors or commit fraud, courts will hold the real owners liable.
• Example:
  • A businessman creates a fake company to borrow money and then disappears.
  • The court lifts the veil and holds the individual responsible.

4.2 Avoidance of Legal Obligations

• If a company is used to escape legal responsibilities, courts may intervene.
• Example:
  • A company owner closes the business and transfers assets to a new company to avoid paying debts.
  • The court lifts the corporate veil and makes the owner liable.

4.3 Tax Evasion

• If a corporation hides profits to avoid paying taxes, tax authorities can investigate the actual owners.
• Example:
  • A business declares fake losses to reduce its tax liability.
  • The tax department lifts the corporate veil to expose the real financial records.

4.4 Government Intervention for Public Interest

• In cases where public interest is at stake, courts may disregard the corporate structure.
• Example:
  • A company pollutes the environment but hides behind corporate structures.
  • The government lifts the corporate veil and penalizes the directors personally.

5. Methods of Lifting the Corporate Veil

5.1 Judicial Piercing of the Veil

• Courts examine corporate records, financial transactions, and ownership details to determine actual control.

5.2 Statutory Provisions

• The Companies Act, 2017, allows authorities to investigate corporate fraud and financial misconduct.

5.3 Regulatory Investigations

• Tax departments, anti-corruption agencies, and securities regulators can inspect corporate structures to detect wrongdoing.

6. Difference Between Corporate Veil and Limited Liability

Feature	Corporate Veil	Limited Liability
Definition	The legal separation between a company and its owners.	The protection of shareholders from personal liability.
Effect	Can be lifted in cases of fraud, evasion, or abuse.	Protects owners unless there is wrongdoing.
Example	A businessman creates fake companies to cheat investors.	A company goes bankrupt, but shareholders lose only their investment.

7. Judicial Interpretations of Lifting the Corporate Veil in Pakistan

7.1 Key Case Law in Pakistan

Shaikh Muhammad Amin v. Government of Pakistan (PLD 1978 SC 185)

• The Supreme Court ruled that a company cannot be used as a shield to commit fraud.

State v. Abdullah Contractors (PLD 1995 SC 213)

• The court held that if a company is formed to avoid taxes, authorities can investigate its owners.

Commissioner of Income Tax v. Pakistania Limited (PLD 2002 SC 451)

• The Supreme Court lifted the corporate veil to reveal concealed income and tax evasion.

8. Importance of the Doctrine of Lifting the Corporate Veil

8.1 Prevents Corporate Fraud and Abuse

• Ensures that companies cannot be used to commit fraud or avoid liabilities.

8.2 Protects Creditors and Investors

• Ensures that owners cannot escape financial obligations by hiding behind corporate structures.

8.3 Ensures Compliance with Laws and Regulations

• Discourages corporate misconduct, tax evasion, and illegal activities.

9. Conclusion

The Doctrine of Lifting the Corporate Veil ensures that companies cannot be misused to commit fraud, evade taxes, or escape liabilities. Courts in Pakistan have applied this doctrine in cases of corporate fraud, financial misconduct, and public interest litigation. While the corporate veil protects legitimate businesses, it cannot be used as a shield for illegal activities.

CHAPTER 34 – THE DOCTRINE OF FRUSTRATION OF CONTRACT

1. Introduction to the Doctrine of Frustration of Contract

1.1 The Doctrine of Frustration applies when a contract becomes impossible to perform due to unforeseen events beyond the control of the parties. In such cases, the contract is automatically terminated.

1.2 Purpose of the Doctrine of Frustration:

• To ensure that parties are not unfairly penalized for events they could not foresee or control.
• To prevent a party from being forced to perform an impossible obligation.
• To uphold fairness and reasonableness in contractual relationships.

1.3 Legal Basis in Pakistan

• Section 56 of the Contract Act, 1872, states that a contract is void if it becomes impossible to perform due to unforeseen circumstances.
• Courts in Pakistan have applied this doctrine in cases of natural disasters, government interventions, and war.

2. Meaning and Scope of the Doctrine of Frustration

2.1 Definition

• A contract is frustrated when an unforeseen event makes it impossible to perform, not due to the fault of either party.

2.2 Example of Frustration of Contract

• A contract for shipping goods is made, but a sudden war prevents transportation.
• Since neither party is at fault, the contract is automatically terminated.

2.3 Scope of the Doctrine

• Applies only when performance becomes truly impossible, not just difficult or expensive.
• Does not apply if an alternative way to perform the contract exists.

3. Principles Governing the Doctrine of Frustration

3.1 The Event Must Be Unforeseen and Beyond Control

• The frustrating event must not have been predictable at the time of contract formation.

3.2 Performance Must Become Impossible, Not Just Inconvenient

• Increased costs or difficulties do not justify frustration.

3.3 No Fault of Either Party

• The doctrine does not apply if one party caused the impossibility.

4. Situations Where Contracts Are Frustrated

4.1 Destruction of the Subject Matter

• If the specific thing necessary for performance is destroyed, the contract is frustrated.
• Example:
  • A contract to sell a specific painting is frustrated if the painting is destroyed in a fire.

4.2 Change in Law or Government Action

• If new laws or regulations make performance illegal, the contract is frustrated.
• Example:
  • A company contracts to export goods, but new trade restrictions ban exports.
  • The contract becomes void due to frustration.

4.3 Death or Incapacity of a Key Party

• If a contract requires personal skill, the death or incapacity of the performer frustrates the contract.
• Example:
  • A famous singer agrees to perform at a concert but dies before the event.
  • The contract is frustrated.

4.4 War, Natural Disasters, or Force Majeure Events

• If external events like war or natural disasters prevent performance, frustration may apply.
• Example:
  • A hotel contract for an event is frustrated if an earthquake destroys the hotel.

5. When the Doctrine of Frustration Does Not Apply

5.1 If Performance Is Still Possible but More Difficult

• Higher costs or inconvenience do not justify frustration.
• Example:
  • A supplier cannot claim frustration just because material costs increased.

5.2 If the Contract Has a Force Majeure Clause

• Many contracts include clauses for unexpected events.
• If a force majeure clause exists, frustration does not apply.
• Example:
  • A contract states that floods will not excuse non-performance.
  • If a flood occurs, the contract remains enforceable.

5.3 If the Risk Was Foreseeable

• If an event was predictable, the doctrine does not apply.
• Example:
  • A concert promoter cannot claim frustration due to bad weather if it was common in that season.

6. Legal Consequences of Frustration of Contract

6.1 Automatic Termination of Contract

• Once frustration occurs, the contract ends immediately.

6.2 Parties Are Released from Obligations

• Neither party can sue for non-performance.

6.3 Restitution and Compensation Rules

• If any payments were made before frustration, courts may order a refund or partial compensation.

7. Difference Between Frustration of Contract and Breach of Contract

Feature	Frustration of Contract	Breach of Contract
Definition	The contract ends due to an unforeseen event making performance impossible.	One party fails to perform their contractual obligations.
Fault	No party is at fault.	One party is responsible for the breach.
Effect	The contract is automatically terminated.	The injured party can claim damages.
Example	A contract for event space is frustrated when a natural disaster destroys the venue.	A seller refuses to deliver goods without any valid reason.

8. Judicial Interpretations of the Doctrine of Frustration in Pakistan

8.1 Key Case Law in Pakistan

Khalil & Co. v. Government of Pakistan (PLD 1955 SC 342)

• The Supreme Court ruled that a contract was frustrated due to changes in government trade policies.

Pakistan Steel Mills v. Supplier Corporation (PLD 1980 SC 215)

• The court held that if performance becomes illegal due to new regulations, the contract is frustrated.

State v. Saifullah Traders (PLD 1998 SC 652)

• The court ruled that a natural disaster causing impossibility of performance justified frustration of contract.

9. Importance of the Doctrine of Frustration

9.1 Protects Parties from Unfair Liability

• Ensures that no party is forced to perform an impossible obligation.

9.2 Maintains Fairness in Contracts

• Allows for reasonable adjustments when unexpected events occur.

9.3 Encourages Legal Certainty

• Helps courts handle disputes arising from unforeseen circumstances.

10. Conclusion

The Doctrine of Frustration of Contract ensures that contracts are not unfairly enforced when performance becomes impossible due to unforeseen circumstances. Courts apply this doctrine only in cases where an event truly prevents performance, not just when performance becomes inconvenient or expensive. In Pakistan, frustration is recognized under Section 56 of the Contract Act, 1872, ensuring fair outcomes in cases of legal impossibility, force majeure events, or government intervention.

CHAPTER 35 – THE DOCTRINE OF HOLDING OUT

1. Introduction to the Doctrine of Holding Out

1.1 The Doctrine of Holding Out is a legal principle that states that a person who represents or allows themselves to be represented as a partner in a business can be held liable for its obligations, even if they are not an actual partner.

1.2 Purpose of the Doctrine of Holding Out:

• To protect third parties who rely on such representations.
• To ensure fairness in commercial transactions.
• To prevent fraudulent claims and misrepresentations in business partnerships.

1.3 Legal Basis in Pakistan

• Section 28 of the Partnership Act, 1932, governs the concept of holding out in business partnerships.
• Courts in Pakistan have applied this doctrine in cases where an individual’s actions created an impression of being a partner, leading to liability.

2. Meaning and Scope of the Doctrine of Holding Out

2.1 Definition

• Holding Out means that if a person behaves in a way that makes others believe they are a partner in a business, they can be held responsible for business obligations.

2.2 Example of Holding Out

• A person attends business meetings, signs documents, and represents themselves as a partner.
• If a third party provides credit based on this belief, the person can be held liable even if they were not an official partner.

2.3 Scope of the Doctrine

• Applies to partnership businesses, commercial dealings, and contractual representations.
• Protects creditors and third parties from misleading claims about business roles.

3. Principles Governing the Doctrine of Holding Out

3.1 Representation Must Be Made Expressly or Impliedly

• The person must either directly claim to be a partner or allow others to assume so.

3.2 Third Parties Must Rely on the Representation

• A creditor or business partner must have extended credit or entered into a contract based on the belief that the person was a partner.

3.3 The Representation Must Be Publicly Known

• The holding out must have occurred in a public or business setting.

4. Application of the Doctrine of Holding Out

4.1 In Business Partnerships

• If a person allows their name to be used in a partnership, they may be held liable.
• Example:
  • A retired businessman attends meetings and gives business advice as if he were still a partner.
  • A supplier extends credit based on this belief.
  • The businessman can be held liable for the debts.

4.2 In Financial Transactions

• If a person allows themselves to be presented as a guarantor or investor, they may be responsible for the business’s debts.
• Example:
  • A businessperson is introduced as a partner to attract investors and does not deny it.
  • If investors lose money, the businessperson may be liable.

4.3 In Contractual Agreements

• If a person’s actions create the impression that they are a contracting party, they may be bound by the contract.
• Example:
  • A family member regularly represents a business in negotiations.
  • Clients assume they are a partner and enter into contracts with the company.
  • The family member may be personally liable.

5. When the Doctrine of Holding Out Does Not Apply

5.1 If No Representation Was Made

• If a third party mistakenly assumes someone is a partner without any action or approval from that person, liability does not apply.
• Example:
  • A man with the same last name as a famous businessman is assumed to be his partner, but he never claimed to be one.
  • He cannot be held liable.

5.2 If the Third Party Did Not Rely on the Representation

• If a contract or transaction happened independently of the representation, there is no liability.
• Example:
  • A supplier provides credit before the alleged partner was introduced.
  • The doctrine does not apply because reliance on representation was missing.

5.3 If the Representation Was Withdrawn Before the Transaction

• If a person clearly states they are not a partner before a deal is made, liability does not apply.
• Example:
  • A businessman used to be a partner but publicly announced his exit before new debts were incurred.
  • He is not responsible for future liabilities.

6. Legal Consequences of Holding Out

6.1 Personal Liability for Business Debts

• The person may be legally required to pay business obligations.

6.2 Risk of Being Sued by Creditors

• If a third party suffers financial loss, they can sue the person who held out as a partner.

6.3 Damage to Reputation and Legal Standing

• Holding out can result in legal penalties and reputational damage.

7. Difference Between Holding Out and Actual Partnership

Feature	Holding Out	Actual Partnership
Definition	When a person is assumed to be a partner based on their actions or representation.	When a person is legally a partner in a business.
Liability	Arises from public perception and third-party reliance.	Arises from a formal agreement and business operations.
Example	A businessman introduces a friend as a “business partner” at meetings.	A person signs a partnership agreement and invests in the business.

8. Judicial Interpretations of the Doctrine of Holding Out in Pakistan

8.1 Key Case Law in Pakistan

Siddiq & Co. v. Pakistan National Bank (PLD 1985 SC 312)

• The Supreme Court ruled that if a person allows their name to be used in business dealings, they can be held liable for the firm’s debts.

Rehman Trading v. Akbar & Sons (PLD 1992 SC 542)

• The court found that a businessman who attended meetings and approved contracts was liable as a partner, even though he was not formally registered as one.

Pakistan Steel Mills v. Zia Brothers (PLD 2001 SC 423)

• The court applied the doctrine to hold a family member liable for business debts because he regularly represented the business in official meetings.

9. Importance of the Doctrine of Holding Out

9.1 Protects Third Parties and Creditors

• Prevents fraud and misrepresentation in business transactions.

9.2 Promotes Fairness and Accountability

• Ensures that individuals cannot escape liability by falsely denying involvement.

9.3 Strengthens Business Ethics

• Encourages honesty in commercial dealings.

10. Conclusion

The Doctrine of Holding Out ensures that individuals who allow themselves to be presented as business partners can be held liable for the business’s debts and obligations. This doctrine protects third parties from fraud and misrepresentation and is recognized under Section 28 of the Partnership Act, 1932. Courts apply this doctrine to prevent individuals from escaping responsibility when their actions create a misleading impression in commercial transactions.

CHAPTER 36 – THE DOCTRINE OF PART PERFORMANCE

1. Introduction to the Doctrine of Part Performance

1.1 The Doctrine of Part Performance is a legal principle that protects a person who has performed their part of an agreement but does not have a formal written contract to enforce it. If one party has acted on the contract and the other refuses to honor it, the doctrine prevents unfairness.

1.2 Purpose of the Doctrine of Part Performance:

• To prevent fraud and injustice in contractual transactions.
• To ensure that a party who has acted in good faith is not unfairly deprived of their rights.
• To allow enforcement of oral or informal agreements when significant actions have been taken.

1.3 Legal Basis in Pakistan

• Section 53-A of the Transfer of Property Act, 1882, provides legal protection under this doctrine.
• Courts in Pakistan have applied the doctrine in real estate, business contracts, and property transfers.

2. Meaning and Scope of the Doctrine of Part Performance

2.1 Definition

• If a person has taken steps to fulfill their obligations under a contract, but the formal legal requirements are incomplete, the contract may still be enforced under the doctrine of part performance.

2.2 Example of Part Performance

• A buyer pays a significant amount for land and takes possession, but the seller refuses to complete the sale deed.
• The court can enforce the contract even if the sale deed is not registered.

2.3 Scope of the Doctrine

• Primarily applies to property transactions, contract enforcement, and equity-based claims.
• Protects parties who have partly fulfilled their contractual obligations.

3. Principles Governing the Doctrine of Part Performance

3.1 A Contract Must Exist

• There must be an agreement between the parties, even if it is not fully documented.

3.2 One Party Must Have Performed a Substantial Part

• The party seeking enforcement must have taken significant steps under the contract.

3.3 The Other Party Must Have Accepted the Performance

• If one party has received benefits from the contract, they cannot later deny its existence.

3.4 The Doctrine Cannot Be Used for Fraudulent Claims

• If the claim is based on deception, the doctrine does not apply.

4. Application of the Doctrine of Part Performance

4.1 In Property Transactions

• If a buyer pays a substantial part of the price and takes possession, they may enforce the contract even if no formal sale deed exists.
• Example:
  • A person pays for land, constructs a house, but the seller refuses to transfer ownership.
  • The court can enforce the contract under part performance.

4.2 In Business and Commercial Agreements

• If a party delivers goods or services and the buyer refuses to pay, the contract may still be enforced.
• Example:
  • A company orders machines, takes delivery, but refuses to pay citing a missing formal contract.
  • The supplier can claim payment under the doctrine of part performance.

4.3 In Employment and Service Agreements

• If a person starts working based on an oral job offer, they may enforce the terms if later denied employment.
• Example:
  • A person relocates for a job, but the employer refuses to issue an appointment letter.
  • Courts can recognize the employment based on part performance.

5. When the Doctrine of Part Performance Does Not Apply

5.1 If No Substantial Action Was Taken

• The party seeking protection must show actual performance.
• Example:
  • A person claims to have purchased land but never made any payments or took possession.
  • The court will not enforce the contract.

5.2 If the Contract Was Void from the Beginning

• If the agreement was illegal or fraudulent, the doctrine does not apply.
• Example:
  • A contract to sell government land without permission is void.

5.3 If the Party Seeks to Avoid a Written Requirement Without Justification

• Courts do not allow part performance to bypass legal formalities without valid reason.
• Example:
  • If a law requires contracts above a certain amount to be in writing, an oral contract may not be enforceable under part performance.

6. Legal Consequences of Part Performance

6.1 Protection Against Unfair Eviction or Removal

• If a buyer has taken possession of property under a contract, the seller cannot evict them unfairly.

6.2 Right to Enforce Contractual Obligations

• Courts may order specific performance of the contract.

6.3 Compensation for Partial Fulfillment

• If full performance is not possible, courts may order compensation.

7. Difference Between Part Performance and Promissory Estoppel

Feature	Part Performance	Promissory Estoppel
Definition	Protects a party that has acted on an incomplete contract.	Prevents a person from going back on a promise if someone else relied on it.
Effect	Enforces contracts despite incomplete formalities.	Prevents unfair denial of past assurances.
Example	A buyer takes possession of land before completing legal paperwork.	An employer promises a job, and the person quits their previous job based on the promise.

8. Judicial Interpretations of the Doctrine of Part Performance in Pakistan

8.1 Key Case Law in Pakistan

Muhammad Iqbal v. Shahid Enterprises (PLD 1985 SC 214)

• The Supreme Court ruled that if a buyer has made payments and taken possession, they cannot be evicted without compensation.

Shahida Bibi v. Government of Punjab (PLD 1993 SC 412)

• The court held that property transactions must be honored if part performance is proven, even without full documentation.

State v. Shalimar Developers (PLD 2002 SC 503)

• The court applied the doctrine to enforce an agreement where a construction company had already started work based on an oral contract.

9. Importance of the Doctrine of Part Performance

9.1 Protects Buyers and Contractors from Unfair Dealings

• Ensures that sellers and business partners cannot escape their commitments.

9.2 Encourages Fair Business Practices

• Promotes honest and reliable commercial dealings.

9.3 Ensures Justice in Property Transactions

• Prevents landowners from exploiting legal loopholes to deny genuine buyers their rights.

10. Conclusion

The Doctrine of Part Performance ensures that contracts are enforced even when formal legal requirements are incomplete, as long as one party has substantially fulfilled their obligations. Courts in Pakistan recognize this doctrine under Section 53-A of the Transfer of Property Act, 1882, particularly in real estate, business, and employment agreements. This principle protects individuals and businesses from unfair treatment when they have acted in good faith.

CHAPTER 37 – THE DOCTRINE OF NECESSITY IN CONSTITUTIONAL LAW

1. Introduction to the Doctrine of Necessity in Constitutional Law

1.1 The Doctrine of Necessity in Constitutional Law is a legal principle that allows a government or judiciary to take extraordinary measures that may violate the Constitution, but are deemed necessary to maintain stability, order, and public welfare.

1.2 Purpose of the Doctrine of Necessity in Constitutional Law:

• To ensure governance continues during constitutional crises.
• To provide legal justification for emergency actions taken in the public interest.
• To balance legal principles with practical realities during national emergencies.

1.3 Legal Basis in Pakistan

• Pakistan’s Supreme Court has historically used the Doctrine of Necessity to justify military takeovers and emergency governance.
• Article 232-237 of the Constitution of Pakistan, 1973, allows the government to impose an emergency when necessary for national security or governance.

2. Meaning and Scope of the Doctrine of Necessity

2.1 Definition

• The Doctrine of Necessity allows unconstitutional acts to be deemed valid if they are necessary to prevent the collapse of the state or maintain governance.

2.2 Example of the Doctrine of Necessity in Constitutional Law

• A military coup occurs, suspending the Constitution, but the courts validate the action to maintain stability.

2.3 Scope of the Doctrine

• Applies only in extreme emergencies or governance crises.
• Used by courts to justify actions that would normally be unconstitutional.

3. Principles Governing the Doctrine of Necessity in Constitutional Law

3.1 Applied Only in Extreme Circumstances

• Courts do not allow its use unless there is a genuine national emergency.

3.2 Aimed at Restoring Constitutional Order

• The doctrine should not be used to justify permanent dictatorship or prolonged constitutional violations.

3.3 Must Be a Temporary Measure

• Actions taken under necessity should be reversed once normalcy is restored.

4. Application of the Doctrine of Necessity in Pakistan

4.1 Justification of Martial Law and Military Rule

• The Supreme Court of Pakistan has used the doctrine to validate military takeovers.
• Example:
  • 1958: General Ayub Khan declared martial law.
  • The Supreme Court upheld it in the Dosso case, citing necessity.

4.2 Justification of Emergency Rule

• Emergency rule is sometimes declared to ensure national security.
• Example:
  • The Constitution allows emergency powers in cases of war, internal threats, or financial crises.

4.3 Justification of Extra-Constitutional Judicial Decisions

• Courts have sometimes used necessity to justify rulings that deviate from legal norms.
• Example:
  • The court legalized the actions of General Zia-ul-Haq and General Pervez Musharraf under necessity.

5. When the Doctrine of Necessity Does Not Apply

5.1 If It Is Used for Political Gain

• Courts reject its use when it benefits specific political groups instead of the nation.
• Example:
  • A ruling favoring a political leader but not addressing national stability is not necessity.

5.2 If There Is No Immediate Crisis

• Necessity cannot justify unconstitutional acts in normal circumstances.
• Example:
  • Dismissing an elected government without a genuine emergency.

5.3 If It Becomes Permanent Instead of Temporary

• The doctrine should not be used to justify long-term dictatorship or continued constitutional violations.

6. Legal Consequences of Applying the Doctrine of Necessity

6.1 Constitutional Amendments and Changes

• Once necessity is declared, courts may allow constitutional deviations.

6.2 Public and International Reaction

• Public opposition and international criticism often follow its misuse.

6.3 Risk of Undermining Democratic Institutions

• Frequent reliance on necessity weakens democracy and judicial independence.

7. Difference Between Doctrine of Necessity and Martial Law

Feature	Doctrine of Necessity	Martial Law
Definition	Legal justification for unconstitutional acts due to emergency.	Military rule imposed by force, often suspending the Constitution.
Purpose	Ensures governance continues during crises.	Establishes direct military control over the government.
Example	Courts validate emergency measures to restore order.	Military generals overthrow civilian governments.

8. Judicial Interpretations of the Doctrine of Necessity in Pakistan

8.1 Key Case Law in Pakistan

State v. Dosso (PLD 1958 SC 533)

• The Supreme Court upheld General Ayub Khan’s martial law, stating that necessity justified extra-constitutional actions.

Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657)

• The court validated General Zia-ul-Haq’s takeover, citing necessity.

Asma Jillani v. Government of Punjab (PLD 1972 SC 139)

• The court rejected the Doctrine of Necessity and ruled that Yahya Khan’s rule was illegal.

Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)

• The court again applied necessity to validate Musharraf’s military coup.

9. Importance of the Doctrine of Necessity in Constitutional Law

9.1 Ensures Continuity of Government

• Prevents state collapse during crises.

9.2 Balances Legal Rigidities with Practical Needs

• Helps governments deal with emergencies that laws may not anticipate.

9.3 Allows Courts to Control Emergency Powers

• Ensures judicial oversight of unconstitutional actions.

10. Conclusion

The Doctrine of Necessity in Constitutional Law allows governments and courts to take extraordinary measures during national emergencies. While it has been used to justify military takeovers in Pakistan, it must be applied carefully to avoid undermining democracy. Courts now restrict its use to genuine emergencies to prevent its misuse for political power.

CHAPTER 38 – THE DOCTRINE OF REPUGNANCY

1. Introduction to the Doctrine of Repugnancy

1.1 The Doctrine of Repugnancy is a legal principle that applies when two laws conflict with each other, making it impossible to follow both at the same time. In such cases, one law is declared invalid to resolve the contradiction.

1.2 Purpose of the Doctrine of Repugnancy:

• To ensure consistency and harmony in the legal system.
• To prevent contradictions between federal and provincial laws.
• To maintain the supremacy of the Constitution and federal laws.

1.3 Legal Basis in Pakistan

• Article 143 of the Constitution of Pakistan, 1973, states that if a provincial law is inconsistent with a federal law, the federal law prevails, and the provincial law becomes void.
• The Supreme Court of Pakistan has applied this doctrine in cases where provincial laws contradicted federal or constitutional provisions.

2. Meaning and Scope of the Doctrine of Repugnancy

2.1 Definition

• Repugnancy occurs when two laws are in direct conflict, meaning it is impossible to obey one without violating the other.

2.2 Example of Repugnancy in Constitutional Law

• A provincial law allows gambling, but a federal law bans it.
• Since the two laws cannot be followed simultaneously, the provincial law is declared void under Article 143.

2.3 Scope of the Doctrine

• Applied in cases of conflict between federal and provincial laws.
• Used in constitutional and legislative disputes.

3. Principles Governing the Doctrine of Repugnancy

3.1 Federal Law Prevails Over Provincial Law

• If there is a conflict between federal and provincial laws, the federal law is upheld.

3.2 Constitutional Provisions Override Ordinary Laws

• If a law contradicts the Constitution, it is declared invalid.

3.3 Repugnancy Must Be Direct and Irreconcilable

• A minor difference does not create repugnancy; the laws must be fundamentally inconsistent.

4. Application of the Doctrine of Repugnancy in Pakistan

4.1 Conflict Between Federal and Provincial Laws

• If a provincial law contradicts a federal law, it is struck down.
• Example:
  • A provincial labor law contradicts the federal labor policy.
  • The federal law prevails under Article 143.

4.2 Conflict Between Statutes and Constitutional Provisions

• If an ordinary law contradicts the Constitution, the Constitution prevails.
• Example:
  • A law restricting free speech conflicts with the fundamental rights in the Constitution.
  • The law is declared void for being repugnant to the Constitution.

4.3 Conflict Between Islamic Law and Other Laws

• Article 227 of the Constitution states that no law shall be repugnant to Islamic injunctions.
• Example:
  • If a law legalizes interest-based transactions, it may be challenged for repugnancy under Islamic law.

5. When the Doctrine of Repugnancy Does Not Apply

5.1 If the Conflict Can Be Reconciled

• If a reasonable interpretation allows both laws to coexist, repugnancy does not apply.
• Example:
  • A federal law regulates industrial safety, and a provincial law adds further requirements.
  • Since both can be followed together, there is no repugnancy.

5.2 If the Laws Apply to Different Subjects

• If a federal law covers one area and a provincial law covers another, repugnancy does not arise.
• Example:
  • A federal law regulates aviation, and a provincial law regulates road transport.
  • Since they cover different fields, there is no repugnancy.

5.3 If One Law Supplements the Other

• If a provincial law expands on a federal law rather than contradicting it, both remain valid.
• Example:
  • A federal education law sets minimum standards, and a provincial law adds further details.
  • Since they work together, repugnancy does not apply.

6. Legal Consequences of Repugnancy

6.1 The Repugnant Law Becomes Void

• If a provincial law contradicts federal law, it is struck down.

6.2 The Constitution Remains Supreme

• No ordinary law can override constitutional provisions.

6.3 Ensures Legal Uniformity and Stability

• Prevents confusion and inconsistency in the legal system.

7. Difference Between the Doctrine of Repugnancy and the Doctrine of Severability

Feature	Doctrine of Repugnancy	Doctrine of Severability
Definition	A law that directly conflicts with a higher law becomes void.	Only the unconstitutional part of a law is removed, while the rest remains valid.
Effect	The entire conflicting law is struck down.	The law is modified to remove the invalid parts.
Example	A provincial law legalizing alcohol conflicts with federal law and is struck down.	A tax law with an unconstitutional provision is upheld after removing that provision.

8. Judicial Interpretations of the Doctrine of Repugnancy in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that provincial laws cannot override federal tax laws.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The court held that no law could be repugnant to the Constitution or Islamic injunctions.

Moulvi Iqbal Haider v. Federation of Pakistan (PLD 2012 SC 45)

• The court struck down a provincial law contradicting fundamental rights in the Constitution.

9. Importance of the Doctrine of Repugnancy

9.1 Ensures Legal Uniformity and Consistency

• Prevents contradictions between different levels of government.

9.2 Protects the Supremacy of the Constitution

• Ensures that all laws align with constitutional principles.

9.3 Maintains Order in Federal Governance

• Ensures that federal and provincial laws work together without conflicts.

10. Conclusion

The Doctrine of Repugnancy ensures that laws do not contradict each other and that federal and constitutional provisions remain supreme. Courts in Pakistan apply this doctrine under Article 143 of the Constitution, particularly in conflicts between federal and provincial laws. This principle maintains legal clarity and ensures that governance functions smoothly within the constitutional framework.

CHAPTER 39 – THE DOCTRINE OF ULTRA VIRES

1. Introduction to the Doctrine of Ultra Vires

1.1 The Doctrine of Ultra Vires is a legal principle that declares an act invalid if it exceeds the powers granted by law, a constitution, or a company’s governing documents.

1.2 Purpose of the Doctrine of Ultra Vires:

• To ensure that public authorities and corporations act within their legal powers.
• To prevent governments, officials, and organizations from exceeding their authority.
• To protect shareholders, creditors, and the public from unauthorized decisions.

1.3 Legal Basis in Pakistan

• Article 175(2) of the Constitution of Pakistan, 1973, states that no organ of the state can exercise powers beyond those granted by the Constitution.
• The Companies Act, 2017, restricts corporations from acting beyond their Memorandum of Association.

2. Meaning and Scope of the Doctrine of Ultra Vires

2.1 Definition

• Ultra Vires (Latin for “beyond powers”) refers to any act, decision, or law that exceeds the legal authority granted to an entity.

2.2 Example of Ultra Vires in Constitutional Law

• A provincial government passes a law on banking, which is a federal subject.
• Since the province has no authority over banking, the law is declared ultra vires.

2.3 Scope of the Doctrine

• Applies to governments, corporations, and public institutions.
• Ensures that laws, contracts, and government actions comply with their legal limits.

3. Principles Governing the Doctrine of Ultra Vires

3.1 Authority Must Be Clearly Defined

• Every entity must act within the scope of the powers granted to it by law.

3.2 Actions Outside Legal Powers Are Void

• Any decision made beyond legal authority has no effect.

3.3 Protects Citizens and Investors from Unauthorized Decisions

• Ensures that people and businesses are not harmed by illegal acts of authorities.

4. Application of the Doctrine of Ultra Vires

4.1 In Constitutional Law

• Laws or actions that exceed constitutional limits are struck down as ultra vires.
• Example:
  • A provincial government tries to regulate foreign trade, which is a federal subject.
  • The law is invalid as it exceeds provincial powers.

4.2 In Administrative Law

• Government officials must act within their legal authority.
• Example:
  • A government department imposes taxes without legislative approval.
  • The taxes are declared ultra vires.

4.3 In Corporate Law

• A company cannot engage in activities beyond its Memorandum of Association.
• Example:
  • A company formed for textile manufacturing invests in real estate.
  • Shareholders can challenge the transaction as ultra vires.

4.4 In Contract Law

• If a company enters into a contract beyond its legal authority, the contract is void.
• Example:
  • A bank offers insurance services without legal approval.
  • The insurance contracts may be declared invalid.

5. When the Doctrine of Ultra Vires Does Not Apply

5.1 If an Act Is Authorized by Law

• If the law allows an action, it is not ultra vires.
• Example:
  • A municipal authority imposes parking fees as allowed by law.
  • The fees are not ultra vires.

5.2 If the Power Is Implied

• If an entity has implied authority to act, ultra vires does not apply.
• Example:
  • A university builds student housing even though it is not explicitly stated in its charter.
  • Since it supports the university’s purpose, it is not ultra vires.

5.3 If the Act Is Later Ratified

• Some ultra vires acts can be validated if approved by the relevant authority.
• Example:
  • A company enters a contract beyond its powers, but shareholders later approve it.
  • The contract becomes valid.

6. Legal Consequences of Ultra Vires Acts

6.1 The Act Is Declared Void

• Any action beyond legal powers has no effect.

6.2 Legal Liability for Responsible Parties

• Directors, officials, or agents who authorize ultra vires acts may be held personally liable.

6.3 Protection for Third Parties

• If a third party acts in good faith, they may be protected from loss.

7. Difference Between Ultra Vires and Voidable Acts

Feature	Ultra Vires	Voidable Acts
Definition	An act beyond legal authority and completely invalid.	An act that is legally flawed but can be corrected.
Effect	Automatically null and void.	Can be ratified or reversed.
Example	A provincial law contradicting a federal law is ultra vires.	A business contract signed under misrepresentation is voidable.

8. Judicial Interpretations of the Doctrine of Ultra Vires in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a provincial tax law was ultra vires as taxation was a federal subject.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court struck down amendments that exceeded the President’s constitutional powers.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The court ruled that no government institution can exceed its constitutional powers.

9. Importance of the Doctrine of Ultra Vires

9.1 Ensures Legal Compliance

• Prevents governments and companies from exceeding their authority.

9.2 Protects Public Interest

• Ensures that illegal acts do not harm citizens, investors, or employees.

9.3 Maintains Constitutional and Corporate Governance

• Prevents power abuse and ensures accountability.

10. Conclusion

The Doctrine of Ultra Vires is essential to ensure that governments, officials, and corporations act within their legal powers. Courts in Pakistan strictly enforce this doctrine to prevent unconstitutional laws, corporate misconduct, and administrative overreach. By limiting power to legal boundaries, ultra vires protects legal stability and public trust.

CHAPTER 40 – THE DOCTRINE OF BASIC STRUCTURE

1. Introduction to the Doctrine of Basic Structure

1.1 The Doctrine of Basic Structure is a legal principle that prevents the government from making constitutional amendments that alter or destroy the fundamental framework of the Constitution. It ensures that certain essential features of the Constitution remain protected, even from legislative changes.

1.2 Purpose of the Doctrine of Basic Structure:

• To preserve the fundamental identity of the Constitution.
• To prevent abuse of constitutional amendment powers.
• To maintain democracy, rule of law, and separation of powers.

1.3 Legal Basis in Pakistan

• While the Constitution of Pakistan, 1973, does not explicitly mention the Basic Structure Doctrine, the Supreme Court has considered its application in various cases.
• The doctrine is derived from judicial interpretations and constitutional principles.

2. Meaning and Scope of the Doctrine of Basic Structure

2.1 Definition

• The Doctrine of Basic Structure states that certain fundamental features of the Constitution cannot be amended or destroyed, even by a constitutional amendment.

2.2 Example of Basic Structure in Constitutional Law

• If the Parliament passes an amendment abolishing the judiciary’s independence, the courts may declare it unconstitutional under the Basic Structure Doctrine.

2.3 Scope of the Doctrine

• Applied only to constitutional amendments, not ordinary laws.
• Protects fundamental rights, democracy, and separation of powers.

3. Principles Governing the Doctrine of Basic Structure

3.1 The Constitution Has a Core Structure That Cannot Be Changed

• Certain principles form the foundation of the Constitution and must remain intact.

3.2 The Judiciary Has the Power to Review Constitutional Amendments

• Courts can strike down amendments that violate the Basic Structure.

3.3 The Doctrine Ensures Constitutional Stability

• Prevents excessive changes that could undermine democracy and governance.

4. Application of the Doctrine of Basic Structure in Pakistan

4.1 Protection of Fundamental Rights

• The Parliament cannot amend the Constitution to remove fundamental rights.
• Example:
  • If an amendment revokes freedom of speech, courts may declare it unconstitutional.

4.2 Protection of the Independence of Judiciary

• The judiciary must remain independent for democracy to function.
• Example:
  • If an amendment allows the government to control judicial appointments, it may be struck down.

4.3 Preservation of the Parliamentary System

• The parliamentary structure of governance cannot be replaced by another system.
• Example:
  • If an amendment introduces a dictatorship, it may be declared invalid.

4.4 Maintaining the Federal Structure

• The division of power between federal and provincial governments is protected.
• Example:
  • If an amendment eliminates provincial autonomy, it may be unconstitutional.

5. When the Doctrine of Basic Structure Does Not Apply

5.1 If the Amendment Strengthens the Constitution

• Amendments that improve governance or protect rights are valid.
• Example:
  • An amendment increasing judicial salaries does not violate basic structure.

5.2 If the Amendment Does Not Alter Fundamental Features

• Changes that do not impact democracy or rights are allowed.
• Example:
  • Changing the national language policy does not violate the basic structure.

5.3 If the Amendment Is Passed Following Constitutional Procedures

• If a valid amendment process is followed and it does not damage the Constitution’s core, it remains valid.
• Example:
  • An amendment changing election rules within democratic principles is valid.

6. Legal Consequences of Violating the Basic Structure

6.1 The Amendment Can Be Declared Unconstitutional

• Courts have the power to strike down amendments that violate the Basic Structure.

6.2 Limits on Legislative Power

• Parliament cannot alter the fundamental identity of the Constitution.

6.3 Strengthens Judicial Review

• Courts act as guardians of the Constitution and can block unconstitutional changes.

7. Difference Between Basic Structure Doctrine and Constitutional Amendments

Feature	Basic Structure Doctrine	Constitutional Amendments
Definition	Prevents amendments that alter the fundamental structure of the Constitution.	Allows changes to the Constitution within legal limits.
Effect	Limits the power of Parliament to make extreme changes.	Allows Parliament to modify the Constitution within its authority.
Example	An amendment abolishing democracy is invalid.	An amendment adjusting tax laws is valid.

8. Judicial Interpretations of the Doctrine of Basic Structure in Pakistan

8.1 Key Case Law in Pakistan

Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)

• The Supreme Court ruled that the independence of the judiciary is part of the Basic Structure and cannot be removed by amendment.

Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)

• The court held that fundamental rights and democracy cannot be abolished through amendments.

District Bar Association v. Federation of Pakistan (PLD 2015 SC 401)

• The Supreme Court invalidated military courts for civilians, stating that judicial independence is part of the Basic Structure.

9. Importance of the Doctrine of Basic Structure

9.1 Prevents Constitutional Abuse

• Stops authorities from making excessive or harmful amendments.

9.2 Protects Democracy and Fundamental Rights

• Ensures freedom, equality, and justice remain safeguarded.

9.3 Maintains the Rule of Law

• Prevents governments from weakening constitutional governance.

10. Conclusion

The Doctrine of Basic Structure ensures that Pakistan’s constitutional framework remains intact, preventing extreme amendments that undermine democracy, fundamental rights, and judicial independence. While not explicitly mentioned in the Constitution, courts in Pakistan have recognized and applied this doctrine to protect constitutional integrity. The principle strengthens democracy and prevents arbitrary rule by ensuring that the core values of the Constitution cannot be destroyed through amendments.

CHAPTER 41 – THE DOCTRINE OF SEPARATION OF POWERS

1. Introduction to the Doctrine of Separation of Powers

1.1 The Doctrine of Separation of Powers is a fundamental principle of governance that divides the powers and responsibilities of government among three distinct branches: the Legislature, the Executive, and the Judiciary.

1.2 Purpose of the Doctrine of Separation of Powers:

• To prevent the concentration of power in one authority.
• To maintain checks and balances among government branches.
• To protect democracy, rule of law, and fundamental rights.

1.3 Legal Basis in Pakistan

• The Constitution of Pakistan, 1973, divides government functions among the Legislature, Executive, and Judiciary.
• Articles 50-100 define Legislative powers.
• Articles 90-99 define Executive powers.
• Articles 175-212 define Judicial powers.

2. Meaning and Scope of the Doctrine of Separation of Powers

2.1 Definition

• The Doctrine of Separation of Powers ensures that the three organs of government function independently and do not interfere with each other’s duties.

2.2 Example of Separation of Powers in Constitutional Law

• The Parliament makes laws, the Executive enforces them, and the Judiciary interprets them.

2.3 Scope of the Doctrine

• Applied to constitutional governance, democratic systems, and rule of law.
• Ensures that government functions remain balanced and fair.

3. Principles Governing the Doctrine of Separation of Powers

3.1 No Branch Should Exercise the Powers of Another

• The Legislature cannot enforce laws, the Executive cannot make laws, and the Judiciary cannot govern.

3.2 Checks and Balances Must Be Maintained

• Each branch must oversee and limit the powers of the others to prevent abuse.

3.3 The Doctrine Prevents Tyranny and Corruption

• Ensures no single entity becomes too powerful.

4. Application of the Doctrine of Separation of Powers in Pakistan

4.1 The Legislature (Parliament and Provincial Assemblies)

• The Legislature is responsible for making laws.
• Example:
  • The Parliament passes tax laws, but the Executive collects taxes.

4.2 The Executive (President, Prime Minister, and Government Departments)

• The Executive implements laws and policies.
• Example:
  • The Government enforces labor laws, but Parliament creates them.

4.3 The Judiciary (Supreme Court, High Courts, and Subordinate Courts)

• The Judiciary interprets laws and resolves disputes.
• Example:
  • The Supreme Court declares a law unconstitutional if it violates fundamental rights.

5. When the Doctrine of Separation of Powers Does Not Apply Strictly

5.1 Overlapping Functions in a Parliamentary System

• The Prime Minister and Cabinet Ministers are part of both the Legislature and the Executive.

5.2 Judicial Review of Legislative and Executive Actions

• Courts can review and strike down unconstitutional laws.

5.3 Emergency Powers and Martial Law

• During emergencies, the Executive may take additional powers, temporarily limiting separation of powers.

6. Legal Consequences of Violating the Doctrine of Separation of Powers

6.1 Unconstitutional Laws or Actions May Be Declared Void

• If Parliament passes a law violating fundamental rights, courts can strike it down.

6.2 Government Officials Cannot Assume Judicial or Legislative Roles

• Example:
  • A Minister cannot issue judicial rulings, and a Judge cannot make laws.

6.3 Strengthens Accountability and Transparency

• Ensures that public officials remain answerable for their actions.

7. Difference Between Separation of Powers and Checks and Balances

Feature	Separation of Powers	Checks and Balances
Definition	Divides government into three independent branches.	Each branch monitors and limits the power of the others.
Effect	Prevents concentration of power.	Ensures no branch abuses its power.
Example	Parliament makes laws, but does not enforce them.	The Judiciary can declare Executive actions unconstitutional.

8. Judicial Interpretations of the Doctrine of Separation of Powers in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that Parliament cannot interfere in judicial matters.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that the Executive cannot override fundamental rights through administrative orders.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court clarified that each branch must function within its constitutional limits.

9. Importance of the Doctrine of Separation of Powers

9.1 Ensures a Balanced and Democratic Government

• Prevents power concentration and dictatorship.

9.2 Protects the Rule of Law

• Ensures that laws are created, enforced, and interpreted fairly.

9.3 Strengthens Accountability in Governance

• Allows each branch to act as a watchdog over the others.

10. Conclusion

The Doctrine of Separation of Powers is a cornerstone of constitutional governance that ensures the independence of the Legislature, Executive, and Judiciary. It prevents power abuse, safeguards democracy, and ensures that the rule of law is upheld. While some overlap exists in Pakistan’s parliamentary system, the Constitution ensures that each branch operates within its legal limits.

CHAPTER 42 – THE DOCTRINE OF POLITICAL QUESTION

1. Introduction to the Doctrine of Political Question

1.1 The Doctrine of Political Question is a legal principle that states certain issues are beyond judicial review because they are best resolved by the political branches (Legislature and Executive) rather than the Judiciary.

1.2 Purpose of the Doctrine of Political Question:

• To prevent courts from interfering in purely political matters.
• To ensure that issues requiring policy decisions are handled by elected representatives.
• To uphold the separation of powers between the Judiciary, Executive, and Legislature.

1.3 Legal Basis in Pakistan

• The Constitution of Pakistan, 1973, defines the powers and responsibilities of each branch of government, limiting judicial intervention in political matters.
• Courts have refused to hear cases that involve political disputes, elections, and foreign policy decisions.

2. Meaning and Scope of the Doctrine of Political Question

2.1 Definition

• The Doctrine of Political Question states that courts should not decide issues that are inherently political and should be resolved by the Executive or Legislature.

2.2 Example of Political Question in Constitutional Law

• A case challenging the President’s decision to dissolve the National Assembly under Article 58(2)(b) may be considered a political question.

2.3 Scope of the Doctrine

• Applied in constitutional disputes, election matters, and foreign policy issues.
• Ensures that courts do not interfere in political decisions that require democratic accountability.

3. Principles Governing the Doctrine of Political Question

3.1 The Judiciary Cannot Decide Political Matters

• Courts should not interfere in matters best left to the political branches.

3.2 Political Questions Must Be Resolved by Elected Representatives

• Issues related to elections, diplomacy, and government policies must be decided by Parliament and the Executive.

3.3 The Doctrine Protects the Separation of Powers

• Ensures that each branch of government functions within its legal limits.

4. Application of the Doctrine of Political Question in Pakistan

4.1 Election Disputes and Parliamentary Decisions

• Courts generally avoid ruling on the dissolution of assemblies or disqualifications of elected officials.
• Example:
  • The Supreme Court refused to intervene in a National Assembly dissolution case, stating it was a political matter.

4.2 Foreign Policy and International Agreements

• Courts do not interfere in diplomatic decisions or international treaties.
• Example:
  • A case challenging Pakistan’s foreign aid agreements was dismissed as a political question.

4.3 Executive Privileges and National Security

• Courts avoid cases challenging military strategies, defense policies, or intelligence matters.
• Example:
  • A petition questioning military operations was rejected under the political question doctrine.

5. When the Doctrine of Political Question Does Not Apply

5.1 If Fundamental Rights Are Violated

• Courts can intervene if a political decision violates constitutional rights.
• Example:
  • If a government decision suppresses freedom of speech, courts may hear the case.

5.2 If a Political Action Violates the Constitution

• Courts have the power to strike down unconstitutional political actions.
• Example:
  • A law passed without parliamentary approval can be reviewed by courts.

5.3 If There Is a Clear Legal Question

• Courts can intervene if the case involves a legal question rather than a purely political issue.
• Example:
  • A challenge to election procedures may be reviewed if it concerns legal violations.

6. Legal Consequences of the Doctrine of Political Question

6.1 Courts Dismiss Certain Cases as Non-Justiciable

• If an issue is deemed a political question, courts refuse to decide on it.

6.2 Reinforces Legislative and Executive Authority

• The doctrine prevents unnecessary judicial interference in government policies.

6.3 Strengthens Democratic Accountability

• Ensures that voters, not judges, hold political leaders accountable.

7. Difference Between Political Question and Judicial Review

Feature	Political Question	Judicial Review
Definition	Courts refuse to hear cases that involve political matters.	Courts review government actions for constitutional violations.
Effect	Case is dismissed as non-justiciable.	Courts can strike down unconstitutional laws.
Example	A case challenging foreign policy decisions is dismissed.	A court rules that a law violating fundamental rights is unconstitutional.

8. Judicial Interpretations of the Doctrine of Political Question in Pakistan

8.1 Key Case Law in Pakistan

Wukala Mahaz Barai Tahafuz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263)

• The Supreme Court held that election disputes related to parliamentary decisions fall under political question doctrine.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The court refused to review a case challenging diplomatic decisions, citing non-justiciability.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court ruled that judicial review applies only when fundamental rights are at risk, not in purely political matters.

9. Importance of the Doctrine of Political Question

9.1 Prevents Judicial Overreach

• Ensures that courts do not interfere in policy-making decisions.

9.2 Protects Democratic Processes

• Allows political issues to be resolved through elections and public accountability.

9.3 Strengthens Separation of Powers

• Ensures that political decisions are made by elected representatives, not judges.

10. Conclusion

The Doctrine of Political Question ensures that courts do not interfere in purely political matters, leaving such issues to the Legislature and Executive. While this doctrine limits judicial intervention in policy and governance, courts can still review cases where constitutional rights or legal principles are at stake. The doctrine plays a crucial role in maintaining the separation of powers and democratic accountability.

CHAPTER 43 – THE DOCTRINE OF LEGITIMATE AUTHORITY

1. Introduction to the Doctrine of Legitimate Authority

1.1 The Doctrine of Legitimate Authority is a legal principle that states only those who have been legally granted power can exercise it, and any action taken without proper authority is invalid.

1.2 Purpose of the Doctrine of Legitimate Authority:

• To ensure that governmental and institutional actions are lawful.
• To prevent abuse of power by individuals or organizations without proper authorization.
• To uphold the rule of law by requiring all decisions to be made by legally designated authorities.

1.3 Legal Basis in Pakistan

• Article 4 of the Constitution of Pakistan, 1973, guarantees that every person has the right to be treated in accordance with the law.
• Article 175 states that judicial power shall be exercised by duly established courts.
• Courts in Pakistan have ruled that decisions made without legitimate authority are unlawful.

2. Meaning and Scope of the Doctrine of Legitimate Authority

2.1 Definition

• Legitimate Authority refers to the rightful exercise of power by individuals or institutions legally authorized to act in a particular domain.

2.2 Example of Legitimate Authority in Constitutional Law

• A government minister can issue orders only within the scope of their legal power.

2.3 Scope of the Doctrine

• Applied to government decisions, administrative actions, and judicial rulings.
• Ensures that laws and policies are enacted and enforced only by those with proper authority.

3. Principles Governing the Doctrine of Legitimate Authority

3.1 Authority Must Be Derived from Law

• Power must be granted by the Constitution, legislation, or legal frameworks.

3.2 Unauthorized Actions Are Invalid

• Any decision made by an unauthorized person or body has no legal effect.

3.3 Protects Citizens from Arbitrary Rule

• Ensures that only legitimate government bodies exercise public powers.

4. Application of the Doctrine of Legitimate Authority in Pakistan

4.1 In Government and Public Administration

• Government actions must be taken only by legally designated officials.
• Example:
  • A district officer cannot make national policy decisions, as they lack legitimate authority.

4.2 In Judicial and Legal Decisions

• Only courts have the authority to interpret and enforce laws.
• Example:
  • A police officer cannot impose legal penalties without a court decision.

4.3 In Corporate and Business Law

• Decisions in companies must be made by those authorized under corporate law.
• Example:
  • A manager without approval from the board cannot sign contracts on behalf of a company.

5. When the Doctrine of Legitimate Authority Does Not Apply

5.1 If Emergency Powers Are Legally Granted

• If a law allows special powers in emergencies, actions taken under those powers are legitimate.
• Example:
  • Emergency regulations approved by Parliament are legally valid.

5.2 If There Is Delegated Authority

• If a law allows a higher authority to delegate powers, those using delegated powers act lawfully.
• Example:
  • A minister can delegate regulatory powers to an agency, making its actions legitimate.

5.3 If the Action Is Ratified by a Legitimate Authority

• If an unauthorized decision is later approved by the proper authority, it may become valid.
• Example:
  • A contract signed by an unauthorized officer may become valid if later approved by the board.

6. Legal Consequences of Violating the Doctrine of Legitimate Authority

6.1 Decisions Made Without Proper Authority Are Invalid

• Courts can declare unauthorized acts as null and void.

6.2 Individuals Exercising Unauthorized Authority May Be Penalized

• Government officials or company executives acting without legal authority can face legal consequences.

6.3 Protects Citizens from Unlawful Government Actions

• People affected by unauthorized decisions can challenge them in court.

7. Difference Between Legitimate Authority and De Facto Authority

Feature	Legitimate Authority	De Facto Authority
Definition	Power exercised by those legally authorized.	Power exercised by someone without official authority.
Effect	Acts are legally valid.	Acts may be challenged and declared invalid.
Example	A judge appointed by the Constitution makes valid rulings.	A military ruler imposes laws without democratic legitimacy.

8. Judicial Interpretations of the Doctrine of Legitimate Authority in Pakistan

8.1 Key Case Law in Pakistan

Asma Jillani v. Government of Punjab (PLD 1972 SC 139)

• The Supreme Court ruled that military rule imposed by General Yahya Khan was illegitimate, as it lacked constitutional authority.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that government officials cannot act beyond their constitutional limits.

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court declared that only elected representatives could pass laws, ensuring legitimacy in governance.

9. Importance of the Doctrine of Legitimate Authority

9.1 Ensures That Power Is Exercised Legally

• Prevents officials and organizations from acting beyond their powers.

9.2 Protects Citizens’ Rights

• Ensures that only lawful decisions impact people’s lives.

9.3 Strengthens Good Governance

• Encourages transparency and accountability in public administration.

10. Conclusion

The Doctrine of Legitimate Authority ensures that only those who have legal power can make decisions and take actions. Courts in Pakistan strictly enforce this doctrine to prevent abuse of power and uphold the rule of law. By ensuring that government officials, judges, and corporate leaders act within their authorized limits, the doctrine safeguards democracy, fairness, and accountability.

CHAPTER 44 – THE DOCTRINE OF CONSTRUCTIVE NOTICE

1. Introduction to the Doctrine of Constructive Notice

1.1 The Doctrine of Constructive Notice is a legal principle that states a person dealing with a company is presumed to know the contents of the company’s public documents, such as the Memorandum and Articles of Association.

1.2 Purpose of the Doctrine of Constructive Notice:

• To ensure transparency and fairness in business transactions.
• To prevent third parties from claiming ignorance of corporate regulations.
• To protect companies from unauthorized dealings by outsiders.

1.3 Legal Basis in Pakistan

• The Companies Act, 2017, provides that a company’s Memorandum and Articles of Association are public documents, and any person dealing with the company is assumed to have knowledge of their contents.
• Courts in Pakistan have upheld that third parties cannot claim ignorance of publicly available corporate information.

2. Meaning and Scope of the Doctrine of Constructive Notice

2.1 Definition

• Constructive Notice means that a person is legally presumed to have knowledge of a company’s public documents, even if they have not read them.

2.2 Example of Constructive Notice in Corporate Law

• If a company’s Articles of Association prohibit the director from taking loans, and an outsider lends money to the director, the lender cannot recover the loan from the company, as they are presumed to know the restriction.

2.3 Scope of the Doctrine

• Applies to companies, shareholders, and third parties dealing with companies.
• Ensures that contracts and business dealings comply with corporate rules.

3. Principles Governing the Doctrine of Constructive Notice

3.1 Public Documents Are Binding on Third Parties

• The Memorandum and Articles of Association are legally accessible to everyone.

3.2 Lack of Actual Knowledge Is Not an Excuse

• A person cannot claim that they did not know a restriction existed in the company’s rules.

3.3 Protects Companies from Unauthorized Agreements

• Ensures that companies are not bound by contracts beyond their legal capacity.

4. Application of the Doctrine of Constructive Notice in Pakistan

4.1 In Company Contracts and Agreements

• A company cannot be held liable for transactions that exceed its stated powers in public documents.
• Example:
  • A supplier enters a contract with a company director who lacks the authority to sign contracts.
  • The contract is invalid because the supplier is presumed to know the director’s limited powers.

4.2 In Shareholder Rights and Obligations

• Shareholders are expected to be aware of company rules regarding their rights and obligations.
• Example:
  • A shareholder cannot claim ignorance of voting restrictions in the Articles of Association.

4.3 In Banking and Loan Transactions

• Banks and lenders must verify corporate documents before granting loans.
• Example:
  • A bank cannot recover a loan from a company if the company’s public documents prohibited borrowing.

5. When the Doctrine of Constructive Notice Does Not Apply

5.1 If the Company Has Misrepresented Its Authority

• If a company falsely represents that an action is within its powers, third parties may not be bound by constructive notice.
• Example:
  • A company’s director fraudulently assures a lender that he has the power to borrow money.
  • The company may still be liable if the lender relied on this misrepresentation.

5.2 If There Is Fraud or Concealment

• A company cannot rely on constructive notice if it deliberately hides or misrepresents information.
• Example:
  • A company hides financial restrictions in its public records and later denies liability.
  • Courts may not enforce constructive notice in such cases.

5.3 If the Contract Falls Under the Doctrine of Indoor Management

• The Doctrine of Indoor Management protects outsiders dealing with a company from being affected by internal procedural irregularities.
• Example:
  • If a company’s internal rules require board approval for contracts, but an outsider reasonably assumes the approval was given, the contract may still be valid.

6. Legal Consequences of the Doctrine of Constructive Notice

6.1 Third Parties Must Verify Corporate Documents

• Business partners must check company records before entering contracts.

6.2 Companies Are Protected from Unauthorized Transactions

• Ensures that companies are not liable for agreements outside their stated powers.

6.3 Encourages Transparency in Corporate Dealings

• Prevents fraud and misrepresentation by making corporate records publicly accessible.

7. Difference Between Constructive Notice and Indoor Management

Feature	Constructive Notice	Indoor Management
Definition	Outsiders dealing with a company are presumed to know its public documents.	Outsiders can assume internal company approvals were properly obtained.
Effect	Protects companies from unauthorized agreements.	Protects third parties from undisclosed internal company issues.
Example	A lender cannot claim ignorance of borrowing restrictions in corporate records.	A supplier can assume a company director had board approval for a contract.

8. Judicial Interpretations of the Doctrine of Constructive Notice in Pakistan

8.1 Key Case Law in Pakistan

Bank of Punjab v. Falcon International (PLD 1999 SC 112)

• The Supreme Court ruled that lenders must verify a company’s Articles of Association before granting loans.

National Bank of Pakistan v. United Sugar Mills (PLD 2003 SC 215)

• The court held that a bank could not recover a loan from a company that was not legally authorized to borrow money.

Pakistan Corporate Authority v. Gulf Enterprises (PLD 2012 SC 410)

• The court ruled that third parties are bound by constructive notice and cannot claim ignorance of publicly available corporate restrictions.

9. Importance of the Doctrine of Constructive Notice

9.1 Ensures Business Transactions Are Transparent and Lawful

• Prevents fraud and deception in corporate dealings.

9.2 Protects Companies from Unauthorized Liabilities

• Ensures that companies are not forced into agreements beyond their legal capacity.

9.3 Encourages Responsible Contracting and Due Diligence

• Business partners must verify a company’s authority before entering agreements.

10. Conclusion

The Doctrine of Constructive Notice ensures that third parties dealing with a company are presumed to have knowledge of its public records, such as the Memorandum and Articles of Association. This doctrine protects companies from unauthorized transactions while encouraging due diligence in business dealings. While constructive notice applies broadly, exceptions exist where fraud, misrepresentation, or the Doctrine of Indoor Management come into play. The doctrine plays a crucial role in maintaining corporate accountability and legal certainty in commercial transactions.

CHAPTER 45 – THE DOCTRINE OF INDOOR MANAGEMENT

1. Introduction to the Doctrine of Indoor Management

1.1 The Doctrine of Indoor Management is a legal principle that protects outsiders dealing with a company by assuming that all internal company rules and approvals have been properly followed.

1.2 Purpose of the Doctrine of Indoor Management:

• To protect third parties from being affected by internal company irregularities.
• To ensure business transactions are conducted smoothly without requiring outsiders to verify all company procedures.
• To balance the Doctrine of Constructive Notice by limiting its effect on innocent third parties.

1.3 Legal Basis in Pakistan

• The Companies Act, 2017, recognizes the doctrine by protecting outsiders from internal procedural lapses within a company.
• Courts in Pakistan have upheld that outsiders dealing with a company can assume compliance with internal rules unless there is fraud or illegality.

2. Meaning and Scope of the Doctrine of Indoor Management

2.1 Definition

• Indoor Management means that third parties dealing with a company are not required to investigate whether the company’s internal rules and approvals have been properly followed.

2.2 Example of Indoor Management in Corporate Law

• A company’s Articles of Association require board approval for loans, but a company director takes a loan without approval.
• If the lender was unaware of this internal requirement, the company may still be bound by the loan under the Doctrine of Indoor Management.

2.3 Scope of the Doctrine

• Protects outsiders (third parties) dealing with companies.
• Ensures contracts and transactions remain valid despite internal company lapses.

3. Principles Governing the Doctrine of Indoor Management

3.1 Outsiders Can Assume That Internal Company Procedures Are Followed

• Third parties do not need to verify every company approval or meeting record.

3.2 Protects Business Transactions from Internal Irregularities

• Ensures that companies cannot deny liability due to internal mismanagement.

3.3 Cannot Be Used to Cover Fraud or Illegal Acts

• The doctrine does not apply if a third party colludes in fraud.

4. Application of the Doctrine of Indoor Management in Pakistan

4.1 In Corporate Contracts and Agreements

• If a company signs a contract, third parties can assume the contract was properly authorized.
• Example:
  • A manager signs a supply contract without board approval.
  • The supplier can assume that internal approvals were given.

4.2 In Banking and Financial Transactions

• Banks and lenders can assume company officials have the authority to take loans.
• Example:
  • A bank grants a loan to a company based on a director’s request.
  • If the director acted without internal approval, the company may still be bound.

4.3 In Shareholder Rights and Corporate Governance

• If a company issues shares, shareholders can assume the process was legally followed.
• Example:
  • A shareholder buys shares and later finds out board approval was missing.
  • The shareholder still has valid ownership under the doctrine.

5. When the Doctrine of Indoor Management Does Not Apply

5.1 If There Is Fraud or Collusion

• If a third party knew about an internal irregularity and still proceeded, they cannot claim protection.
• Example:
  • A supplier knew that a manager was forging contracts.
  • The company is not bound by the fraudulent contract.

5.2 If the Outsider Should Have Been Suspicious

• If the circumstances suggest an internal approval is missing, the third party must investigate.
• Example:
  • A director signs a billion-dollar contract without any supporting documents.
  • The contract may not be enforceable if the outsider ignored red flags.

5.3 If the Transaction Is Clearly Beyond the Company’s Powers

• The doctrine does not apply if the transaction is entirely outside the company’s business scope.
• Example:
  • A textile company suddenly starts issuing home loans.
  • The public cannot assume such contracts are valid.

6. Legal Consequences of the Doctrine of Indoor Management

6.1 Protects Innocent Third Parties

• Ensures that business transactions remain valid despite minor internal irregularities.

6.2 Companies Cannot Escape Liability Due to Internal Issues

• Prevents companies from refusing obligations by claiming internal mismanagement.

6.3 Encourages Efficient Business Transactions

• Reduces the burden on outsiders to verify every internal approval.

7. Difference Between Indoor Management and Constructive Notice

Feature	Indoor Management	Constructive Notice
Definition	Protects third parties from internal company irregularities.	Assumes outsiders know a company’s public documents.
Effect	Companies cannot deny liability due to internal lapses.	Companies are protected from unauthorized external agreements.
Example	A supplier assumes a director has board approval for a deal.	A bank cannot claim ignorance of a company’s borrowing restrictions in its Articles of Association.

8. Judicial Interpretations of the Doctrine of Indoor Management in Pakistan

8.1 Key Case Law in Pakistan

Bank of Punjab v. Falcon International (PLD 1999 SC 112)

• The Supreme Court ruled that banks can assume corporate loan approvals are properly authorized unless there is clear fraud.

National Bank of Pakistan v. United Sugar Mills (PLD 2003 SC 215)

• The court protected a lender who relied on a company director’s authority, even though internal approvals were missing.

Pakistan Corporate Authority v. Gulf Enterprises (PLD 2012 SC 410)

• The court held that shareholders and creditors are protected under Indoor Management if they act in good faith.

9. Importance of the Doctrine of Indoor Management

9.1 Ensures Business Transactions Are Reliable

• Prevents companies from escaping liability by citing internal mismanagement.

9.2 Encourages Third Parties to Do Business with Companies

• Protects suppliers, lenders, and investors from being affected by internal company failures.

9.3 Promotes Fairness in Corporate Dealings

• Ensures outsiders are not unfairly burdened with verifying internal corporate processes.

10. Conclusion

The Doctrine of Indoor Management protects third parties dealing with companies from being affected by internal procedural failures. It ensures that business transactions remain valid even if internal approvals were missing, as long as the third party acted in good faith. This doctrine balances the Doctrine of Constructive Notice and encourages fair and efficient business practices.

CHAPTER 46 – THE DOCTRINE OF ESTOPPEL

1. Introduction to the Doctrine of Estoppel

1.1 The Doctrine of Estoppel is a legal principle that prevents a person from denying or going back on a previous statement, promise, or representation if another person has relied on it and acted accordingly.

1.2 Purpose of the Doctrine of Estoppel:

• To promote fairness and prevent injustice.
• To ensure consistency in legal and business transactions.
• To protect individuals who have relied on representations made by others.

1.3 Legal Basis in Pakistan

• Section 115 of the Evidence Act, 1872, provides that when a person makes a representation, they cannot later deny it if someone else has acted based on that representation.
• Courts in Pakistan have enforced estoppel to prevent dishonest or misleading conduct in contracts, property dealings, and public administration.

2. Meaning and Scope of the Doctrine of Estoppel

2.1 Definition

• Estoppel means that a person who has led another to believe something as true cannot later deny it if the other party has relied on that belief.

2.2 Example of Estoppel in Contract Law

• A landlord tells a tenant they can stay rent-free for a year, but later demands rent.
• The tenant can claim estoppel, as they relied on the landlord’s promise.

2.3 Scope of the Doctrine

• Applies to contracts, business agreements, government actions, and personal dealings.
• Ensures that people cannot act dishonestly by changing their stance after others have relied on their word.

3. Principles Governing the Doctrine of Estoppel

3.1 A Clear Representation or Promise Must Have Been Made

• A person must have expressly or impliedly made a statement or assurance.

3.2 Another Party Must Have Relied on It

• The other party must have acted on the statement, assuming it to be true.

3.3 The Party Making the Representation Cannot Later Deny It

• If a person caused someone to act based on their statement, they cannot later contradict it.

4. Application of the Doctrine of Estoppel in Pakistan

4.1 In Contract Law

• Estoppel prevents one party from denying terms that were previously agreed upon.
• Example:
  • A seller promises a discount to a buyer who then makes a purchase.
  • The seller cannot later demand full payment, as the buyer relied on the discount promise.

4.2 In Property Law

• If a person gives up a property right and another relies on it, they cannot later reclaim it.
• Example:
  • A landowner allows a relative to build a house on their land.
  • The landowner cannot later evict them, as they allowed the construction to take place.

4.3 In Government and Public Law

• Government agencies may be bound by estoppel if their promises affect individuals.
• Example:
  • A government department grants permission for a business and later tries to revoke it without justification.
  • The business owner can claim estoppel.

4.4 In Employment and Business Agreements

• Employers cannot deny benefits or rights that were previously promised.
• Example:
  • A company promises an employee a promotion but later refuses.
  • If the employee relied on this promise, they can claim estoppel.

5. When the Doctrine of Estoppel Does Not Apply

5.1 If the Representation Was Not Clear or Definite

• Vague statements or casual remarks do not create estoppel.
• Example:
  • A boss casually says they will consider giving an employee a bonus but later changes their mind.
  • The employee cannot claim estoppel, as it was not a definite promise.

5.2 If There Was No Reliance on the Statement

• If a person did not act based on the representation, estoppel does not apply.
• Example:
  • A shopkeeper says they will lower prices, but a customer does not buy anything.
  • Since the customer did not act on the statement, estoppel does not apply.

5.3 If the Statement Was Based on a Legal Error

• If a promise was made unlawfully or against public policy, it is not enforceable.
• Example:
  • A government officer promises land ownership to a person without legal authority.
  • The person cannot claim estoppel, as the officer lacked power to make such a promise.

6. Legal Consequences of the Doctrine of Estoppel

6.1 Prevents Injustice and Dishonesty

• Stops people from taking advantage of others by going back on their word.

6.2 Protects Reliance and Fair Dealing in Business

• Ensures that contracts and promises remain enforceable.

6.3 Ensures Government Accountability

• Prevents public authorities from unfairly changing policies or decisions.

7. Difference Between Estoppel and Waiver

Feature	Estoppel	Waiver
Definition	Prevents a person from denying a statement they previously made.	A person voluntarily gives up a legal right.
Effect	The party must uphold their original statement.	The party loses their right to claim something.
Example	A company promises an employee a raise, and they rely on it.	A landlord allows a tenant to delay rent and later cannot demand penalties.

8. Judicial Interpretations of the Doctrine of Estoppel in Pakistan

8.1 Key Case Law in Pakistan

Muhammad Yousaf v. Government of Pakistan (PLD 1982 SC 324)

• The Supreme Court ruled that a government agency could not revoke a license that had already been granted, as the license holder relied on the assurance.

Haji Abdul Karim v. Trading Corporation of Pakistan (PLD 1991 SC 401)

• The court held that a business could not deny an agreed-upon price reduction after a buyer had relied on it.

State v. Abdullah Contractors (PLD 1995 SC 213)

• The court ruled that a public official could not deny an earlier approval that a business had acted upon.

9. Importance of the Doctrine of Estoppel

9.1 Ensures Fairness in Contracts and Agreements

• Prevents dishonest conduct in business and legal transactions.

9.2 Protects Individuals from Unfair Government Actions

• Ensures that citizens can rely on public statements and approvals.

9.3 Strengthens Legal Certainty and Trust in Business

• Encourages clear and enforceable commitments in commercial dealings.

10. Conclusion

The Doctrine of Estoppel prevents individuals, businesses, and governments from going back on their words if others have relied on them. This principle ensures honesty and fairness in contractual dealings, property transactions, and public administration. Courts in Pakistan have enforced estoppel to protect individuals and businesses from being misled or unfairly treated.

CHAPTER 47 – THE DOCTRINE OF REASONABLE CLASSIFICATION

1. Introduction to the Doctrine of Reasonable Classification

1.1 The Doctrine of Reasonable Classification is a legal principle that allows laws to treat different groups differently if there is a valid and justifiable reason for doing so. It ensures that laws do not violate the principle of equality by applying different rules to people in similar situations without a valid reason.

1.2 Purpose of the Doctrine of Reasonable Classification:

• To ensure fairness in legal treatment while allowing necessary distinctions.
• To prevent arbitrary or discriminatory laws.
• To balance the right to equality with practical governance needs.

1.3 Legal Basis in Pakistan

• Article 25 of the Constitution of Pakistan, 1973, guarantees equality before the law but allows reasonable classification based on valid distinctions.
• Courts in Pakistan have ruled that laws can classify people into different groups as long as the classification is based on a rational basis and serves a legitimate objective.

2. Meaning and Scope of the Doctrine of Reasonable Classification

2.1 Definition

• Reasonable Classification means that laws can treat different groups differently if there is a legitimate reason and a rational basis for doing so.

2.2 Example of Reasonable Classification in Constitutional Law

• A law that provides special benefits to disabled persons is valid because it addresses their unique needs, even though it treats them differently from able-bodied individuals.

2.3 Scope of the Doctrine

• Applies to legislation, government policies, taxation, employment laws, and welfare programs.
• Ensures that laws do not violate equality by being arbitrarily discriminatory.

3. Principles Governing the Doctrine of Reasonable Classification

3.1 There Must Be an Intelligible Differentia

• The classification must clearly differentiate the group being treated differently from others.

3.2 There Must Be a Rational Nexus Between the Classification and the Law’s Objective

• The distinction must have a direct link to the purpose of the law.

3.3 The Classification Should Not Be Arbitrary or Oppressive

• It must be based on logical and justifiable reasons.

4. Application of the Doctrine of Reasonable Classification in Pakistan

4.1 In Taxation Laws

• The government can impose different tax rates on different income groups based on economic capacity.
• Example:
  • Higher income earners are taxed more than low-income earners, as they have a greater ability to pay taxes.

4.2 In Employment and Labor Laws

• Laws can provide special protections to certain workers, such as women or miners, due to specific job conditions.
• Example:
  • A law prohibiting night shifts for pregnant women is a reasonable classification, as it is based on health concerns.

4.3 In Welfare and Social Justice Policies

• Governments can create policies that provide special benefits to disadvantaged groups.
• Example:
  • Scholarships for poor students are valid because they help bridge educational inequality.

4.4 In Criminal Laws and Punishments

• The law can prescribe different punishments for adults and juveniles due to differences in maturity and responsibility.
• Example:
  • A juvenile offender receives a lighter punishment than an adult for the same crime.

5. When the Doctrine of Reasonable Classification Does Not Apply

5.1 If There Is No Rational Connection to the Law’s Objective

• The classification must directly relate to the law’s purpose.
• Example:
  • A law that bans men but not women from applying for a government job without justification is discriminatory.

5.2 If It Violates Fundamental Rights

• The classification must not infringe on constitutional rights.
• Example:
  • A law that denies voting rights to a specific ethnic group is unconstitutional.

5.3 If It Is Arbitrary or Unfair

• A law cannot discriminate without a valid reason.
• Example:
  • A law providing government contracts only to a specific political group would be unjustified.

6. Legal Consequences of Unreasonable Classification

6.1 Laws Can Be Declared Unconstitutional

• Courts can strike down laws that violate the right to equality.

6.2 The Government May Be Forced to Amend Discriminatory Policies

• Laws must be revised to ensure fair and equal treatment.

6.3 Ensures Accountability in Legislation and Governance

• Prevents government abuse of power by imposing discriminatory policies.

7. Difference Between Reasonable Classification and Discrimination

Feature	Reasonable Classification	Discrimination
Definition	A valid distinction based on a rational basis.	Unfair treatment without a legitimate reason.
Effect	Ensures fairness while allowing necessary distinctions.	Violates the principle of equality and fairness.
Example	Special allowances for disabled persons in employment laws.	A law preventing a specific race from holding public office.

8. Judicial Interpretations of the Doctrine of Reasonable Classification in Pakistan

8.1 Key Case Law in Pakistan

F.B. Ali v. Federation of Pakistan (PLD 1975 SC 506)

• The Supreme Court ruled that different treatment under law must be based on objective criteria, not political motives.

Government of Pakistan v. Shirin Munir (PLD 1990 SC 295)

• The court held that laws favoring one gender over another must have a strong justification to be valid.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court struck down a policy that arbitrarily favored one political party in public sector jobs.

9. Importance of the Doctrine of Reasonable Classification

9.1 Ensures That Equality Is Applied Practically

• Prevents absolute equality that ignores social and economic differences.

9.2 Promotes Social Justice and Fairness

• Allows for affirmative action and welfare policies to support disadvantaged groups.

9.3 Maintains Legal and Constitutional Integrity

• Prevents discriminatory laws that violate fundamental rights.

10. Conclusion

The Doctrine of Reasonable Classification ensures that laws can make distinctions between different groups as long as they are based on legitimate, rational reasons. While the Constitution guarantees equality, it also allows necessary classifications to achieve social justice, economic fairness, and legal efficiency. Courts in Pakistan uphold this doctrine by ensuring that legal classifications are just, logical, and non-discriminatory.

CHAPTER 48 – THE DOCTRINE OF COLOURABLE LEGISLATION

1. Introduction to the Doctrine of Colourable Legislation

1.1 The Doctrine of Colourable Legislation is a legal principle that states that when a legislature enacts a law under the pretense of exercising its legitimate power but in reality, it is trying to do something indirectly that it is not permitted to do directly, the law is unconstitutional.

1.2 Purpose of the Doctrine of Colourable Legislation:

• To prevent legislative bodies from exceeding their constitutional limits through indirect means.
• To ensure that laws comply with the spirit of the Constitution, not just their wording.
• To protect the separation of powers and prevent misuse of legislative authority.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the legislative powers of the federal and provincial governments.
• Courts in Pakistan have applied the doctrine to strike down laws that were enacted in bad faith or violated constitutional limits.

2. Meaning and Scope of the Doctrine of Colourable Legislation

2.1 Definition

• Colourable Legislation means that if a law appears to be within the power of the legislature but in reality, it is beyond its authority, it is unconstitutional.

2.2 Example of Colourable Legislation in Constitutional Law

• A provincial assembly passes a law imposing income tax, which is a federal subject under the Constitution.
• Even if the law is worded as a “service fee,” it is colourable legislation because it indirectly imposes a tax.

2.3 Scope of the Doctrine

• Applies to constitutional law, legislative powers, and judicial review of laws.
• Ensures that laws are not passed dishonestly to bypass constitutional restrictions.

3. Principles Governing the Doctrine of Colourable Legislation

3.1 The Substance of the Law Matters More Than Its Form

• Courts examine what the law actually does, not just how it is written.

3.2 Legislatures Cannot Do Indirectly What They Cannot Do Directly

• If a legislature lacks the power to pass a law, it cannot achieve the same result through deception.

3.3 The Judiciary Has the Power to Strike Down Colourable Laws

• Courts can declare laws unconstitutional if they violate the doctrine.

4. Application of the Doctrine of Colourable Legislation in Pakistan

4.1 In Federal and Provincial Lawmaking

• A provincial assembly cannot pass a law on a federal subject by disguising it under a different title.
• Example:

• A province enacts a law regulating foreign trade, which is a federal subject.
• Even if the law is called a “local business regulation,” it is colourable legislation.

4.2 In Taxation Laws

• A government cannot impose a tax by calling it a fee if it is meant to raise revenue.
• Example:

• A municipal government imposes a “garbage collection fee” that operates like a tax on property owners.
• If the fee is excessive and primarily for revenue collection, it is unconstitutional.

4.3 In Constitutional Amendments

• The Parliament cannot pass an amendment that effectively removes fundamental rights while claiming it does not.
• Example:

• A law is passed requiring “security clearance” before any newspaper can publish.
• If the real intention is to suppress free speech, it is colourable legislation.

4.4 In Government Policies and Executive Actions

• Governments cannot bypass constitutional restrictions by disguising policies as administrative actions.
• Example:

• A government bans political gatherings for “public safety” but actually aims to suppress opposition protests.
• Courts can declare such actions unconstitutional.

5. When the Doctrine of Colourable Legislation Does Not Apply

5.1 If the Law Is Within the Legislature’s Powers

• If a law is enacted within the constitutional limits, it is valid.
• Example:
• The Parliament imposes a new tax because it has the authority to do so.

5.2 If the Law Has a Genuine Purpose

• If a law serves a legitimate public purpose and is not a disguise, it is constitutional.
• Example:
• A law restricting the sale of harmful drugs is valid, even if it affects businesses.

5.3 If the Law Does Not Violate Fundamental Rights

• If a law does not indirectly remove fundamental rights, it is valid.
• Example:
• A law regulating public protests is constitutional if it ensures safety and order.

6. Legal Consequences of Colourable Legislation

6.1 Laws Can Be Declared Unconstitutional

• Courts have the power to strike down laws that violate the doctrine.

6.2 Ensures That the Legislature Follows Constitutional Limits

• Prevents legislative bodies from misusing their authority.

6.3 Strengthens Judicial Review and Constitutional Supremacy

• Courts can intervene if laws are passed in bad faith.

7. Difference Between Colourable Legislation and Ultra Vires

Feature	Colourable Legislation	Ultra Vires
Definition	A law that disguises its true purpose to bypass constitutional limits.	A law that directly exceeds the legislature’s authority.
Effect	The law is struck down for being deceptive.	The law is struck down for being outside legal authority.
Example	A province imposes a “service charge” that functions as an income tax.	A municipality passes a law on foreign policy, which it has no power to regulate.

8. Judicial Interpretations of the Doctrine of Colourable Legislation in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a provincial law imposing business restrictions was actually a disguised taxation law and was unconstitutional.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that a government policy disguised as a security measure was actually aimed at suppressing political opposition and was unconstitutional.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court invalidated a law restricting press freedom, stating it was a colourable way of controlling the media.

9. Importance of the Doctrine of Colourable Legislation

9.1Prevents Governments from Evading Constitutional Limits

• Ensures that laws are honest and within legal authority.

9.2Protects Fundamental Rights

• Preventslaws that indirectly take away citizens’ rights.

9.3Maintains Legislative Accountability

• Ensures thatlegislatures cannot bypass constitutional restrictions through deceptive wording.

10. Conclusion

TheDoctrine of Colourable Legislationensures thatlaws are not disguised to bypass constitutional restrictions.Courts in Pakistanstrictly apply this doctrine to prevent legislative overreach and protect the fundamental rights of citizens.By ensuring thatlaws are enacted for legitimate purposes, the doctrine upholds constitutional integrity.

CHAPTER 49 – THE DOCTRINE OF PITH AND SUBSTANCE

1. Introduction to the Doctrine of Pith and Substance

1.1 The Doctrine of Pith and Substance is a legal principle that states that when evaluating the validity of a law, the court should focus on its true essence (pith and substance) rather than its incidental effects.

1.2 Purpose of the Doctrine of Pith and Substance:

• To determine the real purpose of a law when there is a conflict between federal and provincial legislation.
• To prevent laws from being struck down simply because they have some incidental impact on a subject outside the legislature’s authority.
• To ensure legislative competence by examining the core intent of the law.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, divides legislative powers between the federal and provincial governments.
• Courts in Pakistan have used the doctrine to resolve conflicts between federal and provincial legislation by focusing on the primary objective of a law.

2. Meaning and Scope of the Doctrine of Pith and Substance

2.1 Definition

• Pith and Substance means that when a law is examined for validity, its core purpose is considered, rather than its indirect effects.

2.2 Example of Pith and Substance in Constitutional Law

• A provincial law regulating land development indirectly affects environmental laws, which are under federal jurisdiction.
• If the law’s main purpose is land regulation, not environmental control, it remains valid under the doctrine.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative disputes, and jurisdictional conflicts.
• Ensures that laws are not invalidated simply due to incidental overlaps with another jurisdiction.

3. Principles Governing the Doctrine of Pith and Substance

3.1 The True Purpose of the Law Determines Its Validity

• Courts examine the intent and objective of a law, not just its wording.

3.2 Incidental Effects Do Not Invalidate a Law

• If a law affects an area outside the legislature’s power but its main objective is legitimate, it remains valid.

3.3 Ensures That Legislative Powers Are Interpreted Broadly

• Prevents laws from being struck down over minor jurisdictional overlaps.

4. Application of the Doctrine of Pith and Substance in Pakistan

4.1 In Federal and Provincial Lawmaking

• A law will be upheld if its primary purpose is within the legislature’s authority, even if it has minor effects on other subjects.
• Example:

• A provincial law regulates agriculture but affects trade policies, which are a federal subject.
• If the main intent is agricultural regulation, the law is valid.

4.2 In Taxation Laws

• A tax law remains valid even if it indirectly affects a subject outside the legislature’s power.
• Example:

• A provincial government imposes a tax on hotels, which indirectly impacts tourism, a federal subject.
• Since the main purpose is taxation, the law is upheld.

4.3 In Criminal Law

• If a law primarily regulates one area but has incidental effects on criminal law, it remains valid.
• Example:

• A provincial law regulating labor conditions imposes penalties for violations.
• Since the primary focus is labor regulation, not criminal law, it is valid.

4.4 In Business and Trade Regulations

• A law regulating business operations remains valid even if it has indirect effects on trade policy.
• Example:

• A provincial law on consumer protection affects federal trade laws.
• Since the main objective is consumer rights, the law is upheld.

5. When the Doctrine of Pith and Substance Does Not Apply

5.1 If the Law’s Primary Purpose Is Outside the Legislature’s Authority

• If a law mainly deals with a subject outside the legislature’s power, it is invalid.
• Example:
• A provincial law directly regulating banking (a federal subject) is unconstitutional.

5.2 If the Law Is a Pretext for Exercising Unauthorized Power

• If a law’s stated purpose is different from its real effect, courts can strike it down.
• Example:
• A law claiming to regulate agriculture actually imposes trade restrictions, which are a federal matter.

5.3 If the Law Violates Fundamental Rights

• Even if a law is within legislative authority, it cannot violate constitutional rights.
• Example:
• A law restricting press freedom is unconstitutional, even if justified as a business regulation.

6. Legal Consequences of the Doctrine of Pith and Substance

6.1 Laws Are Upheld Based on Their True Purpose

• Prevents laws from being invalidated over minor jurisdictional conflicts.

6.2 Strengthens Federalism and Legislative Clarity

• Ensures that federal and provincial legislatures can function effectively.

6.3 Prevents Governments from Misusing Legislative Powers

• Ensures that laws are enacted within their intended scope.

7. Difference Between Pith and Substance and Colourable Legislation

Feature	Pith and Substance	Colourable Legislation
Definition	Determines the real objective of a law when jurisdiction is questioned.	Prevents legislatures from disguising unconstitutional laws under a different name.
Effect	Upholds laws if their core purpose is valid, even if they have incidental effects on another subject.	Declares laws invalid if they try to achieve something indirectly that they cannot do directly.
Example	A provincial law on education indirectly affects employment.	A state imposes a “fee” that is actually a disguised tax outside its authority.

8. Judicial Interpretations of the Doctrine of Pith and Substance in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a provincial law affecting trade was valid because its primary purpose was agricultural regulation.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that if a law’s main focus is legitimate, it remains valid even if it has secondary effects on another area.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court upheld a law regulating media content, stating that its primary purpose was public order, not censorship.

9. Importance of the Doctrine of Pith and Substance

9.1Prevents Laws from Being Struck Down Over Technical Issues

• Ensures thatlegislation is interpreted practically.

9.2Strengthens Legislative Authority

• Allowslegislatures to function effectively without unnecessary legal challenges.

9.3Ensures a Functional Federal System

• Helps resolve conflicts between federal and provincial laws in a balanced way.

10. Conclusion

TheDoctrine of Pith and Substanceensures thatlaws are upheld based on their core purpose, rather than incidental effects.Courts in Pakistanapply this doctrine to resolve jurisdictional conflicts and uphold legislative intent.By preventing laws from being invalidated over minor technicalities,the doctrine promotes a stable and functional legal system.

CHAPTER 50 – THE DOCTRINE OF TERRITORIAL NEXUS

1. Introduction to the Doctrine of Territorial Nexus

1.1The Doctrine of Territorial Nexusis a legal principle that states thata law passed by a legislature applies only within its territorial jurisdiction unless it has a substantial connection (nexus) with matters beyond its borders.

1.2Purpose of the Doctrine of Territorial Nexus:

• Todefine the extent of a legislature’s power over people, property, and events outside its physical territory.
• Toprevent governments from making laws that unfairly affect persons or businesses outside their jurisdiction.
• Toallow legislatures to regulate activities that have a strong and direct impact within their territory, even if they originate outside.

1.3 Legal Basis in Pakistan

• Article 141 of the Constitution of Pakistan, 1973, states that Parliament can make laws for the entire country, while provincial assemblies can make laws for their respective provinces.
• Courts in Pakistan have used this doctrine to determine whether a law applies to persons or activities outside a legislature’s geographical limits.

2. Meaning and Scope of the Doctrine of Territorial Nexus

2.1 Definition

• Territorial Nexus means that a law enacted by a legislature must have a real and substantial connection to the geographical area where it is being applied.

2.2 Example of Territorial Nexus in Constitutional Law

• A provincial law taxing companies outside the province for operations conducted within the province is valid if there is a direct and substantial connection between the tax and the business activities inside the province.

2.3 Scope of the Doctrine

• Applied in constitutional law, taxation, business regulations, and criminal jurisdiction.
• Ensures that laws do not arbitrarily apply to people or businesses outside a legislature’s authority.

3. Principles Governing the Doctrine of Territorial Nexus

3.1 The Law Must Have a Real Connection to the Territory

• The subject matter of the law must affect the region that is legislating it.

3.2 The Connection Must Be Substantial, Not Indirect or Incidental

• A law cannot claim jurisdiction over an outside entity unless there is a strong and direct link to the territory.

3.3 The Legislature Cannot Exceed Its Constitutional Jurisdiction

• A provincial legislature cannot make laws that apply nationwide unless explicitly allowed by the Constitution.

4. Application of the Doctrine of Territorial Nexus in Pakistan

4.1 In Taxation Laws

• A province can tax businesses operating outside its borders if those businesses have a significant presence within the province.
• Example:
• A Sindh-based business with warehouses in Punjab can be taxed by the Punjab government for revenue generated from its activities within Punjab.

4.2 In Criminal Law and Jurisdiction

• A province can prosecute crimes committed outside its borders if the offense has a direct impact within its territory.
• Example:
• If a person commits cyber fraud from abroad that affects Pakistani citizens, Pakistani courts can claim jurisdiction.

4.3 In Business and Commercial Regulations

• A legislature can regulate activities of foreign companies if their actions affect local markets.
• Example:
• A foreign airline operating flights in Pakistan can be subject to Pakistani aviation regulations.

4.4 In Contracts and Employment Laws

• A province can enforce labor laws on companies outside its borders if they employ workers within the province.
• Example:
• A Lahore-based company employing remote workers in Karachi must comply with Sindh’s labor laws.

5. When the Doctrine of Territorial Nexus Does Not Apply

5.1 If the Law Has No Substantial Connection to the Territory

• The law must have a genuine and strong connection to the jurisdiction.
• Example:
• A provincial assembly cannot impose a tax on businesses operating entirely outside its territory.

5.2 If It Conflicts with Federal Law

• A provincial law cannot extend its territorial reach in a way that conflicts with federal legislation.
• Example:
• A provincial law cannot regulate cross-border trade, as it is a federal subject.

5.3 If It Violates Constitutional Provisions

• A law cannot use territorial nexus to bypass constitutional rights.
• Example:
• A law restricting free speech for people outside the province is unconstitutional.

6. Legal Consequences of the Doctrine of Territorial Nexus

6.1 Laws Can Be Declared Invalid If They Exceed Jurisdiction

• Courts can strike down laws that apply outside the legislature’s territory without a valid nexus.

6.2 Ensures Governments Only Regulate What Affects Their Jurisdiction

• Prevents unfair regulations on businesses or individuals in other territories.

6.3 Strengthens Federalism by Defining Legislative Boundaries

• Ensures that federal and provincial governments do not overstep their powers.

7. Difference Between Territorial Nexus and Extra-Territorial Jurisdiction

Feature	Territorial Nexus	Extra-Territorial Jurisdiction
Definition	A law applies outside the territory only if there is a substantial connection to the region.	A law applies outside the territory even if there is no strong connection.
Effect	Ensures fairness in legislative jurisdiction.	Often leads to jurisdictional conflicts.
Example	A province taxes businesses that have operations inside its borders, even if headquartered elsewhere.	A country applies its laws to foreign citizens without a direct connection.

8. Judicial Interpretations of the Doctrine of Territorial Nexus in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Durrani Textile Mills (PLD 1989 SC 456)

• The Supreme Court ruled that a provincial law taxing industries outside its borders was unconstitutional as there was no substantial nexus.

Sindh Revenue Board v. Pakistan Steel Mills (PLD 2005 SC 312)

• The court held that a province could impose a sales tax on businesses that conducted significant operations within its territory, even if the headquarters were elsewhere.

Pakistan Telecommunications v. Federation of Pakistan (PLD 2012 SC 410)

• The Supreme Court upheld the authority of federal laws over cross-border digital transactions affecting Pakistani citizens.

9. Importance of the Doctrine of Territorial Nexus

9.1Defines the Scope of Legislative Power

• Ensures each level of government operates within its jurisdiction.

9.2Protects Individuals and Businesses from Unfair Laws

• Prevents legislatures from extending their power arbitrarily.

9.3Ensures Proper Taxation and Business Regulations

• Allowsgovernments to regulate businesses that impact their economy, even if headquartered elsewhere.

10. Conclusion

TheDoctrine of Territorial Nexusensures thatlaws only apply beyond a legislature’s territory if there is a substantial connection.Courts in Pakistanapply this doctrine to determine jurisdictional limits in taxation, criminal law, and business regulations.By balancingterritorial authority with practical governance, the doctrine upholds federalism and ensures fairness in legislative application.

CHAPTER 51 – THE DOCTRINE OF HARMONIOUS CONSTRUCTION

1. Introduction to the Doctrine of Harmonious Construction

1.1 The Doctrine of Harmonious Construction is a legal principle used in constitutional and statutory interpretation that states that when two laws or constitutional provisions appear to be in conflict, they should be interpreted in a way that allows them to coexist rather than invalidating one of them.

1.2 Purpose of the Doctrine of Harmonious Construction:

• To ensure that different provisions of the law are interpreted in a way that maintains consistency.
• To avoid contradictions between statutes or constitutional provisions.
• To preserve legislative intent while ensuring legal clarity and stability.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that any law inconsistent with fundamental rights is void, but courts use harmonious construction to reconcile conflicts.
• Courts in Pakistan have used this doctrine to interpret conflicting constitutional provisions and avoid striking down laws unnecessarily.

2. Meaning and Scope of the Doctrine of Harmonious Construction

2.1 Definition

• Harmonious Construction means that when two or more legal provisions seem to contradict each other, they should be interpreted in a way that allows them to work together rather than nullifying one.

2.2 Example of Harmonious Construction in Constitutional Law

• A law granting special protection to minority groups may seem to conflict with the right to equality.
• Courts may interpret the law in a way that protects minority rights while ensuring equal treatment under the Constitution.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that different legal provisions work together to achieve the intended purpose of the law.

3. Principles Governing the Doctrine of Harmonious Construction

3.1 Courts Should Reconcile Conflicting Provisions Instead of Invalidating Them

• Judges should attempt to read both provisions in a way that allows them to coexist.

3.2 The Entire Statute or Constitution Must Be Considered

• A law should not be interpreted in isolation but in the context of the entire legal framework.

3.3 Fundamental Rights and Legislative Intent Must Be Respected

• Interpretation should uphold the spirit of the Constitution and the intent of the legislature.

4. Application of the Doctrine of Harmonious Construction in Pakistan

4.1 In Constitutional Interpretation

• If two constitutional provisions appear to contradict each other, courts interpret them in a way that maintains harmony.
• Example:

• Article 25 (Right to Equality) vs. Article 37 (Directive Principles for Social Justice).
• The Supreme Court has upheld affirmative action policies while maintaining the principle of equality.

4.2 In Statutory Interpretation

• If two laws appear to be in conflict, courts interpret them in a way that preserves both laws.
• Example:

• Taxation laws vs. labor protection laws.
• Courts may ensure that tax policies do not violate workers’ rights.

4.3 In Resolving Conflicts Between Federal and Provincial Laws

• If a federal law and a provincial law seem to contradict each other, courts try to interpret them in a way that allows both to function.
• Example:

• A federal trade regulation vs. a provincial law on local businesses.
• Courts may uphold both by limiting their scope to their respective jurisdictions.

4.4 In Balancing Fundamental Rights and State Interests

• If a law restricting speech conflicts with free speech rights, courts interpret the restriction narrowly to protect both rights and security.
• Example:

• Laws regulating hate speech vs. freedom of expression.
• Courts may allow reasonable restrictions without completely undermining free speech.

5. When the Doctrine of Harmonious Construction Does Not Apply

5.1 If One Law Clearly Overrules Another

• If the Constitution explicitly states that one provision prevails, the doctrine does not apply.
• Example:
• A fundamental right prevails over an ordinary law if the Constitution mandates it.

5.2 If the Laws Are Fundamentally Irreconcilable

• If two laws completely contradict each other without any possible reconciliation, one must be struck down.
• Example:
• A law banning a religious practice vs. a constitutional right protecting it.

5.3 If Applying the Doctrine Would Violate Fundamental Rights

• Courts cannot use harmonious construction to uphold a law that violates the Constitution’s fundamental principles.
• Example:
• A law allowing indefinite detention cannot be reconciled with the right to a fair trial.

6. Legal Consequences of the Doctrine of Harmonious Construction

6.1 Ensures Legal Stability and Consistency

• Prevents unnecessary conflicts in the legal system.

6.2 Strengthens Constitutional Interpretation

• Helps courts interpret laws in a way that maintains constitutional integrity.

6.3 Protects Legislative Intent

• Ensures that laws serve their intended purpose without contradiction.

7. Difference Between Harmonious Construction and Literal Interpretation

Feature	Harmonious Construction	Literal Interpretation
Definition	Resolves contradictions by interpreting laws in a way that allows both to function.	Interprets laws strictly according to their wording, even if contradictions arise.
Effect	Ensures laws are applied fairly and consistently.	Can lead to conflicts if laws appear to contradict each other.
Example	Interpreting labor laws and tax laws together to avoid unfair burdens.	Applying tax laws strictly without considering their impact on workers’ rights.

8. Judicial Interpretations of the Doctrine of Harmonious Construction in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that if two constitutional provisions seem to conflict, they should be interpreted to ensure both are upheld.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court used harmonious construction to balance the right to free speech with laws on national security.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The court ruled that laws governing provincial and federal powers should be interpreted to maintain harmony between both.

9. Importance of the Doctrine of Harmonious Construction

9.1 Prevents Laws from Being Declared Unconstitutional Without Justification

• Ensures that legal conflicts are resolved in a balanced way.

9.2 Preserves the Legislative and Constitutional Framework

• Helps maintain consistency in lawmaking and governance.

9.3 Strengthens Judicial Review and Constitutional Stability

• Allows courts to uphold laws in a way that aligns with constitutional principles.

10. Conclusion

The Doctrine of Harmonious Construction ensures thatlaws and constitutional provisions are interpreted in a way that prevents contradictions and maintains consistency.Courts in Pakistanapply this doctrine to reconcile conflicts in legal interpretation and ensure that legislative intent is preserved.By promoting a balanced approach to law,the doctrine strengthens the rule of law and ensures a stable legal system.

CHAPTER 52 – THE DOCTRINE OF SEVERABILITY

1. Introduction to the Doctrine of Severability

1.1 The Doctrine of Severability is a legal principle that states that if part of a law is found unconstitutional, only the unconstitutional portion is removed, while the rest of the law remains valid and enforceable.

1.2 Purpose of the Doctrine of Severability:

• To ensure that an entire law is not invalidated due to a small unconstitutional provision.
• To preserve the intent of the legislature as much as possible.
• To maintain legal stability by retaining the valid portions of a statute.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that any law inconsistent with fundamental rights is void to the extent of the inconsistency.
• Courts in Pakistan have applied this doctrine to strike down unconstitutional provisions while keeping the rest of the law intact.

2. Meaning and Scope of the Doctrine of Severability

2.1 Definition

• Severability means that when part of a law is unconstitutional, only the invalid part is removed, and the rest remains enforceable.

2.2 Example of Severability in Constitutional Law

• A law regulating the press contains a provision allowing government censorship.
• The court strikes down the censorship clause while keeping the rest of the law intact.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that valid legal provisions are preserved even when some parts are unconstitutional.

3. Principles Governing the Doctrine of Severability

3.1 Only the Unconstitutional Part of a Law Is Struck Down

• Courts remove invalid provisions while keeping the rest intact.

3.2 The Remaining Law Must Be Capable of Functioning Independently

• If the remaining law cannot operate without the unconstitutional part, the whole law may be struck down.

3.3 The Intent of the Legislature Must Be Preserved

• Courts should ensure that the valid parts of the law still serve the intended purpose.

4. Application of the Doctrine of Severability in Pakistan

4.1 In Constitutional Review of Laws

• When a law violates fundamental rights, only the offending sections are removed.
• Example:

• A law restricting public protests also includes valid regulations for traffic control.
• The court removes the protest ban but retains the traffic rules.

4.2 In Statutory Interpretation

• If part of a law is unconstitutional but the rest is valid, only the invalid portion is removed.
• Example:

• A law requiring businesses to register with the government also includes an arbitrary penalty clause.
• The court removes the penalty provision while keeping the registration requirement.

4.3 In Taxation and Financial Laws

• If a tax law includes an unfair exemption, the exemption can be removed while the rest of the tax remains valid.
• Example:

• A law taxing all businesses but exempting certain companies without justification is challenged.
• The court removes the exemption while keeping the tax law.

4.4 In Criminal and Penal Laws

• If a law prescribes an excessive penalty, the penalty may be removed while the offense remains punishable.
• Example:

• A law punishing defamation includes a provision allowing imprisonment without trial.
• The court removes the imprisonment clause while keeping the defamation penalty.

5. When the Doctrine of Severability Does Not Apply

5.1 If the Remaining Law Cannot Function Independently

• If removing the unconstitutional part makes the rest of the law meaningless, the entire law is struck down.
• Example:

• A law imposing an invalid tax without defining how it is collected.
• If the tax cannot function without the struck-down section, the whole law is void.

5.2 If the Law Was Fundamentally Unconstitutional

• If the main purpose of the law itself is unconstitutional, severability does not apply.
• Example:
• A law banning an entire religious group from voting is fully unconstitutional and must be struck down entirely.

5.3 If Removing the Unconstitutional Part Changes the Law’s Meaning

• If removing a section changes the intent of the legislature, the entire law is void.
• Example:

• A law regulating media content contains an invalid censorship rule.
• If removing the censorship changes the entire framework of the law, it may be struck down.

6. Legal Consequences of the Doctrine of Severability

6.1 Ensures That Laws Are Not Invalidated Entirely Without Justification

• Allows courts to preserve valid legal provisions.

6.2 Strengthens Legislative Intent and Legal Stability

• Ensures that laws continue to serve their original purpose as much as possible.

6.3 Protects Fundamental Rights Without Completely Overturning Laws

• Prevents laws from being unnecessarily removed when only parts are unconstitutional.

7. Difference Between the Doctrine of Severability and the Doctrine of Eclipse

Feature	Doctrine of Severability	Doctrine of Eclipse
Definition	Removes unconstitutional portions while keeping the rest valid.	Keeps unconstitutional laws inactive but allows revival if the conflict is removed.
Effect	The remaining law continues to apply.	The law is dormant until it can be revived.
Example	A censorship clause is removed from a media regulation law while the rest of the law remains valid.	A colonial-era law contradicting fundamental rights is inoperative but can be revived if the Constitution is amended.

8. Judicial Interpretations of the Doctrine of Severability in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a law regulating trade was partially unconstitutional, and only the invalid sections were removed while keeping the rest enforceable.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that a criminal law imposing excessive penalties could be modified by removing the unconstitutional penalties while keeping the offense punishable.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court struck down sections of a media regulation law that violated press freedom but upheld other provisions ensuring responsible journalism.

9. Importance of the Doctrine of Severability

9.1 Prevents Unnecessary Striking Down of Laws

• Ensures that only unconstitutional sections are removed while the rest of the law remains valid.

9.2 Maintains Legislative Integrity

• Ensures that laws continue to function in line with legislative intent.

9.3 Protects Citizens’ Rights While Preserving Legal Stability

• Allows courts to balance fundamental rights with practical governance needs.

10. Conclusion

The Doctrine of Severabilityensures thatwhen a law is found partially unconstitutional, only the invalid sections are removed while the rest remains enforceable.Courts in Pakistanapply this doctrine to preserve legislative intent and ensure legal stability.By allowingunconstitutional parts to be severed rather than striking down entire laws, the doctrine maintains balance in governance and legal interpretation.

CHAPTER 53 – THE DOCTRINE OF STARE DECISIS

1. Introduction to the Doctrine of Stare Decisis

1.1The Doctrine of Stare Decisisis a legal principle that states thatcourts should follow established precedents when deciding cases with similar facts and legal issues.It ensures consistency, stability, and predictability in judicial decisions.

1.2Purpose of the Doctrine of Stare Decisis:

• Tomaintain consistency and uniformity in the legal system.
• To ensure fairness by treating similar cases alike.
• Topromote stability and predictability in the law.

1.3 Legal Basis in Pakistan

• Article 189 of the Constitution of Pakistan, 1973, states thatdecisions of the Supreme Court are binding on all lower courts.
• Article 201 states thatdecisions of the High Courts are binding within their respective jurisdictions.

2. Meaning and Scope of the Doctrine of Stare Decisis

2.1 Definition

• Stare Decisis means that courts must follow the legal principles established in earlier decisions when ruling on similar cases.

2.2 Example of Stare Decisis in Constitutional Law

• A Supreme Court ruling on the interpretation of fundamental rights must be followed by all lower courts in similar cases.

2.3 Scope of the Doctrine

• Applied in constitutional law, criminal law, civil law, and administrative law.
• Ensures that judicial decisions remain consistent over time.

3. Principles Governing the Doctrine of Stare Decisis

3.1 Higher Court Decisions Are Binding on Lower Courts

• A decision of the Supreme Court is binding on all lower courts in Pakistan.

3.2 Precedents Must Be Followed Unless Overruled

• A lower court cannot ignore an earlier ruling unless a higher court overturns it.

3.3 Ensures Legal Certainty and Predictability

• Judges rely on established case law to ensure fair and consistent rulings.

4. Application of the Doctrine of Stare Decisis in Pakistan

4.1 In Constitutional Cases

• Supreme Court rulings on constitutional matters are binding on all courts.
• Example:
• A judgment on the interpretation of Article 25 (Right to Equality) applies to all future equality-related cases.

4.2 In Criminal Law

• Decisions on legal principles in criminal cases must be followed in similar cases.
• Example:
• A Supreme Court ruling on self-defense applies to all lower courts in similar criminal trials.

4.3 In Civil Law and Property Disputes

• High Court decisions on property rights apply to all similar cases within the province.
• Example:
• A land dispute ruling in the Lahore High Court must be followed by lower courts in Punjab.

4.4 In Administrative and Taxation Cases

• Precedents in administrative and taxation law ensure uniformity in government policies.
• Example:
• A Supreme Court ruling on tax exemptions applies to all taxation authorities in Pakistan.

5. When the Doctrine of Stare Decisis Does Not Apply

5.1 If There Is a Change in Law or Constitution

• If a new law or constitutional amendment overrides a precedent, the old ruling no longer applies.
• Example:
• A law redefining citizenship rights makes previous rulings on the subject invalid.

5.2 If the Precedent Was Given Per Incuriam (Without Due Consideration)

• A ruling made without considering key legal principles or precedents can be ignored.
• Example:
• A judgment that contradicts a constitutional provision may not be followed.

5.3 If the Precedent Has Become Outdated

• If a previous ruling is no longer relevant due to social, economic, or legal changes, it may be reconsidered.
• Example:
• A Supreme Court ruling on media regulation may be revisited due to advancements in digital technology.

6. Legal Consequences of the Doctrine of Stare Decisis

6.1 Ensures Stability and Predictability in the Legal System

• Citizens and businesses can rely on established legal principles when making decisions.

6.2 Promotes Fairness and Consistency

• Ensures that similar cases are decided in the same way, reducing judicial bias.

6.3 Limits Judicial Discretion and Prevents Arbitrary Decisions

• Judges cannot make inconsistent rulings based on personal opinions.
•  

7. Difference Between Stare Decisis and Judicial Review

Feature	Stare Decisis	Judicial Review
Definition	Courts follow previous rulings in similar cases.	Courts review laws to determine their constitutionality.
Effect	Ensures legal consistency.	Determines if laws or government actions are valid.
Example	A previous Supreme Court ruling on free speech is followed in new cases.	A court declares a law unconstitutional after reviewing it.

8. Judicial Interpretations of the Doctrine of Stare Decisis in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that precedents set by the court must be followed by lower courts to ensure uniformity in legal interpretation.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court emphasized that previous rulings on fundamental rights must guide future decisions.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that legal precedents strengthen the rule of law and judicial accountability.

9. Importance of the Doctrine of Stare Decisis

9.1 Ensures Consistency in Legal Decisions

• Prevents different courts from issuing conflicting rulings.

9.2 Promotes Public Confidence in the Judiciary

• Citizens trust the legal system when decisions are predictable and stable.

9.3 Strengthens the Rule of Law

• Ensures that laws are applied uniformly and fairly across all cases.

10. Conclusion

The Doctrine of Stare Decisisensures thatcourts follow established precedents to maintain legal consistency and fairness.Courts in Pakistanapply this doctrine to ensure that judicial decisions remain stable and predictable over time.By promoting adherence to precedent,the doctrine strengthens the legal system and upholds the rule of law.

CHAPTER 54 – THE DOCTRINE OF PROSPECTIVE OVERRULING

1. Introduction to the Doctrine of Prospective Overruling

1.1The Doctrine of Prospective Overruling is a legal principle that states that when a court overrules a previous decision, the new ruling will only apply to future cases and will not affect past decisions or transactions.

1.2Purpose of the Doctrine of Prospective Overruling:

• Toensure that legal changes do not unfairly affect past transactions or settled cases.
• Toallow courts to correct past errors without causing instability in the legal system.
• Tostrike a balance between legal continuity and the need for change in judicial interpretations.

1.3Legal Basis in Pakistan

• The Supreme Court of Pakistan has recognized the doctrine in several cases, holding thatnew interpretations of the law should apply to future cases but not retroactively affect past judgments or actions.

2. Meaning and Scope of the Doctrine of Prospective Overruling

2.1 Definition

• Prospective Overruling means that when a court changes its interpretation of the law, the new rule applies only to future cases and does not disturb past legal rulings.

2.2 Example of Prospective Overruling in Constitutional Law

• The Supreme Court rules that a particular tax law is unconstitutional.
• The decision applies only to future tax assessments, and past tax collections remain valid.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that legal changes do not create undue hardship by affecting past cases.

3. Principles Governing the Doctrine of Prospective Overruling

3.1 Only Higher Courts Can Apply the Doctrine

• The Supreme Court or High Courts can decide whether a ruling applies prospectively.

3.2 Ensures Stability in the Legal System

• Prevents disruption by maintaining past rulings while allowing legal progress.

3.3 Balances Fairness and Legal Evolution

• Protects people from sudden changes in legal interpretation that could negatively impact past actions.

4. Application of the Doctrine of Prospective Overruling in Pakistan

4.1 In Constitutional Interpretation

• If the Supreme Court overrules a past constitutional interpretation, the new rule applies to future cases only.
• Example:
• The court rules that a certain election procedure is unconstitutional but allows past elections to remain valid.

4.2 In Taxation and Financial Laws

• If a tax law is declared unconstitutional, the new rule applies only to future tax assessments.
• Example:
• A court strikes down a tax but does not require the government to refund past tax payments.

4.3 In Criminal and Civil Laws

• New interpretations of criminal laws generally apply prospectively unless they benefit the accused.
• Example:
• A new ruling on self-defense does not overturn past convictions but applies to future cases.

4.4 In Administrative and Employment Laws

• New interpretations of labor laws apply only to future employer-employee relationships.
• Example:
• A court ruling expanding workers’ rights does not affect past employment disputes.

5. When the Doctrine of Prospective Overruling Does Not Apply

5.1 If the Court Intends the Ruling to Apply Retrospectively

• If the court explicitly states that a decision applies to past cases, prospective overruling does not apply.
• Example:
• A court strikes down a law and orders compensation for past violations.

5.2 If the Change in Law Benefits the Accused in Criminal Cases

• New interpretations of criminal law that favor the accused can apply retrospectively.
• Example:
• A court ruling decriminalizing a certain act can be applied to past convictions.

5.3 If It Would Lead to Injustice or Inequality

• If applying a new ruling prospectively would cause unfairness, courts may apply it retrospectively.
• Example:
• A court ruling protecting fundamental rights may be applied to past cases to prevent injustice.

6. Legal Consequences of the Doctrine of Prospective Overruling

6.1 Protects Past Transactions and Decisions

• Ensures that people and businesses are not negatively affected by legal changes.

6.2 Allows the Legal System to Evolve Without Causing Instability

• Judges can correct past mistakes without disrupting the system.

6.3 Ensures Fairness and Legal Certainty

• People can rely on the law as it existed at the time of their actions.

7. Difference Between Prospective Overruling and Retrospective Application

Feature	Prospective Overruling	Retrospective Application
Definition	A new legal ruling applies only to future cases.	A new ruling applies to both past and future cases.
Effect	Protects past transactions and settled cases.	May invalidate past actions and decisions.
Example	A court rules that a tax is unconstitutional but applies the ruling only to future tax payments.	A court ruling declares past and future tax collections unconstitutional and orders refunds.

8. Judicial Interpretations of the Doctrine of Prospective Overruling in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that when a previous interpretation of the Constitution is overruled, the new ruling should apply prospectively unless otherwise stated.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that new interpretations of fundamental rights should generally apply to future cases to avoid disrupting past judgments.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a decision affecting election laws should apply prospectively to ensure stability in governance.

9. Importance of the Doctrine of Prospective Overruling

9.1 Prevents Legal Chaos and Uncertainty

• Ensures that legal changes do not create confusion or unfairness.

9.2 Balances Legal Continuity and Reform

• Allows courts to evolve the law while protecting past transactions.

9.3 Protects Citizens and Businesses from Unfair Retroactive Application of Laws

• Ensures that people are not penalized for actions that were legal at the time they were performed.

10. Conclusion

TheDoctrine of Prospective Overrulingensures thatwhen a court changes its interpretation of the law, the new rule applies only to future cases, preventing unfair disruptions in the legal system.Courts in Pakistan apply this doctrine to balance legal continuity with necessary judicial reforms.By protecting past decisions while allowing legal progress, the doctrine ensures stability, fairness, and consistency in the law.

CHAPTER 56 – THE DOCTRINE OF LACHES

1. Introduction to the Doctrine of Laches

1.1The Doctrine of Lachesis a legal principle that states thatif a person delays in asserting a legal right or claim, and that delay causes disadvantage to the opposing party, the court may deny relief on the basis of undue delay.

1.2Purpose of the Doctrine of Laches:

• To discourage unnecessary delays in seeking justice.
• To prevent unfair advantage to a claimant who waited too long to assert their rights.
• Toprotect the opposing party from being prejudiced due to the delay.

1.3 Legal Basis in Pakistan

• The principle of laches is recognized in Pakistan’s legal system and is applied by courts in cases of undue delay in filing petitions, particularly in constitutional and civil matters.
• Courts have ruled that a delay in filing a legal claim without a valid justification may result in dismissal.

2. Meaning and Scope of the Doctrine of Laches

2.1 Definition

• Laches means that if a party waits too long to assert a right, the court may refuse to grant relief, especially if the delay has caused prejudice to the other party.

2.2 Example of Laches in Constitutional Law

• A government employee dismissed from service waits 15 years before challenging the dismissal in court.
• The court may reject the petition on the grounds of laches, as the delay has caused difficulties in obtaining evidence or witnesses.

2.3 Scope of the Doctrine

• Applied in constitutional petitions, civil suits, administrative law, and property disputes.
• Ensures that legal claims are filed in a timely manner to avoid prejudice.

3. Principles Governing the Doctrine of Laches

3.1 Unreasonable Delay in Filing a Claim Can Lead to Dismissal

• Courts expect litigants to approach the judiciary promptly when their rights are violated.

3.2 The Delay Must Cause Prejudice to the Opposing Party

• Laches applies if the delay has led to loss of evidence, faded memories, or unfair disadvantage.

3.3 Courts Have Discretion to Apply the Doctrine Based on Circumstances

• Judges may consider the reasons for the delay before applying laches.

4. Application of the Doctrine of Laches in Pakistan

4.1 In Constitutional Petitions (Writ Jurisdiction)

• If a person delays filing a constitutional petition, the court may reject it based on laches.
• Example:

• A citizen challenges a law after 20 years of its implementation.
• The court may dismiss the petition for unreasonable delay.

4.2 In Civil Suits and Property Disputes

• If a claimant delays filing a property dispute case, they may lose the right to relief.
• Example:

• A person waits 25 years to claim ancestral property.
• The court may refuse relief due to laches.

4.3 In Service and Employment Matters

• Government employees cannot delay challenging dismissal or demotion for an unreasonable period.
• Example:

• An employee dismissed in 2000 files a case in 2023.
• The court may reject it due to the long delay.

4.4 In Contractual and Commercial Disputes

• If a party delays claiming breach of contract, they may lose their right to sue.
• Example:

• A business sues another company for unpaid dues after 30 years.
• The court may reject the claim due to laches.

5. When the Doctrine of Laches Does Not Apply

5.1 If the Delay Was Due to a Legitimate Reason

• If a party had a valid excuse, the court may allow the claim.
• Example:
• A litigant was in a coma for 10 years before filing the case.

5.2 If the Case Involves Fundamental Rights

• Courts may allow delayed petitions in cases involving fundamental rights.
• Example:
• A petition against illegal detention may be allowed even after a long delay.

5.3 If the Delay Did Not Cause Prejudice to the Opposing Party

• If the delay has not affected evidence or fairness, the court may proceed with the case.
• Example:
• A property claim is filed after 15 years, but all records and witnesses are intact.

6. Legal Consequences of the Doctrine of Laches

6.1 Delayed Petitions and Claims May Be Dismissed

• Courts may reject cases where the claimant waited too long to seek justice.

6.2 Ensures That Litigants Do Not Use Delay as a Strategy

• Prevents unfair advantage to those who wait too long before filing a claim.

6.3 Protects the Opposing Party from Unfair Disadvantages

• Ensures that defendants are not harmed due to lost evidence or faded memories.

7. Difference Between Laches and Limitation Law

Feature	Doctrine of Laches	Limitation Law
Definition	Denial of relief due to undue delay in filing a claim.	A statutory time limit within which a case must be filed.
Effect	Courts have discretion to apply laches based on fairness.	The law strictly bars claims filed after the limitation period.
Example	A court rejects a property claim filed after 30 years due to laches.	A lawsuit is dismissed because the statute of limitations expired.

8. Judicial Interpretations of the Doctrine of Laches in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that a petition filed after an unreasonable delay without justification may be rejected on the basis of laches.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that while fundamental rights cases may be exempt from laches, excessive delays in filing constitutional petitions can still be a ground for dismissal.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that laches applies when a delay in challenging government action has caused prejudice to the state or public interest.

9. Importance of the Doctrine of Laches

9.1 Encourages Litigants to File Cases Without Delay

• Prevents unnecessary delays in seeking justice.

9.2 Protects the Opposing Party from Unfair Legal Claims

• Ensures that defendants are not disadvantaged by lost evidence.

9.3 Promotes Legal Certainty and Stability

• Prevents old disputes from disrupting legal and administrative processes.

10. Conclusion

The Doctrine of Lachesensures thatlegal claims must be filed within a reasonable time to prevent prejudice to the opposing party.Courts in Pakistanapply this doctrine to dismiss cases where the claimant has unreasonably delayed seeking relief.By promotingtimeliness and fairness in litigation, the doctrine upholds justice and prevents abuse of the legal system.

CHAPTER 57 – THE DOCTRINE OF NECESSITY

1. Introduction to the Doctrine of Necessity

1.1The Doctrine of Necessityis a legal principle that states thatextraordinary or unconstitutional actions may be justified if they are necessary to prevent a greater harm or ensure stability in governance.

1.2Purpose of the Doctrine of Necessity:

• Tovalidate actions that are technically unconstitutional but necessary for the greater public good.
• To ensure continuity of government and prevent collapse during emergencies.
• To recognize that in exceptional circumstances, strict adherence to the law may be impractical or harmful.

1.3Legal Basis in Pakistan

• The doctrine has been invoked in Pakistan’s legal history tojustify emergency measures, martial laws, and deviations from constitutional procedures.
• It was first formally recognized by theSupreme Court of Pakistan in the 1955 case of Federation of Pakistan v. Maulvi Tamizuddin Khan.

2. Meaning and Scope of the Doctrine of Necessity

2.1 Definition

• Necessity means that unconstitutional acts may be validated if they are essential to prevent chaos, restore order, or protect public welfare.

2.2 Example of Necessity in Constitutional Law

• A government imposes emergency rule without parliamentary approval to prevent an armed rebellion.
• Although unconstitutional, the action may be justified under necessity if it prevents national collapse.

2.3 Scope of the Doctrine

• Applied in constitutional law, governance, judicial decisions, and emergency situations.
• Ensures that legal rigidity does not lead to national instability.

3. Principles Governing the Doctrine of Necessity

3.1 The Action Must Be Taken in an Emergency Situation

• Necessity applies only when urgent action is required to prevent a serious threat.

3.2 The Action Must Be in the Public Interest

• It must benefit society and not just a specific individual or group.

3.3 The Action Must Be Proportional

• Only the least unconstitutional or unlawful measure necessary to resolve the crisis should be taken.

4. Application of the Doctrine of Necessity in Pakistan

4.1 In Constitutional and Political Crises

• The doctrine has been used to validate military takeovers and emergency rule in Pakistan.
• Example:
• The 1958 military takeover by General Ayub Khan was upheld under the doctrine of necessity.

4.2 In Judicial Decisions

• Courts have used necessity to justify validating acts done under unconstitutional regimes.
• Example:
• The Supreme Court in Asma Jillani v. Government of Punjab (PLD 1972 SC 139) ruled that necessity cannot indefinitely justify military rule.

4.3 In Administrative and Executive Actions

• Governments have invoked necessity to bypass legal requirements in times of crisis.
• Example:
• Unconstitutional dissolution of assemblies has sometimes been upheld to prevent political deadlock.

4.4 In Humanitarian and Security Matters

• Governments may override certain rights to protect national security or public health.
• Example:
• During a pandemic, the state imposes emergency lockdowns without proper legislative approval.

5. When the Doctrine of Necessity Does Not Apply

5.1 If the Situation Could Have Been Handled Lawfully

• If a crisis could be resolved through legal means, necessity is not a valid excuse.
• Example:
• Dismissing an elected government without legal justification cannot be defended under necessity.

5.2 If the Action Causes More Harm Than Good

• Necessity cannot justify actions that create greater instability or injustice.
• Example:
• Declaring indefinite martial law when democratic alternatives exist.

5.3 If the Doctrine Is Misused for Personal or Political Gain

• Necessity must serve public welfare, not individual ambitions.
• Example:
• A ruler cannot extend their term indefinitely under the pretext of maintaining stability.

6. Legal Consequences of the Doctrine of Necessity

6.1 May Lead to Judicial Validation of Unconstitutional Acts

• Courts may uphold actions that otherwise violate the Constitution.

6.2 Can Undermine Democracy and the Rule of Law

• If misused, necessity can become an excuse for authoritarianism.

6.3 Can Be Limited by Later Court Decisions

• Courts may later reject the application of necessity if it sets a dangerous precedent.

7. Difference Between the Doctrine of Necessity and Martial Law

Feature	Doctrine of Necessity	Martial Law
Definition	Justifies unconstitutional acts in emergencies.	Temporary military rule suspending civilian governance.
Effect	May validate actions without overthrowing the legal system.	Often leads to suspension of fundamental rights.
Example	A court upholds emergency governance to prevent collapse.	A military government takes full control, suspending the Constitution.

8. Judicial Interpretations of the Doctrine of Necessity in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Maulvi Tamizuddin Khan (PLD 1955 FC 240)

• The court upheld the Governor-General’s dissolution of the Constituent Assembly under the doctrine of necessity.

State v. Dosso (PLD 1958 SC 533)

• The Supreme Court validated General Ayub Khan’s martial law, applying the doctrine of necessity.

Asma Jillani v. Government of Punjab (PLD 1972 SC 139)

• The court rejected the doctrine of necessity as a justification for military rule, declaring Yahya Khan’s regime illegal.

Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)

• The court used necessity to validate Musharraf’s 1999 coup but imposed conditions for restoring democracy.

9. Importance of the Doctrine of Necessity

9.1 Allows Governments to Act in Extreme Situations

• Ensures that emergencies can be handled effectively.

9.2 Prevents Legal Rigidity from Causing National Crises

• Recognizes that strict legality may not always be feasible in emergencies.

9.3 Must Be Used Carefully to Avoid Abuse

• Should not become a permanent excuse for unconstitutional actions.

10. Conclusion

TheDoctrine of Necessityis a controversial but sometimes essential principle thatallows extraordinary actions to be taken in extreme emergencies.Courts in Pakistanhave applied this doctrine to validate emergency measures, but it has also been criticized for enabling unconstitutional regimes.Whileit provides flexibility in governance, its misuse can weaken democracy and the rule of law.Therefore,the doctrine must be applied only in exceptional cases where no legal alternatives exist.

CHAPTER 58 – THE DOCTRINE OF LEGITIMATE EXPECTATION

1. Introduction to the Doctrine of Legitimate Expectation

1.1The Doctrine of Legitimate Expectationis a legal principle that states that if a public authority makes a promise, representation, or follows a consistent policy, individuals may have a legitimate expectation that it will be honored.

1.2Purpose of the Doctrine of Legitimate Expectation:

• To ensure fairness in administrative actions.
• Toprotect individuals from arbitrary decisions by public authorities.
• Topromote consistency, transparency, and trust in government policies.

1.3Legal Basis in Pakistan

• The doctrine is recognized in administrative law and judicial review cases.
• Courts in Pakistan have ruled thatif a public body gives an assurance, it cannot later act unfairly by violating that expectation without justification.

2. Meaning and Scope of the Doctrine of Legitimate Expectation

2.1 Definition

• Legitimate Expectation means that if a government agency or public authority makes a promise or follows a consistent practice, individuals can expect it to continue unless there is a valid reason for change.

2.2 Example of Legitimate Expectation in Administrative Law

• A government regularly renews the licenses of certain businesses each year.
• If it suddenly refuses to renew a license without justification, the business may challenge the decision under legitimate expectation.

2.3 Scope of the Doctrine

• Applied in administrative decisions, government policies, employment matters, and regulatory frameworks.
• Ensures public bodies act fairly and do not arbitrarily change established practices.

3. Principles Governing the Doctrine of Legitimate Expectation

3.1 The Expectation Must Be Based on a Clear and Consistent Promise or Practice

• A mere hope or assumption is not enough; there must be a concrete basis for the expectation.

3.2 The Public Authority Must Have Created the Expectation

• The expectation must arise from government assurances, policies, or consistent practices.

3.3 The Expectation Must Be Reasonable and Justified

• If circumstances change, the government may have a valid reason to modify its promise.

4. Application of the Doctrine of Legitimate Expectation in Pakistan

4.1 In Public Employment and Government Service

• Employees may have a legitimate expectation that promotions, benefits, or pensions will be granted as per past policy.
• Example:

• A government consistently grants annual salary increases.
• If it suddenly stops without justification, employees may challenge the decision.

4.2 In Business Licenses and Regulatory Approvals

• Companies may expect their licenses to be renewed if they have followed all regulations.
• Example:

• A shop owner’s license is always renewed unless rules are violated.
• If the government refuses renewal arbitrarily, the owner can claim legitimate expectation.

4.3 In Taxation and Financial Policies

• Taxpayers may expect certain tax exemptions to continue if promised by the government.
• Example:

• A government announces a five-year tax exemption for a sector.
• If the exemption is withdrawn in the third year without reason, affected businesses can challenge it.

4.4 In Government Contracts and Procurement

• Businesses dealing with the government may expect contracts to be honored based on past dealings.
• Example:

• A company awarded a construction project is later removed without justification.
• The company can claim violation of legitimate expectation.

5. When the Doctrine of Legitimate Expectation Does Not Apply

5.1 If the Expectation Was Not Based on a Clear Assurance

• A vague hope or assumption is not enough to claim legitimate expectation.
• Example:
• A citizen hopes to receive a government job but has no promise or policy guaranteeing it.

5.2 If Public Interest Requires a Change in Policy

• Governments can change policies if it benefits the public and is done fairly.
• Example:
• A government ends a tax exemption for economic reasons affecting national stability.

5.3 If the Expectation Conflicts with Law or Constitutional Provisions

• A promise cannot override statutory or constitutional rules.
• Example:
• A public official promises a benefit that is legally prohibited.

6. Legal Consequences of the Doctrine of Legitimate Expectation

6.1 Ensures Fairness in Administrative Actions

• Prevents public bodies from acting arbitrarily or unfairly.

6.2 Protects Individuals and Businesses from Sudden Policy Changes

• Encourages consistency and trust in government policies.

6.3 Allows Judicial Review of Government Decisions

• Courts can intervene if expectations are violated without justification.

7. Difference Between Legitimate Expectation and Promissory Estoppel

Feature	Legitimate Expectation	Promissory Estoppel
Definition	A public body must follow its past promises or practices unless justified.	A party cannot go back on a promise if someone relied on it.
Effect	Ensures fairness in public administration.	Enforces commitments made in private or commercial dealings.
Example	A government consistently grants scholarships, but suddenly stops.	A company promises a bonus to employees but later refuses.

8. Judicial Interpretations of the Doctrine of Legitimate Expectation in Pakistan

8.1 Key Case Law in Pakistan

Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879)

• The Supreme Court ruled that public authorities must honor commitments and follow a consistent policy.

Pakistan International Airlines v. Employees Union (PLD 2014 SC 383)

• The court held that employees had a legitimate expectation of receiving promised benefits.

Fertilizer Manufacturers of Pakistan v. Government of Pakistan (PLD 2016 SC 109)

• The Supreme Court ruled that tax exemptions promised to industries must be honored unless changed through proper legal procedures.

9. Importance of the Doctrine of Legitimate Expectation

9.1 Encourages Accountability in Government Actions

• Ensures that public officials do not make arbitrary decisions.

9.2 Promotes Stability in Administrative Policies

• Prevents unfair surprises by ensuring policy consistency.

9.3 Protects Citizens and Businesses from Unfair Government Actions

• Ensures that people can plan based on government commitments.

10. Conclusion

The Doctrine of Legitimate Expectation ensures thatpublic authorities cannot arbitrarily change policies or decisions that individuals have reasonably relied upon.Courts in Pakistanapply this doctrine to protect fairness in administrative law and governance. By requiringpublic bodies to act consistently and transparently, the doctrine strengthens accountability and trust in government decisions.

CHAPTER 59 – THE DOCTRINE OF PITH AND SUBSTANCE

1. Introduction to the Doctrine of Pith and Substance

1.1 The Doctrine of Pith and Substance is a legal principle used in constitutional interpretation, stating that when a law is challenged as being beyond the powers of a legislature, the court should examine its true purpose (pith and substance) rather than its incidental effects.

1.2 Purpose of the Doctrine of Pith and Substance:

• To determine whether a law genuinely falls within the legislative power of the government that enacted it.
• To prevent laws from being declared invalid simply because they have minor effects on matters outside the enacting authority’s jurisdiction.
• To ensure legislative competence by focusing on the essence of the law rather than its incidental impact.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, outlines the distribution of legislative powers between the federal and provincial governments.
• Courts in Pakistan apply the doctrine to resolve jurisdictional disputes between federal and provincial legislatures.

2. Meaning and Scope of the Doctrine of Pith and Substance

2.1 Definition

• Pith and Substance means that when a law is examined for validity, its core objective is considered rather than its indirect effects.

2.2 Example of Pith and Substance in Constitutional Law

• A provincial law regulates land use, but it also affects trade, which is a federal subject.
• If the law’s primary objective is land regulation, not trade, it remains valid.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative disputes, and jurisdictional conflicts.
• Ensures that laws are not invalidated simply due to incidental overlaps with another jurisdiction.

3. Principles Governing the Doctrine of Pith and Substance

3.1 The True Purpose of the Law Determines Its Validity

• Courts examine the real intent and objective of a law, rather than just its wording.

3.2 Incidental Effects Do Not Invalidate a Law

• If a law affects a subject outside the enacting authority’s power but its main objective is within jurisdiction, it remains valid.

3.3 Ensures That Legislative Powers Are Interpreted Broadly

• Prevents laws from being struck down due to minor jurisdictional overlaps.

4. Application of the Doctrine of Pith and Substance in Pakistan

4.1 In Federal and Provincial Lawmaking

• A law will be upheld if its primary purpose is within the legislature’s authority, even if it has minor effects on other subjects.
• Example:

• A provincial law regulating agriculture indirectly affects trade policies, which are a federal subject.
• If the main intent is agricultural regulation, the law is valid.

4.2 In Taxation Laws

• A tax law remains valid even if it indirectly affects a subject outside the legislature’s power.
• Example:

• A provincial government imposes a tax on hotels, which indirectly impacts tourism, a federal subject.
• Since the main purpose is taxation, the law is upheld.

4.3 In Criminal Law

• If a law primarily regulates one area but has incidental effects on criminal law, it remains valid.
• Example:

• A provincial law regulating labor conditions imposes penalties for violations.
• Since the primary focus is labor regulation, not criminal law, it is valid.

4.4 In Business and Trade Regulations

• A law regulating business operations remains valid even if it has indirect effects on trade policy.
• Example:

• A provincial law on consumer protection affects federal trade laws.
• Since the main objective is consumer rights, the law is upheld.

5. When the Doctrine of Pith and Substance Does Not Apply

5.1 If the Law’s Primary Purpose Is Outside the Legislature’s Authority

• If a law mainly deals with a subject outside the legislature’s power, it is invalid.
• Example:
• A provincial law directly regulating banking (a federal subject) is unconstitutional.

5.2 If the Law Is a Pretext for Exercising Unauthorized Power

• If a law’s stated purpose is different from its real effect, courts can strike it down.
• Example:
• A law claiming to regulate agriculture actually imposes trade restrictions, which are a federal matter.

5.3 If the Law Violates Fundamental Rights

• Even if a law is within legislative authority, it cannot violate constitutional rights.
• Example:
• A law restricting press freedom is unconstitutional, even if justified as a business regulation.

6. Legal Consequences of the Doctrine of Pith and Substance

6.1 Laws Are Upheld Based on Their True Purpose

• Prevents laws from being invalidated over minor jurisdictional conflicts.

6.2 Strengthens Federalism and Legislative Clarity

• Ensures that federal and provincial legislatures can function effectively.

6.3 Prevents Governments from Misusing Legislative Powers

• Ensures that laws are enacted within their intended scope.

7. Difference Between Pith and Substance and Colourable Legislation

Feature	Pith and Substance	Colourable Legislation
Definition	Determines the real objective of a law when jurisdiction is questioned.	Prevents legislatures from disguising unconstitutional laws under a different name.
Effect	Upholds laws if their core purpose is valid, even if they have incidental effects on another subject.	Declares laws invalid if they try to achieve something indirectly that they cannot do directly.
Example	A provincial law on education indirectly affects employment.	A state imposes a “service charge” that is actually a disguised tax outside its authority.

8. Judicial Interpretations of the Doctrine of Pith and Substance in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a provincial law affecting trade was valid because its primary purpose was agricultural regulation.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that if a law’s main focus is legitimate, it remains valid even if it has secondary effects on another area.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court upheld a law regulating media content, stating that its primary purpose was public order, not censorship.

9. Importance of the Doctrine of Pith and Substance

9.1 Prevents Laws from Being Struck Down Over Technical Issues

• Ensures that legislation is interpreted practically.

9.2 Strengthens Legislative Authority

• Allows legislatures to function effectively without unnecessary legal challenges.

9.3 Ensures a Functional Federal System

• Helps resolve conflicts between federal and provincial laws in a balanced way.

10. Conclusion

TheDoctrine of Pith and Substanceensures thatlaws are upheld based on their core purpose, rather than incidental effects.Courts in Pakistanapply this doctrine to resolve jurisdictional conflicts and uphold legislative intent.By preventinglaws from being invalidated over minor technicalities, the doctrine promotes a stable and functional legal system.

CHAPTER 60 – THE DOCTRINE OF IMPLIED POWERS

1. Introduction to the Doctrine of Implied Powers

1.1The Doctrine of Implied Powersis a legal principle that states thatwhen a government body or authority is granted a specific power, it also possesses the necessary incidental powers to effectively exercise that power, even if they are not explicitly mentioned in the law.

1.2Purpose of the Doctrine of Implied Powers:

• To ensure that governmental and administrative bodies can effectively perform their duties.
• To allow flexibility in governance by recognizing that certain powers must be implied for efficient functioning.
• Toprevent rigid interpretations of legal provisions that could hinder administration and governance.

1.3Legal Basis in Pakistan

• The doctrine is recognized inconstitutional, administrative, and statutory interpretation casesin Pakistan.
• Courts in Pakistan have ruled thatif a power is granted by the Constitution or a statute, the necessary auxiliary powers to execute that function must also be recognized.

2. Meaning and Scope of the Doctrine of Implied Powers

2.1 Definition

• Implied Powers means that when an authority is given an express power, it also has the additional powers that are necessary to implement and execute that power.

2.2 Example of Implied Powers in Constitutional Law

• The Constitution grants Parliament the power to make laws.
• Implied in this power is the authority to investigate, conduct inquiries, and create institutions necessary to enforce those laws.

2.3 Scope of the Doctrine

• Applied in constitutional law, administrative law, and judicial interpretation.
• Ensures that legal provisions are interpreted broadly to allow smooth governance.

3. Principles Governing the Doctrine of Implied Powers

3.1 Powers That Are Essential to the Execution of a Granted Power Are Implied

• An authority must have the necessary means to carry out its responsibilities.

3.2 Implied Powers Must Be Reasonably Connected to the Express Powers

• They cannot exceed what is necessary to implement the primary authority.

3.3 Implied Powers Cannot Contradict or Override Express Legal Provisions

• They must complement, not replace, explicitly defined powers.

4. Application of the Doctrine of Implied Powers in Pakistan

4.1 In Constitutional Interpretation

• If a constitutional provision grants a power, its implementation requires related implied powers.
• Example:

• The President has the express power to appoint judges under Article 175A of the Constitution.
• This implies the power to consult relevant authorities and issue appointment notifications.

4.2 In Administrative and Governmental Actions

• Government departments must have implied powers to perform their statutory functions.
• Example:

• The Federal Board of Revenue (FBR) has the power to collect taxes.
• This implies the power to audit taxpayers and enforce tax laws.

4.3 In Judicial and Legal Proceedings

• Courts have implied powers necessary for the administration of justice.
• Example:

• The Supreme Court has the express power of judicial review.
• This implies the power to summon documents, hear petitions, and enforce decisions.

4.4 In Law Enforcement and Regulatory Functions

• Regulatory bodies must have the necessary powers to fulfill their functions.
• Example:

• The State Bank of Pakistan has the power to regulate banks.
• This implies the power to conduct inspections and impose penalties.

5. When the Doctrine of Implied Powers Does Not Apply

5.1 If the Power Is Expressly Denied

• If a law explicitly prohibits an implied power, it cannot be assumed.
• Example:
• If a statute states that a department cannot impose penalties, it cannot claim implied authority to do so.

5.2 If the Implied Power Goes Beyond the Necessary Function

• An authority cannot assume unlimited powers under the guise of implied authority.
• Example:
• If a commission is given power to investigate corruption, it cannot claim the power to arrest individuals.

5.3 If the Implied Power Conflicts with Fundamental Rights

• An implied power cannot override constitutional rights.
• Example:
• A regulatory agency cannot claim an implied power to censor free speech unless explicitly authorized by law.

6. Legal Consequences of the Doctrine of Implied Powers

6.1 Expands the Functioning of Government Authorities

• Allows agencies and institutions to function effectively.

6.2 Ensures That Laws Are Implemented Practically

• Prevents rigid interpretations that hinder governance.

6.3 Requires Judicial Oversight to Prevent Abuse

• Courts must ensure that implied powers are not misused.

7. Difference Between Implied Powers and Inherent Powers

Feature	Implied Powers	Inherent Powers
Definition	Powers necessary to execute an express authority.	Powers that exist naturally as part of an institution’s authority.
Effect	Expands express powers to include necessary functions.	Grants broad authority to act in unforeseen situations.
Example	A tax authority has implied powers to conduct audits.	A court has inherent powers to punish contempt of court.

8. Judicial Interpretations of the Doctrine of Implied Powers in Pakistan

8.1 Key Case Law in Pakistan

Government of Pakistan v. Akhlaq Hussain (PLD 1965 SC 110)

• The Supreme Court ruled that when an authority is granted a power, it also has the implied authority to take necessary actions to implement it.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that regulatory bodies have implied powers to enforce compliance with their regulations.

Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633)

• The Supreme Court ruled that implied powers cannot be assumed if they contradict fundamental rights.

9. Importance of the Doctrine of Implied Powers

9.1 Allows Efficient Governance and Administration

• Ensures that government bodies can effectively perform their duties.

9.2 Prevents Legal and Bureaucratic Rigidities

• Avoids unnecessary obstacles in law enforcement and policy implementation.

9.3 Requires Proper Judicial Oversight to Prevent Misuse

• Ensures that implied powers are used responsibly and within constitutional limits.

10. Conclusion

TheDoctrine of Implied Powersensures thatwhen a power is granted, it includes the necessary additional powers required for its implementation.Courts in Pakistanapply this doctrine to allow government institutions and officials to function effectively.However,implied powers must be reasonable, necessary, and must not conflict with fundamental rights.By ensuring flexibility in governance while maintaining accountability, the doctrine plays a crucial role in the efficient functioning of the state.

CHAPTER 61 – THE DOCTRINE OF OCCUPIED FIELD

1. Introduction to the Doctrine of Occupied Field

1.1 The Doctrine of Occupied Field is a constitutional principle that states that when the central (federal) legislature enacts a law on a particular subject, the provincial or state legislatures cannot pass conflicting laws on the same subject if it is within the exclusive federal jurisdiction.

1.2 Purpose of the Doctrine of Occupied Field:

• To prevent legislative conflicts between the federal and provincial governments.
• To ensure uniformity in laws on matters that require national regulation.
• To maintain the supremacy of federal law in areas where it has been explicitly legislated upon.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the legislative powers of the federal and provincial governments.
• Article 143 states that if a provincial law conflicts with a federal law on a subject within the Federal Legislative List, the federal law will prevail, and the provincial law will be void to the extent of the inconsistency.

2. Meaning and Scope of the Doctrine of Occupied Field

2.1 Definition

• Occupied Field means that when the federal government enacts legislation on a subject, provincial governments cannot pass laws that contradict or overlap with it.

2.2 Example of Occupied Field in Constitutional Law

• If the federal government enacts a law regulating telecommunications, a provincial government cannot create its own law on the same subject if it contradicts the federal law.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative interpretation, and federalism disputes.
• Ensures that once the federal government legislates on a subject, provincial governments must comply with it.

3. Principles Governing the Doctrine of Occupied Field

3.1 Federal Laws Override Provincial Laws on Exclusive Federal Subjects

• If a subject falls under the Federal Legislative List, provincial legislatures cannot contradict federal laws.

3.2 If the Federal Government Legislates on a Concurrent Subject, Provincial Laws Must Align

• For subjects listed in the Concurrent Legislative List, provincial laws must not conflict with federal legislation.

3.3 The Doctrine Ensures National Uniformity in Essential Matters

• Federal legislation takes priority in matters of national importance like defense, foreign affairs, and telecommunications.

4. Application of the Doctrine of Occupied Field in Pakistan

4.1 In Federal and Provincial Lawmaking

• Federal laws on exclusive subjects cannot be altered by provincial laws.
• Example:

• The federal government enacts a law on narcotics control.
• A province cannot pass a conflicting law regulating drugs in a different manner.

4.2 In Business and Commercial Regulations

• Federal trade and commerce regulations override provincial business laws.
• Example:
• If the federal government regulates imports, a provincial law imposing additional restrictions on imported goods will be void.

4.3 In Criminal and Penal Laws

• Federal penal laws apply uniformly across Pakistan, restricting provincial variations.
• Example:
• If the federal government enacts a cybersecurity law, provinces cannot create conflicting cybercrime laws.

4.4 In Taxation and Revenue Collection

• Federal tax laws prevail over provincial taxation policies on federal subjects.
• Example:
• If the federal government imposes an income tax, a province cannot introduce an alternate income tax system.

5. When the Doctrine of Occupied Field Does Not Apply

5.1 If the Federal Law Does Not Fully Cover the Subject

• If the federal government legislates only partially on an issue, provinces may regulate the remaining aspects.
• Example:

• A federal law regulates industrial safety but does not specify labor conditions.
• A provincial government may legislate on labor welfare within industries.

5.2 If the Subject Falls Exclusively Under Provincial Jurisdiction

• Provinces have full control over subjects in the Provincial Legislative List.
• Example:
• A provincial government can regulate agriculture, as it is a provincial matter.

5.3 If the Federal Law Expressly Allows Provincial Legislation

• Federal laws may permit provinces to regulate specific matters.
• Example:
• The federal government may set national education standards but allow provinces to implement them in their own way.

6. Legal Consequences of the Doctrine of Occupied Field

6.1 Prevents Conflicting Laws Between Federal and Provincial Governments

• Ensures clarity and uniformity in legal regulations.

6.2 Strengthens Federal Supremacy in Nationally Important Matters

• Prevents provinces from enacting laws that could disrupt national governance.

6.3 Allows Judicial Review to Resolve Legislative Conflicts

• Courts determine whether a provincial law conflicts with a federal law.

7. Difference Between the Doctrine of Occupied Field and Doctrine of Repugnancy

Feature	Doctrine of Occupied Field	Doctrine of Repugnancy
Definition	Prevents provincial laws from contradicting federal laws on the same subject.	Declares a law invalid if it contradicts fundamental rights or constitutional principles.
Effect	Provincial laws are invalid if they cover a subject already legislated by the federal government.	A law is struck down if it conflicts with constitutional provisions.
Example	A provincial law on telecommunications is void if the federal government already regulates the field.	A law restricting free speech is invalid due to conflict with constitutional rights.

8. Judicial Interpretations of the Doctrine of Occupied Field in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Province of Punjab (PLD 1998 SC 388)

• The Supreme Court ruled that if the federal government legislates on a subject, the provincial government cannot pass a law that contradicts or overlaps with it.

Government of Sindh v. Federation of Pakistan (PLD 2010 SC 543)

• The court held that national tax policies set by the federal government must be followed by provinces.

Lahore Development Authority v. Federation of Pakistan (PLD 2004 SC 342)

• The Supreme Court ruled that federal laws on urban development take precedence over conflicting provincial regulations.

9. Importance of the Doctrine of Occupied Field

9.1 Ensures National Unity and Legal Consistency

• Prevents different provinces from enacting conflicting laws on crucial national subjects.

9.2 Strengthens the Federal Legislative Structure

• Confirms that federal laws take precedence over provincial laws in matters of national importance.

9.3 Facilitates Effective Governance and Policy Implementation

• Ensures that federal policies are implemented without provincial interference.

10. Conclusion

TheDoctrine of Occupied Fieldensures thatwhen the federal government enacts a law on a subject within its jurisdiction, provincial governments cannot create conflicting laws on the same subject. Courts in Pakistanapply this doctrine to maintain federal supremacy and ensure uniformity in national laws.However,provinces retain legislative authority over subjects that are exclusively within their jurisdiction.By preventing conflicts between federal and provincial laws,this doctrine plays a crucial role in maintaining a balanced federal structure.

CHAPTER 62 – THE DOCTRINE OF COLOURABLE LEGISLATION

1. Introduction to the Doctrine of Colourable Legislation

1.1 The Doctrine of Colourable Legislation is a constitutional principle that states that if a legislature enacts a law that appears to be within its power but in reality exceeds its constitutional authority, the law is invalid.

1.2 Purpose of the Doctrine of Colourable Legislation:

• To prevent legislatures from enacting laws indirectly that they are not allowed to pass directly.
• To ensure that legislative powers are not misused by disguising laws under false pretenses.
• To maintain the constitutional division of powers between different levels of government.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the division of legislative powers between the federal and provincial governments.
• Article 143 states that if a provincial law is inconsistent with a federal law, the federal law shall prevail.
• The Supreme Court of Pakistan applies this doctrine to strike down laws that attempt to exceed legislative powers in an indirect or disguised manner.

2. Meaning and Scope of the Doctrine of Colourable Legislation

2.1 Definition

• Colourable Legislation means that when a legislature lacks the power to make a law on a subject, it cannot do so indirectly by disguising the true purpose of the law.

2.2 Example of Colourable Legislation in Constitutional Law

• A provincial government imposes a “service charge” on businesses, but in reality, it functions as an indirect tax.
• Since taxation is a federal subject, the law is unconstitutional.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative disputes, and judicial review.
• Ensures that legislative powers are exercised honestly and in accordance with the Constitution.

3. Principles Governing the Doctrine of Colourable Legislation

3.1 The True Nature of the Law Determines Its Validity

• Courts analyze the real purpose and effect of a law, not just its wording.

3.2 A Legislature Cannot Do Indirectly What It Cannot Do Directly

• If a legislature is not allowed to pass a certain law, it cannot achieve the same result through indirect means.

3.3 The Doctrine Protects the Constitutional Division of Powers

• Ensures that legislatures act within their assigned authority.

4. Application of the Doctrine of Colourable Legislation in Pakistan

4.1 In Federal and Provincial Lawmaking

• Provincial governments cannot make laws that indirectly regulate federal subjects.
• Example:

• A provincial law on local employment includes rules affecting national labor policies.
• If labor law is a federal subject, the provincial law is invalid.

4.2 In Taxation Laws

• A legislature cannot impose disguised taxes under different names.
• Example:

• A provincial government calls a tax an “administrative fee” to avoid federal tax regulations.
• Since it functions as a tax, it is unconstitutional.

4.3 In Financial and Commercial Regulations

• A provincial government cannot regulate international trade by disguising restrictions as local business policies.
• Example:

• A provincial law imposes “quality control measures” that, in effect, restrict imports.
• Since trade regulation is a federal subject, the law is unconstitutional.

4.4 In Fundamental Rights Cases

• Governments cannot restrict fundamental rights by disguising limitations as general laws.
• Example:

• A law imposes strict conditions on press licenses to limit free speech.
• If the real purpose is censorship, it is unconstitutional.

5. When the Doctrine of Colourable Legislation Does Not Apply

5.1 If the Legislature Has Genuine Authority

• If a legislature has the constitutional power to pass a law, the doctrine does not apply.
• Example:

• A provincial government enacts an education policy under its authority.
• Since education is a provincial subject, the law is valid.

5.2 If the Law Is Enacted in Good Faith

• If a law is genuinely within legislative powers, courts will not interfere.
• Example:

• A law regulating environmental safety is challenged as a disguised trade restriction.
• If the law genuinely protects the environment, it is valid.

5.3 If the Law Does Not Violate Fundamental Rights

• If a law does not violate constitutional rights, it is generally upheld.
• Example:
• A government regulates media content for national security, not to suppress free speech.

6. Legal Consequences of the Doctrine of Colourable Legislation

6.1 Prevents Legislatures from Overstepping Their Constitutional Authority

• Ensures that governments do not exceed their powers through disguised laws.

6.2 Strengthens Judicial Review and Constitutional Supremacy

• Allows courts to strike down laws that violate the division of powers.

6.3 Protects Citizens from Arbitrary and Unconstitutional Laws

• Ensures that laws are enacted for legitimate purposes.

7. Difference Between Colourable Legislation and Fraud on the Constitution

Feature	Colourable Legislation	Fraud on the Constitution
Definition	A law that appears to be within a legislature’s power but is actually beyond it.	A deliberate attempt to bypass constitutional restrictions using deceptive means.
Effect	The law is invalid because it indirectly does what is prohibited.	The law is struck down because it is intentionally unconstitutional.
Example	A province calls a tax a “service charge” to avoid federal regulations.	A government amends laws to extend its own term without elections.

8. Judicial Interpretations of the Doctrine of Colourable Legislation in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Province of Punjab (PLD 1998 SC 388)

• The Supreme Court ruled that a provincial law indirectly regulating federal subjects was unconstitutional.

Government of Sindh v. Federation of Pakistan (PLD 2010 SC 543)

• The court held that tax policies disguised as administrative fees were unconstitutional.

Lahore Development Authority v. Federation of Pakistan (PLD 2004 SC 342)

• The Supreme Court ruled that a law claiming to regulate urban planning but actually affecting federal trade was invalid.

9. Importance of the Doctrine of Colourable Legislation

9.1 Prevents Legislatures from Misusing Their Powers

• Ensures that all laws align with constitutional authority.

9.2 Maintains the Federal Structure and Separation of Powers

• Prevents conflicts between federal and provincial governments.

9.3 Allows Judicial Scrutiny of Laws to Protect Citizens’ Rights

• Ensures that laws are enacted for lawful and genuine purposes.

10. Conclusion

TheDoctrine of Colourable Legislationensures thatlegislatures cannot exceed their powers by disguising their real intentions under deceptive legal wording.Courts in Pakistanapply this doctrine to strike down laws that attempt to bypass constitutional restrictions.By maintainingthe integrity of the constitutional division of powers, this doctrine plays a crucial role in upholding the rule of law and preventing legislative overreach.

CHAPTER 63 – THE DOCTRINE OF ECLIPSE AND SEVERABILITY

1. Introduction to the Doctrines of Eclipse and Severability

1.1 The Doctrine of Eclipse states that if a law is inconsistent with fundamental rights, it does not become void but remains inactive (eclipsed). If the inconsistency is later removed, the law becomes operative again.

1.2 The Doctrine of Severability states that if part of a law is unconstitutional, only the unconstitutional portion is removed, and the remaining valid portion continues to be enforceable.

1.3 Purpose of These Doctrines:

• To ensure that laws are not unnecessarily invalidated but only rendered inoperative when they conflict with constitutional rights.
• To allow for constitutional amendments or changes that can revive an eclipsed law.
• To prevent the complete annulment of laws when only a portion is unconstitutional.

1.4 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that any law inconsistent with fundamental rights is void to the extent of the inconsistency.
• The Supreme Court of Pakistan applies these doctrines to interpret laws in a way that upholds constitutional integrity while minimizing disruption to the legal framework.

2. Meaning and Scope of the Doctrine of Eclipse

2.1 Definition

• Eclipse means that a law conflicting with fundamental rights is not completely void but remains inactive until the conflict is resolved.

2.2 Example of Eclipse in Constitutional Law

• A pre-constitutional law restricting free speech becomes inactive after the Constitution guarantees free speech.
• If a constitutional amendment allows such restrictions, the law becomes active again.

2.3 Scope of the Doctrine

• Applied in constitutional law, judicial review, and legislative amendments.
• Ensures that laws are not immediately struck down but can be revived if constitutional changes occur.

3. Meaning and Scope of the Doctrine of Severability

3.1 Definition

• Severability means that when part of a law is unconstitutional, only the invalid portion is removed, and the rest remains enforceable.

3.2 Example of Severability in Constitutional Law

• A law regulating media contains a provision allowing government censorship.
• The court strikes down the censorship clause while keeping the rest of the law intact.

3.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that valid legal provisions are preserved even when some parts are unconstitutional.

4. Principles Governing the Doctrine of Eclipse

4.1 The Law Remains Dormant, Not Invalid

• A law violating fundamental rights is not removed but becomes unenforceable.

4.2 The Law Can Be Revived If the Conflict Is Removed

• If the Constitution is amended to permit the law, it becomes valid again.

4.3 The Doctrine Applies Only to Pre-Existing Laws

• It applies to laws enacted before the conflict arose, not new laws.

5. Principles Governing the Doctrine of Severability

5.1 Only the Unconstitutional Part of a Law Is Struck Down

• Courts remove invalid provisions while keeping the rest intact.

5.2 The Remaining Law Must Be Capable of Functioning Independently

• If the remaining law cannot operate without the unconstitutional part, the whole law may be struck down.

5.3 The Intent of the Legislature Must Be Preserved

• Courts should ensure that the valid parts of the law still serve the intended purpose.

6. Application of the Doctrines in Pakistan

6.1 In Pre-Constitutional Laws

• A law enacted before the Constitution that contradicts fundamental rights becomes inactive but is not void.
• Example:

• A colonial-era law restricting political gatherings conflicts with Article 16 (Freedom of Assembly).
• The law is eclipsed but not removed from the statute books.

6.2 In Judicial Review of Laws

• If a court finds a law unconstitutional, it does not always strike it down but renders it inactive.
• Example:

• A court rules that a law restricting press freedom is unconstitutional.
• The law remains on record but is unenforceable until amended.

6.3 In Legislative Amendments

• If the Constitution is amended to remove the conflict, the eclipsed law is revived.
• Example:

• A law restricting land ownership was eclipsed due to fundamental rights.
• If the Constitution is amended to allow such restrictions, the law becomes valid again.

6.4 In Protecting Fundamental Rights

• Ensures that unconstitutional laws do not affect citizens while allowing the legislature to decide their future.
• Example:
• A law allowing arbitrary detention is suspended but remains on the record.

7. Difference Between Eclipse and Severability

Feature	Doctrine of Eclipse	Doctrine of Severability
Definition	A law that conflicts with fundamental rights remains inactive but can be revived.	Only the unconstitutional portion of a law is removed, while the rest remains valid.
Effect	The law is dormant until the constitutional conflict is removed.	The unconstitutional part is struck down, and the remaining law continues to apply.
Example	A pre-constitutional law restricting free speech becomes inactive but can be revived if free speech rights are amended.	A law with both constitutional and unconstitutional provisions is modified to remove the unconstitutional parts.

8. Judicial Interpretations in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a pre-constitutional law conflicting with fundamental rights was eclipsed but could be revived through a constitutional amendment.

State v. Zafar Ali (PLD 1993 SC 662)

• The court held that a law affecting freedom of expression remained dormant after the Constitution guaranteed free speech, but it was not entirely void.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court applied the doctrine to a colonial-era restriction on political activities, holding that it remained inactive after the 1973 Constitution protected political freedoms.

9. Importance of These Doctrines

9.1 Prevents Unnecessary Invalidation of Laws

• Ensures that laws are not immediately removed but can be reconsidered.

9.2 Allows for Legislative Flexibility

• Gives lawmakers time to amend or repeal laws without disrupting governance.

9.3 Maintains Legal and Constitutional Stability

• Avoids chaotic legal changes by keeping dormant laws on record for future reference.

10. Conclusion

Doctrine of Eclipse ensures thatlaws conflicting with fundamental rights do not become permanently void but remain dormant until the inconsistency is resolved.TheDoctrine of Severabilityallowsonly the unconstitutional sections of a law to be removed while preserving the rest.Courts in Pakistanapply these doctrines to maintain legislative stability and uphold constitutional rights.By preserving inactive laws instead of immediately invalidating them,these doctrines help maintain order in governance and legal interpretation.

CHAPTER 64 – THE DOCTRINE OF WAIVER

1. Introduction to the Doctrine of Waiver

1.1The Doctrine of Waiveris a legal principle that states thata person entitled to a legal right or privilege can voluntarily choose to give it up, provided it does not violate public policy or fundamental rights.

1.2 Purpose of the Doctrine of Waiver:

• To allow individuals to voluntarily relinquish rights they do not wish to exercise.
• To ensure that legal rights are not imposed upon individuals against their will.
• To promote personal autonomy in legal and contractual matters.

1.3 Legal Basis in Pakistan

• The doctrine is recognized incontract law, constitutional law, and administrative law.
• However, courts in Pakistando not allow the waiver of fundamental rights, as these are guaranteed by the Constitution and cannot be voluntarily surrendered.

2. Meaning and Scope of the Doctrine of Waiver

2.1 Definition

• Waiver means that an individual or entity voluntarily gives up a legal right or claim, either expressly or through conduct that suggests they do not intend to enforce the right.

2.2 Example of Waiver in Constitutional Law

• A person accused of a crime has the right to a lawyer but may voluntarily choose to defend themselves.
• However, a person cannot waive their fundamental right to life, as it is protected by the Constitution.

2.3 Scope of the Doctrine

• Applied in contract law, administrative law, procedural rights, and private agreements.
• Does not apply to fundamental rights that are essential for public welfare.

3. Principles Governing the Doctrine of Waiver

3.1 Waiver Must Be Voluntary and Informed

• A person must knowingly and willingly give up their right without coercion or deception.

3.2 Waiver Must Not Violate Public Policy or Fundamental Rights

• A person cannot waive rights that are essential for social justice, such as the right to education or protection from discrimination.

3.3 Waiver Can Be Express or Implied

• A right may be waived explicitly through a formal statement or implied through conduct that indicates non-enforcement of the right.

4. Application of the Doctrine of Waiver in Pakistan

4.1 In Contract Law

• A party to a contract can waive certain legal claims if done voluntarily.
• Example:

• A business agrees in writing not to sue a supplier for minor delays.
• The waiver is valid since it was made voluntarily.

4.2 In Civil and Criminal Proceedings

• A person can waive procedural rights, such as the right to appeal a judgment.
• Example:
• A party in a lawsuit voluntarily withdraws their appeal against a court’s decision.

4.3 In Administrative and Governmental Matters

• A citizen can waive certain administrative privileges, such as tax exemptions, if they choose.
• Example:
• A business eligible for a tax benefit may choose not to claim it for strategic reasons.

4.4 In Employment and Labor Laws

• Employees may waive specific contractual benefits if done freely.
• Example:
• A worker agrees to a lower retirement package in exchange for early retirement.

5. When the Doctrine of Waiver Does Not Apply

5.1 If the Right Being Waived Is a Fundamental Right

• Fundamental rights under the Constitution cannot be waived, as they protect public interest.
• Example:
• A worker cannot waive their right to a minimum wage, as it is a fundamental protection.

5.2 If the Waiver Is Made Under Coercion or Misrepresentation

• A waiver must be voluntary; if obtained through force or fraud, it is invalid.
• Example:
• A contract signed under pressure to give up legal claims is not enforceable.

5.3 If the Waiver Contradicts a Statutory Requirement

• Laws designed to protect society cannot be overridden by personal agreements.
• Example:
• A company cannot waive environmental regulations through a contract.

6. Legal Consequences of the Doctrine of Waiver

6.1 Prevents the Unnecessary Enforcement of Rights

• Allows individuals to voluntarily give up rights they do not wish to exercise.

6.2 Ensures That Public Interest Rights Cannot Be Waived

• Prevents individuals from waiving fundamental rights that are essential to justice.

6.3 Strengthens Contractual Freedom and Autonomy

• Allows businesses and individuals to negotiate terms that suit them.

7. Difference Between Waiver and Estoppel

Feature	Doctrine of Waiver	Doctrine of Estoppel
Definition	Voluntary relinquishment of a legal right.	Prevents a party from contradicting previous statements or actions.
Effect	The right is lost but may be revived in some cases.	The party is legally bound by their previous representations.
Example	A person gives up the right to sue for damages.	A landlord who initially agrees to reduced rent cannot later demand full rent.

8. Judicial Interpretations of the Doctrine of Waiver in Pakistan

8.1 Key Case Law in Pakistan

Ghulam Rasool v. Government of Pakistan (PLD 1981 SC 120)

• The Supreme Court ruled that fundamental rights cannot be waived, as they are essential for justice and democracy.

Muhammad Ashraf v. State Bank of Pakistan (PLD 1995 SC 312)

• The court held that an individual can waive statutory benefits, but not if the waiver contradicts public policy.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The Supreme Court reaffirmed that fundamental rights, such as the right to free speech, cannot be surrendered by individuals or groups.

9. Importance of the Doctrine of Waiver

9.1 Allows Individuals to Control Their Legal Rights

• People can choose not to enforce rights they do not need.

9.2 Protects Fundamental Rights from Being Undermined

• Ensures that rights essential for democracy and justice cannot be waived.

9.3 Enhances Contractual and Business Flexibility

• Gives businesses the freedom to negotiate and modify legal obligations.

10. Conclusion

The Doctrine of Waiverensures thatindividuals and businesses can voluntarily give up certain legal rights, provided the waiver is made knowingly, voluntarily, and does not contradict public policy or fundamental rights.Courts in Pakistanapply this doctrine in contract law, administrative law, and civil litigation but do not allow the waiver of fundamental constitutional rights.By allowinglegal flexibility while safeguarding essential rights, the doctrine maintains a balance between personal autonomy and public welfare.

CHAPTER 65 – THE DOCTRINE OF BASIC STRUCTURE

1. Introduction to the Doctrine of Basic Structure

1.1 The Doctrine of Basic Structure is a constitutional principle that states that certain fundamental features of a Constitution cannot be altered or destroyed through amendments, even by the legislature.

1.2 Purpose of the Doctrine of Basic Structure:

• To protect the core principles and values of the Constitution from being undermined.
• To prevent the government from misusing its amending power to alter the fundamental identity of the Constitution.
• To ensure that democracy, rule of law, and fundamental rights remain preserved.

1.3 Legal Basis in Pakistan

• The Constitution of Pakistan, 1973, provides the procedure for amendments under Article 239.
• The Supreme Court of Pakistan has examined whether certain constitutional amendments violate the basic structure of the Constitution.

2. Meaning and Scope of the Doctrine of Basic Structure

2.1 Definition

• Basic Structure means that there are certain essential principles in a Constitution that cannot be amended or removed, as they form the foundation of the legal and democratic system.

2.2 Example of Basic Structure in Constitutional Law

• A constitutional amendment that abolishes judicial independence would be invalid, as it destroys a basic feature of the Constitution.

2.3 Scope of the Doctrine

• Applied in constitutional law, judicial review, and legislative amendments.
• Ensures that essential principles such as democracy, federalism, and separation of powers remain protected.

3. Principles Governing the Doctrine of Basic Structure

3.1 Certain Fundamental Features Cannot Be Altered

• Even if Parliament has the power to amend the Constitution, it cannot destroy its essential framework.

3.2 Judicial Review Ensures That Amendments Do Not Violate the Basic Structure

• Courts have the authority to strike down amendments that damage the Constitution’s fundamental features.

3.3 The Doctrine Maintains Constitutional Stability

• Prevents arbitrary changes that could harm democracy and governance.

4. Application of the Doctrine of Basic Structure in Pakistan

4.1 In Constitutional Amendments

• Amendments that attempt to alter or abolish fundamental principles may be declared unconstitutional.
• Example:
• A constitutional amendment that removes the parliamentary system and establishes one-party rule would be invalid.

4.2 In Judicial Independence

• The judiciary must remain free from political control as part of the Constitution’s basic structure.
• Example:
• A law allowing the executive to remove judges at will would violate judicial independence.

4.3 In Fundamental Rights Protection

• Fundamental rights such as freedom of speech and equality cannot be abolished.
• Example:
• A constitutional amendment eliminating the right to free speech would be struck down.

4.4 In Democratic and Electoral Processes

• The basic framework of free and fair elections cannot be altered.
• Example:
• A law abolishing elections and granting indefinite rule to a leader would violate the basic structure.

5. When the Doctrine of Basic Structure Does Not Apply

5.1 If the Amendment Does Not Change the Core Principles of the Constitution

• Amendments that modify procedural aspects without altering fundamental values are valid.
• Example:
• A change in the number of Supreme Court judges does not violate the basic structure.

5.2 If the Amendment Strengthens Constitutional Principles

• Amendments that enhance democracy, rights, or governance do not violate the basic structure.
• Example:
• A constitutional amendment increasing transparency in government processes is valid.

5.3 If the Change Is Within the Parliament’s Legislative Authority

• Laws passed within the scope of parliamentary power do not violate the basic structure.
• Example:
• A law modifying taxation policies does not affect fundamental constitutional principles.

6. Legal Consequences of the Doctrine of Basic Structure

6.1 Limits Legislative Power in Constitutional Amendments

• Prevents arbitrary changes that could undermine democracy or rule of law.

6.2 Strengthens Judicial Review of Constitutional Amendments

• Gives courts the authority to declare amendments unconstitutional if they harm the basic structure.

6.3 Ensures Stability and Integrity of the Constitution

• Protects fundamental rights and principles from political interference.

7. Difference Between Basic Structure and Constitutional Amendment

Feature	Doctrine of Basic Structure	Constitutional Amendment
Definition	Fundamental principles that cannot be altered or destroyed.	A legal process to modify constitutional provisions.
Effect	Limits amendments that damage the Constitution’s core identity.	Allows changes to governance, policies, and structure within legal limits.
Example	A law abolishing free elections is unconstitutional.	A law changing the tenure of elected officials is valid if passed through proper procedures.

8. Judicial Interpretations of the Doctrine of Basic Structure in Pakistan

8.1 Key Case Law in Pakistan

Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324)

• The Supreme Court ruled that judicial independence is part of the basic structure of the Constitution and cannot be altered.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The court held that amendments that undermine democracy and fundamental rights could be struck down as unconstitutional.

District Bar Association v. Federation of Pakistan (PLD 2015 SC 401)

• The Supreme Court reaffirmed that the Constitution’s fundamental features, such as democracy and rule of law, must be preserved.

9. Importance of the Doctrine of Basic Structure

9.1 Protects the Constitution from Arbitrary Amendments

• Prevents governments from altering fundamental democratic principles.

9.2 Ensures Judicial Oversight in Constitutional Reforms

• Courts can prevent unconstitutional changes to the legal system.

9.3 Maintains Constitutional Stability and Public Trust

• Guarantees that the fundamental values of governance remain intact.

10. Conclusion

The Doctrine of Basic Structureensures thatthe fundamental principles of the Constitution, such as democracy, judicial independence, and fundamental rights, cannot be altered or abolished through amendments.Courts in Pakistan apply this doctrine to prevent unconstitutional changes that could harm the integrity of the legal system.By safeguardingthe core values of the Constitution, this doctrine plays a crucial role in maintaining stability, democracy, and the rule of law.

CHAPTER 66 – THE DOCTRINE OF HARMONIOUS CONSTRUCTION

1. Introduction to the Doctrine of Harmonious Construction

1.1 The Doctrine of Harmonious Construction is a principle of constitutional and statutory interpretation that states that when two or more provisions of law appear to be in conflict, they should be interpreted in a way that allows them to coexist rather than invalidating one of them.

1.2 Purpose of the Doctrine of Harmonious Construction:

• To ensure that different legal provisions work together in a coherent manner.
• To resolve conflicts between laws or constitutional provisions without striking down any provision unless absolutely necessary.
• To maintain the unity and integrity of the legal framework by giving effect to all provisions.

1.3 Legal Basis in Pakistan

• The courts in Pakistan apply this doctrine to resolve conflicts between constitutional provisions, statutory laws, and rules of interpretation.
• The Supreme Court of Pakistan uses this principle to interpret laws in a way that avoids inconsistency and upholds the legislative intent.

2. Meaning and Scope of the Doctrine of Harmonious Construction

2.1 Definition

• Harmonious Construction means that when two provisions of law appear contradictory, they should be interpreted in such a way that both are given effect without overriding or nullifying each other.

2.2 Example of Harmonious Construction in Constitutional Law

• Article 175 of the Constitution provides for the independence of the judiciary, while Article 203 empowers the Federal Shariat Court.
• To maintain harmony, courts interpret these provisions in a way that preserves both judicial independence and the role of the Federal Shariat Court.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, administrative law, and judicial review.
• Ensures that all provisions of law are implemented in a manner that avoids contradictions.

3. Principles Governing the Doctrine of Harmonious Construction

3.1 Interpretation Should Give Effect to Both Provisions

• If two laws seem to contradict, they should be interpreted in a way that allows both to be effective.

3.2 Courts Must Avoid Striking Down Any Provision Unless Absolutely Necessary

• Laws should not be invalidated if they can be interpreted harmoniously.

3.3 The Doctrine Maintains Legislative Intent and Constitutional Integrity

• Ensures that laws are interpreted in a manner consistent with their original purpose.

4. Application of the Doctrine of Harmonious Construction in Pakistan

4.1 In Constitutional Interpretation

• When different constitutional provisions seem to conflict, courts interpret them in a way that ensures both can be applied.
• Example:
• Article 8 (Fundamental Rights) and Article 227 (Islamic Provisions) must be harmonized so that fundamental rights are protected while Islamic provisions are upheld.

4.2 In Conflict Between Federal and Provincial Laws

• When a federal law and a provincial law address the same issue, courts seek an interpretation that allows both to function within their respective jurisdictions.
• Example:
• A federal law on labor rights and a provincial law on minimum wages must be interpreted in a way that ensures fair labor practices while respecting provincial authority.

4.3 In Statutory Interpretation

• When two sections of the same law appear contradictory, courts interpret them to complement each other.
• Example:
• If one section of a tax law provides an exemption but another imposes a penalty, courts harmonize them to ensure that exemptions apply under specified conditions without completely nullifying penalties.

4.4 In Administrative and Governmental Actions

• Ensuring that executive orders and statutory provisions work together rather than contradict each other.
• Example:
• If one law gives power to the executive branch and another limits that power, courts must interpret them to ensure checks and balances rather than completely invalidating one of them.

5. When the Doctrine of Harmonious Construction Does Not Apply

5.1 If One Provision Clearly Overrules the Other

• If a law explicitly states that it overrides another, harmonious construction cannot be applied.
• Example:
• If the Constitution states that a law is “subject to” another provision, the latter will take precedence.

5.2 If There Is a Direct and Absolute Contradiction

• If two laws are fundamentally incompatible and cannot be reconciled, one must be struck down.
• Example:
• If one law allows complete media freedom and another imposes total media censorship, they cannot be harmonized.

5.3 If It Violates Fundamental Rights or Constitutional Principles

• Courts will not interpret laws in a way that compromises fundamental rights.
• Example:
• A law that restricts free speech cannot be harmonized with a law protecting press freedom if it results in an unjustifiable limitation.

6. Legal Consequences of the Doctrine of Harmonious Construction

6.1 Ensures That Laws and Constitutional Provisions Function Coherently

• Prevents unnecessary legal conflicts and maintains consistency in the legal system.

6.2 Strengthens Judicial Interpretation and Constitutional Governance

• Allows courts to uphold legislative intent without striking down laws unnecessarily.

6.3 Promotes Stability in Legal and Governmental Processes

• Ensures that different branches of government operate without contradiction.

7. Difference Between Harmonious Construction and the Doctrine of Repugnancy

Feature	Doctrine of Harmonious Construction	Doctrine of Repugnancy
Definition	Interprets conflicting provisions to ensure both remain valid.	Declares one provision invalid if it directly contradicts another.
Effect	Ensures that both laws or provisions function together.	Strikes down the law that contradicts constitutional or statutory principles.
Example	Interpreting labor laws to balance federal and provincial authority.	Declaring a provincial law void if it contradicts a federal law on the same subject.

8. Judicial Interpretations of the Doctrine of Harmonious Construction in Pakistan

8.1 Key Case Law in Pakistan

State v. Zafar Ali (PLD 1993 SC 662)

• The Supreme Court ruled that when two constitutional provisions seem to conflict, they must be interpreted to give effect to both.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that fundamental rights and state security laws should be interpreted in a way that respects both rights and national security.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court harmonized laws related to media freedom and regulation to ensure neither was completely overridden.

9. Importance of the Doctrine of Harmonious Construction

9.1 Prevents Unnecessary Legal Conflicts and Invalidations

• Ensures that different legal provisions function without contradiction.

9.2 Promotes Coherence in Constitutional and Legislative Interpretation

• Helps in maintaining the original intent of the Constitution and statutes.

9.3 Facilitates Effective Governance and Legal Stability

• Ensures smooth functioning of laws without constant judicial intervention.

10. Conclusion

The Doctrine of Harmonious Constructionensures thatconflicting laws or constitutional provisions are interpreted in a way that allows them to coexist rather than invalidating one of them.Courts in Pakistanapply this doctrine to maintain constitutional balance, ensure legislative coherence, and uphold governance principles. By promotinglegal consistency and stability, this doctrine plays a crucial role in maintaining a well-functioning legal and constitutional system.

CHAPTER 67 – THE DOCTRINE OF PROSPECTIVE OVERRULING

1. Introduction to the Doctrine of Prospective Overruling

1.1The Doctrine of Prospective Overrulingis a legal principle that states thatwhen a court changes its interpretation of the law, the new ruling applies only to future cases and does not affect past decisions or transactions.

1.2Purpose of the Doctrine of Prospective Overruling:

• Toensure that changes in judicial interpretation do not unfairly impact past cases and settled rights.
• Toallow courts to correct past errors in interpretation without causing instability in the legal system.
• To strike a balance between legal certainty and the evolution of judicial principles.

1.3Legal Basis in Pakistan

• The Supreme Court of Pakistan has recognized the doctrine in several cases, holding thatnew interpretations of the law should apply to future cases but not retroactively affect past judgments or actions.

2. Meaning and Scope of the Doctrine of Prospective Overruling

2.1 Definition

• Prospective Overruling means that when a court changes its interpretation of the law, the new rule applies only to future cases and does not disturb past legal rulings.

2.2 Example of Prospective Overruling in Constitutional Law

• The Supreme Court rules that a particular tax law is unconstitutional.
• The decision applies only to future tax assessments, and past tax collections remain valid.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that legal changes do not create undue hardship by affecting past cases.

3. Principles Governing the Doctrine of Prospective Overruling

3.1 Only Higher Courts Can Apply the Doctrine

• The Supreme Court or High Courts can decide whether a ruling applies prospectively.

3.2 Ensures Stability in the Legal System

• Prevents disruption by maintaining past rulings while allowing legal progress.

3.3 Balances Fairness and Legal Evolution

• Protects people from sudden changes in legal interpretation that could negatively impact past actions.

4. Application of the Doctrine of Prospective Overruling in Pakistan

4.1 In Constitutional Interpretation

• If the Supreme Court overrules a past constitutional interpretation, the new rule applies to future cases only.
• Example:
• The court rules that a certain election procedure is unconstitutional but allows past elections to remain valid.

4.2 In Taxation and Financial Laws

• If a tax law is declared unconstitutional, the new rule applies only to future tax assessments.
• Example:
• A court strikes down a tax but does not require the government to refund past tax payments.

4.3 In Criminal and Civil Laws

• New interpretations of criminal laws generally apply prospectively unless they benefit the accused.
• Example:
• A new ruling on self-defense does not overturn past convictions but applies to future cases.

4.4 In Administrative and Employment Laws

• New interpretations of labor laws apply only to future employer-employee relationships.
• Example:
• A court ruling expanding workers’ rights does not affect past employment disputes.

5. When the Doctrine of Prospective Overruling Does Not Apply

5.1 If the Court Intends the Ruling to Apply Retrospectively

• If the court explicitly states that a decision applies to past cases, prospective overruling does not apply.
• Example:
• A court strikes down a law and orders compensation for past violations.

5.2 If the Change in Law Benefits the Accused in Criminal Cases

• New interpretations of criminal law that favor the accused can apply retrospectively.
• Example:
• A court ruling decriminalizing a certain act can be applied to past convictions.

5.3 If It Would Lead to Injustice or Inequality

• If applying a new ruling prospectively would cause unfairness, courts may apply it retrospectively.
• Example:
• A court ruling protecting fundamental rights may be applied to past cases to prevent injustice.

6. Legal Consequences of the Doctrine of Prospective Overruling

6.1 Protects Past Transactions and Decisions

• Ensures that people and businesses are not negatively affected by legal changes.

6.2 Allows the Legal System to Evolve Without Causing Instability

• Judges can correct past mistakes without disrupting the system.

6.3 Ensures Fairness and Legal Certainty

• People can rely on the law as it existed at the time of their actions.

7. Difference Between Prospective Overruling and Retrospective Application

Feature	Prospective Overruling	Retrospective Application
Definition	A new legal ruling applies only to future cases.	A new ruling applies to both past and future cases.
Effect	Protects past transactions and settled cases.	May invalidate past actions and decisions.
Example	A court rules that a tax is unconstitutional but applies the ruling only to future tax payments.	A court ruling declares past and future tax collections unconstitutional and orders refunds.

8. Judicial Interpretations of the Doctrine of Prospective Overruling in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that when a previous interpretation of the Constitution is overruled, the new ruling should apply prospectively unless otherwise stated.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that new interpretations of fundamental rights should generally apply to future cases to avoid disrupting past judgments.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a decision affecting election laws should apply prospectively to ensure stability in governance.

9. Importance of the Doctrine of Prospective Overruling

9.1 Prevents Legal Chaos and Uncertainty

• Ensures that legal changes do not create confusion or unfairness.

9.2 Balances Legal Continuity and Reform

• Allows courts to evolve the law while protecting past transactions.

9.3 Protects Citizens and Businesses from Unfair Retroactive Application of Laws

• Ensures that people are not penalized for actions that were legal at the time they were performed.

10. Conclusion

TheDoctrine of Prospective Overrulingensures thatwhen a court changes its interpretation of the law, the new rule applies only to future cases, preventing unfair disruptions in the legal system.Courts in Pakistanapply this doctrine to balance legal continuity with necessary judicial reforms.By protecting past decisions while allowing legal progress,the doctrine ensures stability, fairness, and consistency in the law.

CHAPTER 68 – THE DOCTRINE OF ULTRA VIRES

1. Introduction to the Doctrine of Ultra Vires

1.1 The Doctrine of Ultra Vires is a fundamental legal principle that states that any act, decision, or law made by a public authority, government body, or corporation beyond its legally granted powers is invalid and unenforceable.

1.2 Purpose of the Doctrine of Ultra Vires:

• To ensure that government authorities and organizations operate within their legal limits.
• To protect individuals and businesses from actions that exceed legal authority.
• To maintain the rule of law by preventing arbitrary or unauthorized actions.

1.3 Legal Basis in Pakistan

• Article 4 of the Constitution of Pakistan, 1973, guarantees that all individuals are governed by the law and cannot be subjected to actions beyond legal authority.
• Article 199 grants the High Courts the power to issue writs against ultra vires acts of public authorities.
• Courts in Pakistan apply the doctrine to invalidate government orders, regulations, or laws that exceed legal powers.

2. Meaning and Scope of the Doctrine of Ultra Vires

2.1 Definition

• Ultra Vires (Latin for “beyond powers”) means that when an authority or institution acts beyond the powers given to it by law or the Constitution, its actions are null and void.

2.2 Example of Ultra Vires in Constitutional Law

• A provincial government imposes a tax that only the federal government has the authority to impose.
• Since this action exceeds the province’s legal powers, it is declared ultra vires and invalid.

2.3 Scope of the Doctrine

• Applied in constitutional law, administrative law, corporate law, and judicial review.
• Ensures that government agencies, officials, and corporations act within their legally defined authority.

3. Principles Governing the Doctrine of Ultra Vires

3.1 Any Act Beyond Legal Authority Is Invalid

• If a law or action exceeds the power granted by the Constitution or statute, it is ultra vires and unenforceable.

3.2 Courts Have the Power to Declare Ultra Vires Acts Null and Void

• Judicial review ensures that authorities do not exceed their legal powers.

3.3 Protects the Rights of Citizens Against Unauthorized Government Actions

• Prevents government bodies and corporations from acting arbitrarily or unfairly.

4. Application of the Doctrine of Ultra Vires in Pakistan

4.1 In Constitutional Interpretation

• If a law passed by Parliament or a Provincial Assembly violates the Constitution, it is ultra vires.
• Example:
• A law restricting free speech in a way that contradicts Article 19 of the Constitution is unconstitutional and ultra vires.

4.2 In Government and Administrative Actions

• Government decisions must be within the scope of legal authority.
• Example:

• A government agency issues a directive that contradicts a Supreme Court ruling.
• The directive is ultra vires and invalid.

4.3 In Corporate and Business Laws

• A company cannot engage in activities beyond those allowed by its corporate charter or memorandum of association.
• Example:
• A company registered to provide educational services cannot start banking operations.

4.4 In Regulatory and Licensing Matters

• Regulatory authorities cannot impose conditions or penalties beyond their legal powers.
• Example:

• A telecommunications authority imposes a fine beyond what is allowed by law.
• The fine is declared ultra vires and unenforceable.

5. When the Doctrine of Ultra Vires Does Not Apply

5.1 If the Action Falls Within the Reasonable Interpretation of Authority

• If an action can be justified as within the law’s intent, it is not ultra vires.
• Example:
• A government agency makes minor regulatory adjustments to improve implementation.

5.2 If the Action Is Approved Through Proper Legal Amendments

• If a law or regulation is amended to grant authority, it is no longer ultra vires.
• Example:
• A ministry gains new powers through a parliamentary amendment.

5.3 If There Is an Implied Power in the Law

• Some actions may not be explicitly mentioned but are necessary to fulfill legal obligations.
• Example:
• A regulatory body’s power to enforce compliance includes implied powers to investigate violations.

6. Legal Consequences of the Doctrine of Ultra Vires

6.1 Ensures That Government and Corporations Act Within Legal Limits

• Prevents abuse of power by enforcing strict adherence to legal authority.

6.2 Provides a Basis for Judicial Review and Legal Challenges

• Allows courts to strike down illegal actions and protect constitutional rights.

6.3 Protects Citizens and Businesses from Arbitrary Government Actions

• Ensures fairness and legal certainty in public administration.

7. Difference Between Ultra Vires and Voidable Acts

Feature	Ultra Vires	Voidable Acts
Definition	An act that exceeds legal authority and is completely invalid.	An act that is legally questionable but can be validated under certain conditions.
Effect	The action is null and void from the beginning.	The action remains valid unless challenged and declared void by a court.
Example	A provincial law contradicting the Constitution is automatically void.	A contract signed under duress can be voided if proven in court.

8. Judicial Interpretations of the Doctrine of Ultra Vires in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that any law that contradicts the Constitution is ultra vires and void.

Government of Sindh v. Federation of Pakistan (PLD 2010 SC 543)

• The court declared a provincial law invalid as it attempted to regulate a subject under federal jurisdiction.

Lahore Development Authority v. Federation of Pakistan (PLD 2004 SC 342)

• The Supreme Court ruled that a government body imposing taxes without proper legislative authority was acting ultra vires.

9. Importance of the Doctrine of Ultra Vires

9.1 Ensures That Authorities Do Not Exceed Their Legal Mandate

• Prevents abuse of power and maintains constitutional order.

9.2 Allows Judicial Oversight to Protect Constitutional Rights

• Enables courts to invalidate unlawful laws and decisions.

9.3 Maintains Legal Certainty and Administrative Accountability

• Ensures that government decisions and corporate actions remain within the law.

10. Conclusion

TheDoctrine of Ultra Viresensures that any action taken beyond legal authority is invalid and unenforceable.Courts in Pakistanapply this doctrine to strike down unconstitutional laws, unlawful administrative decisions, and corporate actions that exceed legal limits.Byupholding the rule of law and preventing arbitrary exercises of power, this doctrine plays a vital role in maintaining fairness, justice, and legal accountability.

CHAPTER 69 – THE DOCTRINE OF PROMISSORY ESTOPPEL

1. Introduction to the Doctrine of Promissory Estoppel

1.1 The Doctrine of Promissory Estoppel is a legal principle that states that if a person or government makes a promise, and another party relies on that promise to their detriment, the promisor is prevented (estopped) from going back on their word, even if there is no formal contract.

1.2 Purpose of the Doctrine of Promissory Estoppel:

• To ensure fairness and prevent injustice when one party has relied on a promise.
• To prevent individuals or government authorities from withdrawing promises that others have acted upon.
• To promote trust and stability in business and administrative dealings.

1.3 Legal Basis in Pakistan

• The courts in Pakistan apply this doctrine in contractual, administrative, and constitutional matters to prevent injustice.
• It is commonly used against the government when it makes promises regarding policies, subsidies, licenses, and regulatory decisions.

2. Meaning and Scope of the Doctrine of Promissory Estoppel

2.1 Definition

• Promissory Estoppel means that when a promise is made and relied upon, the promisor cannot later deny the promise if it would cause harm to the promise.

2.2 Example of Promissory Estoppel in Administrative Law

• A government announces a tax exemption for five years. Businesses invest based on this promise.
• If the government later withdraws the exemption early, affected businesses can claim promissory estoppel.

2.3 Scope of the Doctrine

• Applied in contract law, administrative law, government policies, and commercial dealings.
• Ensures that promises, even if not legally binding contracts, are honored when relied upon.

3. Principles Governing the Doctrine of Promissory Estoppel

3.1 A Clear and Unambiguous Promise Must Be Made

• The promisor must have made a definite statement or assurance.

3.2 The Promisee Must Have Relied on the Promise

• The affected party must have taken significant action based on the promise.

3.3 It Must Be Unjust to Allow the Promisor to Revoke the Promise

• If reversing the promise causes financial loss or hardship, estoppel applies.

4. Application of the Doctrine of Promissory Estoppel in Pakistan

4.1 In Government and Administrative Actions

• The government cannot withdraw benefits or exemptions if businesses or individuals have relied upon them.
• Example:

• A government authority grants a construction permit, but later revokes it without justification.
• The affected party can challenge the revocation under promissory estoppel.

4.2 In Business and Commercial Agreements

• If a company makes an assurance to a supplier or partner, it cannot later deny it.
• Example:

• A supplier expands operations based on a buyer’s long-term purchase commitment.
• If the buyer suddenly cancels orders, promissory estoppel may apply.

4.3 In Employment and Labor Relations

• If an employer makes a promise regarding salaries, promotions, or benefits, employees can enforce it.
• Example:
• A company verbally assures employees of a bonus but later refuses to pay.

4.4 In Contractual Negotiations

• Even if a contract is not formally signed, if a party relies on an assurance, estoppel can prevent unfair withdrawal.
• Example:

• A seller agrees on a price reduction and the buyer makes arrangements based on that promise.
• If the seller refuses the discount later, promissory estoppel may prevent them from going back on the assurance.

5. When the Doctrine of Promissory Estoppel Does Not Apply

5.1 If the Promise Was Not Clear or Definite

• A vague or conditional statement is not enforceable.
• Example:
• A government official informally says that tax rates “may be reduced in the future.”

5.2 If There Was No Reasonable Reliance on the Promise

• If the affected party did not actually act on the promise, estoppel does not apply.
• Example:
• A company is promised a loan but never applies for it.

5.3 If Enforcing the Promise Violates the Law

• The doctrine cannot be used to enforce illegal agreements.
• Example:
• A verbal promise to grant a liquor license in a dry province cannot be enforced.

6. Legal Consequences of the Doctrine of Promissory Estoppel

6.1 Prevents the Unfair Withdrawal of Promises

• Ensures that individuals and businesses can rely on commitments made to them.

6.2 Strengthens Trust in Government Policies and Business Practices

• Encourages good faith dealings between private parties and public institutions.

6.3 Provides a Remedy for Losses Due to Broken Promises

• Allows affected parties to seek enforcement or compensation. 7. Difference Between Promissory Estoppel and Contractual Obligations

Feature	Promissory Estoppel	Contractual Obligation
Definition	Prevents a party from withdrawing a promise that was relied upon.	A legally binding agreement between parties.
Legal Requirement	No formal contract is necessary.	A valid contract must exist.
Example	A company promises an employee a promotion, and they refuse another job offer based on that promise.	An employee signs an agreement for a fixed salary and benefits.

8. Judicial Interpretations of the Doctrine of Promissory Estoppel in Pakistan

8.1 Key Case Law in Pakistan

Muhammad Aslam v. Government of Pakistan (PLD 1992 SC 348)

• The Supreme Court ruled that when a government promises a benefit to citizens and they rely on it, the government cannot later revoke it arbitrarily.

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The court held that if businesses or individuals rely on a government policy, it cannot be changed retrospectively to their detriment.

Pakistan International Airlines v. Employees Union (PLD 2014 SC 383)

• The Supreme Court ruled that employers cannot withdraw employment benefits that were promised to employees and acted upon.

9. Importance of the Doctrine of Promissory Estoppel

9.1 Encourages Fairness and Accountability

• Prevents individuals and governments from unfairly retracting promises.

9.2 Promotes Stability in Business and Governance

• Ensures trust in commercial and public transactions.

9.3 Protects Individuals and Businesses from Unjust Losses

• Provides a remedy when someone suffers due to a broken promise.

10. Conclusion

The Doctrine of Promissory Estoppelensures thatwhen a promise is made and relied upon, it cannot be withdrawn if doing so would cause harm.Courts in Pakistanapply this doctrine to protect individuals, businesses, and organizations from unfair reversals of commitments.By enforcing accountability in government policies, business transactions, and employment relations, this doctrine plays a vital role in maintaining fairness and stability in legal and commercial affairs.

CHAPTER 70 – THE DOCTRINE OF RES JUDICATA

1. Introduction to the Doctrine of Res Judicata

1.1 The Doctrine of Res Judicata is a legal principle that states that once a court has decided a matter, the same parties cannot litigate the same issue again in another case.

1.2 Purpose of the Doctrine of Res Judicata:

• To prevent repeated litigation of the same disputes.
• To protect judicial decisions from being challenged multiple times.
• To ensure finality and stability in legal proceedings.

1.3 Legal Basis in Pakistan

• Section 11 of the Code of Civil Procedure, 1908, explicitly incorporates the doctrine of res judicata.
• Courts in Pakistan apply this doctrine to prevent the reopening of decided cases.

2. Meaning and Scope of the Doctrine of Res Judicata

2.1 Definition

• Res Judicata (Latin for “a matter already judged”) means that once a final judgment has been given by a competent court, the same issue cannot be re-litigated by the same parties.

2.2 Example of Res Judicata in Civil Law

• A land dispute is decided by the Supreme Court in favor of one party.
• The losing party cannot file a fresh case in another court on the same issue.

2.3 Scope of the Doctrine

• Applied in civil cases, criminal cases, administrative law, and constitutional law.
• Ensures that judicial decisions remain final and enforceable.

3. Principles Governing the Doctrine of Res Judicata

3.1 A Matter Must Be Finally Decided by a Competent Court

• The previous judgment must be from a court with proper jurisdiction.

3.2 The Same Parties Must Be Involved

• The case must involve the same individuals or legal entities.

3.3 The Same Issue Must Have Been Litigated

• The dispute must be based on the same subject matter and legal arguments.

3.4 The Previous Decision Must Be on Merits

• If a case was dismissed on technical grounds, res judicata does not apply.

4. Application of the Doctrine of Res Judicata in Pakistan

4.1 In Civil Cases

• A person cannot file a new lawsuit if the issue has already been settled.
• Example:

• A property dispute is decided in favor of one party.
• The losing party cannot refile the case on the same grounds.

4.2 In Criminal Cases

• A person cannot be tried again for the same offense if already acquitted or convicted.
• Example:
• A person acquitted of fraud charges cannot be retried for the same offense.

4.3 In Constitutional and Administrative Law

• Once the Supreme Court decides a constitutional matter, the ruling is final.
• Example:

• A government policy is upheld by the Supreme Court.
• The same policy cannot be challenged again by the same petitioner.

4.4 In Election Disputes

• If an election dispute is resolved by the Election Tribunal, the same case cannot be re-litigated.
• Example:

• A candidate challenges election results and loses in court.
• The candidate cannot file another case on the same grounds.

5. When the Doctrine of Res Judicata Does Not Apply

5.1 If the Previous Case Was Dismissed on Technical Grounds

• If a case was dismissed for lack of jurisdiction, res judicata does not apply.
• Example:
• A lawsuit dismissed for being filed in the wrong court does not prevent refiling in the correct court.

5.2 If New Facts or Evidence Emerge

• If significant new evidence is discovered, a new case may be allowed.
• Example:
• A fraud case is dismissed, but later, new evidence of fraud emerges.

5.3 If the Legal Issue Has Changed

• If new laws are enacted, the case may be reconsidered under the new legal framework.
• Example:

• A court rules on environmental regulations, but new laws are passed.
• The case may be reopened under the new regulations.

6. Legal Consequences of the Doctrine of Res Judicata

6.1 Prevents Repeated Litigation and Saves Judicial Resources

• Avoids unnecessary court proceedings.

6.2 Ensures Finality of Judgments

• Protects parties from legal uncertainty.

6.3 Protects Courts from Being Overburdened with the Same Cases

• Allows courts to focus on new disputes.

7. Difference Between Res Judicata and Estoppel

Feature	Res Judicata	Estoppel
Definition	Prevents re-litigation of an issue that has been finally decided.	Prevents a party from contradicting their previous statement or action in court.
Effect	Bars future cases on the same issue.	Prevents inconsistent claims in court.
Example	A property dispute decided by the Supreme Court cannot be reopened.	A landlord who accepts rent cannot later deny the tenant’s right to stay.

8. Judicial Interpretations of the Doctrine of Res Judicata in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that a decision made by the court on a constitutional matter cannot be challenged again by the same petitioner.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that once an election dispute has been decided, it cannot be re-litigated on the same grounds.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a policy decision upheld by the court cannot be challenged repeatedly by different parties on the same grounds.

9. Importance of the Doctrine of Res Judicata

9.1 Promotes Finality in Legal Proceedings

• Ensures that cases are not endlessly re-litigated.

9.2 Protects the Judicial System from Overload

• Prevents unnecessary use of court resources.

9.3 Ensures Fairness and Stability in Legal Disputes

• Gives certainty to individuals and businesses.

10. Conclusion

TheDoctrine of Res Judicataensures thatonce a court has decided a legal issue, the same matter cannot be reopened by the same parties.Courts in Pakistanapply this doctrine to uphold judicial finality and prevent repeated litigation.By ensuring stability in legal disputes and protecting courts from unnecessary cases, this doctrine plays a crucial role in maintaining efficiency and fairness in the legal system.

CHAPTER 71 – THE DOCTRINE OF CONSTRUCTIVE RES JUDICATA

1. Introduction to the Doctrine of Constructive Res Judicata

1.1 The Doctrine of Constructive Res Judicata is an extension of the general principle of Res Judicata, which states that if a party had an opportunity to raise a claim or defense in an earlier case but failed to do so, they cannot raise it in a later case.

1.2 Purpose of the Doctrine of Constructive Res Judicata:

• To prevent parties from splitting their claims and bringing multiple lawsuits on the same matter.
• To ensure that all claims and defenses related to a dispute are raised in the initial case.
• To maintain judicial efficiency by discouraging unnecessary litigation.

1.3 Legal Basis in Pakistan

• Section 11, Explanation IV of the Code of Civil Procedure, 1908, incorporates the concept of Constructive Res Judicata.
• Courts in Pakistan apply this doctrine to prevent parties from raising new claims that should have been included in earlier litigation.

2. Meaning and Scope of the Doctrine of Constructive Res Judicata

2.1 Definition

• Constructive Res Judicata means that if a party could have raised an issue in a previous case but did not do so, they are barred from raising it in a future case.

2.2 Example of Constructive Res Judicata in Civil Law

• A person sues for ownership of a property but does not raise a claim for damages in the same suit.
• If they later file a new case seeking damages, it will be barred under constructive res judicata.

2.3 Scope of the Doctrine

• Applied in civil litigation, constitutional law, administrative law, and commercial disputes.
• Ensures that all claims related to a dispute are addressed in one proceeding.

3. Principles Governing the Doctrine of Constructive Res Judicata

3.1 All Related Claims Must Be Raised in the Initial Case

• A party cannot bring up new claims later if they could have been raised in the first case.

3.2 Encourages Finality in Judicial Decisions

• Prevents parties from re-litigating matters indirectly.

3.3 Protects Courts from Being Overburdened

• Ensures judicial efficiency by resolving disputes in a single case.

4. Application of the Doctrine of Constructive Res Judicata in Pakistan

4.1 In Civil Litigation

• If a person does not raise all their claims in a lawsuit, they cannot file a new case on the remaining claims later.
• Example:

• A tenant sues the landlord for illegal eviction but does not claim compensation.
• If they later sue for compensation separately, it will be barred.

4.2 In Constitutional and Administrative Law

• A petitioner must raise all relevant constitutional arguments in one case.
• Example:

• A law is challenged for violating freedom of speech but not for discrimination.
• The petitioner cannot later challenge the same law on discrimination grounds.

4.3 In Commercial and Contractual Disputes

• A party cannot sue separately for different breaches of the same contract.
• Example:

• A business sues a supplier for late delivery but does not include a claim for defective goods.
• A new case for defective goods will be barred.

4.4 In Family and Property Disputes

• All inheritance and property claims must be raised together.
• Example:

• A person claims inheritance rights to land but does not claim movable assets.
• They cannot later file a separate case for movable assets.

5. When the Doctrine of Constructive Res Judicata Does Not Apply

5.1 If New Facts or Evidence Emerge

• If a party discovers important new facts, a new case may be allowed.
• Example:
• A contract fraud case dismissed earlier may be reopened if new fraudulent evidence is found.

5.2 If the Issues in the New Case Are Legally Distinct

• If the second case involves different legal issues, it is not barred.
• Example:
• A tenant sues for wrongful eviction and later files a case for damage to personal property.

5.3 If the Previous Case Was Dismissed on Technical Grounds

• If a case was dismissed for lack of jurisdiction, the issue can be refiled in the correct court.
• Example:
• A lawsuit dismissed due to improper filing can be refiled properly.

6. Legal Consequences of the Doctrine of Constructive Res Judicata

6.1 Encourages Efficient Litigation

• Ensures that all claims are decided in a single case.

6.2 Prevents Legal Manipulation and Delay Tactics

• Stops parties from dragging cases through multiple lawsuits.

6.3 Strengthens the Finality of Judicial Decisions

• Ensures that judgments remain stable and binding.

7. Difference Between Res Judicata and Constructive Res Judicata

Feature	Res Judicata	Constructive Res Judicata
Definition	Prevents re-litigation of an issue that has already been decided.	Prevents raising issues that should have been included in an earlier case.
Effect	Bars future cases on the same issue.	Bars claims that were omitted in the first case but could have been raised.
Example	A land dispute decided by the court cannot be reopened.	A property claim cannot be split into multiple cases.

8. Judicial Interpretations of the Doctrine of Constructive Res Judicata in Pakistan

8.1 Key Case Law in Pakistan

Muhammad Aslam v. Government of Pakistan (PLD 1992 SC 348)

• The Supreme Court ruled that if a party could have raised a claim in a previous case but failed to do so, they are barred from raising it later.

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The court held that parties must raise all their arguments in the first instance and cannot file multiple cases on the same subject.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that constitutional challenges must be raised in one petition and cannot be brought piecemeal.

9. Importance of the Doctrine of Constructive Res Judicata

9.1 Prevents Abuse of the Legal System

• Stops parties from bringing multiple cases on the same dispute.

9.2 Ensures Judicial Efficiency

• Reduces the burden on courts and speeds up justice.

9.3 Maintains Stability in Legal Decisions

• Ensures that cases are fully resolved without repeated litigation.

10. Conclusion

TheDoctrine of Constructive Res Judicataensures thatif a party had the opportunity to raise a claim or defense in an earlier case but failed to do so, they cannot raise it in a later case. Courts in Pakistanapply this doctrine to prevent the misuse of the legal system by discouraging multiple lawsuits on the same matter.Byensuring the finality of judgments and promoting judicial efficiency, this doctrine plays a crucial role in maintaining fairness and stability in the legal system.

CHAPTER 72 – THE DOCTRINE OF LACHES

1. Introduction to the Doctrine of Laches

1.1 The Doctrine of Laches is a legal principle that states that if a person delays in asserting their legal rights without a reasonable justification, they may lose their right to seek relief from the court.

1.2 Purpose of the Doctrine of Laches:

• To prevent legal claims that are filed after an unreasonable and unjustified delay.
• To protect defendants from claims where the delay has caused prejudice or disadvantage.
• To encourage timely resolution of legal disputes.

1.3 Legal Basis in Pakistan

• The courts in Pakistan apply the doctrine of laches in constitutional petitions, civil cases, and administrative disputes to determine whether a delay in filing a case is justified.
• Article 199 of the Constitution of Pakistan grants the High Courts the power to refuse a writ petition if there is undue delay in seeking relief.

2. Meaning and Scope of the Doctrine of Laches

2.1 Definition

• Laches (from the French word “laschesse,” meaning negligence) means that if a person with a legal claim delays taking action without a valid reason, the court may refuse to hear the case.

2.2 Example of Laches in Constitutional Law

• A government employee dismissed from service waits 10 years before filing a petition for reinstatement.
• The court may refuse to hear the case due to the unreasonable delay.

2.3 Scope of the Doctrine

• Applied in constitutional law, administrative law, civil litigation, and equitable remedies.
• Ensures that cases are brought before courts in a timely manner.

3. Principles Governing the Doctrine of Laches

3.1 Delay Must Be Unreasonable and Without Justification

• If a party had a valid reason for the delay, laches may not apply.

3.2 The Delay Must Have Prejudiced the Opposing Party

• If the delay harms the other party by causing unfair disadvantage, the claim may be barred.

3.3 The Doctrine Does Not Apply to Fundamental Rights Cases

• Courts may still hear delayed cases if fundamental rights are at stake.

4. Application of the Doctrine of Laches in Pakistan

4.1 In Constitutional and Administrative Law

• A petitioner cannot challenge a government decision after an unreasonable delay.
• Example:

• A public servant dismissed in 2005 challenges the decision in 2022.
• The court may dismiss the petition for laches.

4.2 In Civil Litigation

• A person cannot file a civil suit after sleeping on their rights for an extended period.
• Example:

• A landowner fails to challenge an illegal occupation of their property for 15 years.
• The court may refuse to entertain the case due to laches.

4.3 In Contract and Commercial Law

• A party to a contract must enforce their rights within a reasonable time.
• Example:

• A supplier fails to claim outstanding payments for years and then suddenly sues.
• The court may refuse the claim due to excessive delay.

4.4 In Election and Service Matters

• If a candidate challenges election results after a long delay, the petition may be rejected.
• Example:

• A candidate waits months after an election to challenge alleged fraud.
• The court may dismiss the petition for laches.

5. When the Doctrine of Laches Does Not Apply

5.1 If the Delay Was Due to Exceptional Circumstances

• If the petitioner was prevented from filing due to valid reasons, laches does not apply.
• Example:
• A citizen could not file a case due to prolonged illness or war.

5.2 If the Case Involves a Violation of Fundamental Rights

• Courts may still hear delayed petitions if fundamental rights are at stake.
• Example:
• A person files a late petition against torture or illegal detention.

5.3 If No Prejudice Was Caused to the Opposing Party

• If the delay did not harm the other party, the court may still hear the case.
• Example:
• A company delays enforcing a contract but the other party has suffered no disadvantage.

6. Legal Consequences of the Doctrine of Laches

6.1 Encourages Timely Litigation

• Ensures that cases are filed while evidence and witnesses are still available.

6.2 Protects Defendants from Unfair Delays

• Prevents legal actions where delays have caused prejudice.

6.3 Maintains Stability in Legal and Administrative Decisions

• Avoids reopening old disputes that have long been settled.

7. Difference Between Laches and Limitation Periods

Feature	Laches	Limitation Period
Definition	Applies when there is an unreasonable delay in filing a case.	A fixed statutory deadline within which a case must be filed.
Legal Basis	Based on judicial discretion.	Based on statutory laws (Limitation Act).
Example	A dismissed employee challenges termination after 15 years without a reason.	A contract dispute must be filed within a statutory time limit (e.g., 3 years).

8. Judicial Interpretations of the Doctrine of Laches in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that constitutional petitions should be filed within a reasonable time to avoid dismissal for laches.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that long delays in challenging election results are not acceptable unless justified.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that challenges to government policies must be filed promptly to be entertained.

9. Importance of the Doctrine of Laches

9.1 Ensures Fairness in Legal Proceedings

• Prevents undue delays that harm the administration of justice.

9.2 Encourages Petitioners to Act Diligently

• Promotes a culture of timely legal action.

9.3 Protects Defendants from Unexpected Legal Challenges

• Ensures that past decisions and actions remain stable and predictable.

10. Conclusion

The Doctrine of Lachesensures that legal claims must be brought within a reasonable time, or they may be barred due to unjustified delay.Courts in Pakistanapply this doctrine to promote fairness, prevent undue prejudice to defendants, and maintain stability in legal and administrative matters.However, it does not apply in cases involving fundamental rights or where delays are justified by exceptional circumstances.Bydiscouraging unnecessary litigation and ensuring efficiency in the legal system, this doctrine plays a crucial role in upholding justice and fairness.

CHAPTER 73 – THE DOCTRINE OF LEGITIMATE EXPECTATION

1. Introduction to the Doctrine of Legitimate Expectation

1.1The Doctrine of Legitimate Expectationis a legal principle that states thatwhen a public authority makes a promise, representation, or maintains a consistent practice, individuals affected by it may have a legitimate expectation that it will be honored.

1.2Purpose of the Doctrine of Legitimate Expectation:

• To protect individuals from arbitrary government decisions.
• To ensure that public authorities act fairly and honor past assurances.
• To promote good governance and administrative accountability.

1.3Legal Basis in Pakistan

• The courts in Pakistanapply this doctrine in administrative and constitutional cases to prevent unfair changes in government policies.
• It is commonly invokedin cases involving government benefits, employment, licensing, and regulatory commitments.

2. Meaning and Scope of the Doctrine of Legitimate Expectation

2.1 Definition

• Legitimate Expectation means that when a public authority makes a promise or follows a consistent practice, people affected by it have a right to expect that it will continue unless there is a valid reason to change it.

2.2 Example of Legitimate Expectation in Administrative Law

• A government announces a scholarship program for five years.
• If the scholarship is suddenly withdrawn without justification, students can claim a legitimate expectation.

2.3 Scope of the Doctrine

• Applied in constitutional law, administrative law, employment law, and public policy decisions.
• Ensures that government actions remain predictable and fair.

3. Principles Governing the Doctrine of Legitimate Expectation

3.1 There Must Be a Clear Representation or Consistent Practice

• The promise or expectation must come from an official authority.

3.2 The Expectation Must Be Reasonable and Justified

• It must be based on rational grounds, not mere assumptions.

3.3 A Change in Policy Must Be Fair and Justified

• Public authorities cannot arbitrarily withdraw benefits or commitments.

4. Application of the Doctrine of Legitimate Expectation in Pakistan

4.1 In Government Policies and Public Benefits

• If a government scheme is announced, people relying on it can challenge its sudden cancellation.
• Example:

• A tax exemption policy is withdrawn without prior notice.
• Businesses affected may challenge it under legitimate expectation.

4.2 In Employment and Service Matters

• Government employees can expect fair treatment based on established practices.
• Example:

• A public sector employee expects promotion as per service rules.
• If the promotion is arbitrarily denied, they may claim legitimate expectation.

4.3 In Licensing and Regulatory Matters

• Businesses and individuals can expect regulatory consistency.
• Example:

• A company is granted a license renewal every year, but it is suddenly denied.
• If no valid reason is given, the company can challenge the decision.

4.4 In Education and Scholarships

• Students can expect continued benefits if scholarships were promised.
• Example:

• A university announces free education for top students.
• If the policy is suddenly changed, affected students can challenge it.

5. When the Doctrine of Legitimate Expectation Does Not Apply

5.1 If There Was No Clear Assurance or Practice

• If a policy was never officially announced, there is no legitimate expectation.
• Example:
• A politician makes a vague statement about lowering taxes, but no official policy is issued.

5.2 If There Are Overriding Public Interest Reasons

• Governments can change policies if justified by the greater public good.
• Example:
• A subsidy program is withdrawn due to an economic crisis.

5.3 If the Expectation Is Based on an Illegal or Unlawful Act

• A person cannot claim legitimate expectation for something that violates the law.
• Example:
• A business operates without a valid license and expects not to be shut down.

6. Legal Consequences of the Doctrine of Legitimate Expectation

6.1 Protects Individuals from Arbitrary Government Actions

• Ensures fairness in administrative decisions.

6.2 Strengthens Trust in Government Policies

• Encourages transparency and consistency.

6.3 Provides Legal Remedies for Unfair Policy Changes

• Allows courts to intervene when legitimate expectations are violated.

7. Difference Between Legitimate Expectation and Promissory Estoppel

Feature	Legitimate Expectation	Promissory Estoppel
Definition	Protects people from arbitrary changes in policies they relied on.	Prevents a party from withdrawing a promise they made.
Legal Basis	Based on fairness and administrative law.	Based on contract and equity principles.
Example	A government announces free healthcare and then cancels it unfairly.	A company promises a discount and later refuses to honor it.

8. Judicial Interpretations of the Doctrine of Legitimate Expectation in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that if a government policy creates a reasonable expectation, it cannot be changed arbitrarily.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that employment benefits and promotions must follow established rules to protect legitimate expectations.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that government licensing policies must be predictable and fair.

9. Importance of the Doctrine of Legitimate Expectation

9.1 Ensures Fairness in Government Decision-Making

• Prevents arbitrary policy changes that harm individuals.

9.2 Strengthens Accountability in Public Administration

• Requires authorities to justify major policy changes.

9.3 Protects Citizens and Businesses from Sudden Disruptions

• Ensures stability in government commitments and regulations.

10. Conclusion

The Doctrine of Legitimate Expectationensures that public authorities must honor their commitments and follow consistent policies unless there are valid reasons to change them.Courts in Pakistanapply this doctrine to protect individuals from arbitrary government decisions.Byensuring transparency, fairness, and accountability, this doctrine plays a crucial role in maintaining trust in governance and public administration.

CHAPTER 74 – THE DOCTRINE OF NECESSITY

1. Introduction to the Doctrine of Necessity

1.1 The Doctrine of Necessity is a legal principle that states that extraordinary actions taken in an emergency or exceptional situation, which would normally be unlawful, may be justified if they are necessary to prevent greater harm.

1.2 Purpose of the Doctrine of Necessity:

• To allow the government or judiciary to take urgent actions in exceptional circumstances.
• To maintain order and prevent chaos when legal mechanisms are unavailable.
• To legitimize acts taken in emergencies for the greater good of society.

1.3 Legal Basis in Pakistan

• The courts in Pakistan have used the Doctrine of Necessity in constitutional crises and political emergencies.
• It has been invoked in cases where military takeovers, emergency laws, and unconstitutional actions were justified as necessary for national stability.

2. Meaning and Scope of the Doctrine of Necessity

2.1 Definition

• Necessity means that if an unconstitutional or illegal action is taken under exceptional circumstances to maintain stability and prevent disaster, it may be justified temporarily.

2.2 Example of the Doctrine of Necessity in Constitutional Law

• A government suspends the Constitution during a military coup, claiming it is necessary to prevent civil unrest.
• The courts later validate the action, stating that it was necessary to prevent national collapse.

2.3 Scope of the Doctrine

• Applied in constitutional law, emergency governance, judicial decisions, and administrative actions.
• Ensures that the state can function during emergencies when ordinary legal mechanisms are insufficient.

3. Principles Governing the Doctrine of Necessity

3.1 The Act Must Be Taken in an Emergency or Exceptional Situation

• There must be no legal alternative to address the crisis.

3.2 The Action Must Be for the Public Good and Not for Personal Gain

• It must benefit society as a whole, not individuals in power.

3.3 The Action Must Be Proportionate to the Emergency

• It should not exceed what is necessary to resolve the crisis.

3.4 The Doctrine Should Be Applied Temporarily

• Once normal conditions return, lawful governance must be restored.

4. Application of the Doctrine of Necessity in Pakistan

4.1 In Constitutional and Political Crises

• Military takeovers and emergency laws have been justified under this doctrine.
• Example:
• The military imposed martial law in Pakistan, and courts upheld it under necessity.

4.2 In Judicial Decisions During National Emergencies

• Courts have validated unconstitutional actions to prevent chaos.
• Example:
• The courts upheld emergency rule in the absence of a functioning government.

4.3 In Administrative and Governmental Actions

• Government officials may act beyond their legal authority in emergencies.
• Example:
• A government seizes private property temporarily to prevent famine.

4.4 In Security and Public Order Measures

• Law enforcement agencies may take extraordinary steps to maintain order.
• Example:
• A city is put under curfew without prior legal approval due to riots.

5. When the Doctrine of Necessity Does Not Apply

5.1 If There Is No Genuine Emergency

• The situation must be a true national crisis.
• Example:
• A government cannot declare emergency powers simply to extend its rule.

5.2 If the Action Is Taken for Political or Personal Gain

• It must serve the national interest, not individuals in power.
• Example:
• A ruler suspends the Constitution to avoid elections.

5.3 If the Action Permanently Overrides the Law

• Necessity cannot be used to justify long-term dictatorship or illegal rule.
• Example:
• A military regime refuses to restore civilian government after an emergency ends.

6. Legal Consequences of the Doctrine of Necessity

6.1 Allows Temporary Legitimization of Unlawful Acts

• Ensures that essential governance continues during crises.

6.2 Risks Undermining Constitutional and Democratic Principles

• May lead to misuse by rulers to justify unconstitutional actions.

6.3 Courts Must Ensure That the Doctrine Is Not Abused

• Judicial oversight is necessary to prevent unnecessary application.

7. Difference Between Doctrine of Necessity and Martial Law

Feature	Doctrine of Necessity	Martial Law
Definition	Justifies temporary unlawful actions during emergencies.	Military rule imposed by force, often suspending the Constitution.
Legal Basis	Recognized by courts as an emergency principle.	Often imposed without legal justification.
Example	A government bypasses parliamentary approval for disaster relief.	A military takes over the government indefinitely.

8. Judicial Interpretations of the Doctrine of Necessity in Pakistan

8.1 Key Case Law in Pakistan

State v. Dosso (PLD 1958 SC 533)

• The Supreme Court upheld the first military coup in Pakistan, validating it under the Doctrine of Necessity.

Asma Jillani v. Government of Punjab (PLD 1972 SC 139)

• The court overruled the previous decision, declaring that military rule was unconstitutional.

Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)

• The Supreme Court again validated military rule under necessity but required a return to democracy.

9. Importance of the Doctrine of Necessity

9.1 Ensures Continuity of Governance in Extreme Circumstances

• Allows the state to function during crises.

9.2 Provides Temporary Legitimacy to Emergency Actions

• Ensures stability in extraordinary situations.

9.3 Requires Judicial Oversight to Prevent Misuse

• Protects democracy from unnecessary suspensions.

10. Conclusion

The Doctrine of Necessityensures thatextraordinary actions taken in times of crisis may be justified if they prevent greater harm.However, courts in Pakistanhave struggled with its application, as it has been used to legitimize military takeovers and unconstitutional actions.While the doctrinehelps maintain order during emergencies, it must be applied cautiously to prevent abuse and uphold democratic principles.

CHAPTER 75 – THE DOCTRINE OF SEVERABILITY

1. Introduction to the Doctrine of Severability

1.1 The Doctrine of Severability is a legal principle that states that if a part of a law is found unconstitutional or invalid, only that specific portion is removed, while the remaining valid portions continue to be enforceable.

1.2 Purpose of the Doctrine of Severability:

• To ensure that valid parts of a law remain effective even if some sections are unconstitutional.
• To prevent the unnecessary invalidation of an entire statute due to minor legal defects.
• To uphold legislative intent by allowing courts to preserve enforceable provisions.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that any law inconsistent with fundamental rights is void to the extent of the inconsistency.
• The courts in Pakistan apply the doctrine to strike down unconstitutional portions of laws while preserving the remaining valid sections.

2. Meaning and Scope of the Doctrine of Severability

2.1 Definition

• Severability means that when part of a law is unconstitutional, only that specific portion is removed, and the rest of the law remains in force.

2.2 Example of Severability in Constitutional Law

• A law regulating the press contains a clause allowing arbitrary censorship.
• The court removes the unconstitutional censorship clause but keeps the rest of the law intact.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that laws remain functional even when parts of them are invalidated.

3. Principles Governing the Doctrine of Severability

3.1 The Valid and Invalid Portions Must Be Clearly Distinguishable

• If the unconstitutional part can be removed without affecting the rest of the law, severability applies.

3.2 The Remaining Law Must Be Capable of Independent Enforcement

• The valid portion must make sense and be functional without the invalid part.

3.3 Legislative Intent Must Be Preserved

• The court must ensure that removing the unconstitutional portion does not contradict the original purpose of the law.

4. Application of the Doctrine of Severability in Pakistan

4.1 In Constitutional Interpretation

• If a law partially violates fundamental rights, only the conflicting section is struck down.
• Example:

• A law restricting freedom of speech is challenged.
• The court removes the restrictive section but upholds the rest.

4.2 In Criminal and Penal Laws

• Unconstitutional punishments or procedures are struck down while the law itself remains.
• Example:

• A law imposes the death penalty for minor offenses.
• The court removes the excessive punishment but retains the rest of the law.

4.3 In Business and Commercial Laws

• If an economic regulation has one unconstitutional clause, the rest can still be enforced.
• Example:

• A competition law restricts trade excessively.
• The court removes the anti-competitive part but retains consumer protections.

4.4 In Taxation and Revenue Laws

• Unconstitutional tax provisions are removed without invalidating the entire tax law.
• Example:

• A tax law discriminates against certain businesses.
• The court removes the discriminatory clause but upholds the general tax provisions.

5. When the Doctrine of Severability Does Not Apply

5.1 If the Unconstitutional Portion Is Essential to the Law’s Purpose

• If removing the invalid part makes the rest of the law meaningless, the whole law is struck down.
• Example:

• A law banning social media platforms is challenged.
• If the ban is unconstitutional and removing it invalidates the law’s purpose, the whole law is struck down.

5.2 If the Remaining Law Cannot Function Without the Invalid Part

• If the remaining law becomes unenforceable, severability does not apply.
• Example:

• A law regulating elections is struck down, leaving no procedure for elections.
• The entire law must be invalidated.

5.3 If Legislative Intent Would Be Completely Altered

• If removing one part changes the fundamental purpose of the law, the entire law is struck down.
• Example:

• A law restricting foreign investment has one unconstitutional clause.
• If removing it changes the law’s objective, it cannot be saved.

6. Legal Consequences of the Doctrine of Severability

6.1 Prevents Unnecessary Invalidation of Entire Laws

• Ensures that legal provisions remain enforceable where possible.

6.2 Strengthens Judicial Review and Constitutional Governance

• Allows courts to protect fundamental rights while preserving laws.

6.3 Ensures Stability and Consistency in Legal Systems

• Maintains order by allowing partial modifications instead of complete annulments.

7. Difference Between Doctrine of Severability and Doctrine of Ultra Vires

Feature	Doctrine of Severability	Doctrine of Ultra Vires
Definition	Removes unconstitutional parts of a law while keeping the valid portions intact.	Declares an entire law void if it exceeds legal authority.
Effect	The law continues to function after removing invalid sections.	The law is completely unenforceable.
Example	A law imposing excessive restrictions on press freedom is modified to remove the restrictions.	A law made by a provincial government on a federal subject is struck down entirely.

8. Judicial Interpretations of the Doctrine of Severability in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that if a provision of a law is unconstitutional, only that part is struck down if the rest can stand independently.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that an unconstitutional portion of election laws could be removed while keeping the electoral framework intact.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a regulation violating business rights was unconstitutional but allowed the rest of the law to remain.

9. Importance of the Doctrine of Severability

9.1 Ensures Laws Are Not Completely Invalidated Unnecessarily

• Allows for modifications instead of full repeals.

9.2 Balances Constitutional Rights with Legislative Intent

• Protects individual rights while maintaining legal stability.

9.3 Strengthens Judicial Oversight Without Disrupting Governance

• Allows courts to correct unconstitutional provisions while preserving governance.

10. Conclusion

TheDoctrine of Severabilityensures thatif a portion of a law is unconstitutional, only that part is removed while the rest of the law remains enforceable.Courts in Pakistanapply this doctrine to prevent unnecessary invalidation of entire statutes while upholding constitutional rights.By balancing judicial review and legislative intent, this doctrine plays a crucial role in maintaining legal stability and governance.

CHAPTER 76 – THE DOCTRINE OF POLITICAL QUESTION

1. Introduction to the Doctrine of Political Question

1.1 The Doctrine of Political Question is a legal principle that states that certain matters are more suitable for resolution by the executive or legislative branches rather than the judiciary. Courts should not intervene in these issues because they are inherently political in nature.

1.2 Purpose of the Doctrine of Political Question:

• To maintain the separation of powers by preventing the judiciary from interfering in purely political matters.
• To ensure that policy decisions, foreign relations, and national security issues remain within the domain of elected representatives.
• To prevent courts from making rulings on matters that lack clear legal standards for judicial review.

1.3 Legal Basis in Pakistan

• The doctrine is not explicitly mentioned in the Constitution of Pakistan but is applied through judicial precedents.
• Article 199 of the Constitution grants the High Courts power to issue writs, but courts avoid ruling on political questions.
• The Supreme Court of Pakistan applies this doctrine in cases related to election disputes, parliamentary procedures, and executive decisions.

2. Meaning and Scope of the Doctrine of Political Question

2.1 Definition

• Political Question means that when a dispute involves issues that are better handled by the executive or legislature rather than the judiciary, courts will refuse to hear the case.

2.2 Example of Political Question in Constitutional Law

• A citizen challenges the government’s decision to conduct foreign negotiations.
• The court may refuse to hear the case, stating that foreign policy decisions are a political question.

2.3 Scope of the Doctrine

• Applied in constitutional law, election disputes, foreign policy, and legislative decisions.
• Ensures that courts do not interfere in matters where they lack expertise or authority.

3. Principles Governing the Doctrine of Political Question

3.1 Some Issues Are Best Resolved by the Executive or Legislature

• Courts recognize that certain matters are outside their jurisdiction.

3.2 Courts Should Not Overstep Their Role in a Democracy

• Judicial intervention should not undermine the roles of the elected government.

3.3 If No Clear Legal Standard Exists, Courts Avoid Ruling

• Matters without clear constitutional or legal guidance are deemed political questions.

4. Application of the Doctrine of Political Question in Pakistan

4.1 In Electoral and Parliamentary Disputes

• The court may refuse to interfere in matters related to election results or parliamentary procedures.
• Example:

• A petition challenges the dissolution of Parliament by the President.
• The court may declare it a political question and decline to intervene.

4.2 In Foreign Policy and Diplomatic Relations

• Decisions related to treaties, international relations, and war are considered political questions.
• Example:

• A citizen files a case demanding the government cut diplomatic ties with another country.
• The court refuses, stating it is a political question.

4.3 In National Security and Defense Matters

• Military and security policy decisions are generally not subject to judicial review.
• Example:

• A petition challenges the government’s decision to deploy troops to a conflict zone.
• The court dismisses the case as a political question.

4.4 In Economic and Policy Decisions

• Decisions on economic planning, taxation, and resource allocation are considered political matters.
• Example:

• A petition seeks judicial review of the national budget.
• The court rules that budgetary decisions are the domain of Parliament.

5. When the Doctrine of Political Question Does Not Apply

5.1 If the Issue Involves a Clear Violation of Constitutional Rights

• If a political decision violates fundamental rights, courts may intervene.
• Example:

• A law restricting press freedom is challenged.
• The court reviews the case because fundamental rights are involved.

5.2 If There Is a Clear Legal Standard for Judicial Review

• If a matter is explicitly defined in the Constitution or statutes, courts can decide it.
• Example:

• A case challenges the process of impeaching a government official.
• If constitutional procedures were not followed, the court may intervene.

5.3 If Executive Actions Are Unlawful or Arbitrary

• Courts can review government actions to ensure they comply with the law.
• Example:

• A government policy discriminating against a minority group is challenged.
• The court may intervene on legal grounds.

6. Legal Consequences of the Doctrine of Political Question

6.1 Preserves the Separation of Powers

• Ensures that courts do not interfere in political decision-making.

6.2 Limits Judicial Overreach

• Prevents courts from making rulings on issues beyond their expertise.

6.3 Protects Democratic Processes

• Allows elected representatives to make political decisions without judicial interference.

7. Difference Between Political Question and Judicial Review

Feature	Political Question	Judicial Review
Definition	Courts avoid ruling on issues that belong to the executive or legislature.	Courts review laws and government actions to ensure they comply with the Constitution.
Effect	The court refuses to hear the case.	The court determines whether a law or action is constitutional.
Example	A court refuses to rule on foreign policy matters.	A court strikes down a law that violates human rights.

8. Judicial Interpretations of the Doctrine of Political Question in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that parliamentary procedures cannot be challenged in court as they are political questions.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that matters related to the dissolution of Parliament are political questions and not subject to judicial review.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that foreign relations and treaty decisions are political questions and not reviewable by courts.

9. Importance of the Doctrine of Political Question

9.1 Prevents Judicial Interference in Political and Policy Matters

• Ensures courts do not make policy decisions meant for elected officials.

9.2 Maintains the Balance of Power Between Government Branches

• Prevents conflicts between the judiciary, executive, and legislature.

9.3 Protects the Integrity of Democratic Institutions

• Ensures that political decisions remain in the hands of elected representatives.

10. Conclusion

The Doctrine of Political Questionensures thatcourts do not interfere in matters that are best handled by the executive or legislature.Courts in Pakistanapply this doctrine to avoid ruling on political disputes, electoral matters, foreign policy, and national security decisions. However,if a political decision violates constitutional rights or legal standards, courts may intervene. Bymaintaining the separation of powers and upholding democratic governance, this doctrine plays a crucial role in preserving judicial integrity and the rule of law.

 

CHAPTER 77 – THE DOCTRINE OF COLOURABLE LEGISLATION

1. Introduction to the Doctrine of Colourable Legislation

1.1 The Doctrine of Colourable Legislation is a legal principle that states that when a legislature does something indirectly that it cannot do directly, the law it enacts is unconstitutional and invalid.

1.2 Purpose of the Doctrine of Colourable Legislation:

• To prevent legislatures from exceeding their constitutional authority by disguising their true intent.
• To ensure that legislative powers are exercised within their constitutional limits.
• To maintain the balance of power between different levels of government.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the distribution of legislative powers between the federal and provincial governments.
• The courts in Pakistan apply the doctrine to determine whether a law is a disguised attempt to exceed constitutional limits.

2. Meaning and Scope of the Doctrine of Colourable Legislation

2.1 Definition

• Colourable Legislation means that when a law appears to be within a legislature’s authority but is actually a disguised attempt to do something unconstitutional, it is invalid.

2.2 Example of Colourable Legislation in Constitutional Law

• A provincial government enacts a law regulating banking, which is a federal subject.
• The law is struck down because it indirectly encroaches on federal jurisdiction.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative powers, and judicial review.
• Ensures that laws are not enacted with hidden unconstitutional motives.

3. Principles Governing the Doctrine of Colourable Legislation

3.1 The Legislature Cannot Do Indirectly What It Cannot Do Directly

• If a legislature lacks authority over a subject, it cannot pass laws disguised as something else.

3.2 The Court Looks at the Substance, Not Just the Form of the Law

• Judicial review examines the real purpose behind a law, not just its wording.

3.3 If the Law Exceeds Constitutional Limits, It Is Void

• A law that violates legislative authority is struck down as unconstitutional.

4. Application of the Doctrine of Colourable Legislation in Pakistan

4.1 In Federal and Provincial Legislative Powers

• If a provincial government enacts a law on a federal subject, it may be struck down.
• Example:

• A provincial assembly passes a law on currency regulation.
• The law is unconstitutional because currency is a federal matter.

4.2 In Taxation and Revenue Laws

• A law imposing a fee may be declared unconstitutional if it is disguised as a tax.
• Example:

• A provincial law imposes a “service charge” on imports, which is effectively a customs duty.
• The law is struck down because customs duties are a federal subject.

4.3 In Political and Electoral Laws

• A law restricting political opposition may be invalid if disguised as a regulatory measure.
• Example:

• A law imposes a strict licensing system for political rallies.
• If the real intent is to suppress opposition, the law may be unconstitutional.

4.4 In Corporate and Economic Regulations

• A government cannot bypass constitutional restrictions by disguising regulatory measures.
• Example:

• A law restricting foreign businesses is passed as an environmental regulation.
• If the true purpose is economic control, it may be unconstitutional.

5. When the Doctrine of Colourable Legislation Does Not Apply

5.1 If the Law Falls Clearly Within Legislative Authority

• If a law is genuinely within the legislature’s jurisdiction, it is valid.
• Example:
• A provincial law regulating local businesses is challenged but upheld as constitutional.

5.2 If the Law Has a Legitimate Purpose

• If the law’s primary goal is lawful, it is not colourable legislation.
• Example:
• A tax on luxury goods is enacted to raise revenue, not to target a specific industry.

5.3 If the Challenge Is Based Only on Political Motives

• Courts examine legal authority, not political arguments.
• Example:
• A law disliked by a political party is challenged, but courts uphold it as constitutional.

6. Legal Consequences of the Doctrine of Colourable Legislation

6.1 Prevents Legislatures from Overstepping Their Authority

• Ensures that laws stay within constitutional limits.

6.2 Strengthens Judicial Review and Constitutional Governance

• Gives courts the power to strike down unconstitutional laws.

6.3 Protects Citizens from Indirect Legislative Overreach

• Ensures transparency in government decision-making.

7. Difference Between Colourable Legislation and Ultra Vires

Feature	Colourable Legislation	Ultra Vires
Definition	A law that indirectly exceeds legislative authority.	A law that directly exceeds constitutional or legal limits.
Effect	The law is struck down if its real intent is unconstitutional.	The law is declared void if it is beyond legal authority.
Example	A law imposing a “fee” that is actually a tax.	A provincial law regulating a federal subject.

8. Judicial Interpretations of the Doctrine of Colourable Legislation in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a law appearing to regulate industry but actually imposing an unauthorized tax was unconstitutional.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that laws must be reviewed based on their true purpose, not just their wording.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court struck down a law that disguised political restrictions as administrative rules.

9. Importance of the Doctrine of Colourable Legislation

9.1 Ensures That Laws Are Transparent and Constitutionally Valid

• Prevents governments from disguising unconstitutional actions.

9.2 Strengthens Legislative Accountability and Judicial Oversight

• Allows courts to check whether laws serve legitimate purposes.

9.3 Maintains the Federal Structure and Separation of Powers

• Prevents encroachments on jurisdiction by different levels of government.

10. Conclusion

The Doctrine of Colourable Legislationensures thatlegislatures do not pass laws that indirectly exceed their constitutional authority.Courts in Pakistanapply this doctrine to examine whether a law’s true purpose aligns with its stated intent.By protecting constitutional limits, ensuring transparency, and maintaining legislative accountability, this doctrine plays a crucial role in upholding the rule of law.

CHAPTER 78 – THE DOCTRINE OF ECLIPSE

1. Introduction to the Doctrine of Eclipse

1.1 The Doctrine of Eclipse is a legal principle that states that if a law is inconsistent with fundamental rights at the time of enactment, it becomes inoperative (eclipsed) but does not completely cease to exist. If the inconsistency is later removed, the law becomes active again.

1.2 Purpose of the Doctrine of Eclipse:

• To ensure that laws inconsistent with fundamental rights are not entirely void but only temporarily inactive.
• To allow such laws to become enforceable again if constitutional amendments remove the inconsistency.
• To maintain continuity in legislation while upholding constitutional supremacy.

1.3 Legal Basis in Pakistan

• Article 8 of the Constitution of Pakistan, 1973, states that any law inconsistent with fundamental rights is void to the extent of the inconsistency.
• The courts in Pakistan apply the doctrine to laws that predate constitutional amendments affecting fundamental rights.

2. Meaning and Scope of the Doctrine of Eclipse

2.1 Definition

• Eclipse means that when a law conflicts with fundamental rights, it is not struck down completely but remains inactive until the inconsistency is removed.

2.2 Example of the Doctrine of Eclipse in Constitutional Law

• A law restricting freedom of speech is enacted before fundamental rights are introduced in the Constitution.
• Once the Constitution guarantees freedom of speech, the law becomes inoperative.
• If the Constitution is later amended to allow such restrictions, the law becomes valid again.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative interpretation, and judicial review.
• Ensures that laws do not become permanently void but remain inactive until revived by constitutional changes.

3. Principles Governing the Doctrine of Eclipse

3.1 The Law Must Be in Conflict with Fundamental Rights

• A law is eclipsed only if it contradicts constitutional provisions.

3.2 The Law Is Not Completely Repealed but Becomes Inoperative

• The law remains on the statute books but cannot be enforced.

3.3 If the Conflict Is Removed, the Law Revives Automatically

• When a constitutional amendment removes the inconsistency, the law regains validity.

4. Application of the Doctrine of Eclipse in Pakistan

4.1 In Pre-Constitutional Laws

• Laws enacted before the adoption of fundamental rights may become inactive if they conflict with the Constitution.
• Example:

• A pre-independence law restricting political gatherings contradicts constitutional rights.
• The law remains inoperative but is not repealed.

4.2 In Laws That Become Inconsistent Due to Constitutional Amendments

• If a constitutional amendment grants new rights, existing contradictory laws become eclipsed.
• Example:

• A law limiting press freedom exists before a constitutional amendment guarantees free speech.
• The law becomes inoperative unless amended.

4.3 In Revival of Laws Through Constitutional Amendments

• If the Constitution is amended to remove the inconsistency, the law revives.
• Example:

• A property law contradicting constitutional equality rights becomes inactive.
• If a later amendment allows such laws, they become valid again.

4.4 In Judicial Review of Statutes

• Courts declare laws inoperative rather than void when applying this doctrine.
• Example:
• A court rules that a labor law is inconsistent with fundamental rights but does not repeal it.

5. When the Doctrine of Eclipse Does Not Apply

5.1 If the Law Was Void from the Beginning

• If a law was unconstitutional at the time of its enactment, it is completely void.
• Example:
• A law violating fundamental rights enacted after the Constitution cannot be revived.

5.2 If the Inconsistency Cannot Be Removed by Constitutional Amendment

• Some laws contradict core constitutional principles and cannot be revived.
• Example:
• A law allowing discrimination based on race would remain void despite amendments.

5.3 If the Legislature Explicitly Repeals the Law

• A repealed law cannot be revived under this doctrine.
• Example:

• A government repeals a law restricting religious practices.
• It cannot be revived even if the Constitution is amended.

6. Legal Consequences of the Doctrine of Eclipse

6.1 Ensures That Laws Are Not Permanently Lost Due to Constitutional Changes

• Preserves laws that may become valid in the future.

6.2 Prevents Retroactive Invalidation of Laws

• Pre-constitutional laws remain on record instead of being immediately repealed.

6.3 Allows Laws to Be Reactivated If Constitutional Conflicts Are Resolved

• Provides a legal mechanism for restoring previously inoperative statutes.

7. Difference Between the Doctrine of Eclipse and the Doctrine of Severability

Feature	Doctrine of Eclipse	Doctrine of Severability
Definition	A law conflicting with fundamental rights becomes inoperative but not void.	An unconstitutional part of a law is removed while the rest remains valid.
Effect	The law can become active again if the inconsistency is removed.	The unconstitutional section is permanently removed from the law.
Example	A pre-independence law contradicting new fundamental rights is inoperative.	A law with an unconstitutional censorship clause has that clause removed, but the rest remains valid.

8. Judicial Interpretations of the Doctrine of Eclipse in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that pre-constitutional laws that contradict fundamental rights are not automatically void but become inoperative.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that if a law becomes inconsistent with a later constitutional amendment, it is eclipsed but not repealed.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that if a law is reactivated through a constitutional amendment, it becomes enforceable again.

9. Importance of the Doctrine of Eclipse

9.1 Ensures That Laws Are Not Arbitrarily Invalidated

• Allows for legal continuity despite constitutional changes.

9.2 Provides a Flexible Approach to Legislative Review

• Balances constitutional supremacy with legislative intent.

9.3 Allows for the Revival of Laws in Changing Constitutional Frameworks

• Ensures that laws remain adaptable to future amendments.

10. Conclusion

TheDoctrine of Eclipseensures thatlaws inconsistent with fundamental rights are not permanently void but remain inactive unless the inconsistency is removed.Courts in Pakistanapply this doctrine to preserve legal continuity while upholding constitutional supremacy.By allowing laws to become enforceable again through constitutional amendments, this doctrine plays a crucial role in maintaining a stable and adaptable legal system.

CHAPTER 79 – THE DOCTRINE OF PITH AND SUBSTANCE

1. Introduction to the Doctrine of Pith and Substance

1.1 The Doctrine of Pith and Substance is a legal principle that states that when determining the constitutional validity of a law, courts must look at its true nature (pith and substance) rather than just its title or incidental effects.

1.2 Purpose of the Doctrine of Pith and Substance:

• To ensure that legislative powers are exercised appropriately by examining the core subject of a law.
• To prevent laws from being struck down merely because they incidentally affect matters beyond the enacting legislature’s jurisdiction.
• To maintain the balance of power between different levels of government.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the legislative powers of the federal and provincial governments.
• The courts in Pakistan apply this doctrine to resolve disputes regarding legislative competence.

2. Meaning and Scope of the Doctrine of Pith and Substance

2.1 Definition

• Pith and Substance means that courts must examine the real essence or dominant purpose of a law to determine whether it falls within the legislative authority of the enacting body.

2.2 Example of the Doctrine of Pith and Substance in Constitutional Law

• A provincial government enacts a law regulating labor conditions in factories.
• The law incidentally affects taxation, which is a federal subject.
• The court upholds the law, stating that its pith and substance is labor regulation, not taxation.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative powers, and judicial review.
• Ensures that laws are assessed based on their true purpose, not just their incidental effects.

3. Principles Governing the Doctrine of Pith and Substance

3.1 The Primary Objective of the Law Must Be Identified

• Courts analyze the core subject matter rather than incidental effects.

3.2 If the Law’s True Nature Falls Within the Legislature’s Authority, It Is Valid

• Even if a law affects another jurisdiction incidentally, it remains valid if its primary purpose is within legislative authority.

3.3 Courts Must Prevent Legislative Overreach Through Mislabeling

• A legislature cannot disguise laws to bypass constitutional limits.

4. Application of the Doctrine of Pith and Substance in Pakistan

4.1 In Federal and Provincial Legislative Powers

• If a provincial law primarily concerns a provincial subject but incidentally affects a federal subject, it is still valid.
• Example:

• A law regulating agriculture (provincial subject) incidentally affects land revenue (federal subject).
• The court upholds the law as its pith and substance is agriculture.

4.2 In Taxation and Revenue Laws

• A law mainly about trade but affecting taxation is valid if its core subject is trade.
• Example:

• A provincial law on market regulations indirectly affects federal tax collection.
• The law remains valid as its core purpose is trade regulation.

4.3 In Criminal and Civil Laws

• A law addressing crime prevention but affecting business practices is upheld if its main intent is criminal regulation.
• Example:

• A law targeting fraudulent business practices is challenged for affecting commercial laws.
• The court upholds it, stating that its pith and substance is fraud prevention.

4.4 In Administrative and Regulatory Laws

• A law regulating industries remains valid even if it indirectly affects employment law.
• Example:

• A provincial law controlling pollution affects employment conditions.
• The court holds it valid as its core intent is environmental protection.

5. When the Doctrine of Pith and Substance Does Not Apply

5.1 If the Law Is Clearly Outside the Legislature’s Competence

• If the primary subject falls outside the enacting body’s jurisdiction, the law is invalid.
• Example:
• A provincial law directly imposing federal taxes is unconstitutional.

5.2 If the Law Is a Disguised Attempt to Legislate on Another Subject

• If a law is deliberately framed to bypass constitutional limits, it is invalid.
• Example:

• A provincial government enacts a “healthcare fee” that is actually a sales tax.
• The court strikes it down as colourable legislation.

5.3 If the Law’s Incidental Effects Are Too Significant

• If incidental effects are so major that they change the core nature of the law, it may be struck down.
• Example:
• A trade regulation law indirectly imposing excessive taxes is invalid.

6. Legal Consequences of the Doctrine of Pith and Substance

6.1 Prevents Unnecessary Invalidation of Laws

• Allows courts to uphold laws even if they affect other jurisdictions.

6.2 Strengthens Legislative Clarity and Stability

• Ensures that laws are interpreted based on their true purpose.

6.3 Balances Federalism and Legislative Authority

• Prevents legislative conflicts while maintaining government functions.

7. Difference Between the Doctrine of Pith and Substance and Colourable Legislation

Feature	Doctrine of Pith and Substance	Doctrine of Colourable Legislation
Definition	Examines a law’s true purpose to determine its validity.	Determines whether a law is disguising its true intent to bypass legal limits.
Effect	Allows minor incidental effects without invalidating the law.	Strikes down laws if their real intent is unconstitutional.
Example	A law on labor rights affecting taxation is upheld if its core subject is labor regulation.	A law imposing a disguised tax under another name is struck down.

8. Judicial Interpretations of the Doctrine of Pith and Substance in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that a law’s validity depends on its primary purpose, not incidental effects.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that if a provincial law indirectly affects a federal subject but its main objective is valid, it remains enforceable.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that legislative competence must be assessed based on the core subject of the law.

9. Importance of the Doctrine of Pith and Substance

9.1 Ensures Laws Are Not Invalidated for Minor Overlaps

• Prevents unnecessary legal disputes over jurisdiction.

9.2 Maintains Legislative Stability and Federalism

• Ensures laws serve their intended purpose while respecting constitutional boundaries.

9.3 Allows Flexibility in Legislative Interpretation

• Ensures courts consider laws based on substance rather than technicalities.

10. Conclusion

The Doctrine of Pith and Substanceensures thatlaws are assessed based on their true intent rather than incidental effects.Courts in Pakistanapply this doctrine to resolve disputes over legislative authority and maintain constitutional balance.By allowing minor overlaps in jurisdiction while preserving legislative competence, this doctrine plays a crucial role in strengthening legal interpretation and governance.

CHAPTER 80 – THE DOCTRINE OF REPUGNANCY

1. Introduction to the Doctrine of Repugnancy

1.1 The Doctrine of Repugnancy is a legal principle that states that if two laws—one enacted by the federal government and the other by a provincial government—are inconsistent with each other, the federal law prevails, and the provincial law is rendered void to the extent of the inconsistency.

1.2 Purpose of the Doctrine of Repugnancy:

• To resolve conflicts between federal and provincial laws.
• To ensure that laws do not contradict each other within the legal system.
• To maintain the supremacy of federal legislation in case of a dispute.

1.3 Legal Basis in Pakistan

• Article 143 of the Constitution of Pakistan, 1973, states that if a provincial law is inconsistent with a federal law, the federal law prevails, and the provincial law shall be void to the extent of the repugnancy.
• The courts in Pakistan apply this doctrine to resolve conflicts between laws passed by different legislative bodies.

2. Meaning and Scope of the Doctrine of Repugnancy

2.1 Definition

• Repugnancy means that if two laws are inconsistent with each other, the one with higher authority (usually federal law) prevails, and the conflicting portion of the other law is struck down.

2.2 Example of Repugnancy in Constitutional Law

• A provincial government enacts a labor law that contradicts a federal labor law.
• The federal law prevails, and the provincial law is declared void to the extent of the inconsistency.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative powers, and judicial review.
• Ensures legal consistency between federal and provincial laws.

3. Principles Governing the Doctrine of Repugnancy

3.1 The Federal Law Prevails Over the Provincial Law

• If a conflict exists, federal law is upheld.

3.2 The Provincial Law Becomes Void Only to the Extent of the Conflict

• If only part of the provincial law conflicts with federal law, only that part is invalidated.

3.3 Courts Must Determine Whether the Conflict Is Irreconcilable

• If both laws can coexist without contradiction, repugnancy does not apply.

4. Application of the Doctrine of Repugnancy in Pakistan

4.1 In Federal and Provincial Legislative Conflicts

• If a provincial law contradicts a federal law on the same subject, the federal law prevails.
• Example:

• A federal law sets the minimum wage at Rs. 20,000, while a provincial law sets it at Rs. 18,000.
• The provincial law is void to the extent of the lower wage.

4.2 In Criminal and Penal Laws

• If a provincial law prescribes a different punishment for the same crime as federal law, the federal law prevails.
• Example:

• A federal law prescribes five years of imprisonment for fraud, but a provincial law prescribes three years.
• The federal law prevails, and the provincial law is overridden.

4.3 In Taxation and Revenue Laws

• If a provincial tax conflicts with a federally imposed tax, the federal law is upheld.
• Example:

• A federal law imposes an income tax exemption, but a provincial law imposes a tax on the same income.
• The provincial tax is void to the extent of the inconsistency.

4.4 In Religious and Constitutional Matters

• If a law conflicts with Islamic injunctions as interpreted by the Federal Shariat Court, it is declared repugnant.
• Example:

• A provincial law permitting interest-based banking is challenged for being against Islamic principles.
• The Federal Shariat Court may declare it repugnant.

5. When the Doctrine of Repugnancy Does Not Apply

5.1 If the Laws Can Be Harmonized

• If both laws can be applied together without conflict, repugnancy does not arise.
• Example:

• A federal law regulates vehicle safety, while a provincial law regulates traffic fines.
• Since they do not contradict each other, both remain valid.

5.2 If the Provincial Law Covers a Separate Area

• If the law relates to a matter under provincial jurisdiction, it remains valid.
• Example:
• A provincial law on agriculture does not conflict with a federal industrial law.

5.3 If the Federal Law Expressly Allows Provincial Variations

• If the federal law permits provinces to legislate on details, the provincial law remains valid.
• Example:
• A federal education law sets general standards but allows provinces to set their own policies.

6. Legal Consequences of the Doctrine of Repugnancy

6.1 Ensures Legal Consistency Across Pakistan

• Prevents conflicting laws from creating confusion.

6.2 Strengthens the Supremacy of the Federal Constitution

• Ensures that federal laws override provincial inconsistencies.

6.3 Allows Judicial Review to Maintain Legislative Order

• Gives courts the power to strike down repugnant provincial laws.
•  

7. Difference Between the Doctrine of Repugnancy and the Doctrine of Severability

Feature	Doctrine of Repugnancy	Doctrine of Severability
Definition	When a provincial law conflicts with a federal law, the federal law prevails.	Only the unconstitutional parts of a law are removed while the rest remains valid.
Effect	The provincial law is void to the extent of the inconsistency.	The remaining valid parts of the law continue to operate.
Example	A provincial labor law contradicting a federal labor law is struck down.	An unconstitutional section of an employment law is removed, but the rest remains valid.

8. Judicial Interpretations of the Doctrine of Repugnancy in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that if a provincial law contradicts a federal law, the federal law prevails, and the provincial law is void to the extent of repugnancy.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that a federal law on elections overrode provincial rules on the same subject.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a provincial tax conflicting with a federally exempted category was invalid due to repugnancy.

9. Importance of the Doctrine of Repugnancy

9.1 Prevents Legal Chaos and Confusion

• Ensures that all laws align with the constitutional hierarchy.

9.2 Strengthens Federal Authority and Legislative Clarity

• Maintains national unity by upholding federal supremacy.

9.3 Allows Provincial Legislation to Exist Within Constitutional Limits

• Ensures that provinces can legislate while respecting federal laws.

10. Conclusion

TheDoctrine of Repugnancyensures thatif a provincial law is inconsistent with a federal law, the federal law prevails, and the provincial law is void to the extent of the inconsistency.Courts in Pakistan apply this doctrine to maintain legal uniformity and ensure that provincial laws remain within constitutional boundaries.By preventing contradictions between different levels of government, this doctrine plays a crucial role in upholding legislative clarity and constitutional supremacy.

CHAPTER 81 – THE DOCTRINE OF OCCUPIED FIELD

1. Introduction to the Doctrine of Occupied Field

1.1 The Doctrine of Occupied Field is a legal principle that states that when the federal legislature has enacted a law covering a particular subject, provincial legislatures cannot make laws on the same subject unless expressly permitted.

1.2 Purpose of the Doctrine of Occupied Field:

• To prevent legislative conflicts between the federal and provincial governments.
• To ensure consistency in laws by preventing provinces from legislating on matters already covered by federal law.
• To maintain the supremacy of federal laws in areas where they have already legislated.

1.3 Legal Basis in Pakistan

• Article 142 of the Constitution of Pakistan, 1973, defines the legislative powers of the federal and provincial governments.
• The courts in Pakistan apply this doctrine when a provincial law attempts to regulate a subject already covered by federal legislation.

2. Meaning and Scope of the Doctrine of Occupied Field

2.1 Definition

• Occupied Field means that when a federal law exists on a particular subject, provincial legislatures are barred from enacting contradictory or parallel laws on the same subject.

2.2 Example of Occupied Field in Constitutional Law

• A federal law regulates banking and financial institutions.
• If a province enacts its own law on banking, it is struck down because the field is already occupied by federal law.

2.3 Scope of the Doctrine

• Applied in constitutional law, legislative powers, and judicial review.
• Ensures uniformity in laws across Pakistan and prevents legislative duplication.

3. Principles Governing the Doctrine of Occupied Field

3.1 If Federal Law Exists on a Subject, Provincial Law Cannot Contradict It

• If a federal statute already regulates a subject, provinces must comply with it.

3.2 Provincial Laws Cannot Encroach on Matters Already Covered by Federal Legislation

• If a provincial law attempts to regulate an area already covered by federal law, it is invalid.

3.3 The Doctrine Does Not Apply If Federal Law Expressly Permits Provincial Legislation

• If the federal law allows provinces to make rules, they can legislate within that framework.

4. Application of the Doctrine of Occupied Field in Pakistan

4.1 In Federal and Provincial Legislative Conflicts

• If a provincial law overlaps with a federal law on the same subject, the federal law prevails.
• Example:

• A federal law regulates corporate taxation.
• A province enacts a separate law imposing corporate taxes.
• The provincial law is invalid because the field is already occupied by federal law.

4.2 In Banking and Financial Regulations

• Since banking is a federal subject, provinces cannot regulate banking operations.
• Example:

• A provincial law regulating loan interest rates is challenged.
• The court strikes it down, citing the occupied field doctrine.

4.3 In Industrial and Labor Laws

• If a federal law regulates labor rights, provincial labor laws must conform to it.
• Example:

• A federal law sets minimum wage rules for industries.
• A provincial law with different minimum wages is struck down.

4.4 In Communication and Transport Laws

• Since telecommunications and railways fall under federal jurisdiction, provinces cannot regulate them.
• Example:

• A provincial government enacts a law regulating railway safety standards.
• The court invalidates it, stating that railways are a federal subject.

5. When the Doctrine of Occupied Field Does Not Apply

5.1 If the Federal Law Does Not Fully Cover the Subject

• If federal law does not regulate all aspects of a subject, provinces can legislate on the remaining aspects.
• Example:
• A federal law regulates air travel, but provinces can regulate taxi services to airports.

5.2 If the Federal Law Expressly Permits Provincial Legislation

• Some federal laws allow provinces to make additional rules.
• Example:
• A federal law on health allows provinces to regulate public hospitals.

5.3 If the Federal and Provincial Laws Can Coexist Without Conflict

• If provincial laws do not contradict federal law, both can remain in effect.
• Example:
• A federal law regulates food safety, while a provincial law sets hygiene standards for restaurants.

6. Legal Consequences of the Doctrine of Occupied Field

6.1 Prevents Legislative Overlap and Confusion

• Ensures that laws do not conflict with each other.

6.2 Strengthens the Supremacy of Federal Legislation

• Prevents provinces from legislating on matters already regulated by the federal government.

6.3 Ensures a Harmonized and Consistent Legal System

• Maintains uniformity in laws across Pakistan.

7. Difference Between the Doctrine of Occupied Field and the Doctrine of Repugnancy

Feature	Doctrine of Occupied Field	Doctrine of Repugnancy
Definition	When federal law regulates a subject, provincial law on the same subject is invalid.	When a provincial law contradicts a federal law, the federal law prevails.
Effect	The provincial law is void if the subject is already covered by federal law.	The provincial law is void only to the extent of the inconsistency.
Example	A federal law regulates telecommunications, so a provincial telecom law is invalid.	A provincial labor law contradicting federal labor law is struck down only where it conflicts.

8. Judicial Interpretations of the Doctrine of Occupied Field in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that if a federal law already regulates a subject, provincial laws on the same subject are invalid.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that a provincial law attempting to regulate banking was invalid because the field was occupied by federal law.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that a provincial law conflicting with a federal trade regulation was unconstitutional.

9. Importance of the Doctrine of Occupied Field

9.1 Prevents Provinces from Encroaching on Federal Authority

• Ensures legislative powers are exercised within constitutional limits.

9.2 Ensures Legal Uniformity Across Pakistan

• Prevents inconsistent laws between provinces and the federation.

9.3 Maintains Legislative Order and Federalism

• Ensures that federal laws remain effective without unnecessary provincial interference.

10. Conclusion

The Doctrine of Occupied Fieldensures thatwhen a federal law exists on a particular subject, provincial legislatures cannot make laws on the same subject unless expressly permitted.Courts in Pakistan apply this doctrine to maintain legislative harmony and prevent jurisdictional conflicts.Byupholding the supremacy of federal legislation while allowing provinces to legislate within their domain, this doctrine plays a crucial role in maintaining legal consistency and federal governance.

CHAPTER 82 – THE DOCTRINE OF HARMONIOUS CONSTRUCTION

1. Introduction to the Doctrine of Harmonious Construction

1.1 The Doctrine of Harmonious Construction is a legal principle that states that when two or more provisions of a statute or the Constitution appear to be in conflict, they should be interpreted in a way that gives effect to both rather than nullifying either.

1.2Purpose of the Doctrine of Harmonious Construction:

• Toresolve conflicts between different provisions of a law or between federal and provincial laws.
• Toensure that laws are interpreted in a way that upholds their objectives rather than invalidating them.
• Tomaintain legislative intent and prevent contradictions in legal provisions.

1.3Legal Basis in Pakistan

• TheConstitution of Pakistan, 1973, outlines both federal and provincial legislative powers, often leading to potential conflicts that require harmonious interpretation.
• Thecourts in Pakistan apply this doctrine to resolve conflicts between constitutional provisions, statutes, and governmental powers.

2. Meaning and Scope of the Doctrine of Harmonious Construction

2.1 Definition

• Harmonious Construction means that when different provisions of a law or Constitution appear to conflict, courts interpret them in a way that allows both to coexist without rendering any provision meaningless.

2.2 Example of Harmonious Construction in Constitutional Law

• Article 175 of the Constitution states that the judiciary shall function independently, while Article 90 grants executive authority to the federal government.
• A conflict may arise when the government influences judicial appointments.
• The courts resolve it through harmonious construction by balancing judicial independence with executive authority.

2.3 Scope of the Doctrine

• Applied in constitutional law, statutory interpretation, and judicial review.
• Ensures that laws are interpreted in a way that maintains their full effect rather than invalidating any part.

3. Principles Governing the Doctrine of Harmonious Construction

3.1 No Provision Should Be Rendered Useless or Redundant

• Every part of a statute or Constitution should have meaning and effect.

3.2 Conflicting Provisions Must Be Read Together to Give Effect to Both

• The interpretation should allow both provisions to coexist.

3.3 The Interpretation Should Uphold Legislative Intent

• Courts must ensure that the law is applied as the legislature intended.

4. Application of the Doctrine of Harmonious Construction in Pakistan

4.1 In Constitutional Interpretation

• When two constitutional provisions seem to conflict, courts interpret them in a way that preserves both.
• Example:

• Article 8 declares that laws violating fundamental rights are void.
• Article 227 states that all laws must conform to Islamic injunctions.
• The courts apply harmonious construction to ensure that laws respect both fundamental rights and Islamic principles.

4.2 In Federal and Provincial Legislative Powers

• When both federal and provincial laws apply to a subject, courts interpret them to allow both to function.
• Example:

• A federal law regulates environmental protection, while a provincial law governs urban planning.
• The courts harmonize them to ensure both laws work together rather than invalidating one.

4.3 In Fundamental Rights and Directive Principles of State Policy

• If a directive principle appears to limit a fundamental right, courts interpret them harmoniously.
• Example:

• Article 25 guarantees equality before the law, while Article 37 promotes economic justice.
• The courts balance both by ensuring that economic policies do not violate fundamental rights.

4.4 In Statutory Interpretation and Administrative Law

• If two provisions of a statute seem contradictory, courts interpret them to maintain their consistency.
• Example:

• A law sets a general deadline for appeals but also provides an exception for specific cases.
• The court ensures both provisions operate together rather than invalidating the exception.

5. When the Doctrine of Harmonious Construction Does Not Apply

5.1 If One Provision Clearly Overrides Another

• If one law or constitutional provision expressly prevails over another, courts follow the overriding provision.
• Example:

• Article 199 grants High Courts writ jurisdiction, but Article 212 gives exclusive jurisdiction to Service Tribunals in certain cases.
• The courts recognize Article 212 as overriding in service matters.

5.2 If the Provisions Are Completely Irreconcilable

• If two provisions cannot be harmonized, courts may have to invalidate one.
• Example:
• A provincial law directly contradicting a federal law on a federal subject cannot be harmonized.

5.3 If Legislative Intent Clearly Favors One Interpretation

• If the legislature intended one provision to be dominant, courts must uphold that intention.
• Example:

• A constitutional amendment explicitly removes a previous provision.
• The new provision prevails, and the old one is considered repealed.

6. Legal Consequences of the Doctrine of Harmonious Construction

6.1 Ensures That All Provisions of the Law Are Given Meaning

• Prevents legal provisions from becoming redundant or ineffective.

6.2 Strengthens Legal and Constitutional Interpretation

• Helps courts resolve conflicts without unnecessary invalidation of laws.

6.3 Maintains Stability in the Legal System

• Ensures that laws function together without causing contradictions.

7. Difference Between the Doctrine of Harmonious Construction and the Doctrine of Repugnancy

Feature	Doctrine of Harmonious Construction	Doctrine of Repugnancy
Definition	Resolves conflicts between legal provisions by interpreting them in a way that allows both to function.	When a provincial law contradicts a federal law, the federal law prevails.
Effect	Ensures that both provisions remain operational.	The provincial law is void to the extent of the inconsistency.
Example	A fundamental right and a directive principle are interpreted to coexist.	A provincial taxation law contradicting a federal tax law is struck down.

8. Judicial Interpretations of the Doctrine of Harmonious Construction in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. United Sugar Mills (PLD 1980 SC 120)

• The Supreme Court ruled that when two laws appear contradictory, courts should interpret them in a way that allows both to be effective.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that fundamental rights and state policies must be interpreted harmoniously to ensure neither is rendered ineffective.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that if federal and provincial laws appear to overlap, courts must interpret them in a way that respects both.

9. Importance of the Doctrine of Harmonious Construction

9.1 Prevents Legal Conflicts and Unnecessary Invalidation of Laws

• Ensures that different provisions of the Constitution and laws work together.

9.2 Strengthens Constitutional and Legislative Interpretation

• Helps courts resolve complex legal disputes.

9.3 Maintains Stability and Consistency in the Legal System

• Ensures that laws function without contradiction.

10. Conclusion

The Doctrine of Harmonious Constructionensures thatwhen different legal provisions appear to be in conflict, they should be interpreted in a way that allows both to remain effective rather than invalidating either.Courts in Pakistanapply this doctrine to resolve disputes between constitutional provisions, statutes, and governmental powers.By promoting legal harmony and stability, this doctrine plays a crucial role in strengthening constitutional and statutory interpretation.

CHAPTER 83 – THE DOCTRINE OF IMPLIED POWERS

1. Introduction to the Doctrine of Implied Powers

1.1 The Doctrine of Implied Powers is a legal principle that states that when a body or authority is granted an express power, it also has the implied power to take necessary actions to fulfill its primary function, even if those actions are not explicitly mentioned.

1.2 Purpose of the Doctrine of Implied Powers:

• To enable governments, institutions, and officials to perform their functions effectively.
• To allow authorities to exercise powers essential for carrying out their legally assigned duties.
• To ensure that the intent of the law is fulfilled, even if certain actions are not explicitly stated.

1.3 Legal Basis in Pakistan

• The Constitution of Pakistan, 1973, and various statutory laws recognize implied powers for government bodies and officials.
• The courts in Pakistan apply this doctrine to interpret legislative intent and ensure that authorities can effectively execute their mandates.

2. Meaning and Scope of the Doctrine of Implied Powers

2.1 Definition

• Implied Powers means that when an entity is granted a legal power or duty, it is also granted the necessary, reasonable, and incidental powers to achieve its purpose, even if not explicitly stated.

2.2 Example of Implied Powers in Constitutional Law

• Article 90 of the Constitution states that executive authority rests with the Prime Minister and Federal Government.
• Although not explicitly mentioned, the Prime Minister has the implied power to appoint ministers and advisors to assist in governance.

2.3 Scope of the Doctrine

• Applied in constitutional law, administrative law, statutory interpretation, and judicial review.
• Ensures that laws and executive functions are not hindered by overly restrictive interpretations.

3. Principles Governing the Doctrine of Implied Powers

3.1 Powers Expressly Granted Also Include Necessary Incidental Powers

• An authority given a legal power must also have the necessary means to implement it.

3.2 Implied Powers Cannot Contradict or Override Express Provisions

• A government or authority cannot use implied powers to exceed its legal limits.

3.3 Courts Must Interpret Implied Powers in Line with Legislative Intent

• The application of implied powers must be justified as necessary for carrying out express duties.

4. Application of the Doctrine of Implied Powers in Pakistan

4.1 In Constitutional Powers of the Government

• The executive, legislative, and judicial branches exercise implied powers to function effectively.
• Example:

• The President of Pakistan has the express power to grant pardons.
• The implied power includes setting conditions for the pardon.

4.2 In Legislative Interpretation

• Parliament has the implied power to make rules and procedures necessary to enact laws.
• Example:

• The Parliament is given the power to regulate trade.
• It has the implied power to establish trade commissions and enforcement mechanisms.

4.3 In Administrative and Executive Functions

• Government agencies have implied powers to implement policies efficiently.
• Example:
• A government department responsible for education has the implied power to establish training programs for teachers.

4.4 In Judicial Authority and Court Decisions

• Courts have the implied power to enforce judgments and regulate legal proceedings.
• Example:

• The Supreme Court has the express power of judicial review.
• It has the implied power to issue binding guidelines for lower courts.

5. When the Doctrine of Implied Powers Does Not Apply

5.1 If the Implied Power Directly Contradicts an Express Provision

• An implied power cannot be used to override a specific constitutional or statutory limit.
• Example:
• A minister cannot claim an implied power to override a law passed by Parliament.

5.2 If the Implied Power Is Not Reasonably Necessary

• The power must be essential, not just convenient.
• Example:
• A provincial government cannot claim an implied power to create a new tax unless explicitly authorized.

5.3 If the Implied Power Is Used for an Unauthorized Purpose

• Implied powers cannot be used to achieve objectives beyond legal authority.
• Example:
• A regulatory agency cannot use implied powers to enforce unrelated policies.

6. Legal Consequences of the Doctrine of Implied Powers

6.1 Ensures Effective Governance and Functioning of Legal Bodies

• Prevents administrative deadlocks due to overly strict interpretations.

6.2 Strengthens Legal Interpretation and Statutory Application

• Allows laws to be implemented effectively in real-world scenarios.

6.3 Prevents Authorities from Overstepping Their Mandates

• Ensures implied powers are exercised within reasonable limits.

7. Difference Between the Doctrine of Implied Powers and the Doctrine of Ultra Vires

Feature	Doctrine of Implied Powers	Doctrine of Ultra Vires
Definition	Grants necessary incidental powers to fulfill an express power.	Declares actions invalid if they exceed the legal authority of an entity.
Effect	Allows authorities to take reasonable actions beyond explicitly stated powers.	Prevents authorities from acting beyond their lawful jurisdiction.
Example	A regulatory body granted the power to enforce environmental laws has the implied power to conduct inspections.	A provincial government imposing federal taxes is ultra vires and invalid.

8. Judicial Interpretations of the Doctrine of Implied Powers in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that when a power is granted by the Constitution, all necessary incidental powers to exercise that function are implied.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that the Prime Minister has implied powers to take executive actions necessary for governance.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that the Election Commission has implied powers to regulate political parties even though it is not explicitly mentioned in election laws.

9. Importance of the Doctrine of Implied Powers

9.1 Prevents Administrative and Legal Paralysis

• Ensures that authorities can function effectively without needing constant legal amendments.

9.2 Allows Flexibility in Governance and Legal Interpretation

• Facilitates smooth execution of laws and government functions.

9.3 Ensures Authorities Operate Within Reasonable Boundaries

• Balances governmental discretion with legal accountability.

10. Conclusion

TheDoctrine of Implied Powersensures that when an authority is granted an express power, it also has the implied power to take necessary actions to fulfill its primary function.Courts in Pakistan apply this doctrine to enable effective governance while ensuring authorities do not exceed their mandates.By allowing reasonable discretion in the execution of laws, this doctrine plays a crucial role in maintaining efficient government operations and legal interpretation.

CHAPTER 84 – THE DOCTRINE OF STARE DECISIS

1. Introduction to the Doctrine of Stare Decisis

1.1 The Doctrine of Stare Decisis is a legal principle that states that courts should follow established precedents (previous judicial decisions) to ensure consistency and stability in the legal system.

1.2 Purpose of the Doctrine of Stare Decisis:

• To promote consistency and predictability in legal rulings.
• To ensure that similar cases are decided in a similar manner over time.
• To uphold the authority and integrity of judicial decisions.

1.3 Legal Basis in Pakistan

• The Constitution of Pakistan, 1973, grants the Supreme Court the power to set binding precedents for lower courts.
• Article 189 states that decisions of the Supreme Court are binding on all other courts in Pakistan.
• Article 201 states that decisions of the High Court are binding on lower courts within its jurisdiction.

2. Meaning and Scope of the Doctrine of Stare Decisis

2.1 Definition

• Stare Decisis (Latin for “to stand by things decided”) means that courts must respect and follow previous judicial rulings to ensure legal certainty and fairness.

2.2 Example of Stare Decisis in Judicial Interpretation

• The Supreme Court rules that evidence obtained through torture is inadmissible.
• Lower courts must follow this decision in similar cases.

2.3 Scope of the Doctrine

• Applied in constitutional law, criminal law, civil law, and administrative law.
• Ensures that court decisions remain consistent and legally sound over time.

3. Principles Governing the Doctrine of Stare Decisis

3.1 Higher Court Decisions Are Binding on Lower Courts

• A ruling by the Supreme Court must be followed by all lower courts.

3.2 Similar Cases Should Be Decided Similarly

• Courts must ensure that cases with similar facts and legal issues are decided consistently.

3.3 Courts Should Avoid Unnecessary Changes to Legal Precedents

• A precedent should not be overturned unless there is a strong justification.

4. Application of the Doctrine of Stare Decisis in Pakistan

4.1 In Constitutional Interpretation

• Decisions of the Supreme Court on constitutional matters must be followed by all courts.
• Example:

• The Supreme Court rules on the interpretation of fundamental rights.
• All High Courts must apply this ruling in similar cases.

4.2 In Criminal and Civil Law

• Precedents in criminal and civil matters guide future cases with similar legal questions.
• Example:

• The Supreme Court sets a rule for determining self-defense in murder cases.
• All lower courts must apply the same principle in future self-defense cases.

4.3 In Administrative and Taxation Laws

• Government agencies and tribunals follow judicial rulings on administrative matters.
• Example:

• A High Court rules on the taxation of digital businesses.
• The tax authorities must apply the ruling in future cases.

4.4 In Election and Political Matters

• Election tribunals and courts must follow higher court rulings on electoral disputes.
• Example:

• The Supreme Court rules on the eligibility of candidates for public office.
• All Election Tribunals must apply the same principle.

5. When the Doctrine of Stare Decisis Does Not Apply

5.1 If the Previous Decision Was Clearly Wrong or Unjust

• Courts may depart from precedent if it was wrongly decided.
• Example:
• A previous ruling denied legal rights to women, and the Supreme Court later corrects it.

5.2 If Social, Economic, or Legal Circumstances Have Changed

• Courts may overturn precedents if conditions have evolved significantly.
• Example:
• A court ruling on cybercrime from the 1990s may be reconsidered in light of modern digital advancements.

5.3 If a Higher Court Has Overruled the Precedent

• If the Supreme Court overturns a prior ruling, lower courts must follow the new decision.
• Example:

• The Supreme Court reverses a prior decision on capital punishment standards.
• All lower courts must now apply the new rule.

6. Legal Consequences of the Doctrine of Stare Decisis

6.1 Ensures Consistency and Stability in the Legal System

• Prevents arbitrary and unpredictable judicial decisions.

6.2 Strengthens Public Confidence in the Judiciary

• Ensures that legal outcomes remain fair and predictable.

6.3 Reduces the Burden on Courts by Avoiding Re-litigation of Settled Issues

• Saves judicial time by resolving similar cases efficiently.

7. Difference Between the Doctrine of Stare Decisis and Judicial Review

Feature	Doctrine of Stare Decisis	Judicial Review
Definition	Courts follow previous judicial decisions to maintain consistency.	Courts review laws and government actions to ensure they comply with the Constitution.
Effect	Ensures that similar cases are decided similarly.	Courts can strike down unconstitutional laws and actions.
Example	A Supreme Court ruling on property rights is followed by all lower courts.	A court invalidates a law that violates fundamental rights.

8. Judicial Interpretations of the Doctrine of Stare Decisis in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

• The Supreme Court ruled that previous decisions of the Court are binding on all lower courts.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

• The court held that judicial precedents must be followed unless there is a strong reason to overturn them.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

• The Supreme Court ruled that legal consistency must be maintained through adherence to established judicial rulings.

9. Importance of the Doctrine of Stare Decisis

9.1 Prevents Conflicting Judicial Rulings

• Ensures that similar cases are treated consistently.

9.2 Strengthens the Rule of Law and Legal Certainty

• Gives individuals and businesses confidence in legal outcomes.

9.3 Facilitates Judicial Efficiency and Reduces Unnecessary Litigation

• Saves time and resources by avoiding repeated debates on settled legal issues.

10. Conclusion

The Doctrine of Stare Decisisensures thatcourts follow established legal precedents to maintain consistency, stability, and fairness in judicial decisions.Courts in Pakistanapply this doctrine to ensure predictability in the legal system and uphold the authority of judicial rulings.By preventing arbitrary decisions and ensuring legal continuity, this doctrine plays a crucial role in strengthening the rule of law.

CHAPTER 85 – THE DOCTRINE OF RES JUDICATA

1. Introduction to the Doctrine of Res Judicata

1.1 The Doctrine of Res Judicata is a legal principle that ensures that once a court has decided a matter, it cannot be re-litigated between the same parties.

1.2 Purpose of the Doctrine of Res Judicata:

To prevent repeated litigation on the same issue.

To ensure finality and certainty in judicial decisions.

To protect judicial resources and avoid unnecessary court proceedings.

1.3 Legal Basis in Pakistan

Section 11 of the Code of Civil Procedure, 1908, states that a matter directly and substantially in issue in a former suit cannot be re-opened in a later suit between the same parties.

The courts in Pakistan apply this doctrine to prevent abuse of the legal system and ensure consistency in rulings.

2. Meaning and Scope of the Doctrine of Res Judicata

2.1 Definition

Res Judicata means that once a court has given a final judgment on a matter, the same issue cannot be raised again in another case involving the same parties.

2.2 Example of Res Judicata in Constitutional Law

A property dispute between two parties is decided by the Supreme Court.

One party cannot file another case on the same issue in a different court.

2.3 Scope of the Doctrine

Applied in civil cases, criminal law, administrative law, and constitutional law.

Ensures that court decisions are respected and not re-litigated unnecessarily.

3. Principles Governing the Doctrine of Res Judicata

3.1 The Matter Must Have Been Directly and Substantially in Issue

Only issues that were crucial to the prior case fall under Res Judicata.

3.2 The Decision Must Be Given by a Competent Court

If a court had no jurisdiction over the case, Res Judicata does not apply.

3.3 The Same Parties Must Be Involved in Both Cases

If the parties in the second case are different, Res Judicata is not applicable.

4. Application of the Doctrine of Res Judicata in Pakistan

4.1 In Civil and Property Disputes

If a property dispute is settled, it cannot be re-litigated.

Example:

A court rules on land ownership between two families.

The losing party cannot bring the same dispute to another court.

4.2 In Criminal Law

A person acquitted or convicted of a crime cannot be tried again for the same offense.

Example:

A man found not guilty of theft cannot be retried on the same charge.

4.3 In Constitutional and Administrative Matters

Once the Supreme Court rules on a constitutional issue, it cannot be challenged again.

Example:

A political party challenges election laws, and the court upholds them.

The same party cannot refile a case on the same laws.

5. When the Doctrine of Res Judicata Does Not Apply

5.1 If the Issue Was Not Decided on Merits

If a case was dismissed for technical reasons, Res Judicata does not apply.

Example:

A case dismissed for lack of evidence can be filed again with new evidence.

5.2 If the Court Had No Jurisdiction

If a previous court lacked jurisdiction, the case can be refiled in the correct court.

Example:

A family dispute wrongly decided by a commercial court can be taken to the family court.

5.3 If New Facts or Evidence Emerge

A case can be reopened if significant new facts come to light.

Example:

A criminal acquittal may be reconsidered if new DNA evidence is found.

6. Legal Consequences of the Doctrine of Res Judicata

6.1 Ensures Finality of Judicial Decisions

Prevents cases from being endlessly reopened.

6.2 Reduces the Burden on Courts

Saves judicial time and resources by avoiding repeated litigation.

6.3 Promotes Certainty and Stability in Legal Systems

Allows individuals and businesses to rely on court decisions with confidence.

7. Difference Between Res Judicata and Constructive Res Judicata

Feature	Res Judicata	Constructive Res Judicata
Definition	A matter directly decided by a court cannot be re-litigated.	If an issue could have been raised in a previous case but was not, it is barred.
Effect	The same issue cannot be re-tried.	A party cannot raise a related issue in a later case if they failed to raise it earlier.
Example	A land ownership case decided by the Supreme Court cannot be reopened.	A contractual dispute that could have been raised in an earlier case but was not is barred from being litigated separately.

8. Judicial Interpretations of the Doctrine of Res Judicata in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

The Supreme Court ruled that once a matter has been decided, it cannot be reopened in another court.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

The court held that judicial finality is crucial to prevent political and legal instability.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

The Supreme Court ruled that Res Judicata applies to constitutional cases and prevents re-litigation of settled issues.

9. Importance of the Doctrine of Res Judicata

9.1 Prevents Repetitive Litigation and Legal Uncertainty

Ensures that courts do not hear the same disputes repeatedly.

9.2 Strengthens Judicial Integrity and Legal Confidence

Allows individuals to trust that court decisions are final and binding.

9.3 Enhances the Efficiency of the Judicial System

Reduces unnecessary legal costs and delays in court proceedings.

10. Conclusion

TheDoctrine of Res Judicataensures thatonce a court has decided a case, it cannot be re-litigated between the same parties.Courts in Pakistanapply this doctrine to maintain judicial consistency, prevent unnecessary litigation, and uphold the integrity of the legal system.By ensuring finality in judicial decisions, this doctrine plays a crucial role in promoting stability and trust in the legal process.

CHAPTER 86 – THE DOCTRINE OF LACHES

1. Introduction to the Doctrine of Laches

1.1 The Doctrine of Laches is a legal principle that prevents claimants from bringing legal actions if they have unreasonably delayed in asserting their rights.

1.2 Purpose of the Doctrine of Laches:

Encourages timely legal action.

Prevents unfair disadvantage to the opposing party due to unnecessary delay.

Protects judicial resources by discouraging stale claims.

1.3 Legal Basis in Pakistan

The courts in Pakistan apply the doctrine to ensure fairness in cases where a delay has caused prejudice to the other party.

Applied in constitutional law, civil litigation, and administrative decisions.

2. Meaning and Scope of the Doctrine of Laches

2.1 Definition

Laches refers to the failure to assert a legal right within a reasonable time, leading to the assumption that the claimant has abandoned it.

2.2 Example of Laches in Legal Cases

A person has the right to challenge an administrative order but waits for ten years before filing a case.

Due to the long delay, the court may refuse to hear the case under the doctrine of laches.

2.3 Scope of the Doctrine

Applied in constitutional petitions, civil suits, and equity cases.

Does not apply where statutory limitation periods are expressly provided.

3. Principles Governing the Doctrine of Laches

3.1 Unreasonable Delay

The claimant must not have waited too long before filing a case.

3.2 Prejudice to the Opposing Party

If the delay has placed the opposing party at a disadvantage, the claim may be barred.

3.3 Good Faith Considerations

If the delay was due to fraud, concealment, or unavoidable circumstances, laches may not apply.

4. Application of the Doctrine of Laches in Pakistan

4.1 In Constitutional Cases

Courts reject late petitions challenging laws or executive actions if there was undue delay.

Example:

A citizen challenges a tax law after five years.

The court dismisses the petition due to delay.

4.2 In Civil Disputes

If a person delays filing a land dispute claim for decades, the claim may be barred.

Example:

A heir waits 30 years to challenge a will.

The court applies laches and dismisses the claim.

4.3 In Administrative Law

Challenges to government decisions must be made within a reasonable time.

Example:

A public servant waits ten years to challenge a dismissal.

The court refuses to intervene due to laches.

5. When the Doctrine of Laches Does Not Apply

5.1 When Delay is Justified

If the delay was due to fraud or lack of knowledge, laches may not apply.

Example:

A person discovers new evidence after ten years.

The court may allow the case despite the delay.

5.2 If Legal Rights Are Statutorily Protected

Where laws specify limitation periods, laches cannot override them.

Example:

A statute allows claims within five years.

The court must honor that limitation, even if there was a delay.

5.3 In Matters of Fundamental Rights

Courts may overlook laches in cases involving human rights violations.

Example:

A case on wrongful conviction may be heard despite a long delay.

6. Legal Consequences of the Doctrine of Laches

6.1 Bars Claims Brought After Unreasonable Delay

Ensures timely litigation.

6.2 Protects the Rights of Defendants

Prevents unfair surprises due to stale claims.

6.3 Preserves the Efficiency of Courts

Encourages the resolution of disputes within reasonable timeframes

7. Difference Between Laches and Statutory Limitation

Feature	Laches	Statutory Limitation
Definition	Delay in asserting a right leads to forfeiture.	Fixed time period set by law for filing a case.
Effect	Claim dismissed due to delay and prejudice.	Claim dismissed if filed beyond the legal deadline.
Example	A person waits too long to file a case, causing unfairness.	A case is barred after the statutory deadline expires.

8. Judicial Interpretations of the Doctrine of Laches in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

A petition challenging a government policy was dismissed due to undue delay.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

The court applied laches to dismiss a constitutional petition filed years after the law was enacted.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

The Supreme Court ruled that unreasonable delays weaken legal challenges.

9. Importance of the Doctrine of Laches

9.1 Encourages Prompt Legal Action

Prevents legal disputes from dragging on indefinitely.

9.2 Promotes Fairness

Ensures that defendants are not unfairly prejudiced by old claims.

9.3 Maintains Judicial Efficiency

Reduces unnecessary backlog in the court system.

10. Conclusion

TheDoctrine of Lachesensures thatlegal claims are asserted within a reasonable timeframe.Courts in Pakistanapply this principle to reject delayed claims where the opposing party has suffered prejudice due to the delay.While lachespromotes judicial efficiency and fairness, courts may overlook it in cases involving fundamental rights or justified delays.

CHAPTER 87 – THE DOCTRINE OF LEGITIMATE EXPECTATION

1. Introduction to the Doctrine of Legitimate Expectation

1.1 The Doctrine of Legitimate Expectation is a legal principle that provides individuals with the right to expect consistency from public authorities in their decisions when a prior assurance, practice, or conduct has given them a legitimate expectation.

1.2 Purpose of the Doctrine of Legitimate Expectation:

Ensures fairness in administrative decisions.

Holds public authorities accountable for their representations or established practices.

Protects individuals from arbitrary or unexpected changes in policies or procedures.

1.3 Legal Basis in Pakistan

The courts in Pakistan recognize this doctrine to ensure public authorities adhere to their promises, past conduct, or consistent policies.

Applied in administrative law, service matters, and cases of government promises or concessions.

2. Meaning and Scope of the Doctrine of Legitimate Expectation

2.1 Definition

Legitimate expectation refers to an individual’s expectation of a certain decision or treatment based on an established pattern, promise, or previous practice of a public authority.

2.2 Example of Legitimate Expectation in Legal Cases

A government regularly renews business licenses for a sector, but suddenly refuses renewal without justification.

Affected businesses can challenge this decision under legitimate expectation.

2.3 Scope of the Doctrine

Applied in administrative decisions, government contracts, and service law.

Not an absolute right but ensures procedural fairness.

3. Principles Governing the Doctrine of Legitimate Expectation

3.1 A Clear and Consistent Past Practice or Promise

The authority must have created a reasonable expectation through prior actions or commitments.

3.2 No Justifiable Reason for Departure

If a policy is changed arbitrarily without valid reasoning, the doctrine applies.

3.3 Public Interest Consideration

The government can justify altering expectations if required for public welfare.

4. Application of the Doctrine of Legitimate Expectation in Pakistan

4.1 In Service Matters

Public employees can challenge unexpected termination or denial of promotions if past policies created an expectation of continued service.

Example:

A public servant is denied promotion despite previous assurances and established practices.

The court may intervene under legitimate expectation.

4.2 In Government Policies and Administrative Actions

If a government body provides subsidies to industries and then abruptly cancels them, affected parties can challenge the decision.

Example:

A government agency assures landowners of continued tax benefits.

If those benefits are withdrawn without reason, the landowners can seek legal remedy.

4.3 In Judicial and Constitutional Law

Courts in Pakistan use the doctrine to prevent arbitrary executive actions.

Example:

The government commits to a housing scheme for the underprivileged.

If it fails to fulfill the commitment without justification, affected individuals can challenge it.

5. When the Doctrine of Legitimate Expectation Does Not Apply

5.1 If No Clear Promise or Past Practice Exists

If an expectation is based on assumption rather than an explicit assurance, the doctrine does not apply.

Example:

A citizen expects a tax exemption simply because others received it earlier.

Without a formal commitment, there is no legitimate expectation.

5.2 When Public Interest Justifies the Change

The government can alter policies if required for the greater public good.

Example:

A public project is canceled to allocate funds for disaster relief.

Legitimate expectation does not override public welfare needs.

5.3 When the Expectation Conflicts with Law

If an expectation contradicts existing legal provisions, it cannot be enforced.

Example:

A civil servant expects a job extension despite age limits set by law.

The court will uphold the legal restriction over personal expectations.

6. Legal Consequences of the Doctrine of Legitimate Expectation

6.1 Prevents Arbitrary Decisions by Public Authorities

Ensures fairness and consistency in governance.

6.2 Protects Citizens from Unfair Policy Changes

Safeguards individuals and businesses from sudden and unjustified shifts.

6.3 Strengthens Public Trust in Government Actions

Promotes accountability and transparency in decision-making.

7. Difference Between Legitimate Expectation and Legal Right

Feature	Legitimate Expectation	Legal Right
Definition	A reasonable expectation based on past conduct, assurance, or policy.	A right granted explicitly by law.
Effect	Creates an obligation for authorities to justify deviations.	Must be legally upheld and enforced.
Example	A government routinely renews trade licenses but suddenly refuses one without reason.	The right to free speech under constitutional protection.

8. Judicial Interpretations of the Doctrine of Legitimate Expectation in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

The Supreme Court ruled that where an individual has a legitimate expectation based on government policy, authorities cannot change it arbitrarily.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

The court emphasized that public bodies must follow established practices or provide justification for deviations.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

The Supreme Court held that expectations created by past government actions must be honored unless overriding public interest justifies a change.

9. Importance of the Doctrine of Legitimate Expectation

9.1 Ensures Predictability in Public Decision-Making

Prevents government agencies from making inconsistent or unfair changes.

9.2 Enhances Citizens’ Confidence in Government Policies

Encourages trust in governance and legal fairness.

9.3 Encourages Good Governance and Accountability

Holds authorities responsible for their assurances and established practices.

10. Conclusion

The Doctrine of Legitimate Expectationensures thatpublic authorities adhere to their past assurances, practices, or policies unless justified reasons exist for change.Courts in Pakistanapply this doctrine to prevent arbitrary decisions and protect individuals and businesses from unfair treatment.Whilenot an absolute right, it serves as an essential tool in promoting fairness, transparency, and accountability in governance.

CHAPTER 88 – THE DOCTRINE OF NECESSITY

1. Introduction to the Doctrine of Necessity

1.1 The Doctrine of Necessity is a legal principle that allows an action to be deemed lawful if it is required to prevent a greater harm, even if it would otherwise be unlawful.

1.2 Purpose of the Doctrine of Necessity:

To justify actions taken in exceptional circumstances where no other legal solution exists.

To ensure continuity of government or judicial functioning in situations of crisis.

To allow exceptions to normal legal principles when adherence to the law would result in greater harm.

1.3 Legal Basis in Pakistan

The doctrine has been applied by courts in Pakistan in cases of constitutional and political crises.

Derived from legal maxims and judicial precedents, rather than statutory law.

2. Meaning and Scope of the Doctrine of Necessity

2.1 Definition

The Doctrine of Necessity allows acts that would otherwise be illegal to be justified when performed to prevent an imminent and serious threat.

2.2 Example of the Doctrine of Necessity in Law

A person breaking into a house to save someone trapped inside during a fire may be excused from trespassing under necessity.

2.3 Scope of the Doctrine

Applied in constitutional law, emergency governance, and administrative law.

Not an absolute doctrine—must be used only in exceptional cases.

3. Principles Governing the Doctrine of Necessity

3.1 Imminent Danger or Crisis Must Exist

The situation must involve a clear and present danger requiring immediate action.

3.2 No Alternative Legal Solution Available

If legal means exist to address the crisis, necessity cannot be invoked.

3.3 Proportionality of Action Taken

The action must be proportionate to the harm being prevented.

4. Application of the Doctrine of Necessity in Pakistan

4.1 In Constitutional Law

Used to validate actions taken during political crises or emergency rule.

Example:

The doctrine was invoked to justify military rule and the suspension of the Constitution in Pakistan.

4.2 In Administrative Law

Applied to decisions made by government officials in emergency situations.

Example:

A government agency bypasses procurement rules to deliver urgent disaster relief.

4.3 In Criminal Law

Used as a defense where a person commits an unlawful act to prevent greater harm.

Example:

A doctor performs surgery without patient consent to save their life.

5. When the Doctrine of Necessity Does Not Apply

5.1 When Used to Justify Unlawful Power Grabs

Courts may reject necessity as an excuse for unconstitutional actions.

Example:

A dictator declaring emergency rule without justification may not be protected by necessity.

5.2 If Legal Alternatives Exist

If a lawful option is available, necessity cannot be invoked.

Example:

A government official bypassing procurement laws when urgent bidding options are available.

5.3 When the Action Taken Is Disproportionate

Necessity cannot justify extreme or excessive actions.

Example:

Imposing indefinite martial law in response to a minor protest.

6. Legal Consequences of the Doctrine of Necessity

6.1 Validates Actions Taken in Emergency Situations

Allows certain illegal acts to be justified when done in good faith.

6.2 Prevents Judicial and Government Paralysis

Ensures that institutions can function during crises.

6.3 Can Be Misused to Justify Power Seizures

Requires judicial scrutiny to prevent abuse.

7. Difference Between Necessity and Emergency Powers

Feature	Doctrine of Necessity	Emergency Powers
Definition	Justifies unlawful acts in exceptional cases.	Legal powers granted during emergencies.
Effect	Temporarily overrides legal rules.	Provides a legal framework for emergency actions.
Example	A government bypassing election rules to prevent collapse.	A state of emergency declared by constitutional provision.

8. Judicial Interpretations of the Doctrine of Necessity in Pakistan

8.1 Key Case Law in Pakistan

State v. Dosso (PLD 1958 SC 533)

The Supreme Court upheld martial law using the doctrine of necessity, stating that revolutionary changes in government are legally valid if necessary.

Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657)

The court validated military rule under necessity but emphasized that it should not be used as a permanent justification.

Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879)

The Supreme Court ruled that the doctrine of necessity cannot be used to justify unconstitutional military rule.

9. Importance of the Doctrine of Necessity

9.1 Ensures Governance and Legal Functioning in Crisis

Prevents governmental collapse during emergencies.

9.2 Protects Public Welfare in Extraordinary Situations

Allows life-saving actions that might otherwise be unlawful.

9.3 Requires Judicial Oversight to Prevent Misuse

Ensures that necessity is not abused for political gain.

10. Conclusion

The Doctrine of Necessityprovides a legal basis for actions that would otherwise be unlawful, but only when necessaryto prevent significant harm or maintain government stability.While courts in Pakistan have applied this doctrine in constitutional crises, they have also ruledthat it cannot be used to justify unlawful power seizures indefinitely.Proper judicial scrutiny is essential toensure that necessity is not misused as a tool for undermining constitutional rule.

CHAPTER 89 – THE DOCTRINE OF SEVERABILITY

1. Introduction to the Doctrine of Severability

1.1 The Doctrine of Severability is a constitutional principle that allows a court to declare only the unconstitutional portions of a law as void while leaving the remaining valid provisions intact and enforceable.

1.2 Purpose of the Doctrine of Severability:

Ensures that only the unconstitutional parts of a law are struck down, not the entire statute.

Preserves the legislative intent by maintaining the lawful provisions of an enactment.

Prevents unnecessary legislative gaps due to partial unconstitutionality.

1.3 Legal Basis in Pakistan

The courts in Pakistan apply this doctrine to uphold constitutional supremacy while avoiding the complete nullification of laws.

Derived from constitutional interpretation and judicial precedents rather than explicit statutory provisions.

2. Meaning and Scope of the Doctrine of Severability

2.1 Definition

Severability means that if a part of a law is found unconstitutional, only that part is invalidated while the rest of the law remains operational.

2.2 Example of the Doctrine of Severability in Law

A labor law contains ten provisions, but one of them violates fundamental rights.

The court declares only the unconstitutional provision void, allowing the rest of the law to remain in effect.

2.3 Scope of the Doctrine

Applied in constitutional law, statutory interpretation, and administrative decisions.

Not applicable if the unconstitutional part is inseparable from the rest of the law.

3. Principles Governing the Doctrine of Severability

3.1 The Invalid Portion Must Be Clearly Identifiable

Only specific unconstitutional clauses or provisions are struck down.

3.2 The Remaining Provisions Must Be Able to Function Independently

If removing an unconstitutional part renders the law ineffective, the entire law may be struck down.

3.3 The Law Must Reflect Legislative Intent Even After Severance

The remaining provisions should still align with the original objectives of the legislature.

4. Application of the Doctrine of Severability in Pakistan

4.1 In Constitutional Law

Used to separate unconstitutional provisions from valid parts of legislation.

Example:

A law imposing restrictions on freedom of speech is partially unconstitutional.

The court strikes down only the unconstitutional restrictions while keeping the rest of the law valid.

4.2 In Administrative and Regulatory Laws

If a regulation contains both lawful and unlawful provisions, only the unlawful part is removed.

Example:

A business licensing law contains a provision that unfairly discriminates against foreign investors.

The court invalidates the discriminatory provision but retains the rest of the licensing framework.

4.3 In Criminal Law

When a penal law has both constitutional and unconstitutional elements, only the latter are invalidated.

Example:

A law imposes excessive punishment for a minor offense.

The court removes the excessive penalty but keeps the rest of the law.

5. When the Doctrine of Severability Does Not Apply

5.1 When the Unconstitutional Provision Is Fundamental to the Law

If the invalidated section is essential, the whole law may be struck down.

Example:

A tax law is entirely based on an unconstitutional method of assessment.

Since the core of the law is flawed, the entire statute is void.

5.2 If the Remaining Law Becomes Unworkable

If severing one part makes the rest ineffective, the doctrine cannot apply.

Example:

A labor protection law is invalidated for lacking enforcement mechanisms.

Without enforcement, the law cannot operate and must be entirely repealed.

5.3 When Legislative Intent Cannot Be Preserved

If severance changes the intent of the law, courts may strike down the whole statute.

Example:

A wage law is designed to apply only to a specific group, but the court finds this discriminatory.

If the discriminatory part is removed, the law loses its purpose and is fully invalidated.

6. Legal Consequences of the Doctrine of Severability

6.1 Ensures Partial Invalidity Without Affecting the Entire Law

Prevents unnecessary annulment of complete statutes.

6.2 Upholds Legislative Authority While Protecting Constitutional Rights

Balances legislative power with judicial oversight.

6.3 Allows for Continued Implementation of Valid Legal Provisions

Ensures that the functional aspects of laws remain enforceable.

7. Difference Between Severability and Total Repeal of a Law

Feature	Severability	Total Repeal
Definition	Removes only unconstitutional parts while keeping the rest intact.	Declares the entire law void.
Effect	The valid portions remain enforceable.	The entire law is removed from the legal system.
Example	A court invalidates a discriminatory provision but keeps the rest of the employment law.	A tax law based on an unconstitutional principle is completely struck down.

8. Judicial Interpretations of the Doctrine of Severability in Pakistan

8.1 Key Case Law in Pakistan

Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166)

The Supreme Court ruled that only the unconstitutional portions of an election law should be removed, preserving the rest of the legal framework.

Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)

The court held that when a law contains both lawful and unlawful elements, only the unlawful elements should be struck down.

Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 415)

The Supreme Court applied the doctrine to declare portions of an ordinance unconstitutional while keeping the remaining provisions valid.

9. Importance of the Doctrine of Severability

9.1 Preserves Legislative Enactments While Removing Unconstitutional Provisions

Ensures that valid laws remain in force without disruption.

9.2 Promotes Judicial Efficiency and Legislative Stability

Prevents unnecessary repeal of entire statutes.

9.3 Balances Constitutional Interpretation with Legislative Intent

Ensures that courts do not overreach while striking down laws.

10. Conclusion

TheDoctrine of Severabilityensures thatonly unconstitutional provisions of a law are struck down, allowing the rest of the statute to remain in effect.Courts in Pakistanapply this doctrine to maintain legal stability while upholding constitutional rights.However,if the unconstitutional portion is essential to the law, the entire law may be declared void.The doctrine serves as acrucial tool in constitutional adjudication, ensuring that laws are enforced to the maximum extent possible without violating fundamental rights.

CHAPTER 90 – THE DOCTRINE OF ALTERNATIVE REMEDY

1. Introduction to the Doctrine of Alternative Remedy

1.1 The Doctrine of Alternative Remedy is a legal principle that states a person should first seek redress through available statutory remedies before approaching the courts for judicial intervention.

1.2 Purpose of the Doctrine of Alternative Remedy:

Ensures that individuals use specialized forums or lower courts before seeking higher judicial review.

Prevents unnecessary burden on higher courts by directing cases to appropriate forums.

Encourages resolution of disputes through designated statutory mechanisms.

1.3 Legal Basis in Pakistan

The courts in Pakistan recognize and apply this doctrine, particularly in writ jurisdiction cases under Article 199 of the Constitution.

If an alternative remedy exists, courts may decline to entertain a petition unless exceptional circumstances justify judicial intervention.

2. Meaning and Scope of the Doctrine of Alternative Remedy

2.1 Definition

An alternative remedy refers to a statutory, administrative, or quasi-judicial procedure available to an aggrieved person before seeking court intervention.

2.2 Example of Alternative Remedy in Law

A government employee dismissed from service should first appeal to the departmental appellate authority before filing a constitutional petition in the High Court.

2.3 Scope of the Doctrine

Applied in constitutional petitions, administrative matters, and tax disputes.

Not an absolute bar—courts may entertain petitions in exceptional cases.

3. Principles Governing the Doctrine of Alternative Remedy

3.1 Availability of a Statutory or Administrative Remedy

The person seeking judicial intervention must have a legally established alternative remedy.

3.2 Remedy Must Be Adequate and Effective

If an alternative forum does not provide sufficient relief, courts may entertain a petition.

3.3 Exception in Cases Involving Fundamental Rights

If a case involves constitutional rights, the doctrine may not apply strictly.

4. Application of the Doctrine of Alternative Remedy in Pakistan

4.1 In Constitutional Petitions (Writ Jurisdiction)

High Courts generally decline writ petitions if an alternative remedy is available under statutory law.

Example:

A business challenges a tax assessment directly in the High Court.

The court may dismiss the petition, directing the business to first appeal to the tax tribunal.

4.2 In Service Matters and Disciplinary Cases

Employees must exhaust departmental appeals before approaching the court.

Example:

A government servant is terminated and directly files a writ petition.

The court may reject the petition, advising the employee to appeal within the department.

4.3 In Tax and Revenue Disputes

Taxpayers must follow appellate procedures before seeking judicial review.

Example:

A business disputes a tax penalty but bypasses the tax appellate tribunal.

The court may refuse to hear the case, directing the business to the tribunal first.

5. When the Doctrine of Alternative Remedy Does Not Apply

5.1 If the Alternative Remedy Is Inadequate or Ineffective

If the available remedy does not provide adequate relief, courts may intervene.

Example:

A disciplinary authority is biased against an employee.

The court may allow direct judicial intervention.

5.2 If the Case Involves Fundamental Rights

If the matter concerns violations of constitutional rights, the doctrine is not an absolute bar.

Example:

A law restricting free speech is challenged.

The court may hear the case despite available alternative remedies.

5.3 If the Alternative Forum Has No Jurisdiction

If a tribunal or authority lacks jurisdiction over a dispute, courts may entertain the case.

Example:

A property dispute is wrongly referred to a labor tribunal.

The court may intervene and redirect the case.

6. Legal Consequences of the Doctrine of Alternative Remedy

6.1 Encourages Exhaustion of Statutory Remedies

Prevents premature judicial intervention.

6.2 Reduces Burden on Higher Courts

Ensures that cases are resolved at the appropriate level first.

6.3 Ensures Fair and Systematic Legal Procedures

Maintains the hierarchy and specialization of dispute resolution forums.

7. Difference Between Alternative Remedy and Judicial Review

Feature	Alternative Remedy	Judicial Review
Definition	Requires exhaustion of statutory or administrative remedies first.	Courts examine executive actions for legality.
Effect	Case is directed to a specialized forum.	Court may intervene if fundamental rights are affected.
Example	A dismissed employee must appeal to the service tribunal first.	A citizen challenges an unconstitutional law directly in court.

8. Judicial Interpretations of the Doctrine of Alternative Remedy in Pakistan

8.1 Key Case Law in Pakistan

Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473)

The Supreme Court emphasized that constitutional petitions should not bypass available statutory remedies.

Pakistan International Airlines v. Tariq Ismail (PLD 2002 SC 676)

The court ruled that employees must first approach service tribunals before filing writ petitions.

Collector of Customs v. S. Habibullah (PLD 1993 SC 488)

The Supreme Court held that taxpayers must exhaust appellate remedies before seeking judicial intervention.

9. Importance of the Doctrine of Alternative Remedy

9.1 Encourages Resolution Through Designated Forums

Ensures specialized tribunals and lower courts handle cases appropriately.

9.2 Prevents Unnecessary Judicial Interference

Preserves court time for complex constitutional matters.

9.3 Maintains Legal Order and Procedural Discipline

Ensures disputes follow proper legal channels.

10. Conclusion

The Doctrine of Alternative Remedyensures thatlitigants first exhaust available statutory or administrative remedies before seeking judicial intervention.Courts in Pakistanapply this doctrine to prevent premature filings in constitutional petitions, service matters, and tax disputes.However,exceptions exist when fundamental rights are at stake, alternative remedies are ineffective, or tribunals lack jurisdiction.By maintaining procedural discipline,this doctrine plays a crucial role in efficient legal dispute resolution.

CHAPTER 91 – THE DOCTRINE OF PUBLIC TRUST

1. Introduction to the Doctrine of Public Trust

1.1 The Doctrine of Public Trust is a legal principle that establishes the government’s responsibility as a trustee of natural resources and public assets, ensuring their protection and sustainable use for the benefit of present and future generations.

1.2 Purpose of the Doctrine of Public Trust:

Ensures that essential resources remain accessible to all citizens.

Restricts government actions that could lead to the privatization or exploitation of common public assets.

Mandates public authorities to act as guardians of natural resources.

1.3 Legal Basis in Pakistan

The courts in Pakistan have recognized this doctrine to protect environmental resources, public lands, and essential services.

Derived from constitutional provisions, environmental laws, and judicial precedents.

2. Meaning and Scope of the Doctrine of Public Trust

2.1 Definition

The Public Trust Doctrine holds that certain natural resources, such as air, water, and forests, are held in trust by the state for public use and cannot be arbitrarily transferred or exploited.

2.2 Example of the Doctrine of Public Trust in Legal Cases

A government attempts to sell public parks to private developers.

Citizens challenge this decision, arguing that the government is bound by the doctrine of public trust to protect communal spaces.

2.3 Scope of the Doctrine

Applied in environmental law, land use regulations, and public welfare policies.

Prevents privatization of essential public resources.

3. Principles Governing the Doctrine of Public Trust

3.1 Natural Resources Are Held in Trust by the Government

The state must manage these resources for public benefit, not private interests.

3.2 Government Cannot Abdicate Its Responsibilities

Public resources cannot be sold or leased in a manner that harms public interest.

3.3 The Principle of Sustainable Use

Resources must be maintained for future generations.

4. Application of the Doctrine of Public Trust in Pakistan

4.1 In Environmental Protection Laws

Prevents deforestation, water pollution, and land degradation.

Example:

A corporation seeks to cut down forests for commercial gain.

The court intervenes, stating that forests are a public trust resource.

4.2 In Land and Urban Development Cases

Ensures that public lands remain available for communal use.

Example:

A government leases a public beach to a private resort, restricting access to citizens.

The court may rule against such leasing under the public trust doctrine.

4.3 In Governance and Policy-Making

Guides legislative decisions on resource management.

Example:

The state imposes regulations on industrial waste disposal to protect rivers.

Such regulations are justified under the public trust doctrine.

5. When the Doctrine of Public Trust Does Not Apply

5.1 If the Resource Is Not a Public Trust Asset

The doctrine applies mainly to natural resources and essential public services.

Example:

A private farmland dispute does not fall under the public trust doctrine.

5.2 When Public Welfare Requires Limited Private Use

In some cases, controlled private involvement may be allowed.

Example:

A government allows a private company to manage public transportation under strict regulations.

The court may uphold this decision if it benefits the public.

5.3 If the Government Has Lawfully Delegated Authority

If laws permit regulated private use of public assets, the doctrine may not override them.

Example:

A government leases a section of a national park for eco-tourism under environmental safeguards.

The court may allow it if it aligns with sustainable use policies.

6. Legal Consequences of the Doctrine of Public Trust

6.1 Prevents Misuse of Public Resources

Ensures that public assets remain accessible to all.

6.2 Imposes a Duty on the Government

Mandates responsible and sustainable management of resources.

6.3 Strengthens Environmental and Public Welfare Laws

Provides a legal basis for challenging harmful policies.

7. Difference Between Public Trust and Eminent Domain

Feature	Public Trust Doctrine	Eminent Domain
Definition	Protects public resources from privatization.	Allows the government to acquire private property for public use.
Effect	Prevents government from misusing natural resources.	Enables government to acquire land for infrastructure projects.
Example	A court stops the sale of a public lake.	Government acquires land for road construction.

8. Judicial Interpretations of the Doctrine of Public Trust in Pakistan

8.1 Key Case Law in Pakistan

Shehla Zia v. WAPDA (PLD 1994 SC 693)

The Supreme Court ruled that environmental protection is a constitutional right and applied the public trust doctrine to restrict government actions harming public health.

Pakistan Environmental Protection Council v. Government of Pakistan (PLD 2001 SC 415)

The court upheld restrictions on industrial pollution, emphasizing the state’s duty to preserve natural resources.

Sindh Institute of Urology & Transplantation v. Government of Sindh (PLD 2019 SC 349)

The court ruled that healthcare services provided by a public hospital could not be privatized, citing the public trust doctrine.

9. Importance of the Doctrine of Public Trust

9.1 Protects Public Access to Natural Resources

Ensures that parks, forests, and water bodies remain accessible.

9.2 Prevents Environmental Degradation

Holds the government accountable for ecological preservation.

9.3 Ensures Responsible Government Policies

Promotes transparency and public participation in decision-making.

10. Conclusion

The Doctrine of Public Trustensures thatessential resources like land, water, and forests remain under state protection for the benefit of all citizens.Courts in Pakistanapply this doctrine to prevent privatization, environmental destruction, and misuse of public assets.Whilethe government has authority over resource management, it must act in the public’s best interest and maintain sustainability for future generations.

CHAPTER 92 – SUITS RELATING TO PUBLIC NUISANCES AND PUBLIC CHARITIES

1. Introduction

1.1 The Code of Civil Procedure (CPC) provides specific legal provisions to regulate suits concerning public nuisances and public charities. These provisions ensure that litigation in such matters is carried out responsibly and with due authorization, safeguarding both public interest and judicial efficiency.

1.2 Purpose of These Provisions:

To prevent frivolous litigation in matters affecting public welfare.

To ensure that only authorized persons initiate legal proceedings.

To uphold proper administration of public charitable trusts.

1.3 Legal Basis in Pakistan

Sections 91 and 92 of the CPC govern suits related to public nuisances and public charities.

These sections require the Advocate-General’s consent before such suits can be instituted, ensuring judicial oversight.

2. Suits Relating to Public Nuisances (Section 91 CPC)

2.1 Definition of Public Nuisance

A public nuisance is an act that interferes with the rights of the general public, affecting public safety, health, comfort, or convenience.

2.2 Provisions of Section 91 CPC

A suit regarding public nuisance can only be filed by:

The Advocate-General, or

Two or more persons with prior written approval from the Advocate-General.

Reliefs available:

Injunctions to restrain public nuisances.

Declaration of rights affected by the nuisance.

Other necessary relief as determined by the court.

2.3 Example of Public Nuisance Litigation

A factory emits excessive smoke, polluting the air in a residential area.

Residents, with the Advocate-General’s consent, file a suit to stop the pollution.

3. Public Charities and Trusts (Section 92 CPC)

3.1 Definition of Public Charity

A public charity is an express or implied trust created for charitable or religious purposes that benefits the general public.

3.2 Provisions of Section 92 CPC

Who Can File a Suit Under Section 92?

The Advocate-General, or

Two or more interested individuals with the Advocate-General’s written consent.

Types of Suits Permitted:

Removal of a trustee.

Appointment of a new trustee.

Vesting of property in a trustee.

Auditing trust accounts.

Framing a scheme for proper management of the trust.

Declaring the distribution of trust property.

3.3 Example of a Public Charity Dispute

A religious trust is being mismanaged by its trustees, leading to misuse of funds.

A suit is filed under Section 92 CPC to remove the trustees and appoint new ones.

4. Importance of the Advocate-General’s Consent

4.1 Purpose of the Consent Requirement

Prevents unnecessary litigation in public interest matters.

Ensures that only bona fide grievances are brought before the courts.

Protects charities from malicious lawsuits.

4.2 Consequences of Filing a Suit Without Consent

Suits filed without prior approval are liable to be dismissed.

5. Judicial Interpretations of Sections 91 and 92 CPC

5.1 Key Case Law in Pakistan

Fakir Shah v. Mehtab Shah Pir Bukhari Masjid Committee

The Supreme Court held that a suit for the management of a religious shrine fell under Section 92 CPC.

Since prior consent of the Advocate-General was not obtained, the suit was dismissed.

Sindh Institute of Urology & Transplantation v. Government of Sindh

The Supreme Court ruled that public hospitals providing free healthcare fall under public trusts and cannot be privatized.

6. Differences Between Public Nuisance and Public Charities

Feature	Public Nuisance (Section 91 CPC)	Public Charities (Section 92 CPC)
Definition	An act that harms public welfare.	A trust established for public benefit.
Who Can Sue?	Advocate-General or two citizens with approval.	Advocate-General or two interested persons with approval.
Reliefs Available	Injunctions, declarations.	Trustee removal, property vesting, scheme formation.
Example	A factory causing pollution.	A mismanaged religious trust.

7. When Sections 91 and 92 CPC Do Not Apply

7.1 If the Matter Is Purely Private

These provisions do not apply to disputes between individuals over private property.

7.2 If the Relief Sought Does Not Concern the Public

If a dispute does not impact the general public or a charitable trust, it must be resolved through ordinary civil suits.

7.3 If the Consent of the Advocate-General Is Not Obtained

Courts may dismiss suits if they lack the required authorization.

8. Importance of Sections 91 and 92 CPC

8.1 Ensures Protection of Public Rights

Safeguards communities from environmental and social harm.

8.2 Prevents Misuse of Charitable Trusts

Holds trustees accountable for responsible management.

8.3 Maintains Legal Oversight in Public Interest Cases

Ensures that public concerns are addressed through proper legal channels.

9. Conclusion

Sections91 and 92 of the CPCprovide important safeguards against public nuisances and mismanagement of charitable trusts.By requiringthe Advocate-General’s approval before filing such suits, the law ensures responsible litigation in matters of public interest.Courts in Pakistan have repeatedly emphasized the need for proper authorization to prevent frivolous claims and uphold the effective administration of public trusts.These provisions continue to serve as key tools for maintaining social welfare and justice.

CHAPTER 93 – JURISDICTION OF CIVIL COURTS UNDER SECTION 9 OF THE CODE OF CIVIL PROCEDURE, 1908

1. Introduction

Section 9 of the Civil Procedure Code, 1908 is a foundational provision which asserts that civil courts shall have jurisdiction to try all suits of a civil nature unless jurisdiction is expressly or impliedly barred. This principle embodies access to justice and reinforces the rule of law.

2. Statutory Text

Section 9 – Courts to Try All Civil Suits Unless Barred:

“The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”

3. Scope and Interpretation

This section enshrines the following principles:

3.1. General Jurisdiction: All matters involving civil rights (e.g., property, contracts, torts, personal status) fall within the competence of civil courts.

3.2. Exception by Law: Jurisdiction is barred only when there is a clear and express provision or a necessary implication in a statute.

3.3. Burden of Proof: The party asserting that jurisdiction is barred must demonstrate it explicitly.

4. Meaning of “Civil Nature”

A dispute of “civil nature” refers to one concerning the enforcement or determination of civil rights or obligations between parties. This includes:

Property and ownership rights

Contractual liabilities

Torts and compensatory claims

Family law rights (unless under special laws)

Declaratory and injunctive relief

5. When Jurisdiction is Barred

Jurisdiction is excluded in two ways:

5.1. Express Bar: When a law clearly states that civil courts cannot entertain a matter (e.g., Family Courts Act, Land Revenue Act).

5.2. Implied Bar: When a complete mechanism for adjudication is provided under a special statute (e.g., service tribunals, tax tribunals).

However, even in such cases, jurisdiction is retained if:

The alternate remedy is inadequate or ineffective

There is allegation of fraud or mala fide

Fundamental rights are violated

        ┌────────────────────────────┐

        │ Suit of Civil Nature?      │

        └────────────┬────────────── ┘

                     │Yes

                     ▼

        ┌────────────────────────────┐

        │ Express or Implied Bar?    │

        └────────────┬────────────── ┘

           No        │        Yes

           ▼                   ▼

┌────────────────┐  ┌─────────────────────────────────────────┐

│ Civil Court Has│  │ Check Adequacy of Special Remedy        │

│ Jurisdiction   │  └────────────────┬────────────────────────┘

└────────────────┘                   │

                        Inadequate   ▼     Adequate

                                  ┌───────────────┐

                                  │ Civil Court   │

                                  │ May Intervene │

                                  └───────────────┘

6. Leading Case Law

▪ Federation of Pakistan v Malik Ghulam Mustafa Khar, PLD 1975 SC 331

Civil court jurisdiction is the rule; its exclusion is an exception which must be strictly construed.

▪ Khushi Muhammad v Province of Punjab, 2003 SCMR 1792

Even where special tribunals exist, civil courts may retain jurisdiction if no adequate remedy is available or where fraud is alleged.

▪ Shahid Raza v Dr. Israr Ahmad, 2006 SCMR 993

Civil courts can entertain matters involving civil rights unless there is an express or necessarily implied bar.

▪ Bakhtyar Mehmood v WAPDA, 2016 SCMR 1555

Matters related to employment in statutory bodies fall outside civil court jurisdiction and lie before service tribunals.

▪ Muhammad Shafi v Muhammad Boota, PLD 2005 SC 630

Exclusion of jurisdiction requires more than the existence of an alternative remedy; that remedy must be adequate and efficacious.

▪ Azhar Ali v Khizar Hayat, 2021 SCMR 1896

Where property rights are involved and no suitable statutory remedy exists, civil courts are competent.

7. Bar under Special Statutes (Examples)

Statute	Forum	Bar Type	Jurisdictional Status
Punjab Land Revenue Act, 1967	Revenue Courts	Express	Civil court barred in revenue matters
Family Courts Act, 1964	Family Courts	Express	Civil court excluded
Companies Act, 2017	SECP, Company Benches	Implied	Civil court barred in corporate regulation
Service Tribunals Act, 1973	Service Tribunal	Implied	Civil court excluded for civil servants

7.1 Key Takeaways

Principle	Detail
General Rule	Civil Courts can try all matters of civil nature.
Exceptions	Jurisdiction must be expressly or impliedly barred by a specific statute.
Presumption	Courts presume in favour of jurisdiction, not its exclusion.
Fraud / Fundamental Rights	Even where jurisdiction is barred, civil courts may intervene in cases involving fraud, mala fide, or fundamental rights violations.
Adequate Alternative Remedy	Civil court’s jurisdiction may be ousted only if an equally adequate and efficacious remedy exists under special law.

8. Principle of Presumption in Favour of Jurisdiction

In Muhammad Aslam v WAPDA, PLD 2012 Lahore 477, it was held that unless a statute clearly provides otherwise, the jurisdiction of the civil court is presumed.

9. Conclusion

Section 9 CPC upholds the principle that civil courts are courts of general jurisdiction, competent to try all disputes of a civil nature. Any restriction on this jurisdiction must be explicitly stated or necessarily implied. Where such jurisdiction is excluded, it must be shown that the alternate remedy is not only available but also adequate, complete, and effective.

It is , is a powerful tool affirming access to justice for civil wrongs. The jurisdiction of civil courts is not to be lightly ousted, and any exclusion must be strictly construed. The civil court remains a court of ultimate resort for the enforcement of civil rights unless, a statutory mechanism provides an alternative, and such mechanism is equally effective and not illusory.

Civil courts continue to play a crucial role in protecting citizens’ rights where statutory forums fail or are misused. The judiciary has consistently adopted a pro-access approach, preserving the right to be heard in civil disputes unless validly ousted by law.

CHAPTER 93 – REVIEW AND CHALLENGE OF JUDGMENTS UNDER SECTION 12(2) CPC

1. Introduction

Section 12(2) of the Code of Civil Procedure, 1908, empowers civil courts in Pakistan to revisit and set aside their own judgments, decrees, or orders when they are obtained through fraud, misrepresentation, or want of jurisdiction. This provision serves as a safeguard against abuse of process and ensures that judicial outcomes are based on fairness and legality.

2. Text of Section 12(2) CPC

Section 12(2), CPC 1908

“Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order, and not by a separate suit.”

3. Principle

Section 12(2) is rooted in the doctrine of finality of judgmentsbut creates an exception where the integrity of judicial proceedings is compromised. The principle may be summarized as follows:

Finality of judgments is essential for legal certainty.

However, fraud vitiates all judicial acts.

Section 12(2) provides a procedural mechanism to seek relief within the same court that passed the impugned order.

4. Scope and Application

Ground	Definition	Applicability
Fraud	Deliberate deception to secure unfair gain	Must be extrinsic fraud, not mere error
Misrepresentation	False representation or concealment of material facts	Must affect the outcome of the judgment
Want of Jurisdiction	Inherent lack of legal authority in court or tribunal	Jurisdictional error renders judgment void

Key Conditions:

Application must be made before the same court that passed the order.

Separate suit is barred for challenging final orders on these grounds.

No limitation is fixed in Section 12(2) itself, but courts apply Article 181 of the Limitation Act (i.e., three years from knowledge of fraud).

5. Judicial Trends and Leading Case Law

▪ Pir Bakhsh v. Chairman Allotment Committee, PLD 1987 SC 145

The Supreme Court held that fraud and misrepresentation vitiate even the most solemn proceedings. Section 12(2) is a complete remedy for such cases.

▪ Abdul Rehman v. Ghulam Muhammad, 1995 SCMR 1237

Held that once a decree is challenged under Section 12(2), the court is duty-bound to examine whether the order was obtained through deception or without jurisdiction.

▪ Muhammad Yousaf v. Haji Muhammad Aslam, PLD 2000 SC 453

Fraud must be specific, pleaded with full particulars, and substantiated. Mere allegation of misreading of evidence or erroneous decision does not attract Section 12(2).

▪ Mst. Salma Taseer v. Umar Sheikh, 2021 SCMR 2157

The court reaffirmed that fraud must be extrinsic to the proceedings; a legal error or misinterpretation is not sufficient to invoke Section 12(2).

▪ Nazar Hussain v. Wali Muhammad, 2016 SCMR 24

Held that Section 12(2) applications must be accompanied by clear evidence of fraud or deception. Bald allegations are insufficient.

▪ Muhammad Akram v. Mst. Zainab Bibi, PLD 2012 Lahore 92

It was clarified that mere non-service of noticeor procedural defect does not ipso facto establish fraud unless it is proved that it was intentional and misleading.

6. Procedural Aspects

Filing Requirements:

Application must be in writing under Order VI, Rule 4 CPCwith particulars of fraud.

No court fee for a fresh suit; only application fee is paid.

No second application lies once an earlier application under Section 12(2) is dismissed unless fresh grounds arise.

Court’s Approach:

Courts are cautious not to allow Section 12(2) as a tool to reopen concluded litigation unless the statutory grounds are clearly met.

Inquiry is summary, but the court may allow evidence to be recorded if prima facie case is made out.

7. Limits and Abuse of Process

Courts have condemned the misuse of Section 12(2) by unsuccessful parties attempting to relitigate matters. The provision is not an appeal substitute, andrevision or review should not be disguised as 12(2) applications.

Ghulam Sarwar v. Ghulam Qasim, PLD 1988 SC 291

Reiterated that legal errors or mistaken interpretations of law are not fraud under Section 12(2). Only deceptive conduct extraneous to the record qualifies.

8. Comparative Note: Review under Section 114 vs. Section 12(2)

Feature	Section 12(2) CPC	Section 114 + Order XLVII
Grounds	Fraud, misrepresentation, want of jurisdiction	Mistake, discovery of new facts, error apparent
Forum	Same court	Same court
Time Limit	3 years (Art. 181 Limitation Act)	30 days
Nature	Independent proceeding	Part of the same original proceeding

9. Conclusion

Section 12(2) CPC is a critical mechanismfor ensuring that judgments are free from manipulation, deceit, and illegality. However, its scope is narrowly tailored to prevent abuse. It provides a vital balance between the finality of judgments and corrective justice when procedural or jurisdictional wrongs are uncovered.

 

PART -II

 

 

Code of Civil Procedure, 1908

Judicial Training Manual & Curriculum

Designed for: Civil Judges, Advocates, Judicial Academies, and Law Students

Table of Contents

Module 1: Introduction to the Code of Civil Procedure

Module 2: Jurisdiction and Institution of Suits

Module 3: Pleadings (Plaint and Written Statement)

Module 4: Framing of Issues and Preliminary Objections

Module 5: Production, Admission and Denial of Documents

Module 6: Case Management Reforms and Pre-Trial Stage

Module 7: Trial Procedure and Evidence Recording

Module 8: Judgments and Decrees

Module 9: Execution Proceedings

Module 10: Appeals, Review and Revision

Module 11: Interlocutory and Special Proceedings

Module 12: Section 12(2) – Fraud, Misrepresentation and Review

Module 13: ADR and Mediation (Section 89-A CPC)

Module 14: Judicial Ethics and Procedural Fairness

Module 1: Introduction to the Code of Civil Procedure

This module provides an overview of the historical background, structure, and foundational principles of the Code of Civil Procedure, 1908 (CPC), which regulates civil litigation in Pakistan.

1. Objectives

• Understand the role of CPC in civil justice
• Learn the hierarchy of courts and civil jurisdiction
• Recognize the structure of the CPC and its Schedules
• Appreciate the evolution of procedural reforms

2. Key Topics

• Purpose and scope of CPC
• Historical evolution and codification
• Division into parts, orders, and rules
• Relationship with substantive law
• CPC’s application to courts and tribunals

3. Historical Context

The Code of Civil Procedure, 1908 was enacted to unify and streamline civil procedural laws throughout British India. Post-independence, Pakistan retained the Code, amending it through provincial reforms (e.g., Punjab amendments 2021–22).

4. Structural Breakdown

• Preliminary (Sections 1–8)
• Main Body (Sections 9–158)
• First Schedule: Orders I–LI
• Second Schedule (Arbitration-related, repealed)
• Case law complements statutory interpretation

5. Summary Chart: Structure of CPC

Section-based Provisions | 1–158
Order-based Rules | Orders I to LI
Provincial Amendments | Punjab, Sindh, KP
Schedules | First Schedule (Orders), Second Schedule (Repealed)

6. Practice Questions

1. What are the key objectives behind the CPC?
2. How is the Code divided and what is the purpose of the First Schedule?
3. What types of amendments are allowed under provincial powers?
4. Explain how CPC balances procedural rigor with judicial discretion.

7. Key Case Law

• Federation of Pakistan v. Malik Ghulam Mustafa Khar, PLD 1975 SC 331
• Pir Bakhsh v. Chairman Allotment Committee, PLD 1987 SC 145
• Government of Punjab v. Qaisar Amin Raja, 2022 SCMR 858

8. Recommended Reading

• Mulla, Code of Civil Procedure
• PLD Commentary on CPC
• Civil Justice Reports – Law & Justice Commission of Pakistan

Module 2: Jurisdiction and Institution of Suits

1. Objectives

• Understand the concept of jurisdiction in civil cases
• Learn the legal requirements for instituting a civil suit
• Identify the statutory provisions governing territorial, pecuniary, and subject-matter jurisdiction
• Analyze key case law under Sections 9–11 CPC

2. Key Concepts of Jurisdiction

Jurisdiction is the authority of a court to hear and decide a legal dispute. It includes:
• Subject-matter jurisdiction
• Territorial jurisdiction
• Pecuniary jurisdiction
• Exclusion of jurisdiction
• Transfer of jurisdiction

3. Section 9 CPC – Civil Court Jurisdiction

Section 9 CPC states that civil courts have jurisdiction to try all suits of a civil nature except those which are expressly or impliedly barred by law.

4. Section 10 CPC – Res Sub Judice

Section 10 bars trial of a suit when the matter in issue is already pending in another competent court. This avoids parallel litigation and conflicting judgments.

5. Section 11 CPC – Res Judicata

Res judicata prevents the same issue between the same parties from being re-litigated once finally decided by a competent court.

6. Territorial and Pecuniary Jurisdiction

• Section 15: Suits to be instituted in the court of lowest grade competent to try it
• Section 16–20: Territorial jurisdiction rules
• Section 18–20: Suits where defendants reside or cause of action arises

7. Diagram: Determining Jurisdiction to Institute Suit

┌────────────────────────────────────┐

│  Is the suit of a civil nature?    │

└────────────┬────────────────────── ┘

             │Yes

             ▼

┌──────────────────────────────┐

│ Is jurisdiction expressly or │

│   impliedly barred by law?   │

└────────────┬──────────────── ┘

     No      │       Yes

     ▼       ▼

┌──────────────────────┐   ┌────────────────────┐

│ Assess territorial,  │   │ Civil court barred │

│ pecuniary, subject-  │   │ from hearing suit  │

│ matter jurisdiction  │   └────────────────────┘

└────────────┬─────────┘

             ▼

┌──────────────────────────────┐

│ File suit in proper forum    │

└──────────────────────────────┘

8. Key Case Law

• Federation of Pakistan v. Malik Ghulam Mustafa Khar, PLD 1975 SC 331 – Civil courts have wide jurisdiction unless barred by statute.
• Shahid Raza v. Dr. Israr Ahmad, 2006 SCMR 993 – Civil court retains jurisdiction in civil rights matters unless excluded expressly.
• Muhammad Yousaf v. Haji Muhammad Aslam, PLD 2000 SC 453 – Specific pleading of jurisdictional bars required.

9. Practice Questions

1. What are the three types of jurisdiction in civil matters?
2. When is a civil court’s jurisdiction excluded?
3. What is the difference between res judicata and res sub judice?
4. Under what conditions can a suit be filed in a different court than where the defendant resides?

10. Recommended Reading

• Mulla, Code of Civil Procedure
• PLD Commentary on CPC
• Case Digest on Sections 9 to 11 CPC
• Law & Justice Commission of Pakistan Reports

Module 3: Pleadings (Plaint and Written Statement)

1. Objectives

• Understand the structure and legal requirements of pleadings
• Learn how to draft and scrutinize a plaint and written statement
• Explore procedural rules under Orders VI, VII, and VIII CPC
• Utilize templates and checklists for court-compliant pleadings

2. Legal Framework

• Order VI: General Rules of Pleading
• Order VII: Plaint – Form, Contents, Rejection
• Order VIII: Written Statement – Denials, Set-off, Counter-claim
• Sections 26 to 35 CPC – Institution and Pleading Controls

3. What is a ‘Pleading’?

A pleading is a written statement filed by each party to set out its claim or defense. It must contain material facts but not evidence. The two primary pleadings are the plaint and the written statement.

4. Requirements of a Plaint (Order VII)

• Name of the court and parties
• Cause of action with material facts
• Jurisdictional facts
• Relief sought and valuation
• Verification by the plaintiff

Checklist: Plaint Compliance

✓ Suit properly titled
✓ Cause of action clearly stated
✓ Jurisdiction established
✓ Prayer clause specific
✓ Stamp paper/valuation court fee paid
✓ Documents annexed with list
✓ Verification clause signed

5. Grounds for Rejection of Plaint

Under Order VII Rule 11 CPC:
• No cause of action disclosed
• Relief undervalued
• Insufficient court fee
• Suit appears barred by law

6. Requirements of a Written Statement (Order VIII)

• Response to each allegation with specific denial or admission
• Legal objections stated clearly
• Set-off or counter-claim, if any
• Verification and signature

Checklist: Written Statement Compliance

✓ Pointwise reply to plaint paragraphs
✓ Specific denials – evasive denials not allowed
✓ Preliminary objections mentioned
✓ Counter-claim/set-off annexed if applicable
✓ Proper signature and verification
✓ Filed within time limit (30 days)

7. Sample Format – Plaint

IN THE COURT OF SENIOR CIVIL JUDGE, LAHORE
Civil Suit No. ___ of 202_
[Plaintiff Name] ………………………. Plaintiff
VERSUS
[Defendant Name] ……………………… Defendant

PLAINT U/S 9 CPC FOR [Nature of Relief]

Respectfully Submitted:
1. That the plaintiff is a resident of [Address]…
2. That the cause of action arose on…
3. That the defendant has failed to…

PRAYER:
It is respectfully prayed that a decree may kindly be passed for…

Place: Lahore   Dated: ___________
Plaintiff’s Signature and Verification

8. Sample Format – Written Statement

IN THE COURT OF SENIOR CIVIL JUDGE, LAHORE
Civil Suit No. ___ of 202_
[Defendant Name] ……………………… Defendant

WRITTEN STATEMENT ON BEHALF OF DEFENDANT

PRELIMINARY OBJECTIONS:
1. That the suit is not maintainable…
2. That the plaintiff has no cause of action…

PARA-WISE REPLY:
1. Para 1 is admitted.
2. Para 2 is denied being incorrect.

Place: Lahore   Dated: ___________
Defendant’s Signature and Verification

9. Practice Questions

1. What are the legal requirements for a valid plaint?
2. What are the consequences of not filing a written statement within time?
3. What is the difference between a set-off and a counter-claim?
4. When can a plaint be rejected under Order VII Rule 11?

10. Key Case Law

• Zahid Hussain v. Muhammad Iqbal, 2021 SCMR 1784
• Gulshan Ara v. Ghulam Qadir, PLD 2022 SC 435
• Waseem Ahmed v. LDA, 2023 CLC 1521
• Khalid Mehmood v. Muhammad Riaz, PLD 2019 Lahore 226

11. Recommended Reading

• Mulla, Code of Civil Procedure
• PLD Commentary on Pleadings
• Lahore High Court Rules on Civil Drafting

Module 4: Framing of Issues and Preliminary Objections

1. Objectives

• Understand the purpose of framing issues
• Learn the legal basis and process under Order XIV CPC
• Identify what constitutes a preliminary objection
• Practice issue framing through examples and case scenarios

Pre-Trial Management Process

       ┌──────────────────────────┐

       │ Filing of WS (30 days)   │

       └────────────┬──────────── ┘

                    ▼

        ┌─────────────────────────────┐

        │ Pre-trial scrutiny by judge │

        └────────────┬────────────────┘

                     ▼

    ┌──────────────────────────────────────┐

    │ Framing of issues + mediation check  │

    └────────────┬─────────────────────────┘

                 ▼

     ┌────────────────────────────────┐

     │ Mediation (Section 89-A CPC)   │

     └────┬───────────────┬────────── ┘

          ▼               ▼

   Success: Decree     Failure: Trial

2. Legal Framework

• Order XIV CPC – Settlement of Issues
• Section 30 CPC – Power to order discovery and framing
• Sections 9–11 CPC for objections to maintainability

3. Importance of Framing Issues

Issues determine the scope of trial. The court identifies material propositions of fact and law in dispute to be resolved through evidence. This step streamlines proceedings and limits irrelevant inquiry.

4. Types of Issues

• Issues of Fact – e.g., ‘Whether the plaintiff was dispossessed on 01.01.2024?’
• Issues of Law – e.g., ‘Whether the suit is barred by limitation?’
• Mixed Issues – involving both fact and law

5. Process of Framing Issues

1. Examine pleadings and documents
2. Identify points of contention
3. Eliminate admitted facts
4. Record issues in writing in the presence of parties

6. Preliminary Objections

A preliminary objection is a legal point raised before the framing of issues that may dispose of the suit without trial. These include:
• Want of jurisdiction
• Limitation
• Misjoinder or non-joinder of parties
• No cause of action
• Plaint barred by law

Checklist: Valid Preliminary Objection

✓ Raised at the earliest opportunity
✓ Clearly pleaded in written statement
✓ Relates to maintainability, not merits
✓ Capable of decision without evidence

7. Sample Format – Framed Issues

ISSUES FRAMED BY THE COURT:
1. Whether the plaintiff is the lawful owner of the suit property?
2. Whether the defendant illegally encroached upon the property on 01.01.2024?
3. Whether the suit is barred by limitation?
4. What relief, if any, is the plaintiff entitled to?

8. Practical Exercise – Issue Framing

Scenario:
Plaintiff files suit for recovery of Rs. 500,000 alleging that the defendant borrowed the amount and failed to return it. Defendant denies the transaction and pleads limitation.

Exercise:
Draft the issues that should be framed by the court.

9. Key Case Law

• Syed Saeed Hassan v. Qaisar Jehan, 2021 SCMR 1602
• Liaqat Ali v. Bashir Ahmed, PLD 2014 SC 199
• Waqas Ahmed v. Lahore High Court, PLD 2022 Lahore 187
• Tufail Muhammad v. NBP, 2023 MLD 1219

10. Practice Questions

1. Why is framing of issues a critical stage in civil proceedings?
2. What is the test to determine whether a matter qualifies as a preliminary objection?
3. Can a preliminary objection be raised after issues are framed?
4. Who has the burden of proof for each issue?

11. Recommended Reading

• Mulla, Code of Civil Procedure
• PLD Commentary on CPC – Order XIV
• Civil Trial Practice by Dr. Munir Ahmad Mughal

Module 5: Production, Admission, and Denial of Documents

1. Objectives

• Understand procedural rules for production of documents under the CPC
• Learn how to admit or deny documents under amended provisions
• Use document lists, templates, and affidavits to comply with requirements
• Implement bet practices and avoid pitfalls in documentary procedure

          ┌────────────────────────────┐

          │ Documents filed with suit  │

          └────────────┬───────────────┘

                       ▼

      ┌────────────────────────────────────┐

      │ Opponent served and directed to    │

      │ submit written admission/denial    │

      └────────────┬───────────────────────┘

                   ▼

      ┌────────────────────────────────────┐

      │ If document admitted               │

      └───────┬────────────────────────────┘

              ▼

  ┌────────────────────────────┐

  │ No proof required          │

  └────────────────────────────┘

      ┌────────────────────────────────────┐

      │ If document denied or ignored      │

      └───────┬────────────────────────────┘

              ▼

  ┌────────────────────────────┐

  │ Must be proved during trial│

  └────────────────────────────┘

2. Legal Framework

• Order XIII CPC – Production, Impounding and Return of Documents
• Order XII Rule 2A – Admission and Denial of Documents
• Punjab Civil Law Reforms (Amendments, 2021–22)
• Related: Evidence Act 1984 – Documentary Evidence Provisions

3. Production of Documents

Documents must be submitted:
• With plaint or written statement
• Along with a list (Order VII Rule 14 and Order VIII Rule 1A)
• Late submission requires leave of court and explanation
• Failure to produce may affect admissibility

Checklist: Document Production

✓ List of documents annexed
✓ Originals submitted where required
✓ Copies supplied to other party
✓ Index and pagination provided
✓ Application filed if produced late

4. Admission and Denial Procedure

• Each party must admit or deny the opposing party’s documents in writing
• Time limit: Within 30 days (as per amended CPC)
• Failure to respond may result in deemed admission
• Consequence: Narrowing of trial issues and reduced need for oral evidence

5. Flowchart: Document Production and Admission Process
           ┌────────────────────┐
          │ Documents filed with suit              │
          └────────────┬───────┘
                                              ▼
      ┌────────────────────────────────────┐
      │ Opponent served and directed to                                                 │
      │ submit written admission/denial                                                  │
      └────────────┬───────────────────────┘
                                          ▼
      ┌────────────────────────────────────┐
      │ If document admitted                                                                   │
      └───────┬────────────────────────────┘
                            ▼
  ┌────────────────────────────┐
  │ No proof required                                                  │
  └────────────────────────────┘

      ┌────────────────────────────────────┐
      │ If document denied or ignored                                                    │
      └───────┬────────────────────────────┘
                            ▼
  ┌────────────────────────────┐
  │ Must be proved during trial                                   │
  └────────────────────────────┘

6. Sample Format – Document List

LIST OF DOCUMENTS

1. Sale Deed dated 01.01.2020 between Plaintiff and Defendant
2. Utility Bills for disputed premises (Jan–Mar 2023)
3. CNIC copy of Plaintiff

Place: ______   Date: _______
(Signature of Party/Advocate)

7. Sample Format – Admission/Denial Statement

ADMISSION AND DENIAL OF DOCUMENTS (UNDER ORDER XII RULE 2A CPC)

Case Title: Plaintiff v. Defendant
Suit No: _____

Document No. 1: Sale Deed dated 01.01.2020 – DENIED
Document No. 2: Utility Bills (Jan–Mar 2023) – ADMITTED
Document No. 3: CNIC copy – ADMITTED

(Signature with CNIC)

8. Practice Questions

1. What is the consequence of failing to deny a document?
2. Can a party produce new documents during cross-examination?
3. What are the essential elements of a document list under CPC?
4. What steps must the judge take on an admission and denial statement?

9. Key Case Law

• Shahbaz Ali v. Additional District Judge, 2021 SCMR 1931
• Ali Akbar v. Amina Bibi, PLD 2021 Lahore 120
• Muhammad Yousaf v. Haji Muhammad Aslam, PLD 2000 SC 453

10. Recommended Reading

• Mulla, Code of Civil Procedure (Order XIII)
• PLD Commentary on CPC – Documents and Evidence
• Punjab Law Reforms Reports – Document Handling Procedures

Module 6: Case Management Reforms and Pre-Trial Stage

1. Objectives

• Understand the new case management reforms under Punjab CPC amendments
• Learn the role of the administrative judge in managing court docket
• Identify how mediation referrals and skeleton arguments fit into pre-trial practices
• Apply timelines and compliance rules in pre-trial case management

2. Legal Framework

• Punjab Civil Procedure (Amendment) Act, 2021
• Order X, XIII, and XIV (as amended)
• Section 89-A CPC – Mediation
• Lahore High Court (Civil Case Management Rules)

3. Role of Administrative Judge

An administrative judge supervises the judicial workload and ensures effective implementation of timelines. Their functions include:
• Monitoring disposal rates
• Resolving docket congestion
• Coordinating with trial judges on scheduling

4. Timeline Enforcement in CPC (Punjab)

• Written Statement: 30 days from date of service
• Issue Framing: within 7 days of pleadings closure
• Trial Completion: within 12 months from first hearing
• One adjournment per party, further adjournments require written justification

5. Mediation Referral – Section 89-A CPC

• Courts must consider referral to mediation before settling issues
• Referral can be initiated by court or on party’s application
• Successful mediation = compromise decree
• Failed mediation = return to trial

6. Skeleton Arguments

Skeleton arguments are concise written outlines of oral submissions. They must:
• Be submitted before final hearing
• Be limited to 2–3 pages
• Contain headings, legal questions, and references
• Improve efficiency and clarity in final hearing

7. Flowchart: Pre-Trial Management Process

        ┌──────────────────────────┐
       │ Filing of WS (30 days)                                    │
       └────────────┬────────────   ┘
                                           ▼
        ┌─────────────────────────────┐
        │ Pre-trial scrutiny by judge                                       │
        └────────────┬────────────────┘
                                            ▼
    ┌──────────────────────────────────────┐
    │ Framing of issues + mediation check                                                │
    └────────────┬─────────────────────────┘
                                        ▼
     ┌───────────────────────────────┐
     │ Mediation (Section 89-A CPC)                                     │
     └────┬───────────────┬──────────┘
                   ▼                                         ▼
   Success: Decree                          Failure: Trial

8. Practice Questions

1. What is the function of the administrative judge?
2. What is the legal status of a compromise decree from mediation?
3. Can a court proceed with trial if skeleton arguments are not filed?
4. What remedy is available if the trial timeline is not followed?

9. Key Case Law

• Government of Punjab v. Qaisar Amin Raja, 2022 SCMR 858
• Mst. Zubaida Bibi v. Additional District Judge, 2020 SCMR 329
• Shahbaz Ali v. ADJ, 2021 SCMR 1931

10. Recommended Reading

• Lahore High Court Rules on Case Management
• PLD Civil Procedure Commentaries
• Punjab ADR and Mediation Act materials

Module 7: Trial Procedure and Evidence Recording

1. Objectives

• Understand the structured process of civil trial under CPC
• Learn how evidence is recorded and evaluated
• Explore judge’s duties during trial
• Identify reforms under Punjab CPC amendments regarding trial management

2. Legal Framework

• Order XVIII CPC – Hearing of the Suit and Examination of Witnesses
• Order XVI & XVII – Summoning and Adjournments
• Evidence Act 1984 – Examination of witnesses
• Punjab Civil Reforms Rules

3. Trial Structure Overview

A civil trial comprises:
• Opening statement by parties (optional)
• Recording of evidence (plaintiff, then defendant)
• Cross-examination
• Final arguments (oral + skeleton arguments)
• Judgment by trial judge

4. Evidence Recording

• Examination-in-Chief: Filed via affidavit
• Cross-Examination: Conducted before judge or commission
• Re-examination: Only to clarify ambiguities
• Objections to questions must be recorded
• All evidence must relate to framed issues

5. Judge’s Role During Trial

• Judge must actively manage trial
• Ensure relevance and admissibility of evidence
• Discourage irrelevant or repetitive examination
• Record demeanor, objections, and rulings
• Complete trial within 12 months

6. Mid-Trial Transfer Policy (Punjab)

• A judge who records evidence must decide the case
• Transfer discouraged once trial begins
• If unavoidable, new judge must re-hear evidence unless parties consent

7. Flowchart: Trial and Evidence Recording

        ┌─────────────────────────────┐
        │ Framing of Issues Completed                                  │
        └────────────┬────────────────┘
                                            ▼
      ┌────────────────────────────────┐
      │ Affidavit-in-chief submitted                                            │
      └────────────┬───────────────────┘
                                          ▼
      ┌────────────────────────────────┐
      │ Cross-examination scheduled                                           │
      └────────────┬───────────────────┘
                                           ▼
      ┌────────────────────────────────┐
      │ Final Arguments + Skeletons                                           │
      └────────────┬───────────────────┘
                                          ▼
      ┌────────────────────────────────┐
      │ Judgment by same trial judge                                           │
      └────────────────────────────────┘

Trial and Evidence Recording

        ┌─────────────────────────────┐

        │ Framing of Issues Completed                                │

        └────────────┬────────────────┘

                                            ▼

      ┌────────────────────────────────┐

      │ Affidavit-in-chief submitted                                           │

      └────────────┬───────────────────┘

                                          ▼

      ┌────────────────────────────────┐

      │ Cross-examination scheduled                                        │

      └────────────┬───────────────────┘

                                          ▼

      ┌────────────────────────────────┐

      │ Final Arguments + Skeletons                                         │

      └────────────┬───────────────────┘

                                          ▼

      ┌────────────────────────────────┐

      │ Judgment by same trial judge                                       │

      └────────────────────────────────┘

8. Practice Questions

1. What is the standard sequence of witness examination?
2. What can a judge do if the witness is evasive or disruptive?
3. Under what conditions can trial be transferred after it has begun?
4. What are the limitations on adjournments during evidence?

9. Key Case Law

• Muhammad Anwar v. Iftikhar Ahmad, 2021 SCMR 1491
• Province of Punjab v. Muhammad Siddique, 2022 SCMR 714
• Ghulam Mustafa v. ADJ, PLD 2019 Lahore 311

10. Recommended Reading

• Mulla, Code of Civil Procedure
• Civil Trial Techniques – Judicial Academy Manual
• Lahore High Court Case Management Protocols

Module 8: Judgments and Decrees

1. Objectives

• Understand the structure and content of civil court judgments and decrees
• Identify types of decrees and rules for their preparation and execution
• Recognize differences between preliminary and final decrees
• Learn reforms under Punjab CPC regarding automatic execution

2. Legal Framework

• Section 33 CPC – Judgment and Decree
• Order XX CPC – Judgment Writing
• Order XXII & XXI – Execution
• Punjab Civil Reforms (Decree Execution Reforms, 2021)

3. Components of a Judgment

• Brief facts and pleadings
• Framed issues and findings
• Evidence appreciation
• Legal reasoning and case law
• Relief granted or denied
• Final operative paragraph (Order XX Rule 6A)

4. Types of Decrees

• Preliminary Decree – determines rights but requires further proceedings (e.g., partition, accounts)
• Final Decree – conclusively decides the suit
• Ex Parte Decree – passed in absence of one party
• Compromise Decree – based on mutual settlement
• Consent Decree – agreed decree on legal terms

5. Punjab CPC Amendment – Automatic Execution

• Money and possession decrees are now executable without separate application
• Court must initiate execution suo motu
• Delays in decree sheet preparation to be minimized
• Non-compliance treated as contempt of court

6. Flowchart: From Judgment to Execution

┌──────────────────────────────┐
│  Trial Completed by Judge                                          │
└────────────┬─────────────────┘
                                    ▼
  ┌─────────────────────────────┐
  │  Judgment Pronounced (S.33)                                  │
  └────────────┬────────────────┘
                                      ▼
  ┌─────────────────────────────┐
  │  Decree Drawn by Court                                          │
  └────────────┬────────────────┘
                                      ▼
  ┌───────────────────────────────────┐
  │  Automatic Execution (Punjab)                                                │
  └───────────────────────────────────┘

7. Practice Questions

1. What are the minimum components of a valid civil judgment?
2. What distinguishes a preliminary decree from a final one?
3. Under the Punjab reforms, when does execution commence?
4. How is an ex parte decree set aside?

8. Key Case Law

• Abdul Hameed v. Azmat Ali, 2020 MLD 1847
• Mst. Nasim Bibi v. Muhammad Ashraf, PLD 2022 Lahore 445
• Habib Bank Ltd v. Iqbal Ahmed, 2023 CLD 1202

9. Recommended Reading

• Mulla, Code of Civil Procedure – Order XX Commentary
• PLD Handbook on Civil Judgments
• Judicial Writing Manual – Judicial Academy Pakistan

Module 9: Execution Proceedings

1. Objectives

• Understand how decrees are executed under the CPC
• Learn the types of executable decrees and procedural steps
• Apply Punjab’s reforms on automatic execution and objection handling
• Study timelines, objections, and enforcement mechanisms

2. Legal Framework

• Sections 36 to 74 CPC – Execution of Decrees
• Order XXI CPC – Detailed Procedure
• Punjab Civil Reforms 2021 – Execution Streamlining
• Lahore High Court Circulars on Execution Monitoring

3. Nature of Executable Orders

• Decrees for money
• Possession of immovable property
• Specific performance
• Injunctions and declarations (where enforceable)
• Orders for costs or interest

4. Automatic Execution Reforms – Punjab

• Execution starts suo motu after judgment
• No separate application required for possession or monetary decrees
• Delay in execution is misconduct
• Courts required to set schedule within 7 days

5. Modes of Execution

• Attachment and sale of property
• Arrest and detention of judgment-debtor (rare)
• Appointment of local commissioner
• Delivery of possession via bailiff

6. Objections to Execution

• Must be filed under Order XXI Rule 58
• Accompanied by affidavit
• Frivolous or dilatory objections penalized
• Summary inquiry to be concluded within 90 days

7. Flowchart: Execution Lifecycle

┌──────────────────────────────┐
│  Judgment/Decree Passed                   │
└────────────┬────────────────┘
                                    ▼
┌────────────────────────────────────────┐
│ Automatic Execution Commences (Punjab).          │
└────────────┬──────────────────────────┘
                                    ▼
  ┌────────────────────────────────────┐
  │ Bailiff/Officer Executes Decree                        │
  └─────┬─────────────────────────────
                  ▼
┌────────────────────────────────────────┐
│ If Objection Filed (w/ Affidavit)                                │
└────────────┬──────────────────────────┘
                                      ▼
  ┌─────────────────────────────┐
  │ Inquiry and Disposal (90d)                 
  └─────────────────────────────┘

8. Practice Questions

1. What are the reforms in Punjab related to automatic execution?
2. What is the role of affidavits in objection petitions?
3. What are the modes of executing a decree for possession?
4. What happens if the court fails to execute its own decree?

9. Key Case Law

• Abdul Hameed v. Azmat Ali, 2020 MLD 1847
• Muhammad Saeed v. Riaz Hussain, PLD 2021 Lahore 322
• Shahid Ali v. ADJ, 2022 CLC 1117

10. Recommended Reading

• Mulla, CPC Commentary – Order XXI
• PLD Handbook on Execution
• Lahore High Court Training Module – Execution and Bailiff Practices

Module 10: Appeals, Review and Revision

1. Objectives

• Understand the appellate framework of CPC
• Distinguish between appeals, reviews, and revisions
• Learn timelines, grounds, and jurisdictional limits for each remedy
• Apply recent reforms including timelines for disposal of appeals

2. Legal Framework

• Sections 96 to 115 CPC
• Order XLI to XLVII CPC
• Punjab Reforms: 90-day disposal target for appeals
• Lahore High Court Circulars on Appellate Case Flow

3. First Appeal – Section 96

• Lies from original decree passed ex parte or contested
• May involve questions of law and fact
• Must be filed within 30 days (decree) or 90 days (judgment)

4. Second Appeal – Section 100

• Only on substantial question of law
• No appeal lies on concurrent findings of fact
• Permission required for framing legal question by High Court

5. Appeal from Orders – Section 104

• Permissible only for orders listed in Order XLIII Rule 1
• Examples: Orders returning plaint, granting injunction, rejecting applications under Order IX

6. Review – Section 114 & Order XLVII

• Filed before the same court that passed decree/order
• Grounds: Error apparent on face, discovery of new evidence, or analogous sufficient reason
• Must be filed within 30 days

7. Revision – Section 115

• Supervisory power of High Court
• Applies where subordinate court exceeds jurisdiction or acts illegally
• No revision if appeal is available

8. Punjab Reforms – Timelines for Appeals

• Appellate courts must decide within 90 days of admission
• Stay orders lapse unless extended with reasons
• Appellants must file paper books and grounds of appeal in writing

9. Flowchart: Remedies after Judgment
┌──────────────────────────────┐
│ Judgment/Decree Pronounced           │
└────────────┬────────────────┘
                             ▼
 ┌───────────────┐  ┌──────────────┐  ┌─────────────┐
 │  First Appeal          │  │   Review               │  │   Revision           │
 │   (S.96)                    │  │  (S.114)                │  │   (S.115)             │
 └───────────────┘  └──────────────┘  └─────────────┘

10. Practice Questions

1. What is the difference between a review and a revision?
2. When is a second appeal maintainable?
3. What are the grounds for filing a review under Order XLVII?
4. What procedural reforms apply to appellate timelines in Punjab?

11. Key Case Law

• WAPDA v. Muhammad Arif, 2021 SCMR 976
• Abdul Rehman v. ADJ, PLD 2020 Lahore 201
• Tariq Aziz v. State Bank, 2022 CLC 318

12. Recommended Reading

• Mulla, Code of Civil Procedure – Appeals & Review
• PLD Commentary on CPC
• LHC Rules on Appellate Case Management

Module 11: Interlocutory and Special Proceedings

1. Objectives

• Understand interlocutory applications and orders under the CPC
• Learn special procedures like commission, injunctions, and arrest before judgment
• Apply rules related to temporary injunctions, security, and discovery

2. Legal Framework

• Order XXXVIII – Arrest and Attachment Before Judgment
• Order XXXIX – Temporary Injunctions and Interlocutory Orders
• Order XXVI – Commissions
• Section 94 and Section 151 CPC – Supplemental Proceedings

3. Types of Interlocutory Reliefs

• Temporary Injunction (O. XXXIX Rule 1 & 2)
• Appointment of Receiver (O. XL)
• Arrest before judgment (O. XXXVIII Rule 1)
• Attachment before judgment (O. XXXVIII Rule 5)
• Discovery and Interrogatories (O. XI)

4. Principles Governing Interim Relief

• Prima facie case
• Balance of convenience
• Irreparable loss
• Clean hands doctrine
• Discretion of court subject to legal principles

5. Commission and Local Investigation

• Courts may appoint a commission to:
  – Record evidence (O. XXVI R. 1)
  – Hold local inspection
  – Conduct partition or account inquiries
• Report of commission is not conclusive evidence unless adopted by court

6. Flowchart: Interlocutory Stage in Civil Trial

┌──────────────────────────────┐
│ Suit Filed & WS Submitted                  │
└────────────┬───────────────  ┘
                             ▼
  ┌───────────────────────────────┐
  │ Interlocutory Applications                     │
  └────────────┬────────────────  ┘
                               ▼
  ┌──────────────────────────────────┐
  │ Hearing & Order (e.g. Injunction)               │
  └────────────┬────────────────────┘
                               ▼
   ┌──────────────────────────────┐
   │ Evidence / Commission Appointed    │
   └──────────────────────────────┘

7. Practice Questions

1. What are the key ingredients of a temporary injunction order?
2. What are the differences between interlocutory and final orders?
3. What is the legal effect of a commission report?
4. When can a defendant be arrested before judgment?

8. Key Case Law

• Messrs. Popular Juice v. ADJ, PLD 2022 Lahore 559
• Amin Textile v. Rasheed Ltd., 2021 CLC 1180
• Feroze Textile v. UBL, PLD 2020 Karachi 331

9. Recommended Reading

• Mulla, CPC – Interlocutory and Special Proceedings
• PLD Civil Practice Manual
• High Court Rules on Temporary Orders

Module 12: Suits by or Against Government and Indigent Persons

1. Objectives

• Understand the procedural rules for suits involving the government
• Learn how indigent (pauper) litigants access civil justice
• Apply procedural safeguards and timelines specific to these categories

2. Legal Framework

• Sections 79–82 CPC – Suits by/against the Government
• Order XXVII – Procedure in Suits by or Against Government
• Order XXXIII – Suits by Indigent Persons (formerly ‘paupers’)
• Section 80 CPC – Notice to Government
• Order XLIV – Appeals by Indigent Persons

3. Suits by or Against Government

• Government must be named as a party under its legal title (e.g., Province of Punjab)
• Government pleader must represent the state
• Two-month advance notice required before filing suit (Section 80)
• Court must afford reasonable time for government reply
• No arrest or attachment before decree against the government (Section 82)

4. Suits by Indigent Persons

• A person unable to pay prescribed court fee can seek permission to sue as indigent
• Application must disclose assets and income
• Inquiry conducted by court on genuineness of claim and indigency
• If granted, plaintiff proceeds without court fee
• Misuse may lead to rejection and recovery of costs

5. Appeals by Indigent Persons

• Governed by Order XLIV CPC
• Same conditions apply as in Order XXXIII
• High Court may call for inquiry report
• If application is accepted, appeal proceeds without court fee

6. Flowchart: Suits by Indigent Persons

┌─────────────────────────────┐
│ Application to Sue Indigent.             │
└────────────┬───────────────┘
                             ▼
┌────────────────────────────────────┐
│ Court Orders Inquiry on Indigency                  │
└────────────┬──────────────────────┘
                             ▼
   ┌────────────────────┐  ┌────────────────────┐
   │ Found Indigent                │  │ Found Not Indigent         │
   │ Proceed Without Fee.    │  │ Pay Fee to Proceed          │
   └────────────────────┘  └────────────────────┘

7. Practice Questions

1. What is the legal requirement before filing a suit against the government?
2. What constitutes an indigent person under CPC?
3. Can a government officer be sued without notice under Section 80?
4. What is the effect of rejection of an application under Order XXXIII?

8. Key Case Law

• Federation of Pakistan v. Saeed Ahmed Khan, 2021 SCMR 1094
• Mst. Zubaida Bibi v. ADJ, 2020 SCMR 329
• Babu Lal v. State of Punjab, PLD 2019 Lahore 450

9. Recommended Reading

• Mulla, Code of Civil Procedure – Orders XXVII & XXXIII
• PLD Civil Court Practice Handbook
• High Court Circulars on Government Litigation

Module 13: Res Judicata, Stay of Suit, and Withdrawal of Suit

1. Objectives

• Understand the doctrine of res judicata and its effect on litigation
• Identify conditions for stay of suit
• Learn how and when suits can be withdrawn or abandoned under CPC

2. Legal Framework

• Section 11 CPC – Res Judicata
• Section 10 CPC – Stay of Suit
• Order XXIII CPC – Withdrawal and Abandonment of Suits
• Relevant case law from superior courts

3. Res Judicata (Section 11)

• A matter once decided cannot be reopened in subsequent proceedings
• Applies to:
  – Same parties or their representatives
  – Same issue directly and substantially in issue
  – Decided by a court of competent jurisdiction
• Also applies to writ petitions and family suits

4. Stay of Suit (Section 10)

• A court must stay proceedings where:
  – A previously instituted suit is pending
  – The matter is directly and substantially the same
  – Between same parties
  – In a competent court
• Prevents multiplicity and conflicting judgments

5. Withdrawal and Abandonment (Order XXIII)

• A plaintiff may withdraw a suit or part of claim:
  – With court’s permission to file fresh suit (if formal defect or sufficient reason)
  – Without permission (bars fresh suit)
• Court may impose costs and conditions
• Abandonment of claim has the effect of withdrawal

6. Flowchart: Applicability of Res Judicata and Stay
┌─────────────────────────────┐
│  Suit Filed by Plaintiff                         │
└────────────┬────────────────┘
                             ▼
┌────────────────────────────────────┐
│ Is the same issue pending earlier?                  │
└────────────┬─────────────────────. ┘
                             ▼
  Yes ───── Suit Stayed (S.10) or Barred (S.11)
  No  ─────  Proceed with Hearing

7. Practice Questions

1. What are the essential ingredients of res judicata?
2. Can res judicata apply to interim orders?
3. What are the consequences of withdrawing a suit without court’s permission?
4. When can a court refuse to stay a subsequent suit?

8. Key Case Law

• Ghulam Ali v. Barkat Ali, PLD 2021 SC 607
• Muhammad Khan v. Bashir Ahmed, 2022 CLC 1004
• Zahid Bashir v. Khawaja Zubair, PLD 2019 Lahore 356

9. Recommended Reading

• Mulla, CPC – Res Judicata and Withdrawal
• PLD Handbook on Bar of Jurisdiction
• High Court Circulars on Section 10 and Order XXIII

Module 14: Special Proceedings and Miscellaneous Provisions

1. Objectives

• Familiarize with remaining procedural areas not covered in earlier modules
• Understand representative suits, interpleader suits, and suits by minors
• Explore inherent powers of the court under Section 151 CPC

2. Legal Framework

• Order I Rule 8 – Representative Suits
• Order XXXII – Suits by/against Minors and Persons of Unsound Mind
• Order XXXV – Interpleader Suits
• Section 151 CPC – Inherent Powers
• Order XXII – Death, Marriage, Insolvency of Parties

3. Representative Suits

• One or more persons may sue/defend on behalf of all with same interest
• Requires court permission and notice to affected parties
• Binding effect on all represented persons

4. Suits by/against Minors (Order XXXII)

• Every minor must sue through a next friend
• Guardian ad litem is appointed to defend minor
• Compromise without court’s permission is void
• Court must ensure protection of minor’s rights

5. Interpleader Suits (Order XXXV)

• Filed by a neutral stakeholder holding property claimed by multiple persons
• Must prove stakeholder has no interest except charges/costs
• Court determines rightful claimant and discharges plaintiff

6. Inherent Powers (Section 151)

• Courts may make orders to meet ends of justice or prevent abuse of process
• Cannot override express provisions
• Frequently invoked for stay, consolidation, recall of orders, restoration of cases

7. Miscellaneous Provisions

• Death of party: Substitution under Order XXII
• Marriage of female party: No abatement
• Insolvency: Does not automatically abate suit
• Power to extend time (Order XLVII-A)
• Enlargement of time is discretionary but must be justified

8. Flowchart: Special Proceedings Snapshot

┌───────────────────────────────┐
│ Suit Filed: Special Category                   │
└────────────┬─────────────────┘
                             ▼
   ┌────────────────────┐
   │ Representative Suit.       │
   └────────────────────┘
                            ▼
   ┌────────────────────┐
   │ Minor Involvement         │
   └────────────────────┘
                         ▼
   ┌────────────────────┐
   │ Interpleader Action.       │
   └────────────────────┘
                         ▼
   ┌────────────────────┐
   │ Inherent Powers              │
   └────────────────────┘

9. Practice Questions

1. What is the effect of compromise in a minor’s suit without court permission?
2. What are the limitations of Section 151 CPC?
3. How is a representative suit instituted?
4. What is an interpleader suit and when can it be filed?

10. Key Case Law

• Habib Bank Ltd v. Registrar, 2021 CLC 412
• Hafiz Javed v. NBP, 2022 MLD 1149
• Mst. Asia Bibi v. ADJ, PLD 2020 Lahore 187

11. Recommended Reading

• Mulla, CPC – Special Suits and Powers
• PLD Annotated CPC Rules
• High Court Circulars on Miscellaneous Procedures

PART-III

LAW OF CIVIL TRIAL

Institution of Suit and its Essentials: Portrayal of the Principles and Procedural Rules under the Code of Civil Procedure, 1908

The basic aim of a legal system of a country is to impose duty to respect the legal rightsconferred upon the members of the society. The person making a breach of that duty is saidto have done the wrongful act. On the basis of nature and gravity of such wrongful acts, thoseare separated under two categories: Public Wrong and Private Wrong. Public wrong isdeemed to be committed against the society and the Private wrong, against individuals. Thegravity of the former is greater than that of the latter. The first category is termed under theLaw as ‘crime’ governed by the Criminal Laws (Substantive and Procedural) and the secondcategory, as ‘civil wrong’ governed by the Civil Laws. Under the Criminal Law the action istaken by the state in its name and the accused has to pay fine to the State’s fund and is punishable by imprisonment or sentenced to death and in such cases the proceeding is started either by lodging the FIR or by lodging complaints (in case of Complaint cases) as provided by the Criminal Procedure Code, 1973. In case of civil wrong, the remedy is the compensation either liquidated or unliquidated damages; the remedial measures ensured to the people is based on the Latin maxims damnum sine injuria (damage without injury), injuria sine damnum (injury without damage) and ubi jus ibi remedium. According to the first two maxims if the legal right of a person is violated he will get the remedy, even in case where no actual damage is caused to him; but where he has no legal right, then if any actual damage is caused to him, he cannot be entitled to get the remedy. The ubi jus, ibi remedium (where there is a right there is a remedy), speaks of the remedial measure available in the formerly mentioned cases. Such remedial measures are enforced through the institution of suit. The Code of Civil Procedure, 1908 is the procedural or the adjective law of Pakistan

In civil matters. Sections 26 and Sections 35-35B read with Orders I (Parties to the Suit), II (Framing of the Suit), IV (Institution of the Suit), VI (Pleadings) and VII (Plaint) provide the procedural principles and rules regarding institution of suits.

The word ‘suit’ has wider application. There is a little difference between the suits under the CPC 1908 and the other civil suits. This is under the CPC that a suit is instituted by the presentation of the plaint which has particular format and in other suits like the Ejectment petition, the same is instituted by mere presentation of the petition. It should be mentioned that ‘suit’ is different from the ‘writs’. Suit is instituted to enforce the legal rights (not the political and religious) only; but the ‘writs’ are concerned with the enforcement of the Fundamental Rights guaranteed by the Constitution. Only the High Courts and the Supreme Court have the Writ jurisdiction governed by the Constitution. This article seeks to explore the process of institution of suits and its essentials which are governed by the CPC 1908.

importance of the art of pleadings is insufficiently realised in this Country. It is at least as important as any other part of the duties of an advocate. Moreover; it demands a high degree of skill and final form of any pleading should be settled only the by the advocates who have the necessary skill and experience. Deplorable consequences flow if there is departure from proper principles of pleadings and therefore it is the duty of both judges and lawyers to see that the pleadings are properly framed. According to Civil Procedure Code the pleading is defined as the ‘Plaint’ and the ‘Written Statement’. In the proceedings before the Civil Courts, it may include a petition whereby the proceedings are initiated under any law for the time being in force and reply thereto by the respondent whether in the form of affidavit or otherwise. The sole object of the pleading is that each side may be fully alive to the questions that about to be argued in order that may have an opportunity of bringing forward such evidence that may be appropriate. If the pleadings are not clear then the parties might not get the relief entitled or might not put forward the defense and therefore the same might result in miscarriage of justice.

For a lawyer, arguably more than for any other profession, words are the dominant tool of the trade. A lawyer can do nothing of consequence without using words. Surgeons, architects, surveyors, accountants, soldiers and police officers can carry out their professional functions to a greater or lesser extent without the use of words. But virtually everything a lawyer does involves speaking or writing. A lawyer’s performance will be judged almost exclusively on how well he or she speaks or writes. A lawyer is a specialist no matter what kind of practice he has he would be presumed specialist in advocacy. In the provision of written advice and in drafting. All these skills are dependent on the word skills of the lawyer. A lawyer is supposed to be and is expert in the use of words and the use of language. A lawyer will be offering services and charging a fee for which he would undertake to speak or write better than those paying him could have spoken or written.

‘Suit’:  Meaning  within  the  purview  of  the  Civil  Procedure  Code,  1908: The term ‘suit’ has not been defined in the Civil Procedure Code, 1908. According to Chamber’s 20th Century Dictionary (7^Th Edition, 2014)., it is a generic term of comprehensive signification referring to any proceeding by one person or persons against another or others in a court of law wherein the plaintiff pursues the remedy which the law affords him for the redress of any injury or enforcement of a right, whether at law or in equity. In the Black’s Law Dictionary (11th Edition, 2019) this term is defined as the proceeding initiated by a party or parties against another in the court of law. According to some other views, ‘suit’ includes appellate proceeding also; but it does not include an execution proceeding. Ordinarily, suit under the CPC is a civil proceeding instituted by the presentation of a plaint.

Procedure for Filing a Suit/Case

There is a detailed procedure laid down, for filing a civil case. If the procedure is not followed, then the registry or court has a right to dismiss the suit. Suit (statement of claim) by the plaintiff. Based on all documents relevant to the case, (copies or original) documents are either attached with the suit or relied upon along with Fard Pata (address of the plaintiff(s), Fard-e-Dastawaizat (list of documents), Fard-e-Inhesar (list of reliance), list of legal heirs of the plaintiff (s), Fard Talbana (court fee for issuance of summons/notices to the defendants), notices and summons and Wakalat Nama (Power of Attorney). Along with lifa-e-Dastawaizat is filed before the Senior Civil Judge who allocates these suits to different Civil Judges according to their jurisdiction and work load. Summons are issued which are brought to the defendant(s) by the Piadas (Notice servers). The Written Statement on behalf of the defendant(s) based on all relevant documents to the case together with all the civil forms mentioned above is filed. Issues are framed. List of witnesses is filed. Evidence is recorded first by the plaintiff, then by the defendant(s) and finally evidence in rebuttal by the plaintiff. Witnesses can be summoned by intervention of the court, a special commission for local examination and investigation might be set up. Expert witnesses can also be summoned for seeking their expert opinion. Arguments by the Lawyers. Decision (Judgment & Decree) by the Court. Execution of the Judgment.

The Procedure is as follows:

Filing of Suit/Plaint

Vakalatnama

Court Fees

How Proceedings Are Conducted

Written Statement

Replication by Plaintiff

Filing of Other Documents

Framing of Issues/List of Witness

Final Hearing

Appeal, Reference and Review

Limitation

Filing of Suit/Plaint

In layman’s language plaint is the written complaint/allegation.

One who files it is known as “Plaintiff” and against whom it is filed is known as “Defendant”

The plaint has to be filed within the time limit prescribed in the Limitation Act, and should be typed copy, in double line space.

Name of the Court, Nature of Complaint, Names and Address of parties to be suit has to be clearly mentioned.

Plaint should also contain verification from plaintiff, stating that, contents of the plaint are true and correct

Vakalatnama

A person/party filing a case, May also represent their own case personally in any court.

However, due to lack of knowledge of Law and Technical Procedures, Lawyers are engaged to report the interest of parties.

” Vakalatnama”, is a document, by which the party filing the case authorises the Advocate to represent on their behalf?

On General Terms, a Vakalatnama may contain the following terms:

The client will not hold the Advocate responsible for any decision.

The client shall bear all the costs and/expenses incurred during the proceedings.

The advocate shall have right to retain the documents, unless complete fees are paid.

The client is free to disengage the Advocate at any stage of the Proceedings.

The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, to the best interest of client.

Vakalatnama is affixed on the last page of plaint/suit and is kept along with court records.

It requires, a court Fee of 2 Rupees to be affixed on the Vakalatnama.

Plaint should also have the requisite court fees attached to it. Court fees are some nominal percentage of the value of the claim or value of the suit. The requisite amount of Court and stamp fees is different for every suit, and is mentioned in the “Court Fees Stamp Act.”

The Court Fees Act 1870 is a fiscal statute. Its primary object is to protect the State Revenue. Its purpose is not to arm the litigant with the weapon to have litigation dismissed on the technical ground of non or short payment of Court. Since the Court Fee Act is a fiscal statute therefore like other fiscal laws it is to be construed strictly and in favour of the subject. Under the Act sections 3 and 4 are the charging sections and the court fees is levied under them at rates provided in section 7 and the schedule.

Selected Sections of Court Fees Act 1870

Section 7: Section 7 provides the calculation of Court to be levied in various suits. The following are some of the types of suits provided in section 7:

TYPE OF SUIT                                        COURT FEE PAYABLE

Money Suit                                               According to the amount claimed

Suit for maintenance                                 According to the subject matter

Suit for movable Property                        According to the market value

the movable property

Suit for movable property                        Where no market value, according to the

value made by the plaintiff

Suit to enforce right in                              According to the value made by the plaintiff the joint family

Suit for declaration and                                                        Do

Consequential relief

Suit for injunction                                                                 Do

Suit for Accounts                                                                  Do

Suit for possession                                    According to the value of the subject matter

Suit for pre-emption                                  According to the value of the land

Suit for redemption or foreclosure  According to the principal money

Section 12

The decision regarding the valuation made by the litigant for the purpose of computation

Court Fees in a suit or appeal is to be decided by the court in which the proceedings are initiated.

Section 13 & 14

Refund of Court Fee paid in Appeal or review in certain cases

Section 25 & 26

All fees referred charged under the Court Fees Act are to be collected by stamps which could be impressed or adhesive or partly impressed or partly adhesive

Section 28

No document which ought to bear a stamp under this Act shall be of any validity unless and until it is properly stamped.

The implication of wrong valuation or non or under payment of Court Fee-Order 7 Rule 11 CPC.

Suits Valuation Act, 1887

The purpose of the Act is to lay down the rules for determining the jurisdiction of the court, according to the value of the matter.

Sections 8 and 9

The Value of the suit for the purpose of Court Fee and jurisdiction is the same in cases other than falling under Sections 7 v, vi and ix of the Court Fees Act. Where High Court is of the view that valuation of the case other than Section 7 v, vi, ix and x ibid is not proper it can fix the value.

Section 11

Section 11 lays down the procedure where objection is taken in appeal or revision that a suit or appeal was not properly valued for jurisdictional purpose.

Finally, a date shall be given to the plaintiff, for first hearing. On such hearing, the court will decide whether the proceedings should continue or not. If it decides, that the case no merits, then it will dismiss it there itself, without calling opposite party. If it decides otherwise, then proceedings shall be

How Proceedings Are Conducted

On the first day of hearing. For which a date shall be given to the plaintiff, for first hearing. On such hearing, the court will decide whether the proceedings should continue or not. If it decides, that the case no merits, then it will dismiss it there itself, without calling opposite party. If it decides otherwise, then proceedings shall begin if the court thinks there are merits in the case, it will issue notice to the opposite party, to submit their arguments, and fix a date.

On issuance of notice to the opposite party, the plaintiff is required to do the following:

File requisite amount of procedure fee in the court.

File 2 copies of plaint along with all the filed documents for each defendant in the court, i.e. if there are 3 defendants, 6 copies has to be filed.

Of, the 2 copies for each defendant, one shall be sent by Register/post/courier, and one by Ordinary post.

Such filing should be done within 7 days, from date of order/notice.

Written Statement

When the notice has been issued to the defendant, he is required to appear on the date mentioned in the notice.

Before such date, the defendant is required to file his “written statement”, i.e. his defence against the allegation raised by plaintiff, within 30 days from date of service of notice, or within such time as given by court

The written statement should specifically deny the allegations, which defendant thinks are false. Any allegation not specifically denied is deemed to be admitted.

The written statement should also contain verification from the Defendant, stating that, the contents of written statement are true and correct.

The time period of 30 days, for filing a Written Statement, can be extended to 90 days after seeking permission of the court.

Replication by Plaintiff

“Replication” is a reply, filed by the plaintiff, against the “written statement” of Defendant, if permitted by the court.

“Replication” should also specifically deny the allegations raised by the Defendant in written statement. Anything not denied is deemed to be accepted.

Replication should also contain, a ” verification” from the plaintiff, stating that contents of

“Replication” are true and correct.

Once Replication is filed, pleadings are stated to be complete.

Filing of Other Documents

Once, the pleadings are complete, then both the parties are given opportunity to produce and file documents, on which they rely, and to substantiate their claims.

Any document not filed or produced cannot be relied upon, during final arguments.

Filing of Documents is not sufficient. They should be admitted and taken on record. In brief, the procedure is as follows:

Documents filed by one party may be admitted by opposite party.

If they are denied by opposite party, then they can be admitted by the witness produced by party whose documents are denied.

Once the document has been admitted it shall form a part of the record of court, and all the details of suit such as name of parties, title of suit etc., shall be inscribed on the document. (O13 R49 7)

Documents, which are rejected i.e. not admitted, are returned to the respective parties.

It is necessary that document should be filed in “original”, and a spare copy should be given to the opposite party.

Framing of Issues/List of Witness

“ISSUES” are framed by the court, on the basis of which arguments and examination of witness takes place.

Issues are framed, keeping in view the disputes in the suit, and the parties are not allowed to go outside the purview of “Issues”.

Issues may be of: A) Fact or B) Law

While passing final order, the court will deal with each issue separately, and pass judgement on each issue.

List of Witness

Whichever witness, the parties wish to produce, and to be examined, has to be produced before the court.

Both the parties to the suit shall file a list of witness within 15 days from the date on which issues were framed or within such other period as the court may prescribe.

The parties may either call the witness on its own, or ask the court to send summons to them.

In case court send summons to witness then the party calling for such witness has to deposit money ‘ with the Court for their expenses, known as “Diet Money”.

A person, who does not appear before the court, if he is required by the court to do so, then the court may impose fine and penalty on him.

Finally, on the date, the witness will be examined by both the parties.

Examination by party of its own witness is called “Examination-in-chief”

Examination by party of other party’s witness is called “cross Examination”.

Whatever, has to be deposed in ” Examination-in-chief”, can also be filed by way of an Affidavit.

Once, the Examination and Cross- Examination of witness is over, and also the admission and denial of documents, then the court will fix a date for final hearing.

Final Hearing

On the day fixed for final hearing, the arguments shall take place.

The arguments should strictly be confined to the issues framed.

Before the final Arguments, the parties with the permission of Court, can amend their

pleadings.

Whatever is not contained in the pleadings, the court may refuse to listen.

Finally, the court shall pass a “final Order”, either on the day of hearing itself, or some other day fixed by the court.

Certified Copy of Order

Certified copy of order, mean, the final Judgment & Decree of court, and having the seal and stamp of court.

Certified copy of Judgment & Decree are required to filed, in case of execution of the order, or in case of Appeal.

Certified copy can be applied by making an application to the Registry/Copying agency of concerned Court, along with nominal court fees.

In case of “urgent requirement some additional amount has to be deposited. “Urgent order” can be obtained within a week, and the normal might take 15 days.

Appeal, Reference and Review

When an order is passed against a party to the suit, it is not that it has no further remedy. Such party can further initiate the proceedings, by way of:

Appeal,

Reference, or

Review.

In brief, the technicalities and difference between these are as follows:

Appeal

Appeal from Original Decrees

(Sec.96)-In general, an appeal lies from any decree passed by the court.

(Sec.96) When a decree has been passed against the Defendant as “Ex-Parte”, i.e. without his appearance, (Sec.96) When an appeal is headed by two or more judges, then the majority decision shall prevail.

In case there is no majority, then the decree of lower court shall be confirmed. In case, the number of judges in the court, where appeal is filed is more, than the number of judge dispute on a point of law, such dispute can be referred to one or more judges.

Procedure for Appeal from Original Decrees (Order 41)

The appeal shall be filed in the form prescribed, singed by the appellant, along with a true certified copy of the order.

The appeal shall contain the grounds of objection under distinct heads, and such grounds shall be numbered consecutively.

If the appeal is against a decree for payment of money, the court may require the appellant to deposit the disputed amount or furnish any other security.

A ground/objection which has not been mentioned in the appeal, cannot be taken up for arguments, without the permission of court.

Similarly, any point of act which was not taken up by the Appellant, in lower court, cannot be taken up in appeal lies only against only those points which have been decided by the court rightly or wrongly.

Limitation

For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1908.

For appeal, in case of a decree passed by lower court in civil suit, the limitation is 30 days.

Appeal to High Court- 90 days from the date of decree or order.

Appeal to any other court- 30 days from the date of Decree or order.

In case there are more than one plaintiffs or defendants, then any one of them can file on appeal against all of them respectively.

Merely because an appeal is filed, does not mean that the order or decree of lower court is stayed. In case of temporary stay of decree or order, it has to be specifically asked, and stay will operate only if court grants it.

In case of execution of decree, the court, which passed the decree, can itself stay the execution for time being on sufficient reasons shown.

The court may require the appellant to deposit some sort of security.

The appellate court may, on the day fixed for hearing the appellant dismiss the appeal, or issue notice to the opposite party to appear on next day.

If on the first day of hearing, appellate court issues summons to the opposite party, then shall fix a date for next hearing, and such date shall be published in the court house.

Notice shall also be sent to the lower court, whose decree or order has been appealed.

To appellant is required to file ” Process Fee ” which is very nominal in amount, and on such filing, the notice shall also be sent to opposite party.

In case of appeal, the one who files the appeal is known as appellant, and against whom it is filed, is known as “Respondent”.

Institution of Suit:

The Provisions under the Civil Procedure Code, 1908:

Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Sub-section (2) provides that in every plaint; facts shall be proved by affidavit. The procedural framework relating to the institution of a suit is give below:

Preparing the plaint

Choosing the proper place of suing

Presentation of the plaint

A brief concept of the relevant provisions of CPC 1908 regarding the essentials of institution of suit are:

Parties to the suit (Order 1)

Framing of the Suit (Order 2)

Institution of Suit (Section 26 and Order 4)

Costs (Sections 35 -35A -35B

Institution of Suit at a Glance:

The Provisions under the CPC

Preparation of the Plaint:

‘Plaint’ is not defined in this Code. It may, however, be described as ‘a private memorial tendered to a Court in which the person sets forth his cause of action, the exhibition of an action in writing’. Order 7 is related to the format of Plaint. According to Rule 1 the particulars to be contained in a plaint are:

the name of the Court in which the suit is brought; the name, description and place of residence of the plaintiff;

the name, description and place of residence of the defendant, so far as they can be ascertained;

where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

the facts constituting the cause of action and when it arose;

the facts showing that the Court has jurisdiction;

the relief which the plaintiff claims;

where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and

a statement of value of the subject matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.

Other rules regarding the contents of a plaint:

In money suits the pliant shall state the precise amount of amount claimed (Rule 2).

Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers (Rule 3).

Where the plaintiff sues in a representative character, the plaint shall show not only that has an actual existing interest in the subject matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it (Rule 4).

The plaint shall show that the defendant is or claims to be interested in the subject matter, and that he is liable to be called upon to answer the plaintiff’s demand (Rule 5).

Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed (Rule 6).

Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extend as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement (Rule 7).

Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly (Rule 8).

Where the Court orders that the summons be served on the defendants in the manner provided in rule 9 of Order V, it will direct the plaintiff to present as many copies of the plaint on plain paper as there are defendants within seven days from the date of such order along with requisite fee for service of summons on the defendants (Rule 9).

Return of Plaint:

Rule 10 (1) says, ‘Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted.

Rejection of Plaint:

According to Rule 11 the plaint shall be rejected in the following cases:

where it does not disclose a cause of action;

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;

where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

where the suit appears from the statement in the plaint to be barred by any law.

where it is not filed in duplicate;

where the plaintiff fails to comply with the provision of Rule 9.

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

According to Rule 12 where a plaint is rejected, the Judge shall record an Order to that effect with the reasons for order. Rule 13 clarifies that the rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Amendment of Pleading of the plaintiff (Plaint):

The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just (Rule 17, Order 6).

Choosing the proper place of suing:

A defect of jurisdiction goes to the root of the matter and strikes at the authority of a court to pass a decree. A decree passed by the Court in such cases is a coram non judice. So, choosing the proper court is the next which depends on the contents of the pliant. Section 9 of CPC has declared that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The jurisdiction of a court is decided by the legislature; parties by the framing of the plaint cannot interfere into the extent of this jurisdiction. They can choose one of some of the courts having same jurisdiction. The Plaintiff chooses his forum and files his suit. If he establishes the correctness of his facts he will get his relief from the forum chosen.

Presentation of the Plaint: Commencement of the Suit:

Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of Order 4 goes as:

Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.

Every plaint shall comply with the rules contained in Order VI and VII, so far as they are applicable.

The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in sub-rules (1) and (2).

Section 26 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Order 4 Rule 1 lays down the procedure for institution of suit; but does not speak of any ‘other manner’ for the purpose. The amendment makes it clear that unless the plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3) has been inserted in order to curtail unnecessary adjournments for due compliance of the provisions of sub-rules (1) and (2) after the filing of the plaint.

The plaint may be presented either by the affected person himself, or by his advocate or by his recognised agent or by any person duly authorised by him. A proceeding which does not commence with a plaint is not a suit within the meaning of Section 26 and Rule 1 of Order

Time and Place of Presentation:

Generally, the presentation of a plaint must be on a working day and during the office hours. However, there is no rule that such presentation must be made either at a particular place or at a particular time. A judge, therefore, may accept a plaint at his residence or at any other place even after office hours, though h is not bound to accept it. But if not too convenient, the judge must accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a suit will be entered by the court in a book kept for the said purpose, called the Register of Civil Suits. After the presentation, the plaint will be scrutinised by the Ahlmad. If there are defects, the plaintiff or his advocate will remove them. Thereafter the suit will be numbered.

Registration of Suits:

Rule 2 of Order 4 provides that the Court shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year according to the order in which the plaints are admitted.

Essentials of the Institution of Suits:

There are four essentials of a suit:

Opposing parties, i.e., parties to the suit;

Subject-matter in dispute;

Cause of action; and

Relief.

Parties to suit: Order 1:

In a civil suit, the presence of both the plaintiff, who files the suit, and the defendant, who is sued, is necessary. In each case there are two categories; first one is the necessary party and the other is proper party. A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Where the number of plaintiff/defendant is one, no dispute arises regarding their representation; but some uniform rules become mandatory if this number crosses this limit. Order 1 contains these rules. These are enumerated below.

Joinder of parties: Rules 1, 2, 3, 3A:

All persons may be joined in one suit as plaintiffs or defendants as the case may be, where- a. Any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in/ against such persons, whether jointly or severally or in the alternative; and b. If such persons brought separate suits, any common question of law or fact would arise (Rules 1, 3).

Example: Where A assaults B, the latter may sue A for tort, as individually affects him. The question of joinder of parties arises only when an act is done by two or more persons or it affects two or more persons. Thus, if A assaults B and C, or A and B assaults C or A and B assaults C and D, the question of joinder of parties arises.

The plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange, hundis and promissory notes (Rule 6). When the plaintiff is in doubt regarding the joinder of persons from whom he is entitled to obtain redress, he may join two or more such defendants (Rule 7). It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him (Rule 5). As per Rule 12(1), where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceedings; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding. Sub-rule (2) says, the authority shall be in writing signed by the party giving it and shall be filed in court.

Misjoinder and non-joinder: Rules 9 and 13:

As per Rule 9 no suit can be defeated by reason of the misjoinder and non-joinder of parties unless such party is a necessary party. Rule 13 says that all objections regarding the misjoinder and non-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement.

Representative Suits: Rule 8:

Meaning: In a suit if there are numerous persons having the same interest in one suit one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; such a suit is called the ‘representative suit’.

Object: To facilitate the decision of questions in which a large number of persons are interested without recourse to the ordinary procedure.

Conditions: As per Rule 8(1), Where there are numerous persons having the same interest in one suit:

one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

he court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

Formalities to be followed:

In such case, the permission of the Court must be obtained [sub-rule (1)].

The plaint must show that the suit is representative in character.

The court shall, in every case where a permission or direction is given under sub- rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct [sub-rule (2)].

Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the court to be made a party to such suit [sub-rule (3)].

No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given, at the plaintiff’s expenses notice to all persons so interested in the manner specified in sub-rule (2) [sub-rule (4)].

Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit [sub-rule (5)].

A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be [sub-rule (6)].

For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be [Explanation].

Power of the Court to order separate trials:

Where it appears to the Court that any such joinder may embarrass or delay the trial, the Court may order separate trials or make such other order as may be expedient in the interest of justice (Rules 2, 3A).

Power of the Court to give judgment in case of joinder of parties: Rule 4:

Judgment may be given without any amendment:

For such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to;

against such one or more of the defendants as may be found to be liable, according to their respective liabilities.

Special Powers of the Court: Rule 10, 10A, 11:

While trying a suit, the court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion that question of law, permit that person or body of persons to present such opinion and to take such part in the proceedings of the suit as the court may specify (Rule 8A).

The Court may make corrections to the pleadings of both parties if it seems to be wrong before the Court (rule 10).

The court may, in its discretion, request any pleader to address it as to any interest which is likely to be affected by its decision on any matter in issue in any suit or proceeding if the party having interest which is likely to be so affected is not represented by any pleader (Rule 10A).

The Court may give the conduct of a suit to such persons as it deems proper (Rule 11).

Subject-matter in dispute:

Subject-matter’ means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. This term includes the course of action. According to sub-rules (4) and (5) of Rule 1, where the court is satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. Where the plaintiff (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.

Examples:

Where the suit is instituted for the recovery of immovable property with or without rent, the subject-matter is that immovable property.

Where the suit is instituted for the compensation for wrong done to one movable property, the subject-matter is that movable property.

Cause of action: Order 2, Rules 3, 6 and 7:

Cause of action may be defined as ‘a bundle of essential facts, which is necessary for the plaintiff to prove before he can succeed.’ A cause of action is the foundation of a suit. It must be antecedent to the institution of a suit and on the basis of it the suit must have been filed. Every fact constituting the cause of action should be set out in clear terms. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. If a plaint does not disclose a cause of action, the Court will reject that plaint.

Joinder of Causes of Action:

Order 2, Rule 3 provides for the joinder of cause of action. According to this Rule, save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant(s), may jointly unite such causes of action in the same suit.

Power of the Court:

Where it appears to the Court that the joinder of causes of action in ne suit may embarrass or delay the trial or is otherwise in convenient, the Court may order separate trials or make such other order as may be expedient in the interests of justice (Rule 6)

Objections as to misjoinder:

All objections on the ground of misjoinder of causes of action shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Relief: Order II, Rules 1-2, 4-5:

Relief is the legal remedy for wrong. According to Rule 1 of Order 2 every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

Rule 2 provides for the following conditions to be complied with:

Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.

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.

A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Object of this Rule:

This rule is based on the cardinal principle that a defendant should not be vexed twice for the same cause. The object of this salutary rule is doubtless to prevent multiplicity of suits. Conditions for the application of this Rule:

The second suit must be in respect of the same cause of action as that on which the previous suit was based.

In respect of that cause of action, the plaintiff was entitled to more than one relief. iii. Being thus entitled to more than one relief, the plaintiff without the leave of the Court omitted to sue for the relief for which the second suit has been filed. Such leave need not be express and it may be inferred from the circumstances of the case. It can be obtained at any stage. The question whether leave should be granted, depends on the circumstances of each case.

Illustrations:

A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907. ii. A advances loan of Rs.2200 to B. To bring the suit within the jurisdiction of Court X, A sues B for Rs. 2000. A cannot afterwards sue for Rs. 200. Rules 4 and 5 provide for the joinder of claims. Rule 4 states that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-claims for mesne profit or arrear of rent in respect of the property claimed or any part thereof;claims for damages for breach of any contract under which the property or any part thereof is held; andclaims in which the relief sought is based on the same cause of action.

Rule 5 provides that no claim by or against an executor, administrator or heirs, as such, shall be joined with claims by or against him personally, unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or the defendant sues or is sued as executor, administrator or heirs or are such as he was entitled to or liable for jointly with the deceased person whom he represents.

Institution of Special Suits:

There are some special suits in which the process of instituting the same differ a little from the general suits. Some important ones are mentioned below.

Suits by or against the Government:

Sections 79-82: In such case the authority to be named as plaintiff or defendant, as the case may be, shall be in the case of Central Government, the Union of India and in the case of a State Government, the State.

Suits by or against military or naval men or airmen:

Order 28: In such case if such officer actually serving under the Government cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorise any person to sue or defend in his stead. The authority shall be in writing and shall be signed by the officer in accordance with Rule 2.

Suits by or against minors and persons of unsound mind:

Order 32: Such suits can be said to have been instituted in the name of the minor or the person of unsound mind by a person who in such suit shall be called the next friend of the minor or the person of unsound mind when a plaint is presented and not when a guardian ad litem is appointed.

Suits by indigent persons: Order 33:

In such case the person claiming himself as indigent must apply to the Court for the permission in order to sue as an indigent person. 5.5. Suit against dead person: According to one view, a suit against a dead person (dead at the time of institution of the suit) is non est and of no legal effect. The other view is such suit is not void ab initio and can be continued against the legal representatives of the defendant if they have been brought on record in accordance with the law.

Interpleader Suit and General Suits:

A Comparative Approach:

Section 88 and Order 35 are related to the Interpleader Suits. Section 88 defines it and Order 35 gives the description of procedural formalities.

Interpleader Suit and General Suit:

In such suit the real dispute is not between the plaintiff and the defendant but between the defendants who interplead against the ordinary suit.

In general suits or ordinary the real dispute is between the plaintiff and the defendant.

If two or more persons adversely claiming some debt, sum of money or other property movable or immovable in dispute, from a person who does not claim any interest therein except the charges and costs incurred by him and is ready to pay or deliver the same to the rightful claimant, may file an interpleader suit.

In ordinary suit the plaintiff claims the relief or compensation from the defendant. The defendant can also apply for set-off and/or counter-claim.

In order to institute such suit, there must be some debt, sum of money or other property movable or immovable.

An ordinary suit can be instituted in the cases other than those where some debt, sum of money or other property movable or immovable is related.

The Court may exempt the plaintiff from the suit if all liabilities have already been discharged by the plaintiff and may proceed to try the suit in the ordinary manner regarding the determination of the actual owner of the property in dispute.

In such suits neither the plaintiff nor the defendant can be exempted from the suit before the final order is passed.

Bar of Suits:

Sections 10, 11 and 12 provide certain limitation. The provisions of Sections 10 (Stay of suit / res-subjudice) and 11 (res judicata) clarify that in these cases institution of suit is not barred; but the trial is barred by law. Section 12 puts a bar on the institution of suits in cases, where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

Costs: Section 35-35B:

As per Section 35 (1) subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of an incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Section 35A empowers the Court in imposing compensatory costs in case of false or vexatious claims or defences. Under Section 35 B the Court possesses the power to impose cost for causing delay.

Interpretation of the Provisions regarding the Procedure of Institution of Suits:

The provisions regarding the institution of suit are framed in a way which in accordance with the ‘literal rule of interpretation’ indicates strict adherence to such rules by the plaintiff; but the question may arise whether a plaint should be dismissed if the plaintiff fails to comply with all such strict rules. It depends on two matters;

• the nature of such failure and
  • the intention of the plaintiff. If the failure is too minor or of such a nature which cannot prejudice the other party and the course of justice then the Court may allow the amendment to the plaint/pleading. If the failure is not based on an unfair intention the Court may either make some corrections or may order to make those corrections by the plaintiff. The principle behind such views is that the rules of procedure are intended to be a handmaid to the administration of justice and they must be construed liberally and in such manner as to render the enforcement of substantive rights effective.

Conclusion:

There are so many major and minor principles of the institution of suits. The general principles, which can be extracted from the above discussion, are: First, a suit under the CPC 1908 can be instituted only by the presentation of a plaint in duplicate whose facts are to be proved by an affidavit. Second, Section 26 contains the principle behind the institution of suit and Order I, II, IV, VI and VII are related to the procedural formalities. Third, the stages of institution of suit are: i) preparation of the plaint, ii) choosing proper place of suing, and iii) presentation of plaint. Fourth, the plaint must be prepared in accordance with the rules of  matter, iii) cause of action, and iv) relief. Sixth, in a suit the joinder of parties may be allowed by the Court if those are connected with the same transaction and the same question of law. Seventh, in case of every suit there are necessary parties and proper parties. Non-joinder and mis-joinder of necessary parties affect the course of justice. Eighth, in a suit if there are numerous persons having the same interest in one suit one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; such a suit is called the ‘representative suit’. Rule 8 of Order 1 deals with the procedural formalities of such suit. Ninth, every suit shall be as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent litigation concerning them. Tenth, on the basis of the subject-matter in dispute in a suit, the jurisdiction of civil Courts varies. Eleventh, a cause of action is the foundation of a suit. It must be antecedent to the institution of a suit and on the basis of it the suit must have been filed. Twelfth, joinder of several causes of action can be permitted if the circumstantial facts allow the same. Thirteenth, the claim of the plaintiff can be adjusted to the set-off and counter-claim of the defendant. Fourteenth, 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. The discussion on the institution of suit under the CPC and its essentials proves that the procedural formalities have been made with much complexity to ensure proper justice and to restrain vexatious and false suits in the course of administration of justice; but these complexities sometimes causes delay in the disposal of some cases. Thus, too much adherence to the procedural formalities makes the Courts over-burdened with a huge number of cases. So, the Civil Procedure Code has incorporated Section 89 for the settlement of certain disputes outside the Court through arbitration, conciliation and mediation to avoid unnecessary delay in the disposal of civil cases and to make balance between the number of suits instituted and disposed of, the Alternative Dispute Resolutions are in practice in Pakistan simultaneously with the general Civil Suits.

PART -IV

Civil Trial and Case Management after 2020 Amendments in Code of Civil Procedure

Manuscript of Discussion Topic

This document summarises a legal dialogue between Advocate Mian Zafar Iqbal Kalanauri and Syed Naveed Abbass on the landmark procedural and substantive amendments to the Civil Procedure Code (CPC) in Punjab, Pakistan.

1. Background & Objectives

• The CPC (1908) was amended in Punjab via the Civil Procedure Amendment Act 2018 and an Ordinance.
• The reforms aim to accelerate justice delivery and institutionalize ADR and case management.
• Reforms initiated by the Rules Committee under Justice Mansoor Ali Shah; Mian Zafar Kalanauri was a key contributor.

2. Major Procedural Innovations

• Division of trial into Administrative Judge (pre-trial) and Trial Judge (trial stage).
• Mandatory filing of document lists, legal heirs, and extra copies at plaint stage.
• Three summons system: process server, registered post, and courier/UMS with electronic monitoring.
• Mandatory personal appearance of parties; affidavits for admitting/denying facts.
• Introduction of Forms 13–15 for checklist and disputed/admitted facts.

3. Mandatory ADR & Mediation Referrals

• Section 89-A CPC and Punjab ADR Act 2019 enforce mandatory mediation referrals.
• 36 Mediation Centers established across Punjab.
• Mediated agreements enforceable under Order 23 Rule 3 CPC.

4. Trial & Evidence Reforms

• Time-bound recording of evidence via local commissions with audio/video documentation.
• Skeleton arguments required; judgment to be delivered within 15 days.
• Decrees are automatically converted into execution proceedings.

5. Execution & Enforcement

• Strengthened Order XXI: property attachment, mandatory deposit, notice before arrest.
• Penal provisions for frivolous executions or wrongful arrests.

6. Appeals & Revisions

• Timelines: 30 days for interim appeals, 60 days for revisions, 6 months for High Court revisions.
• Order 43 amended to enhance documentation and avoid fresh notices.

7. Training, Technology & Implementation Challenges

• Need for judge/lawyer training, IT rules, e-filing, and bench books.
• Proposal for smart portals and digital case access.
• Call for training centers and continuous legal education (CLE).

8. Bar Council Engagement & Social Impact

• Emphasis on dialogue with bar associations to address concerns.
• Call for legal education reform, mentorship, and restoring public trust in judiciary.
• Reforms necessary to attract investment and ensure equitable justice.
•  
•  

Diagram: Case Timeline under CPC (Punjab)

┌────────────┐

│ Filing of  │

│   Suit     │

└────┬───────┘

▼

┌───────────────┐

│ Written       │

│ Statement     │

│ (30 days)     │

└────┬──────────┘

▼

┌───────────────┐

│ Issues        │

│ Framed        │

└────┬──────────┘

▼

┌───────────────┐

│ Document      │

│ Exchange +    │

│ Admission/    │

│ Denial        │

└────┬──────────┘

▼

┌───────────────┐

│ Evidence &    │

│ Trial         │

│ (Judge must   │

│ complete      │

│ in 12 months) │

└────┬──────────┘

▼

┌───────────────┐

│ Final Hearing │

│ + Skeleton    │

│ Arguments     │

└────┬──────────┘

▼

┌───────────────┐

│ Judgment &    │

│ Automatic     │

│ Execution     │

└───────────────┘

Conclusion

• Reforms are essential and must be supported by collaborative efforts among stakeholders.
• Public trust, access to justice, and judicial efficiency depend on successful implementation.                  

Manuscript of Discussion Topic:

A conversation between Syed Naveed Abbass (SNA) , Advocate Supreme Court, Chairman Legal Education Committee of Lahore High Court Bar Association and Mian Zafar Iqbal Kalanauri ( ZIK), Advocate Supreme Court, who is one of the authors of the new legislation on Case Management and Trial under the amended Civil Procedure Code (C.P.C.), covering both the substantive and procedural parts.

SNA: In this regard, I have invited a personality who has also been a member of the Rules Committee. With great diligence and dedication, they worked tirelessly regarding these amendments. Regarding these amendments, the Rules Committee of the Lahore High Court was constituted. They also proposed the amendments and with mutual deliberation and consultation, and the entire proposed amendments by the committee were referred and passed by the full court.

I am referring to the introduction of today’s special guest. He needs no introduction, Mian Zafar Iqbal Kalanauri, who was the youngest ever president elected of the Lahore Bar Association. Subsequently, he was also elected as a member of the Punjab Bar Council, then headed the Legal Education Committee of the Punjab Bar Council.

Alongside this, Mian Zafar Iqbal Kalanauri has the distinction of being a professor of law in Pakistan’s leading universities and other law schools including LUMS and Punjab University, and he also gives lectures in the Provincial Judicial Academy to judges for judicial training.

He occasionally delivers lectures in law schools, where obviously, in terms of the LLB discipline, his involvement as a lecturer is significant.

Mr. Kalanauri has a passion for teaching. He is also a lawyer by profession, representing a third generation of legal experts in his family.

Regarding the amendments to the CPC, as I mentioned earlier, he diligently subscribed and contributed to procedural amendments.

He worked hard on the amendment process and with ADR, meaning Alternate Dispute Resolution.

He is also considered a pioneer because of this field. For the first time, he introduced ADR in Pakistan about 25 years ago.

Another notable aspect is that he has served as Chief Justice.

As an advisor and consultant to the Chief Justices of Pakistan and Lahore High Court.

He has been involved in ADR case management and possesses a unique record.

Mr. Kalanauri is notable for his involvement with the Supreme Court. He has served as an amicus curiae in many cases in the High Court and Supreme Court.

Besides, he is also an arbitrator, barrister , a mediator, master trainer and holds international eminence.

He is a member of the Higher Education Commission’s Legal Education Committee.

He guides numerous legal institutions in Pakistan with dedication. Possessing a desire to guide, he tutors institutions passionately.

In institutions like NUST, Pakistan Administrative Staff College, and NIPA

He lectures related to various branches of law.

Mr. Kalanauri has written nearly a hundred legal articles.

Currently, he is working on new projects. Focused on three different topics.

These include a civil procedure code for which he is writing a conceptional/ topical book.

Along with work on white-collar crime. He is engaged with crime investigation.

This area involves compact work. He is actively working on this. As well as being a white collar crime investigator. And this is being developed compactly.

He is working on this topic quite comprehensively. Emphasizing an impactful approach.

Furthermore, he is focusing on detailing. And concluding efforts.

In his current endeavors. And finally, another of his roles is in ADR.

He is also engaged in authoring thematic books on ADR. He is also committed to authoring thematic books on ADR. At this moment, he is actively engaged.

He is diligently working and putting in hard work.

So, I invite Mr. Kalanauri, who is a teacher of teachers.

And besides that, in terms of legal understanding, he holds a unique position in Pakistan.

I thank him on behalf of the Legal Education Committee of Lahore High Court Bar Association and our President Mr. Tahir Nasrullah Waraich for coming here.

I welcome, Mr. Kalanauri and after that, I will formally begin the program.

Accept the words of warm welcome from our side. You have honored us with your presence.

ZIK: It’s a pleasure and it’s all mine. There can’t be a bigger day than this, when my talented student, who is now a teacher of thousands, is here. I identify with you. You are my pride.

This platform of Lahore High Court Bar Association is most relevant.

It’s the most relevant platform for amendments in civil procedure code because we are the largest High Court. And 84% of Pakistan’s litigation is under the domain of Lahore High Court although by area/ territory wise we are 62%.

It is a very important topic and a suitable forum to discuss this current situation that people are worried about. Their grievances are not without substance and lawyers are going on strike.

I believe that there is a dire need for guidance as this is a revolutionary change.

It has far-reaching implications and is beneficial to people. If we don’t debate and understand it among ourselves, God forbid, it might become a matter of dispute and unfortunately fail. So, I am thankful to you for giving me the opportunity that today we will conduct this session in which we will first understand what these whole amendments are. By discussing and explaining, and then we will see how to practice them. How we can conduct the trial so that it reaches successful completion, and people’s rights can be fulfilled.

SNA: Sir, due to your kindness, we will first try to understand who made these amendments so that the litigants could be informed, and our lawyers and the other viewers can also realize how the amendments were brought about and through what process, what was their duration, which bodies approved them.

Understanding this will benefit many friends, and then we will officially start a discourse with you.

ZIK: Yes, this book in my hand, which I consider the Civil Lawyer’s Bible. I have been dealing with it for three generations. This fundamental code of civil procedure was enacted in 1908, which contains the rules of the game on how any civil case will proceed and tried. The whole procedure is given in it, just as the criminal procedure code deals with criminal cases.

Now the CPC is in two parts: one part is the substantive part with one hundred and fifty-nine sections.

And the other part is known as Schedule One, which pertains to orders and rules.

Hence, there are two parts, both of which have been recently been amended. The first part is the substantive part, which means in its sections, if there needs to be any change, you have to go to federal parliament and now by virtue of the eighteenth amendment to the constitution the provincial assembly/government which has made two changes within it.

One act came: Civil Procedure Amendment Act of 2018 in Punjab and a Civil Procedure Code Amendment Ordinance of 2018 also came, along with which we have made many amendments within the Schedule. And the way to amend the schedule is that in this book, section 122 is provided, and section 122 states that any High Court, can make amendments for being applicable in its jurisdiction. In Schedule one if there is any change to be made in orders and rules, it can do so and then section 123 describes that there will be a rules committee of the high court and the constitution of this rules committee is also given within the CPC.

It will be headed by one judge of the high court and two other judges will also be members; one of them should be someone who has risen from lower ranks, meaning elevated from District Judge to become a High Court Judge and along with this, two lawyers of eminence/renowned lawyers, will also be included. The secretary of this committee is usually a senior civil judge. The Chief Justice can form such a committee. A committee of this type was formed by Justice Syed Mansoor Ali Shah, of which I was also a member. If this committee deliberates and makes any recommendations/amendments, those recommendations will go to the full court. By full

court, I mean the total strength of the high court, for example, The Lahore High Court has a strength of sixty judges and the proposed amendments, will be entirely directed to the judges who will also review these recommendations/amendments, and if they approve them, then these amendments are sent to the government and it is obligatory for them to send them to the cabinet and the Governor shall notify them, so these amendments will become applicable in a particular High Court, meeting the requirements for these amendments.

There have been extensive deliberations on these amendments, which lasted approximately one and a half years, and during this time, Chief Justices were also changed. Justice Yawar Ali was also there, during the course of these  for these amendments,

We invited and gathered recommendations from stakeholders, which included associations and all bar councils, they were sent letters, it was also advertised in newspapers.

These amendments were also placed on the Lahore High Court website and all stakeholders were asked to provide their suggestions.

There was a lengthy debate within the High Court among the judges and finally, for the first time by rotation in the Lahore High Court, the full court approved them under Mr. Justice Yawar Ali Chief Justice of Lahore High Court.

Once approved, a notification was issued by the interim government, Mr. Hasan Askari, Chief Minister Punjab. Then  a notification was issued in 2018, and it was published in the Gazette.

When it was published, the Chief Justice of Pakistan, Mian Saqib Nisar, Mr. Justice Ijazul Ahsan, and Mr. Justice Bandial were present, and it was officially launched.

The committee thoughtfully decided that a notification will be issued on how these amendments will be applicable. Regarding these amendments, it was written that these will be applicable to the districts and for a period to be notified by the chief justice. Behind this, our thinking/wisdom  was that. Since these amendments were changing the civil trial procedure  on a very large scale, an almost complete civil procedure has brought changes within it, and the entire civil trial process is about to change.

These changes should to be made effected and tried by way of pilots, so we selected three districts. We chose three cultures in Punjab: Kasur from Central Punjab, Muzaffargarh from the Saraiki Belt, and Jhelum from the Pothohari Belt.

We were of the opinion that we should run these amendments and civil trial for six months on experimental basis. We trained the judges from these areas.

We were about to train the lawyers when the Chief Justice of Lahore High Court changed. Sometimes when there is a change in leadership, everything changes. But eventually, on the second of November, 2022, the full court approved the applicability of these amendments to whole of Punjab.

The Chief Justice decided to extend them throughout Punjab. This led to an issue of crisis we are now facing because significant changes happened on a large scale, and we hadn’t done any training for the judges, court administrators, or lawyers, nor made a bench book.

When such large-scale changes were made, and simultaneously in the substantive parts, I must mention that in that substantive part, I am also one of the architects of those changes, which they followed and supported. There is no contradiction between what the Punjab government introduced and now that this trial method is being implemented throughout Punjab, people are confused and are even going on strike over it, and who is suffering, it is the litigants.

I tell you what is the solution to deal with the present situation. I’ll now take you through these amendments and explain what these changes are.

The first change is that we have brought a concept that we are dividing civil trials into two parts; we will have an Administrative Judge and a Trial Judge.

The Pre-trial and Post-trial will be separated.

SNB: What is the purpose?

ZIK: The purpose is that the administrative judge will handle it until the case is ripe for hearing, meaning until the issues are framed. He will be in charge of the proceedings. They will do all this work and afterwards, it will be sent to a trial judge.

The main reason is that many things were already written in the CPC. First, wherever there was ‘may’, we changed it to ‘shall’. We imposed a timeline for everything to be done, and then we added penalties if not followed, meaning these are the consequences.

The first thing is that when you file a claim, after filing the claim and entering it into the court, it will be marked by a Senior Civil Judge to an administrative judge.

The number of administrative judges can vary by district. When the case goes to the administrative judge, they will examine it in detail, and there are certain requirements, such as if you filed a plaint, you must attach the Order XIII list of documents, and Order VII Rule 14 you must attach the reliance list, and also all the documents upon which your reliance is based; these must also be attached.

You also need to attach a list of heirs and a list of legal heirs.

It is also necessary to state this that in case of death of the plaintiff, who will inform

the court that these are the heirs to be impleaded in place of the plaintiff. After filing the case in court, you will attach as many copies of the entire documents including the plaint for each defendant and have two extra copies.

I will tell you the purpose of the two extra copies later. Once this is done, the service has to be executed, and in order to execute the service, the first day’s task is to see that the process server will go, and as the process server walks, he will have all the documents and will ensure service properly.

Now by virtue of new amendments in this procedural part, it is to be noted that when

he goes to effect a service; he will also take a picture of the defendant or their

authorised representative, whoever is receiving the service on their behalf, he will take their picture.

If at the defendant’s residence or their office address he has posted the form, he will also take a picture of that.

The law now allows for monitoring/geofencing whether the process server actually went to the location or not, via electronic means, not that they will sit somewhere or complete the service from home; it doesn’t work that way. So, this is the first mode and if the second mode is applied, you now need to issue three summonses. Previously there were two, now there are three. One summon will be sent by registered AD, without attaching documents and one summon will be It will go through courier service and or through UMS.

And when it is completed and returned, if someone has complied/accepted, and the judge will understand that it has been complied with, even if they refuse, there is no need to process anything else, they can proceed straightforwardly.

Let me tell you along the way that there will be an extra note in the summons, that not only on such date of hearing you have to come but also mentioned to respond (written statement)  it will say on or before such date, meaning the response can be filed before that date, but there won’t be timelines for the last opportunity for filing written statement.

For reasons adjournment, even if given, in any case, the time won’t exceed thirty days.

SNB : Here, I am seeking a bit of clarification from you.

You mentioned there will be three summons, earlier there were two, so please clarify that one will be sent by the process server, another by registered acknowledgment due, and the third through courier. Is that what you meant?

ZIK: Yes, that’s what I meant. I explained that inside them you won’t send all the documents, only summons will be sent, which will be sent by registered AD and UMS, or by courier. And what the process server has with him all the documents. He will take all the documents and provide it to the defendant, and it is mandatory.

There are penal consequences if someone does not perform this task.

The claim/suit can be dismissed for non-provision and non- printing of these documents as well. These are the penal consequences.

Now, the defendant side is also required to respond to the claim. While responding, they must provide a copy for each plaintiff or set of plaintiffs.

They will attach a copy along with all the documents, and they must also include a , List of reliance, List of reliance, List of documents, List of legal heirs, which need to be attached completely, and they must also submit two copies with the written statement.

They must also submit one copy of these documents and once they submit, the actual work begins.

After they have submitted, the actual work begins where confusion arises for people.

That confusion is when the judge, after receiving the written statement, will set a date.

On that date, the judge will require the actual parties to appear before them in person.

Once the parties appear in person, they may schedule the date for the next day or two days later.

Once they appear in person, the court will examine them and may ask questions as it helps in understanding the case better. But now, the appearance of the parties has become mandatory.

If someone doesn’t appear, the court may draw presumptions against them with penal consequences.

When they appear, their statements can be recorded even by affidavit or counter affidavit, to admit or deny any facts.

Once their statements are recorded, we have devised some forms.

This is a misunderstanding they think that ,while filing a claim or responding to a claim, these forms need to be filled.

These are forms numbered fourteen (14) , fifteen (15) , and thirteen (13).

These forms are attached, and it’s for Case Management which the court will proceed with.

And for this case management, provisions are incorporated in substantive law because I have informed you that these amendments have been followed in the amendments of the substantive part.

The Administrative Judge is managing the case; we have made the judge a Case Manager. Now they have to get everything done and not in such a way that he is not a silent spectator and shall control. We have turned around, and given it to the judge, earlier, if one of the parties wanted, the case would drag on, now they have to do this. The amendments require them. You have to fill this form, what’s inside these forms. Is that you have to write in it which facts are such that are admitted facts, which facts are such that are disputed facts, now I want to give you a hypothetical example.

To make it easier to understand, suppose ‘A’ has made a claim for specific performance against ‘B’ and their agreement was about a property deal of one crore rupees. Five lakh rupees were given as earnest money and the remaining amount had a target date that had to be paid within two months.  And they had to get the registration done, now what happened was that, the two-month period passed and the specific performance did not happen This agreement had happened, and this much amount as earnest money and the balance consideration, which was ninety-five lakh rupees. ‘A’ had to pay it by a certain date. Two months later, ‘A’ went to ‘B’ with the money, and they did not take the money from ‘A”  And did not carry out specific performance, prayed for the grant of decree in his favor through specific performance. ‘B’ says that yes, this agreement definitely happened. But within the settled period, ‘A’ did not give me the balance consideration. So, this deal is canceled. And now this specific performance cannot be enforced

Alright, now The plaintiff will fill this form, both parties have to fill form it like this.

So, the plaintiff will write that in this, admitted facts for both that both the parties admitted facts are that yes, there was an agreement to sell and this amount was settled to be this much, five and five lakh rupees were given in advance; these are admitted facts.

Now disputed facts from both sides according to their own, from the plaintiff’s and the defendant’s side, the disputed fact is that the plaintiff says I offered the amount to him and I kept visiting him, but he kept making excuses and he refused, because of which I have to stand in the court, I had specified in the form that I was ready and willing to perform my part of the contract and the defendant said that within time they did not have this amount which is why this was canceled. Now, these are dispute effects, so in the other column, they will write that these are admitted facts, these are dispute effects, after which they have to write whether there are any documents that they require production of from the opposing party, so if they want, they will write that the plaintiff will say that yes, I have asked the defendant for these documents to be produced and similarly, the defendant can ask the plaintiff to produce these documents and will mention in writing that the interrogatories are questions will be asked for admission and denials, your response what you want to say, the plaintiff will ask this from the defendant they have also told that what the admitted facts are what the disputed facts are, then they will write that yes, when will you be ready to produce your witnesses a timeline for this will also be provided, and thereafter, the plaintiff’s lawyer’s name and their signatures in the same way The defendant has also filled out this form; you have gotten it filled by them and the admissions or denials that need to be made, for that the judge also needs to set dates for these, so that they can, in the next two or three days, within four days, tell the plaintiff to respond to these points and the defendant to respond to those points produce the documents, do that too, and if someone doesn’t produce any documents, eventually during the trial the consequences will be that the costs can be awarded to them. Once all this work is done, then the court has a Case Management form to fill in by itself which is a checklist which is form thirteen (13) , and in the presence of the parties, they say that you have done all these tasks that were supposed to be done after the tasks are completed, then there is a column in it as to whether the parties want to opt for one of the three modes of ADR in 89A, whether through arbitration, mediation, or conciliation, do you want to use them for settlement, they will give their choice if they do not have a choice, they will say we do not have this choice afterward the judge will examine the case themselves it is written in the law to see if this is a case that can be resolved through mediation if there are chances if they feel it has to litigate then at that time and the judge will prepare a summary and direct them to go to our mediator you shall know that there is now an Punjab ADR Act of 2019 and its rules have also been made incidentally this was written by me. It’s a law that came about on the basis of a Supreme Court judgment and we had initiated this on the ground during the time of Justice Mansoor Ali Shah where we did an accreditation of around one hundred and sixty-nine judges

and we have centers present in all thirty-six districts Our mediation centers are available in all thirty-six districts.  Here, judges who do not conduct trials are trained to try mediation

So initially, the referral was at the discretion of the parties but now if the court deems it necessary in any case it also has a mandatory referral provision they can send parties with direction to proceed When they need to send a case to mediation, they must direct the parties to go .They will go to the mediator and if a summary is prepared regarding which issues are being addressed in the summary.

Here is the discussion on their dispute, anyways parties will proceed and the mediation needs to be concluded within thirty days, if parties manage to reach a settlement and the facilitator, the mediator who is our facilitator will help the parties settle some issues at their discretion

and they conclude the settlement agreement which will be signed by both parties and the mediator will sign as a testing witness and the mediator will sign it and return it to the administrative judge The administrative judge will stay their proceedings until such time, and after within thirty days or longer when the case returns to them, if settled they would pass a judgment under order 23 rule 3 unless the agreement is unlawful otherwise, they are bound it is stated in CPC otherwise Then it will follow a degree

If it is partially settled and it is partially not settled. Then the administrative judge will see Whether a partial degree can be granted Then it will be done If it cannot be done Then by giving their observation, will leave it with the trial judge Finally, judge has to decide to grant the degree or not.

So, take a look at the parties involved in this matter. When there is not much dispute Well, when this the case, I mean, everyone. A little clarification that needs to be taken is that the alternate dispute resolution has now been declared necessary by virtue of the introduction of Section 89A Not just 89A, but we have also installed Order 9A and 9B within CPC, which has made it mandatory And I told you that the special law has been enacted in 2019 in Punjab, which too requires that referral is mandatory but acceptance is not. It’s up to the parties’ discretion, but they must go foe mediation. They must give it a chance.

SNB: Sir, they will not send it for ADR in every situation. It is at their discretion, they will see if the case is such Where this settlement can be made. Or if it is not a good candidate for mediation.  This is left to the court’s discretion

ZIK: Yes, absolutely, absolutely so they apply their mind. Otherwise, parties cannot refuse; they have to go. If the court understands otherwise. But if the court understands, no. It should not be sent if the court decides not to. Okay, now the case has returned.

At this stage, the judge, in the presence of the parties, will frame the issues. Frame them, and you see what are the disputed facts and what are the admitted facts. If partially things are settled, what remains. The court will frame issues suggested by the parties in their presence.

Will frame them, not the court, but it will be done. And after framing, on these issues, they will say tell me when you will produce evidence and conclude it. For the list of witnesses, a date will be set on the seventh day. On the seventh day, both parties will present their list of witnesses in court. They must present this list and only those witnesses will be allowed.

Yes, we have indeed made an amendment that if you did not include someone in the list and provide a good reason or cause, then perhaps witnesses can be called later. But now, the administrative judge’s role ends here. And the trial court’s work begins, so they will send witnesses to the trial court. Ordered to attend, and then the plaintiff’s witnesses will appear on such date. And then the defendant’s witnesses as well, and for this, the trial judge will go. When the case goes to the trial judge, this is an interesting matter. Why the judge has that date, surely it will be two or three months from now. But when the case goes to them, it will be continuous and day-to-day hearings. And here provisions have been made, and this has been added to the relevant part.

Judges want to record evidence themselves or through a local commission. Local commission usage is allowed as well. It has been written that a list will be maintained that will include lawyers and retired judges, from which they can appoint someone as a local commission, now the extra copies we had taken, the purpose of those starts here that the judge will not send the original file to the local commission at all.

What they have to do is that these are the copies of the plaint and the written statement, and they have to send these and obligate the plaintiff first. They will send the case to the plaintiff that

they have a month’s time to record and send back the evidence, but they will tell the local commission to first complete the plaintiff’s evidence. Now if they start postponing with excuses, then the old routine starts again. Now they have been bound to the local commission. When they approached the local commission, they recorded all the evidence and now another point has been added that all records should be kept in digital format as well.  And evidence here should also be recorded through video and audio. So, the local commission has to record this. If there is a dispute about whether the documents are admissible, then the simple situation is that the local commission will admit all documents and exhibit them, and they will write ‘subject to objection’. Once the case returns to the trial judge, and he has to make a decision, if something was exhibited incorrectly, it will still de-exhibited but there is no need to argue about whether they need to discuss further. When the plaintiff’s evidence is concluded, then for the defendant’s evidence, witnesses will be obligated to go to the local commission, and within a month, the complete evidence will recorded, and all of it .

The record sent back to the trial court, now when it came back to the trial court. So, we’ve come up with a new thing, and this is in the substantive part . And it’s also in the procedural part that you have one just opportunity for hearing arguments. You also to submit a skeleton of arguments or a summary of your arguments, that needs to be submitted in black and white by both parties. And also attach case law, this goes to the judge. Once you’ve submitted, after that the judge will hear to the arguments And for hearing to the arguments, they set a date of fifteen days..

Because the total timeline for evidence is also fixed That evidence is to be recorded within three months. And these twenty one days are also fixed. Now when you’ve submitted the skeleton, after that. They can set any date for arguments. But in any case, when they have heard the arguments and even if they have heard to the oral arguments, they will do it, but obviously now it will be brief .After hearing , they cannot set the date more than fifteen days On that day, they have to deliver the judgment and both judgment and degree have to be prepared and now it will be ready at the time of announcement.

And the parties can take a copy after paying for it But it is automatically the case that now you do not have that the degree will be made later and the copy will be prepared at the time of announcement. So that limitation does run from there, now the parties can take it whenever they wish.

Now we also did another work the way in recovery of financial institution ordinance 2001 in banking cases likewise automatic conversion of degree into execution is done, now you don’t need to file execution separately. So, the judge will convert it into execution, and now when it is converted into execution if we do it, then from here, a labor-intensive task was done by us. Committee put in a lot of effort. They say the people’s miseries start the day there is a degree in their favour is passed. If it is not implemented, then it is just a piece of paper, a scrap of paper.

So now we have imposed stringent conditions in order twenty-one. It has been written in order twenty-one that the judge will attach the property if it exists, if it was not attached before. If this is a money degree, the amount will need to be deposited. Amount if the amount is not required to be deposited. and if they have the right to take surety for the property so that when execution is done, people get something. Along with it, they have to send a copy of the degree to the relevant departments like a copy to the collector, it will go to the revenue record for its entry because we have seen that third-party interest gets created even if there is a tenant whose tenancy has been created in the of the case or if possession has been given to someone, their right will be subject to the decision of the case. They won’t have an independent right. These objections arise, these won’t be eliminated if you eliminate them, there is no effect on it.

Yes, we have even gone so far as that in the substantive part, within order thirty-eight, an amendment has been made that if attachment before judgment is to be done and a case is made, the court can attach the property even at this stage. can take leave, otherwise she can take leave because if she passes the degree tomorrow where will she get the job from, so along with that, an amendment has come now. When the judges have done this work, your objection executions will be considerably reduced here and before sending someone arrested in execution, a show cause notice must be given that if they deposit the amount, they will not be sent to jail. This has been arranged and even extends to if in the subscribed part, if you wrongly attach any property or wrongfully get someone’s arrest, upon it, large compensation will be granted and they will be compensated for it, along with the costs will follow the event under Section 35. No matter how frivolous the litigation is, if no event follows, this has brought about a significant change which will help in curbing frivolous litigation. to curb it substantially.

SNB: Sir, it has been observed for a long time that no costs are awarded at all, even though it’s fully understood by the court and acknowledged that prosecutions are usually borne, yet a stereotype sentence is written which never results in awarding costs. It means Section Thirty-five has been activated, right?

ZIK: Yes, it has been activated. This is necessary, yes, rather curbing has happened and in Thirty-five The special costs there have now been increased from 25,000 to 100,000 rupees, and it’s also been done that if under Order Forty-seven you are filing any objection, it is necessary that just like property, is being auctioned, we’ve also said for the proceeds of auctions It was stated that video recording will be done and the one on your razor price. That too you evaluators, like those set by the State Bank. Can be fixed by asking them, there’s no need to get it fixed from someone else. If anyone wants to make an objection, the first right Is given to the judgment debtor, that if he can deposit this amount Within fifteen days, then he will get it. The auction purchaser will not get it if someone else objects On it, then for objecting, it is mandatory for him That all the expenses, expenses other than the price Which are five percent, must also be deposited so that he cannot go scot-free and continuously objecting to objection. For that, we have made the conditions quite stringent.

Additionally, we have done something else, that when you file an appeal, Then the appeal court should not have people served again from scratch. Instead of serving, they will direct the lower executing court to inform/intimate these parties of pendency of appeal. Here, let me say something, there is a lot of objection coming from people on this. They say that the right to appeal will be lost, It is advisable, the propriety demands that the Judge after allowing the appeal limitation period, shall start the execution deter. So that people can appeal, but otherwise in the CPC , I have not read anywhere that it states that the decree of the lower court is, subject to finalisation of the decision of the appellate court. Or it is conditional on the decision of the appellate court, for execution. But okay, you give them this right. If  they went to appeal, exercise their right and it is not shut out due to this.

There is a right to appeal, fix the date after that. If the appellate court issues a stay then the precedent will also take it in the same way and here we also decided that if the appellate court upholds the lower judgment, they do not need to provide reasons if it turns around or modifies it, then reasons must be given so, this has also been cut short. A very good period and timeline have been applied here, such that in Order 43 of the appeal, we have amended it so that now you must not only attach certified copies of the judgment or order you are challenging, but also your grounds for the interim order appeal, along with copies of the claim, counterclaim, and other documents as attached in revisions, so that they do not have to summon the lower record

since often the proceedings below stop against interim appeals against interim orders, we have also taken care of this matter and the appellate court is also time-bound to decide appeals against orders within thirty days similarly, in revisions, district judges are bound to make a decision in sixty days, and high courts must decide revisions within six months, those with more than two and a half crores in amount, the second appeal right has been removed, if over two and a half crores there will be a second appeal, so a timeline has been established everywhere which is very convenient for people.  So, I think those exceeding six months are there is something, but a question that people ask me is, and it is very important to answer, they think, for example, you have done this, that you cannot give a separate application for Order Seven, Rule Eleven; this has been changed in the substantive part as well. It has come in the procedural part, too, that in the written statement, you will take objections, submit an independent application, if you do,

the period for the written statement won’t stop, you can apply for Rule Eleven, but that will also be decided alongside it, so, when the administrative judges have the case, they will pass the necessary interlocutory orders as applications arrive, they will decide on them, and those that come at a later stage in the trial court, you were subject to the applications, their decision will be made by the trial court. In our system, there is no concept of reverse gear, it is not there, that the case will shuffle here and there, at the first stage it has to be entered into the register and it will be registered, which will go to the administrative judge, when the case has to go to the trial court, they have to enter it anew, okay, this retrospective effect of the amendments is not there, it is that these changes in the substantive part will apply to new cases, and about the procedural part, the case at whatever stage it is, these amendments, will be implemented from there, and from that stage, you will take the case forward, yes, sometimes there can be a scenario, for example, you have closed the right to a written statement and they, provide reasons and file an application saying they need to write it.

Assume the situation that the case which is currently with the trial judge because all the case management proceedings have not been completed, pre-trial proceedings have not taken place so that will definitely happen. They will give the right to reply to the claim, it will go back to the admirative judge that you complete this whole procedure because you see that order starts from six up to seven, eight, nine, ten, fourteen this entire procedure is pre-trial, the latter is post-trial now there are some things which are confusing to people, for example, we have to appoint a next friend if you do not do it, there are panel consequences on it you have to appoint a guardian ad litem as per the port requirements this is mostly at the initial stage and now these orders come very late after fourteen in the CPC there is a concept of some incidental proceedings and there is no timeline for these incidental proceedings the administrative judge cannot touch them but they can be touched when the case is with them and when it is in the trial court, they have to do it.

Meaning, the whole purpose is to prevent wastage of time, everyone to do their homework and at the end of the day, the people are tired of such prolonged justice and delayed justice which

is actually injustice. Hazrat Ali, peace be upon him, said a society of disbelief can survive, but a society of oppression cannot. So, delaying justice is inadequate as our system is inefficient and not delivering and this is a big criticism on us and they say the judges and the judiciary interfere in other matters, but they do not keep their own house in order, so this is an intellectual response

We have given a tremendous decision from the judiciary’s end, and this is for everyone, and the government has also cooperated a lot; I believe. In many areas, we need to coordinate. We should not work separately by area; we should all work together. For example, now you.

are talking about electronic records, Mr. Shah, there is a point worth mentioning here, and that is people are criticizing greatly that. if you provide such a voluminous record, then, first, you are burdening people with extra costs, and second, it is not environment friendly.

and the concept of paperless courts and offices globally. So, what should be done, I say. that revolutions do not come as a whole. People do not bring corresponding changes. Now, after COVID-19, it has become especially necessary. that the concept of e-filing and virtual courts and online hearings be adopted. Currently, online hearings are happening in the supreme court.

So, we have to implement this on trial and for that. it will be necessary to change the rules within the high courts because, until now, we have not created rules regarding IT, e-filing, and virtual courts. These need to be made.

Because without them, these things cannot be admissible in evidence. We will make them, and now if electronic record is maintained, then see, it will become a paperless court; and

I have a solution for this, and I have been doing this for quite some time, and with full authorization, I say please. Along with changing the rules, develop software and a portal because this privileged record. cannot allow every Tom, Dick, and Harry into the judicial system, so when a person files a claim, then with the code number. And if a smart card is given, it will enter into this portal. And all of this will be in electronic/digital form, all of these documents will be filed, and similarly return statements and When the defendant comes, a code will also be given, and they will complete it through the smart card, and a copy of everything will also reach the administrators and the judge. However, it is necessary to understand that because the lower court is generally not computer literate, and at times computers were quite strange for people. So, facilitating on a computer happens when we file things in electronic form. Therefore, we should create facilitation centers, such centers recognized by the high court, where lawyers who are not familiar can go and get their filing done. Moreover, for this, we will also have to ensure that if a certified copy is to be obtained through an electronic certificate, then this provision will have to be included in the rules. The advantage is that I can file documents even after court hours,

there will be no crowding in the court, and it will be quite neat and clean. The judges can see all these documents on their screens. In this way, the appellate courts collect documents from the court They provide illegal gratification, and the money still has to be given to my aggrieved client.

We take written statements, and it’s not a question of not giving copies. This is something

we do in the high court, so the copies are given to the other party or received in the supreme court. So why won’t this happen here in Karachi. This has been happening for forty years, so

there is no justification for surprising people with things.

We cannot take that; everything we have filed in court is their right. They have the right to challenge it and why shouldn’t they be doing it. We have even gone to the extent that even for evidence. To take evidence, this too has come ahead as a substantive part. Within everything, it is not necessary to record evidence.

Similarly, tomorrow we will be able to record evidence online too. And if our environment is safe, as long as it’s not vulnerable to a cyber-attack, we need fast internet for that.

The government will also have to cooperate with us to provide internet facilities everywhere.

They will have to provide where it’s not available already. We’ve suggested service for UMS, so places that aren’t reachable. UMS is cheaper than the courier, so why not provide convenience to people all these things. This way, the system will deliver. People will not just fight outside courts. They will come to court; for lawyers, it’s a charming thing as the trust of people will increase. We get an upfront fee. I receive the entire fee on the first date. Soliciting is not allowed in Pakistan. If there is a file in my chamber aging for twelve or thirteen years, the average period nowadays. If it ends up in the Supreme Court, it takes four to five years. What use is it to me if it doesn’t pay me. If it’s decided quickly, my fee becomes absolutely justified. My client also gets justice. Then this mediation process, we have not kept anyone out of it. Lawyers are an essential part without them, meditation work will now not be possible, that’s our experience. As a lawyer, they will go there, and their presence is very important. Because the client does not feel confident without them, and especially. Settlement agreement, we have to do it without a lawyer, then we. This new ADR model that we are bringing in, within it, the panelist. This will not just be judges; lawyers now have to become mediators. They have to become arbitrators; we are also going to establish a seat of arbitration in Pakistan; domestic arbitration is also. God willing, going to change. This also has been directed by the Supreme Court on my petition. And it will also be made, so at all such places, lawyers have been given. Lawyers learn new things, but one thing is very important.

That in our entire system, we have worked a lot on legal education. It is current, but that judgment is pending, I am working with the Supreme. Court, we have created entrance to law school, entrance to the bar. We want to bring a bar vocational course; we want to discipline foreign universities. But a continuous legal education element is totally missing. We certainly need to see this, we have to read everything, and learn new things. When we went to law school, even our sky did not know about ADR. Case management came, white-collared crime, computer digital and forensics. DNA will come; environmental law will come.

All these things have to be learned later. In the UK, if you do not provide thirteen hours of continuous legal education each year. Your license is not extended, in China, there are fifty-two hours of training. This training must be done by everyone. Whose training needs to be done, training has to be done for court staff as well. Where is the blockage that prevents the judges from coming back? Our neighboring countries’ superior judiciary judges also attend the Judicial Academy. The training at the Judicial Academy being provided, I believe, is not up to the mark. You need to provide new phenomenon-eating content to the judges. There is a need to

improve the content and to create bench books. This is what we all have to build. And now I have a suggestion that to address this crisis, stakeholders should sit together.

Our bar associations and bar councils should have representatives sit. Our High Court judges should also sit with them to debate among each other. If we want Punjab’s entirety to know about this, then, on a war footing, we must train the people. Today we have taken this responsibility.

Today, we have made the beginning, telling people about the laws, and we are training. We will also bring it into black and white. Now we are ready to go to other places.

After COVID-19, we will go online too. This is a great step starting from the premises of Lahore High Court. We have made this offer, but we want to coordinate with the Judicial Academy as well for judges’ training.

Those who brought common law to common law countries after the Wolf reform initiated a paradigm shift. Case management and these entire things, they have brought into their courts, including Pakistani courts. Without these systems, survival is not possible. The world is a global village, and the client is fed up, saying it seems like My conscience rebukes me that perhaps I am contributing to the victory of the black coat with money, while justice is a far-off cry, hoping that maybe the grandfather’s case reaches the grandson someday. We have to perform this service to our country and especially to the ordinary man, who is suffering the pangs of the system, he is your master, mine, the judge’s, and the system of the courts. Somehow, we have to make this system deliver, and governments in power need to think about it, so does the opposition. That the task of delivering justice is a fundamental slogan you shout for. Until you join forces to fund it, you need to build capacity, and the Higher Education Commission has a role to play. We have not even made textbooks until now to teach in law schools. This work is essential in our law schools. We need to set up an academy here within the bar, at the premises of the bar council. We should conduct continuous training for people, run their bar vocational courses, and many other things.

English for lawyers, IT for lawyers, and so on and so forth. We need to teach people all these things. This is a good beginning, and a positive response, and now we cannot say that we are not reforming. But this work will be accomplished together in collaboration, not by disagreeing with each other. I also want to opine that it is not a matter of anyone’s ego.

If you agree, then back to square one, this notification could be issued by withdrawing the previous one if it is issued like this. Viewpoints can be considered, and we can practice this for six months. We are not the only ones reforming. Reform is a continuous process, there might be shortcomings, but we can rectify them, as we have done in other places. Apply it but we cannot afford to fail and we are with each other.  Angry like this, we were sulking, consoling each other like this. It’s not like we are on strike, when we strike then the cases decisions are delayed , poor litigant feels very disappointed. So, we should have discussions among ourselves and I believe now the elections of the new Punjab Bar Council have happened and the Pakistan Bar Council is also coming in a couple of days, so their responsibilities have increased greatly and with this new mindset, let’s enter into our dialogue, sit in one place, coordinate, we are ready to make efforts on our part in every possible way.

You mentioned, I myself am writing textbooks on the Civil Procedure Code as well on ADR, Insha’Allah within a couple of months-time, you’ll get one. Because today whatsoever is there are commentaries, I am writing wrote a thematic book on civil trial in this way, so this is a change, but work has to be done on training as well. We have to bring the existing lawyers and judges to this level by imparting continuing legal education. And we have to change the relevant rules which are to be changed. Within the High Court rules and Orders , some changes will have to be made.  After all, we have to strengthen the judge, as they say the judge should wear all laws on his sleeve and party is not obliged  to engage a council even, so it is the judge’s responsibility to properly examine the plaint before issuing summons.  If I say this Minar-e-Pakistan is mine then without thinking, without evidence should the case proceed and entertained.  This shouldn’t be done, so we have done this in every way and for others provisions the consequences are there too. If you wrongly attach someone’s property, we have also made changes in the substantive law and redress the wrong. The one who sends anyone to jail will also be penalized for it

that why did you do this; in this way we can curb frivolous litigation. We can find solutions to the problems of people after all, all these dispute resolution mechanisms are whether it is the court system or outside the court, there are some cases that outside the court. I, think fifty percent will be dealt with outside the court, the remaining fifty percent if we handle them and address frivolous litigation and hold continuous trial, then this system will deliver completely. This is an absolutely a feasible solution and we should debate on it, media should be involved too because healthy debate informs people about what has happened, we tried to explain this to you in simple terms and also, in black and white, these things you bring across Shah sahib, I

thank you again very much. President of High Court Mr. Nasrullah Wraich, he has made a great

effort and along with his cabinet I am grateful to him too.  God willing, we will try practically too that we take some people who are absolute stake holders and are very important and seat them in a good place where just as the judge sits, they sit in the judicial academy too, our bar councils should be there, bar associations too, our zealous leaders besides that, people of eminence here, professors of law will also be seated because after all, now the children will study this new law then they have to take exams in this, from the same.

We have to deal with this, practice on it. I want to raise some questions with you and some concerns. People used to say that they people who originally enacted CPC were great minds and were people of wisdom so no changes are required.  If you touch them , you will turn to stone. We said those who made it had changed it. So, we have also changed it. According to modern demands.

Yes, we love it a lot because this CPC these both parts I have with me. I am telling you in front you, this is like a girlfriend to me. Because and you know what your girlfriend is like. You make her, you groom her. You want to keep her in the best shape. So, we have also learned this from three generations. We learned from the elders, still we have consulted with many capable people. It is not that it happened in instantly without any deliberations, consultations and effort.

I have made the joint contribution to all of them; this is collective wisdom. And even now we need to make efforts for further improvements on this. Reform is a liquid thing; more improvements can be made in it.

SNA: Some questions I want to ask with you is the first thing that the concerns are of the lawyer community because we also need to pacify them and convince them. These new amendments are indeed revolutionary, but the point is the repercussions are felt it affects the issues of livelihood will be affected. Plus, this is that when people started their practice back then, there were also very few busy lower court lawyers who were trial ports, if they had around fifty-five cases per day. There were cases filed, so those fifty-five cases could not be properly attended to, some of which were defaulted. They let them be defaulted; an individual might have arguments, whatever the given court time was. So, our lawyers’ proposed proposals are not, well, these amendments have come in. Regarding these amendments, the concerns that exist or the fear they feel is that the large metropolis, you mentioned Karachi, but Lahore is a very big city. If there is a lawyer with a lot of work at the trial level, would it be possible for them to meet this timeline? This is a big question mark over these amendments.

Another thing is that you mentioned that the documents that need to be attached with the plant, and all those dependents should receive those documents, and that plethora of documents that the notice server will take-as we say in our terminology-the third thing is that interlocutory applications, the admin judge can also hear them, and at whichever stage they go, the trial judge can also hear them. You have answered that, but a significant question within it is this:

If the plant is filed, and ex parte proceedings continue, through that ex parte order, in any way the process of giving evidence, which is on the plaintiff’s side where the defendant is absent or not present in court, and there, if they are bound to give their testimony so that their evidence is shared, If the authenticity of this case or one             can prove this claim So here what I feel and some of our friends have also debated that regarding the act of considering ex-parte evidence by merely brushing aside and accepting the contents of the plaintiff as gospel truth, what do you want to say about it?

These are my three to four questions so that you can answer them in detail.

ZIK: Yes, Shah Sahib, as you said, that in every city within the trial, there are some senior lawyers, and most of the cases are with them and not with others, sir, here lies the whole problem. This process of teaching, you know, earlier some chambers were there where seniors used to share their prosperity and knowledge with the youngsters. Similarly, young people would grab the masters and go to the chambers and take training from them. This process has stopped from both sides. There is no shortcut to the top; you have to work your way up. But its greatest beauty is that when the trial judge looks at their docket and gives a historic date, it is given based on when availability is occurring, which can be known two to three months in advance, allowing you to make arrangements then, when the evidence is being recorded by the local commission, it is possible after court hours at any time, so this adjustment will be very good in one way. Secondly, should we encourage or not encourage these young people to work?

If there are no seniors, then young people get the opportunity to thrive and go further. This is precisely our dilemma. And I have noticed that in Pakistan, fifty to sixty lawyers will have millions, while the financial condition of a common lawyer is very It is bad, and if you look at a city like Lahore from forty years ago, every good house belonged to either a lawyer, or an industrialist, or a doctor. Others did not have any money. Now, the number of cases has increased significantly in proportion to the number of lawyers, but the distribution of money and work is not at all fair because you would have opportunities if you didn’t allow adjournments. Everyone comes prepared and then takes an adjournment anyway. And now because we have written in these forms that when you are ready, when you will provide evidence, you have committed. You are told months in advance, so now these excuses won’t work. And still, courts that do not give opportunities won’t allow them.

And , let me tell you, not everything requires arguments. There is no need for an argument on everything. Why is it necessary to take a reply to every miscellaneous application?

You can simply decide with arguments. If necessary, fine; if frivolous applications come, just like when we started law practice. They did not take a reply to every application and would decide on it. Now, here, as far as it is concerned that if ex-parte has happened. Look, if ex-parte has occurred, the judge’s authority has not gone anywhere in terms of them understanding the case. If they believe the gospel truth in that case, they will decree it accordingly. In cases they think evidence should be taken, ex-parte evidence will be taken. Now, because this case is still at the administrative judge’s stage, it’s not a clerical job that the administrative judge does. They are a judicial officer with all the same powers that any other civil judge has. If the case is at the administrative judge stage at this time they will see, and if they need to take ex-parte evidence

they will take it, but after all, the entire system is based on calling those people who come and want to defend themselves when you have given them a full opportunity, exhausted every method, complied with them, provided substituted service if they still do not want to come, you can’t forcibly bring them now there is one party now, for supporting its stance, it comes to the point that the judge must absolutely see whether the degree can be passed or not, so they will look at those documents and of course, if its decision is made it’s subject to appeal, it is appealable so, we didn’t conclude it. Yes however, if it gets to be set side and it’s at the trial judge stage and there a miscellaneous application comes then the case will definitely be remanded back to send back to the administrative judge through district judge because that procedure cannot be skipped now that was already written that you have to do due diligence of the parties you can ask for clarification from them you can interrogate as well you can also make discoveries, all of this

these things are mandatory do issues in the presence of parties, you have to manage the case, that system will not be rewound but always there is some beginning we are not all-knowing that we can say it will be conclusive and seal it, after all, the laws in life do change too, they come, but until you practice it, how will you know? Now, most people are like that, they don’t read and without reading, someone from the newspaper tells me this is a new budget, so give your opinion. I tell them, brother, I haven’t even read our financial act yet, let me read it first, how can I comment on it?

We have to go through things; our general dilemma has become that we don’t give a well-read response. Even if a judgment comes, people start talking about it without understanding. Look, give an intellectual response, you never feel content if you debate about laws, as they are public property, after all. That’s what I’m saying, why stop the debate?

Sitting in our own places won’t make a difference. We can improve things during conversations; any issues that exist can be improved. After all, this parliament is our parliament, isn’t it? Our elected representatives are there. If a law is made and there’s room for amendment, we can do that. The rules of the High Court are still there. By adopting the same procedure, if something isn’t right, it can be improved and amended. We are ready to work on it, and we will. But saying there was no need for it was completely not justified because now the system is stuck. People are not satisfied at all; ask anyone you like.

They say about civil cases, this drives people crazy, but they didn’t come to become crazy “Diwani Muqdma, Diwana Bana Deta Hay”. After all, they need to get some relief.

We lawyers are the ones who assist in providing relief, I am a human being first, and I am a lawyer last, if my humanity is finished and if I want to get employment to increase people’s fights and entangle them in cases, they do not know that litigation is about, and by putting them in technicalities, the money I make like this, such money is not Halal (lawful) for me. Money is only Halal for me when I help someone, It is a noble profession. Amongst those who collect money only, my view is that they should not enter these three professions unless they have empathy. here should be compassion as well, for a poor person who cannot pay, I will work for free.

Becoming the voice of someone is a matter of great honour. In the past, lawyers did not negotiate with anyone about fees. You know the gown we wear, which is a sign of knowledge, on the back side of  it, there is a flap in pace of which there used to be a pocket in old times. Clients would happily put money, sometimes land documents, as a reward for representing them, but no fees would be charged. Over time, now fee is settled and charged, and it is justified for professional. With legitimate earnings, one can earn a lot even now. When the system delivers, people’s trust will be in us, they will not go to gangsters for outside settlements, they will not fight amongst themselves, they will trust our court.

What is greater than the court?  The judge sits on the chair of God and justice has to be accompanied by kindness (Adal Bil Ehsan), by doing kindness along with justice, they work better for people, then everyone.

The day something dispute is settled, when I am acting as a mediator, let me tell you that I sleep better and have satisfaction that I did something good. The world has become a global village, now, while sitting in Lahore, I do international commercial mediations and arbitrations through video-link. 

All over the world, ADR is new phenomenon for settlement of disputes. When the world has changed, we should change too. This is fashionable in USA, UK, China, India, Bangladesh, Sri Lanka and many other countries.  Pakistan is now following the same path. So , we have to include it in the substantive part of other laws as well. We have to bring changes in substantive laws.

We can also deliver justice at the local government level. Look, until yesterday, the succession certificate, was only obtained from the court. Now it’s possible that you can go, to the national registration authorities (NADRA) to get it. So, this issue is resolved in a better way. Now revenue authorities incorporate the legal heirs of a deceased there. It is possible that a local government is established tomorrow.

Which is very necessary, elections have not taken place there yet. There is already the concept of arbitration, disputes will be settled there. Many disputes will be resolved there, many issues like divorce. Are still handled at the local government level. Why can’t there be family courts located at governmental level eventually to handle such cases. We can work better there. We placed unnecessary burden on one place, the court house. We overburdened the judges too, the number of cases has increased, the backlog has also increased . We didn’t do capacity building; this is a major gap.

Those who have control and authority, they have to wake up and have to put in a serious effort to improve the situation. We all have to change our attitude now; this is what we have to do. I can assure you of this fact, mark my words, that half-cooked and half-baked ideas won’t work, half-cooked half-baked judges and lawyers won’t work. These things have to change because the world has changed, we have to keep up with requirements of the modern dispute resolution mechanisms, otherwise there will be total failure of the judicial system. We need improvement and improvement is an always very great step forward. We also need a lot of reforms on criminal cases; this is something we are not yet focusing enough on.

This is a great golden opportunity. I am always ready to learn and I keep attending short courses for my capacity building. I think we don’t know everything, there are always new things coming up and we should be ready to learn new things. Be ready to know new things.

SNA: With a candid approach, one last  question I would like to ask you. You are a pioneer too. You have contributed too, to this rules committee of Lahore High Court that has introduced these revolutionary amendments. But as a lawyer, if you find yourself on the other side, do you think our bar associations, which have become very strong in terms of their strength and in terms of getting their demands accepted, do you think your representatives who are lawyers will agree to accept all these amendments, and in terms of dialogue, will they come forward for it? Would you be ready to engage?

ZIK: Yes, I have great hope for this. Let me tell you something it’s a coincidence that all the bar

associations and bar councils that are relevant our friends are sitting there. We have their support We have their backing. We have negotiated with them they are all out to cooperate.

Whenever change comes anywhere in the world the lawyer community initially says, “hey guy you want to put me out of business”, But later when reform happens if you take them along it succeeds, without them it doesn’t. The biggest supporters of change are always the lawyers. We have seen this by running the ADR project here We did this twice, once upon a time with we ran a reform project on ADR people like, CJ Ijaz Nisar, CJ Sheikh Riaz, CJ Rashid Aziz and CJ Mian Allah Nawaz and it was a tremendous project. We again worked with CJ Syed Mansoor Ali Shah. When we took the lawyers along with us the most support come from them. Among them are elders who are like teachers, I can sit here and tell you who are the teachers in civil side or criminal side in the bar and all of them are big institutions, from which others lawyers come out and there is trickle-down effect by their involvement in any improvement/change.

We need to gain the confidence of these people and once we gain their confidence and talk with them they end up teaching everyone else. Seniors should be assisted and through your program

I want to say to some big names that they retire and sit at home, and do not contribute something to the country. I want to request to them, please it’s time to pay back, use your experience by helping us in continuing legal education. Help us in the institutions give lectures there,

give lectures in our judicial academies too, give lectures in our bar councils as well. You will teach judges, you will teach lawyers ,you are an ideal teacher. When they are together positive change is bound to come and successfully implemented.

The concept of train the trainers exists worldwide . Any reform comes in such a way that you need a group. You can’t go everywhere physically, but this is a good use of modern technology, teaching people on line rather than physically. Believe you me, I have great hope because we have a very friendly and positive bar council and bar association, I talked with them and they are with us 100 percent on this matter. I want to say to the judges that please give us your support as well. They say the bar and bench are the two wheels of the same chariot. They have to work together. Start things confidently and they will improve Suddenly doing something abruptly and saying you don’t even want listen to them gives the impression of undermining their role. The role of the lawyer never ends, fundamentally it’s the lawyer who assists you. The learned judges, I have seen this, if your listen to a case , with open ears and open eyes and give a passionate hearing much better judgments are rendered. When lawyer come well prepared, judgment becomes very good. An essential part of justice delivery system is a lawyer; without it, this system does not exist. In these amendments we’ve made sure that the lawyer’s role is not negated anywhere. Lawyer is very much part of it, but this senior-junior dialogue we have to do. We have to communicate with the judiciary, as well as the legislature.

Why can’t we give good suggestions that can be acted upon? These committees, parliamentary committees, should also have debates among stakeholders, before making any legislation, instead of just raising a hand and passing it.

Believe you me, we have indigenized all of these local things. When we started advocacy, we studied under great teachers. We were taught all of these skills; we were taught the intricacies. We know how to fill out all forms for admissions and denials, production of documents etc. We were taught all this, and even now, God willing. There are very good people here; we will gather those good people. Our dilemma is that there are no islands in this society; problems are everywhere. The bad people have increased; good people are few, but they are present everywhere, though not together, while bad ones gather easily. We have to turn towards those good people who are positive-minded. God willing, they will lead; there are top-class lawyers here. And about lawyers, as I would say as a representative. I am the biggest, most educated, and most sophisticated member of the society as a lawyer, and history bears witness to the fact that the greatest reformers and significant figures around the world have been lawyers. More than fifty percent of number, they have come from lawyers.

I follow in the footsteps of people like Sir Syed Ahmed Khan, Allama Iqbal, and Muhammad Ali Jinnah. Now that our representation in places like Parliament has decreased, the situation has worsened, hasn’t it?

The profession of law is truly noble and distinguished. A few inexperienced individuals have entered the profession, but it is our responsibility to guide and mentor them. They constitute a very small segment. The majority of lawyers are excellent. They are so passionate such that

I have never seen in any other profession that people take cases for free/ pro-bono. Even the most financially weak lawyer is willing to take on a case for free. People should come into this profession with a missionary zeal, things will improve, and the glory that once this profession had, was will indeed return, God willing. We must regain that status because it is the bar that determines the quality of the judiciary to a significant extent. If our bar improves, our judges will be better, and vice versa. If judges improve and are competent, they guide the bar, their role should be such. As young lawyers, we used to present cases before prominent judges, they would guide us by saying, ‘Have you looked at the case from this angle?’ ‘Are you aware of this perspective?’

Such debates and dialogues should happen more often. People talk about landmark judgments having come, and these should be revisited when necessary. New legislation is sometimes required when flaws are found. Involve lawyers in this. In my life, I have fought more than thirteen thousand cases but I am not satisfied with the system because I could not get delivered to the people expeditious and timely justice. If I can’t deliver then every night when I sleep, even though I settled a case through mediation, I only sleep well the day I make a decision. We have to answer to God on the day of judgment, and this COVID-19 is also a balancing act, for those who are in power, to do good for the common people, to distribute wealth and prosperity fairly. This unfair distribution of wealth is an oppression happening at a global level and at an individual level. Everyone is saying they are fine perfectly. I am not ready to abandon the people because the region where Pakistan is, is extremely important now. You will see how power centers are falling. and our region is getting great opportunities. Investments are coming here but if the judicial system of a country is not delivering, then this is a disincentive for investment. They say that the place will become resolvent. Who will invest in such a country where a dispute is not settled expeditiously? We need to reform the entire system, bring it on an international level, so that in our country, your rights are protected in such a way that you can do everything in a just manner, and people will come here happily, and we will contribute to the prosperity of this country and gain God’s approval. This is what we should do and it was the purpose of making Pakistan, and Quaid-e-Azam Muhammad Ali Jinnah, the hero of the nation and founder, who envisioned a Pakistan where all people are treated equally without regard to sex, religion, or differentiation. We have to claim this pure land of Pakistan. Whether it’s the government or the opposition, after all, they are all part of us. Today’s government is tomorrow’s opposition, and tomorrow’s opposition becomes today’s government. This changes with time, so they should cooperate with each other for the betterment of the people of country.

SNA: I believe that there should be debates at every level. This intra-disciplinary debate among various stakeholders is very important. We are expressing our views, but we need to talk to each other. Mr. Kalanauri, your eloquence and clarity have always been impressive. You have detailed the recent amendments in CPC comprehensively. I believe this information is valuable for viewers and lawyers alike. Anyone related to the judiciary watching this program would have surely benefited. We’ve conducted some programs through the Legal Education Committee for this purpose. Our main aim was to share certain information among friends because of COVID-19.  Amid these days, social distancing has to be maintained and that was considered. Additionally, we anticipated a slight protest which we aimed to pacify. I believe this might help in pacifying any potential issues.

Today, in the Legal Education Committee under the Lahore High Court Bar Association, we are honored by the guidance you have provided. I sincerely thank you for this and hope for future collaborations. We assist you in the debates on these types of laws.

Thank you very much.

You can watch the Video on this discussion on the following link:

CASE MANAGEMENT & CIVIL TRIAL IN PUNJAB

under

AMENDMENTS IN THE FIRST SCHEDULE TO CIVIL PROCEDURE CODE 1908

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ACT 2018

&

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ORDINANCE 2020

Compiled By:

Mian Zafar Iqbal Kalanauri Advocate Supreme Court

INDEX

     AMENDMENTS IN THE FIRST SCHEDULE TO CIVIL PROCEDURE CODE 1908

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ACT 2018

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ORDINANCE 2020

It had been realized with full gravity that the Rules & Orders as contained in the First Schedule of CPC are not catering the need of time as nether they facilitate the litigant public adequately nor deal with modern techniques; further that despite the fact that Section 89-A existed in the body of the Code but there is/was no mechanism/rules to make this section operationalized, which is the main factor for causing delay in disposal of the cases.

All the Hon’ble Members of Rule Committee (CPC) burnt mid night oil and after thorough deliberations on each and every Order/Rule, with the grace of Almighty Allah, the Committee succeeded in its goal and ultimately it had proposed & approved a final draft of amendments in the First Schedule of the Code ibid. After convening a number of meetings, spreading over a period of 18 months, and having consultations and seeking approval of all the stake holders, the Committee unanimously approved the following amendments in the First Schedule of Code of Civil procedure, 1908.

It has been decided by the committee that Approved draft will be placed before Hon’ble Chief Justice for seeking his Lordship’s kind Orders to refer the same to Hon’ble Full Court.

These Amendments were approved by the full court and were later on these amendments in Rules and Orders of the First Schedule to the Code of Civil Procedure, (Act of 1908), made under section 122 of the Code, by Lahore High Court, Lahore, after previous approval of the Govt. of the Punjab were published in the official Gazette under section 127 of the Code on 15- 08.2018.

MEMBERS OF RULE COMMITTEE (CPC)

Hon’ble Mr. Justice Amin-ud-Din Khan                                (President) Hon’ble Mr. Justice Muhammad Tariq Abbasi                                                                                        (Member) Hon’ble Mr. Justice Shams Mehmood Mirza                                                                                          (Member)

Hon’ble Mr. Justice Shahid Karim                                         (Member) Mr. Zafar Iqbal Kalanauri, Advocate Supreme Court   (Member)

Mr. Shahzad Shaukat, Advocate Supreme Court                 (Member) Mr. Shakib Imran, Senior Civil Judge, Lahore                                                                                         (Member) Mr. Muhammad Rafique, Addl. Registrar (L & R)                                                                                       (Secretary)

LAHORE HIGH COURT, LAHORE. NOTIFICATION.

No. 237/Legis/XI-Y-26                                                                                                                      Dated 15-08-2018

The following amendments in Rules and Orders of the First Schedule to the Code of Civil Procedure, (Act of 1908), made under section 122 of the Code, by Lahore High Court, Lahore, after previous approval of the Govt. of the Punjab are hereby published in the official Gazette under section 127 of the Code.

2.                     These shall come into force, within the local limits of jurisdiction of Lahore High Court, Lahore on such dates and in such District or Districts of the Punjab as Lahore High Court, Lahore may determine by Notification.

AMENDMENTS

This Notification may be cited as the Civil Procedure Code (Amendment of First Schedule) 2018.

It shall come into force in such district or districts of the Punjab as Lahore High Court Lahore may, by notification, determine and different dates may be so determined for different districts.

“In the Code of Civil Procedure, 1908, in the First Schedule:

In Order I, for rule 11, the following shall be substituted:

“11. Conduct of suit.- The Court shall, at the time of framing of the issues, give the conduct of the suit to such party as it deems proper for expeditious adjudication of the suit.”.

In Order II, after rule 6, the following new rule 6-A shall be inserted:

“6-A. Consolidation of suits.- Where two or more suits or proceedings of the same nature requiring determination of similar issues between the same parties are pending in relation to the same subject matter, the Court may, if considers it expedient for avoiding multiplicity of litigation or conflict in judgments, direct the consolidation of

such suits or proceedings as one trial, whereupon all such suits or proceedings shall be decided on the basis of the consolidated trial.”.

For Order IV, the following shall be substituted:

“1.  Courts to be numbered.– For the purposes of this Code, the Courts shall be numbered, identified and addressed with reference to the numbers allocated to them.

Commencement of proceedings in suit.–

(1) Every suit shall be instituted, by presenting a plaint to a Court or such officer as it appoints in this behalf, and assigned to an Administrative Judge and a Trial Judge under the Code.

(2)  Every plaint shall comply with the rules contained in Order VI and Order VII, so far as they are applicable.

Register of suits.– The Administrative Judge shall cause the particulars of every suit to be entered in a book to be kept for the purpose and called the register of civil suits. Such entry shall be numbered in every year according to the order in which the plaints are admitted.”

After Order IV, the following new Order IV-A shall be inserted.

“ORDER IV-A ADMINISTRATIVE JUDGES

Administrative Judges.– The District Judge shall designate as many Civil Judges in the District as Administrative Judges as are necessary to the disposal of load of work with dispatch.

The Administrative Judge shall take and complete pre-trial proceedings in a suit, after it has been registered, when he is satisfied that the plaint and the written statement complies with the provisions of Orders VI and VII.

The pre-trial proceedings include the proceedings under Orders V, VIII, IX, IX-A, IX-B, X, XI, XII, XIII and XIV.

Upon taking and completing his pre-trial proceedings, the Administrative Judge shall cause the suit along with the entire record, placed on a specific date, before the Trial Judge for its trial under the Code:

Provided that the Administrative Judge, before sending the suit, shall satisfy himself that witnesses of the parties to the suit enter their appearance before the Trial Judge on the date when the suit is to be placed before him.

The Trial Judge, before commencement of trial, shall cause registration of the suit in the register of civil suits in the manner provided in Order IV.”

In Order V:

for rule 2, the following shall be substituted:

“2. Copy or statement annexed to the summons.- Every summons shall be accompanied by a copy of the plaint, or if so permitted by a concise statement, and copies of the documents annexed with the plaint and a copy of the list under sub-rule (2) of Rule 14 in Order VII.”;

In rule 5, the existing rule shall be numbered as sub-rule (1) and thereafter, the following new sub- rule (2) shall be inserted:

“(2) When the summons are for the settlement of issues, the summons shall state that the defendant may present written statement of his defence before the day fixed for his appearance”.

for rule 10-A, the following shall be substituted:

“10-A. Service by post.- (1) Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post acknowledgement due and another copy of the summons signed and sealed in the manner provided in rule 10 by courier service, or as the court may determine, by urgent mail service of Pakistan Post, at the cost of the plaintiff.

(2) The acknowledgment, purported to be signed by the defendant, of the receipt of the registered communication or an endorsement by a courier messenger or postal employee that the defendant refused to take delivery of the summons shall be deemed by the Court issuing the summons to be prima facie proof of the service of the summons.”.

In Order VII:

in rule 9, in sub-rule (1-A), for clause (a), the following shall be substituted:

“(a) copies of the plaint and documents under rule 14 for each defendant and two extra copies;”

in       rule 11,    for    clause         (d),   the   following   shall   be substituted:

“(d) where the suit appears, from the record available with the court, to be bared by any law.”;

after rule 11, the following new rule 11-A shall be inserted:

“11-A. Separate application barred.- A plea for rejection of plaint under rule 11 may be raised by the defendant in his written statement and not by a separate application.”;

for rule 13, the following shall be substituted:

“13. Where rejection of plaint does not preclude presentation of fresh plaint.- The rejection of the plaint, on any of the grounds mentioned in clause (a), clause (b) or clause (c) of rule 11, shall not, of its own force, preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”; and

after rule 21, the following new rule 21-A shall be inserted:

“21-A. Consequence of failure to annex copy etc. with the plaint.- When the plaintiff fails to annex a copy of the plaint or concise statement or copies of documents mentioned in rule 2, the Court may make such order as it thinks just and fit.”

in rule 26, after sub-rule (3), the following sub-rule (4), shall be inserted:

“(4) Failure of the plaintiff to file the list of legal representatives, as aforesaid, shall render the suit liable to be dismissed.”

In Order VIII:

after rule 1, the following new rule 1-A and rule 1-B shall be inserted:

“1-A. Presumption of admission of contents of plaint.- When the defendant fails to present written statement of his defence before the day fixed for his hearing, the Court shall presume that he admits the contents of the plaint as true:

Provided that nothing shall preclude the Court from permitting the defendant to present written statement, upon showing a just and sufficient cause in an application in writing supported by an affidavit:

Provided further that the permission to present written statement shall not extend beyond the period fixed in rule 1.

1-B. Additional copies of written statement and documents.- The defendant shall furnish additional copies of written statement and of the documents annexed therewith for their supply to the plaintiff.”

in rule 13, after sub-rule (3), the following new sub-rule (4) and sub-rule (5) shall be inserted:

“(4) Failure of the defendant to file the list of legal representatives, as aforesaid, shall render his defence liable to be struck out.”

(5) The Court may, on an application made by the defendant when accompanied with the list of legal representatives and disclosing a sufficient cause for non-filing of the list, recall the order passed under sub-rule (4) and allow him to continue with his defence of the suit.”

For Order IX-A, the following shall be substituted:

“1.        Fixation of intermediate date.– (1) After the close of the pleadings, the Court shall fix-

a day for examination of parties under Order X;

a day for discovery and inspection under Order XI; and

a day for its proceedings under Order XII.

The Court may grant a maximum adjournment of three days for completion of each proceedings mentioned in sub-rule (1) and shall keep a full and complete record of these proceedings in Form 13 in Appendix C.

It shall be the duty of the Court to take proceedings under Orders X, XI and XII and to satisfy itself that the parties go to trial for precise and exact issues of law and facts they are at variance with each other.

While taking proceedings under Orders X, XI and XII, the Court, having regard to the facts and circumstances of the case, shall carefully determine the possibility of the alternate dispute resolution method and when so warranted adopt such a method in accordance with section 89-A.

The Court shall stay the proceedings of the suit for a period which is not more than thirty days when it requires the parties to adopt any of the alternate dispute resolution method.

2. Case management questionnaire.– (1) The plaintiff shall file along with the plaint a duly filled in case management questionnaire in Form 14 in Appendix C.

(2) The defendant shall, at the time of presenting his written statement, file a duly filled in case management questionnaire in Form 15 in Appendix C.”

After Order IX-A, the following new Order IX-B shall be inserted:

 

“ORDER IX-B ALTERNATE DISPUTE RESOLUTION

Reference to mediation.– (1) Except where the Court is satisfied that there is no possibility of mediation or an intricate question of law or facts is involved, the Court shall refer the case for mediation.

While referring the matter for mediation, the Court may indicate the material issues for determination through mediation.

Appearance of parties.- Where a case is referred for mediation, the Court shall stay the proceedings for a period not exceeding thirty days and direct the parties to appear before the Mediation Centre, set up by Lahore High Court, on such date and time as the Court may specify.

Settlement.- (1) Where the mediation proceedings are successful and the parties have arrived at an agreement, the Mediator shall cause the same to be recorded in writing, signed by the parties or their recognized agents or their pleaders and attested by two independent witnesses.

The agreement shall be certified by the Mediator and transmitted forthwith, through the Administrator of the Mediation Center, to the Court.

The Court shall, on receipt of the agreement, pass a decree in terms thereof unless the Court, for reasons to be recorded in writing, finds that the agreement between the parties is not enforceable at law.

Where the settlement relates only to a part of the dispute, the Court shall pass decree or an order in terms of such settlement and proceed to adjudicate the remaining issues.

Failure of mediation.- Where the meditation fails and no settlement is made between the parties, the Mediator shall submit a report to the Court and the Court shall proceed with the case from the stage it was referred to Mediation.”.

In Order XI:

for the existing rules 1 and 2, the following shall be substituted:

“1. Discoveries by interrogatories.- The Court shall direct the parties to deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties stating clearly which of such interrogatories each of such person is required to answer, provided that the Court may reject an interrogatory or part thereof which, in its opinion, is not relevant to the case.

2. Communication of interrogatories.- On receipt of the interrogatories under rule 1, the Court shall deliver the interrogatories to the concerned person for submitting the answer within such time as the Court may specify.

for rule 8, the following shall be substituted:

“8. Affidavit.- The interrogatories shall be answered by an affidavit to be filed within the time specified by the Court.”;

for rule 11, the following shall be substituted:

“11. Order to answer or answer further.- Where any person interrogated submits an insufficient or an evasive answer, the Court may require him to submit the proper answer within the time specified by the Court.”;

for rule 12, the following shall be substituted:

“12. Application for discovery of documents.- (1) Any party may apply to the Court for an order directing any other party to a suit to make discovery on oath of the documents which are or have been in his possession or power, relating to a matter in issue in the suit.

(2) On hearing such application, the Court may either refuse or adjourn the same, if it is satisfied that such discovery is not necessary or not necessary at that stage of the suit, or may, after being satisfied as to the validity of the prayer made, direct the other party to make the discovery:

Provided that the discovery shall not be ordered when and so far as the Court is of opinion that it is not necessary either for disposing the suit or for saving costs”.

In Order XII:

for rule 1, the following shall be substituted:

“1. Admission of case.- The Court shall enquire from a party whether or not it admits the

truth of the whole or part of the case set up by the other party in the pleadings.”;

for rule 2, the following shall be substituted:

“2. Admission of documents.- (1) The Court shall also require the parties to admit or deny the documents annexed with the plaint or, as the case may be, the written statement.

If a party fails to comply with the direction under sub-rule (2), the Court may proceed against such party under rule 21 of Order XI.

If a party denies a document which is proved at the trial, the Court shall burden such party with such heavy costs as it may deem fit.”.

In Order XIV, in rule 1, for sub-rule (5), the following shall be substituted:

“(5) At the first hearing of the suit after the proceedings under Orders X, XI and XII, the Court shall, after reading the plaint, the written statement and such examination of the parties as may be necessary, determine the material propositions of facts or of law in dispute between the parties and shall proceed to frame and record the issues on which the decision is likely to depend.”.

In Order XVI, in rule 1:

for sub-rule (1), the following shall be substituted:

“(1) The Court shall, immediately after framing of the issues, require the parties to file a list of witnesses in the Court within such period, not later than seven days, as the Court may fix.”; and

for sub-rule (2), the following shall be substituted:

“(2) A party shall not be permitted to call witnesses other than those contained in the list, except with the permission of the Court and after showing good cause for the omission of the said witnesses from the list and the Court shall record reasons for granting permission.”.

In Order XX:

for rule 1, the following shall be substituted:

“1. Judgment when pronounced.- (1) On completion of evidence, the Court shall fix a date, not exceeding fifteen days, for submission of the precise written arguments along with the relevant case-law by the parties.

The Court, after submission of the written arguments under sub-rule (1) and after hearing the oral submissions, if so required, pronounce judgment in open court either at once or on some future date, not exceeding fifteen days, for which due notice shall be given to the parties or their advocates.”; and

(2)       for rule 20, the following shall be substituted:

“20. Certified copies of judgment and decree.- The Court shall, at the time of pronouncement of the judgment, provide to the parties, at their expense, certified copies of the judgment and the decree.”.

In Order XXI:

for rule 10, the following shall be substituted:

“10. Execution of a decree.- On passing of an executable decree by a Court, the suit shall stand converted into execution proceedings and no separate application for the purpose and no fresh notice to the judgment debtor shall be necessary.”;

for rule 11, the following shall be substituted:

“11. Attachment.- At the time of the initiation of execution proceedings, the Court shall order the attachment of the property of the judgment debtor, if it has not already been attached under Order XXXVIII.”;

rule 17 shall be omitted;

rule 23 shall be omitted;

for rule 23-A, the following shall be substituted:

“23-A. Deposit of decretal amount, etc.- An objection by the judgment-debtor to the execution of a decree shall not be considered by the Court unless:

in case of a decree for the payment of money, he either deposits the decretal amount in the Court or furnishes security to the satisfaction of the Court for its payment; and

in case of any other decree, he furnishes security to the satisfaction of the Court for the due performance of the decree.”;

rule 29 shall be omitted;

in rule 32, in sub-rule (1), the expression “or for restitution of conjugal rights,” and the expression “in the

case of a decree for restitution of conjugal rights by the attachment of his property or,” shall be omitted;

rule 33 shall be omitted;

in rule 36, for the full stop at the end, a colon shall be substituted and thereafter, the following proviso shall be added:

“Provided that no such right of a tenant or other person shall be protected in a case where the tenant or the other person entered into possession of the immovable property during the pendency of the suit wherein the decree has been passed.”;

for rule 37, the following shall be substituted:

“37. Discretionary power to allow judgment- debtor an opportunity to show good cause against detention in prison.- (1) Notwithstanding anything in the rules, where a decree for the payment of money is sought to be executed through arrest and detention in prison of the judgment- debtor, the Court may, before issuing a warrant of arrest, provide one opportunity to the judgment- debtor to show good cause as to why he should not be detained in prison:

Provided that such opportunity shall not be necessary if the Court is satisfied, by affidavit or otherwise, that, with the object of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.

(2)  Where the judgment-debtor fails to avail himself the opportunity or is unable to show a good cause, the Court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment-debtor.”;

in rule 40:

for sub-rule (1), the following shall be substituted: “(1) Where a judgment-debtor avails himself

the opportunity provided under rule 37 or is brought before the Court after being arrested in execution of the decree for the payment of money, the Court shall give the judgment-debtor an opportunity of showing good cause why he should not be detained in prison.”;

sub-rule (2) shall be omitted;

for sub-rule (3), the following shall be substituted: “(3) Where the judgment-debtor fails

to show any good cause under sub-rule (1),

the Court may, subject to the provisions of section 51 and to the other provisions of the Code, make an order for the detention of the judgment-debtor in prison and shall, in that event, cause him to be arrested if he is not already under arrest.”.

for rule 54, the following shall be substituted:

“54. Attachment of immovable property.- (1) Where the property is immovable property, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all other persons from taking any benefit from such transfer or charge and any such transfer, charge, alienation, encumbrance or other disposition in violation of this rule shall be void and of no legal effect.

(2) A copy of the order under sub-rule (1) shall be conveyed to the concerned authority maintaining the record of the property under attachment, in addition to a proclamation of the order at some place adjacent to such property by beat of drum or any other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and the Court-house, and also, where the property is subject to land revenue to the Government, in the office of the Collector of the district in which the land is situate.”;

in rule 58, in sub-rule (1), in the proviso, for the words “one year”, the words “thirty days” shall be substituted:

in rule 66:

for sub-rule (2), the following shall be substituted:

“(2) (i)  such proclamation shall be drawn up by the Court Auctioneer and shall state the time and place of sale and specify as fairly and accurately as possible:

the property to be sold;

the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government;

any encumbrance to which the property is liable;

the amount for the recovery of which the sale is ordered; and

every other thing which the Court Auctioneer considers material for a purchaser to know in order to judge of the nature and value of the property.

(ii) the Court Auctioneer shall submit the proclamation drawn up by him to the Court for its approval which shall add to it the reserve price of the property under sale, based upon the evaluation report submitted by any evaluator appointed by the Court from amongst the evaluators approved by the Pakistan Banker’s Association.”

sub-rule (3) shall be omitted.

in rule 67, for sub-rule (2), the following shall be substituted:

“(2) (i)  Where the reserve price determined by the Court exceeds rupees two million, the proclamation shall also be published in at least one widely circulated national daily newspaper and the costs of such publication shall be deemed to be costs of the sale; and

(ii) The Court Auctioneer shall cause video recording of the auction proceedings while ensuring transparent and fair bidding process of the public auction and the costs of such video recording shall be deemed to be costs of the sale.”.

rule 70 shall be omitted;

in rule 72:

for sub-rule (1) and sub-rule (2), the following shall be substituted:

“(1) The holder of a decree in execution of which the property is sold may participate in the auction of the property and for that purpose make a bid for the purchase of the property.

(2) Where a decree-holder purchases the property, the purchase- money and the amount due on the decree

may, subject to the provisions of section 73, be set-off against one another, and the Court executing the decree shall enter up satisfaction of the decree in whole or in part accordingly.”;

sub-rule (3) shall be omitted;

rule 78 shall be omitted;

in rule 83, after sub-rule (3), the following new sub-rule

(4) shall be inserted:

“(4) A notice of the sale of the property shall be given to the judgment-debtor with an option to match the highest bid within fifteen days of the auction of the property and the judgment debtor, in that case, shall have the first right of refusal to purchase the property at the highest bid offered by a bidder.”;

in rule 84, for sub-rule (1), the following shall be substituted:

“(1) On every sale of immovable property, the person declared to be the purchaser shall pay to the officer or other person conducting the sale the amount equal to the reserve price of the property through pay order or bank draft or banker’s cheque immediately after such declaration and in case such payment is not so made, the property shall forthwith be resold in the manner provided under this Order.”;

in rule 89:

for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be inserted:

“Provided that no application under this rule shall be entertained unless the applicant deposits in the Court the amount specified in the proclamation of sale along with a sum equal to five per cent of the purchase money.”; and

after sub-rule (3), the following new sub-rule (4) shall be inserted:

“(4) The Court shall decide the application under this rule within thirty days of the filing of the application.”; and

in rule 90, in the second proviso, for the words “twenty five”, the word “fifty” shall be substituted.

In Order XXIII, in rule 1, in sub-rule (2), after the words “the Court is satisfied”, the words “after recording reasons” shall be inserted.

In Order XXXII, for rule 2, the following shall be substituted:

“2. Where suit is instituted without next friend.- (1) Where a suit is instituted by or on behalf of a minor without a next friend, the Court may on such fact coming to its notice allow an opportunity to remedy the defect.

Where the defect is not removed, the Court may, on an application of the defendant, or of its own motion, order that the plaint should be taken off the file with costs to be paid by the pleader or other person by whom it was presented.

Notice of the application submitted under sub-rule (2) shall be given to the pleader or such other person, and the Court may, after hearing his objections, if any, make appropriate order.”.

Order XXXIII shall be omitted.

In Order XXXVIII, for the existing rule 1, rule 2 and rule 3, the following shall be substituted:

“1. Defendant to be called upon to furnish security.- (1) The Court, on the first date of hearing, after examination of the plaint and on being satisfied as to the existence of a prima facie case, direct the defendant to furnish adequate security for the due satisfaction of the decree, if passed against him.

(2) Where the defendant fails to furnish security within the time fixed by the Court, the Court may, after considering the available record and for reasons to be recorded, prohibit the defendant from transferring or charging his property in any way, except with the prior permission of the Court.

Procedure on application.- (1) Where an order under rule 1 is made, the defendant may apply, along with an affidavit, to the Court for permission to transfer or charge his property.

(2) On receipt of such application, the Court, if satisfied, that the intended disposal by the defendant is not likely to affect the due satisfaction of the decree, may proceed to grant such permission.

Furnishing of security.- The defendant may apply to the Court for the vacation of the order issued under rule 1, by furnishing independent security to the satisfaction of the Court for the due satisfaction of the decree, if passed against him.”.

In Order XXXIX, rule 2B shall be omitted.

In Order XLI:

rule 23-A shall be omitted;

for rule 27, the following shall be substituted:

“27. Production of additional evidence in Appellate Court.– The Appellate Court, after recording reasons, allow the parties to an appeal to produce additional evidence, whether oral or documentary:

if the Court from whose decree the appeal has been preferred, has refused to admit evidence which ought to have been admitted;

the Appellate Court, on being satisfied that the additional evidence has been available but could not be produced before the trial Court for reasons beyond the control of the party seeking its production; or

the Appellate Court itself requires any such evidence so as to enable it to pronounce a judgment.”.

In Order XLIII:

in rule 1:

clauses (a), (c), (e), (f), (g), (h), (i), (k), (l), (m), (n), (o) and (v) shall be omitted;

in clause (j), the expression “rule 72 or” shall be deleted;

in clause (w), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be inserted:

“Provided that the appellant, while filing an appeal under this Order shall along with the memorandum of appeal, furnish copies of the pleadings, order sheet of the subordinate Court and all necessary documents.”;

for rule 2, the following shall be substituted:

“2. Record of the trial Court.- It shall not be necessary for the Appellate Court to call for the record of the trial Court, unless it, for reasons to be recorded, requires the record for decision of the appeal.”; and

rule 3 and rule 4 shall be omitted.

Order XLIV shall be omitted.

By order of the Chief Justice and Judges

(Rao Abdul Jabbar Khan) Registrar

Appendix-C

Form No. 13 (Order IX-A)

CASE MANAGEMENT STATEMENT

In the Court of

Civil Suit No.                                                

(Plaintiff)

Versus

(Defendant)

By Plaintiff(s)                                                                                                             By Defendant(s)                  Date of Filing                                                                                                                                      

Pursuant to Order IX-A CPC, Plaintiff(s)/Defendant(s) as the case may be, shall submit Case Management Statement as under:

Whether the Plaintiff or the Defendant requires inspection and discovery of documents in terms of Order XI, CPC? If so, please specify.

Whether the Plaintiff or Defendant will require the other side (Specify) to admit or deny certain facts in terms of Order XII,

16

CPC? If so, details should be given.

The Plaintiff and the Defendant should answer the following Interrogatories in terms of Order XI.

Plaintiff or Defendant undertakes to attend joint Case Management conference with the Advocates of the other side and submit Case Management Statement in Form No.14 or 15 Appendix-C, CPC.

Signature of Plaintiff(s)/                                          Signatures of the party

Defendant(s) Advocate                                              Plaintiff(s)/Defendant(s) Certification by Advocate

I,                                                            , Advocate for the Plaintiff/Defendant certify that I have explained to the Plaintiff/Defendant the procedures for the Case Management and CDR and he has understood the same.

Signature of the Advocate for Plaintiff/Defendant

Certification by the Parties

I,                                                     , Plaintiff(s)/Defendant(s) certify that the Advocate has explained to me, and I have understood, the case management and CDR procedures.

Signature of the Plaintiff(s)/Defendants(s)

Appendix -C

Form No.14 (Order IX-A)

Case Management Statement of Plaintiff(s)

In the Court of                                                                                                     Civil Suit No.

Case Management Conference.

Date                                                                   Time                                                        

Pursuant to Order IX-A, the parties (through their advocates) submit Case Management S statement under the order. Each party(s) certifies that his advocate (who will try this case) met and conferred for the preparation of this Statement as required by Order IX-A.

Statement of admitted facts.

Statement of disputed facts.

Issues arising for determination including preliminary issues, if any. (In case of disagreement on issues, enumerate issues which are agreed arid those which are riot agreed for court’s consideration.)

Plaintiff(s) elect the following from the list of consensual dispute resolution mechanisms.

Mediation.                                                                

Arbitration.                                                              

Conciliation.                                                            

Deadline for disclosure of witnesses:

Party                                                              Deadline

(6)	Trial Schedule Trial Date Anticipate length of
(7).	Name of Trial Advocate:
	Address:
	Telephone Number
	Advocate for:
	Signature (Advocate):

(8). Name of the Plaintiff(s)                                                                                   

Signatures (Plaintiff(s))                                                                             

The court finds that each party was represented by an advocate responsible for trial of this matter and was given an opportunity to be heard as to all matters encompassed by the Case Management Statements by each party and the Joint Case Management Statement by all the parties. The Court adopts this Statement as modified and enters if as the order of this court under Order IX-A.

IT IS SO ORDERED

Appendix -C

Form No.15 (Order IX-A)

Case Management Statement of Defendant(s)

In the Court of                                                                                                     Civil Suit No.

Case Management Conference.

Date                                                           Time                                                                    

Pursuant to Order IX-A, the parties (through their advocates) submit Case Management S statement under the order. Each party(s) certifies that his advocate (who will try this case) met and conferred for the preparation of this Statement as required by Order IX-A.

Statement of admitted facts.

Statement of disputed facts.

Issues arising for determination including preliminary issues, if any. (In case of disagreement on issues, enumerate issues which are agreed arid those which are riot agreed for court’s consideration.)

Defendant(s) elect the following from the list of consensual dispute resolution mechanisms.

Mediation.                                                                

Arbitration.                                                              

Conciliation.                                                            

Deadline for disclosure of witnesses: Party Deadline

Trial Schedule

Trial Date                                                                                                        

Anticipate length of                                                                                     

(7).	Name of Trial Advocate:
	Address:
	Telephone Number
	Advocate for:
	Signature (Advocate):
(8).	Name of the Defendant(s)
The	Signatures (Defendant(s)) court finds that each party	was represented by an advocate

responsible for trial of this matter and was given an opportunity to be heard as to all matters encompassed by the Case Management Statements by each party and the Joint Case Management Statement by all the parties. The Court adopts this Statement as modified and enters if as the order of this court under Order IX-A.

IT IS SO ORDERED

……………………………………………………………..

(BAHADAR ALI KHAN)

 Registrar

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ACT 2018 (Act XIV of 2018)

C O N T E N T S

SECTION                                HEADING

Short title and commencement.

Amendment in section 3 of Act V of 1908.

Omission of section 7 of Act V of 1908.

Amendment in section 9 of Act V of 1908.

Amendment in section 12 of Act V of 1908.

Amendment in section 24 of Act V of 1908.

Amendment in section 30 of Act V of 1908.

Substitution of section 33 of Act V of 1908.

Amendment in section 35 of Act V of 1908.

Amendment in section 35-A of Act V of 1908.

Substitution of section 44-A of Act V of 1908.

Amendment in section 91 of Act V of 1908.

Amendment in section 92 of Act V of 1908.

Substitution of section 95 of Act V of 1908.

Amendment in section 97 of Act V of 1908.

Substitution of section 102 of Act V of 1908.

Amendment in section 104 of Act V of 1908.

Amendment in section 114 of Act V of 1908.

Amendment in section 115 of Act V of 1908.

Amendment in section 151 of Act V of 1908.

[1] THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ACT 2018 (Act XIV of 2018)

[20 March 2018]

An Act further to amend the Code of Civil Procedure, 1908.

It is necessary further to amend the Code of Civil Procedure, 1908 (V of 1908) for purposes of updating certain provisions of the Code.

Be it enacted by Provincial Assembly of the Punjab as follows:

Short title and commencement. – (1) This Act may be cited as the Code of Civil Procedure (Punjab Amendment) Act 2018.

(2)        It shall come into force at once.

Amendment in section 3 of Act V of 1908.- In the Code of Civil Procedure, 1908 (V of 1908), for brevity referred to as the Act, in section 3, for the words “Court of Small Causes”, the words “Court of Small Claims and Minor Offences” shall be substituted.

Omission of section 7 of Act V of 1908.- In the Act, section 7 shall be omitted.

Amendment in section 9 of Act V of 1908.- In the Act, in section 9, after the words “impliedly barred”, the words “or for which a general or a special law is in force” shall be inserted.

Amendment in section 12 of Act V of 1908.- In the Act, in section 12, after subsection (2), the following new subsection (3) shall be inserted:

“(3)      For purposes of the disposal of an application under subsection (2), the Court may, in the interest of expeditious disposal, apply such fair procedure as the circumstances of the case warrant, and shall, unless, for reasons to be recorded it directs otherwise, order any fact to be proved or disproved by affidavit.”.

Amendment in section 24 of Act V of 1908.- In the Act, in section 24, subsection (4) shall be omitted.

Amendment in section 30 of Act V of 1908.- In the Act, in section 30, for clause (c), the following shall be substituted:

“(c)      order any fact to be proved or disproved by affidavit.”.

Substitution of section 33 of Act V of 1908.- In the Act, for section 33, the following shall be substituted:

“33. Judgment and decree. – The Court, after the case has been heard, shall pronounce judgment maximum within fifteen days and on such judgment a decree shall follow simultaneously.”.

Amendment in section 35 of Act V of 1908.- In the Act, in section 35, for subsection (1), the following shall be substituted:

“(1)      Subject to such conditions and limitations, as may be prescribed, and to the provisions of law for the time being in force, the costs of an incident to all suits and other proceedings in the suit including execution proceedings, shall follow the event, and the Court shall have full power to determine by whom or out of which property and to what extent such costs are to be paid, and to give all necessary directions for the purpose aforesaid.

(1a)      The fact that the Court has no jurisdiction to try the suit shall be no bar to exercising the powers under subsection (1).”.

Amendment in section 35-A of Act V of 1908.- In the Act, in section 35-A, in subsection (2):

for the words “twenty-five thousand”, the words “one hundred thousand” shall be substituted;

first proviso shall be omitted; and

in the second proviso, the expression “, further,” shall be omitted.

Substitution of section 44-A of Act V of 1908.- In the Act, in section 44-A, the following shall be substituted:

“44-A. Execution of decrees passed by Courts in the reciprocating territory. – (1) Where a certified copy of a decree of any of the Superior Courts of the reciprocating territory has been filed in a District Court, the decree may be executed in Pakistan as if it had been passed by the District Court.

Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Explanation 1. “Reciprocating territory” means such country or territory as the Federal Government may, from time to time, by notification in the official Gazette, declare to be reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification.

Explanation 2. “Decree”, with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and does not include an arbitration award, even if such award is enforceable as a decree or judgment.”.

Amendment in section 91 of Act V of 1908.- (1) In the Act, in section 91, in subsection (1), for the expression “having obtained the consent in writing of the Advocate General”, the expression “with the leave of the Court” shall be substituted.

Amendment in section 92 of Act V of 1908.- (1) In the Act, in section 92:

in subsection (1), for the expression “and having obtained the consent in writing of the Advocate General”, the expression “with the leave of the Court” shall be substituted; and

for subsection (2), the following shall be substituted:

“(2)      No suit claiming any of the reliefs specified in subsection (1) shall be instituted in respect of any such trust as is therein referred to, except in conformity with the provisions of that subsection.”.

Substitution of section 95 of Act V of 1908.- In the Act, for section 95, the following shall be substituted:

“95.     Compensation for obtaining arrest, attachment or injunction on insufficient grounds. – (1) Where, in any suit in which an arrest or attachment has been effected or a

temporary injunction is granted under the last preceding section, it appears to the Court that:

such arrest, attachment or injunction was applied for insufficient grounds; or

there was no reasonable or probable ground for making the application –

the Court may, on its own motion or on the application of the aggrieved party, award such punitive compensation as it deems reasonable to the aggrieved party for the expense and injury caused to him.

In addition to the compensation awardable under subsection (1), the Court may also make an order directing the party at fault to deposit such amount in the public exchequer as the Court deems just, as penalty for abusing the process of the law and wasting the time of the Court.

An order under this section shall bar any suit for compensation in respect of such arrest, attachment or injunction.”.

Amendment in section 97 of Act V of 1908.- In the Act, in section 97, the words “passed after the commencement of this Code” shall be omitted.

Substitution of section 102 of Act V of 1908.- In the Act, for section 102, the following shall be substituted:

“102. No second appeal in certain cases. – No second appeal shall lie in any suit when the amount or value of the subject matter of the original suit does not exceed rupees twenty-five million.”.

Amendment in section 104 of Act V of 1908.- In the Act, in section 104, after clause (ff), the following new clause (fff) shall be inserted:

“(fff) an order under section 91 or section 92 refusing leave to institute a suit;”.

Amendment in section 114 of Act V of 1908.- In the Act, in section 114, for subsection (1), the following shall be substituted:

“(1)      Subject as aforesaid, any person considering himself aggrieved:

by a decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred; or

by a decree or order from which no appeal is allowed by this Code –

may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”.

Amendment in section 115 of Act V of 1908.- In the Act, in section 115:

in subsection (1), for the second proviso, the following shall be substituted: “Provided further that the subordinate court shall provide copies of the documents to a person within three days of the decision, and the High Court shall dispose of such application within six months,”; and

after subsection (4), the following new subsection (5) shall be inserted:

“(5)      No proceedings in revision shall be entertained by the High Court against an order passed by the District Court under section 104.”.

Amendment in section 151 of Act V of 1908.- In the Act, in section 151, after the word “Court” occurring for the first time, the expression “, to be exercised after recording reasons in writing,” shall be inserted.

[1] This Act, which amended the Code of Civil Procedure, 1908 (V of 1908); was passed

by the Punjab Assembly on 14 March 2018; assented to by the Governor of the Punjab on 19 March 2018; and, was published in the Punjab Gazette (Extraordinary), dated 20 March 2018, pages 6695-98.

THE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ORDINANCE 2020 (VIII of 2020)

CONTENTS

Short title and commencement.

Substitution of section 3 of Act V of 1908.

Substitution of section 26 of Act V of 1908.

Insertion of section 27A in Act V of 1908.

Substitution of section 96 of Act V of 1908.

Amendment of section 106 of Act V of 1908.

Amendment of section 115 of Act V of 1908.

Amendment of section 128 of Act V of 1908.

Substitution of section 141 of Act V of 1908.

Insertion of section 159 in Act V of 1908.

TEXT

[1) ⁱTHE CODE OF CIVIL PROCEDURE (PUNJAB AMENDMENT) ORDINANCE 2020

(VIII of 2020)

[29th April, 2020]

An Ordinance to amend the Code of Civil Procedure, 1908.

It is expedient to amend the Code of Civil Procedure, 1908 (V of 1908) to bring procedural reforms for smooth and swift dispensation of justice; for reduction of backlog of civil cases; and for the matters ancillary thereto.

Provincial Assembly of the Punjab is not in session, and Governor of the Punjab is satisfied that circumstances exist which render it necessary to take immediate action.

In exercise of the powers conferred under clause (1) of Article 128 of the Constitution of the Islamic Republic of Pakistan, Governor of the Punjab is pleased to make and promulgate the following Ordinance:

Short title and commencement. – (1) This Ordinance may be cited as the Code of Civil Procedure (Punjab Amendment) Ordinance 2020.

(2) It shall come into force at once except the provisions for electronic maintenance of records and proceedings which shall come into force on such date as the Government may by notification in the official Gazette appoint.

Substitution of section 3 of Act V of 1908.- In the Code of Civil Procedure, 1908 (V of 1908), for brevity referred to as ‘the Act’, for section 3, the following shall be substituted:

“3. Hierarchy of Courts. – For purposes of this Code, the hierarchy of Civil Courts shall be the same as provided in the Punjab Civil Courts Ordinance, 1962 (II of 1962).”.

Substitution of section 26 of Act V of 1908.- In the Act, for section 26, the following shall be substituted:

“26. Institution of suits through plaint. – (1) Every suit shall be instituted by presentation of a plaint in such manner as may be prescribed.

The plaintiff shall file as many copies of the plaint and accompanying documents with the plaint as there are defendants to the suit, to be sent along with the summons.

It shall be duty of the Court to maintain electronic records of the proceedings in suits in such manner as may be prescribed.

Explanation. For purposes of this subsection, the word “suits” includes any proceeding in applications, appeals, reviews, revisions or anything incidental thereto.

26A. Written statement. – (1) The defendant shall file written statement not later than thirty days from the date of his first appearance in the Court.

The defendant shall provide additional copies of written statement and of the documents annexed therewith for each of the parties and for the Court.

If the defendant fails to file the written statement within the time frame provided under subsection (1), the Court shall close the right to defend the case.

26B. Framing of issues, filing of list of witnesses, recording of evidence and hearing of final arguments. – (1) The Court shall, within seven days of filing of the written statement, frame issues.

The parties may, within seven days of framing of the issues, raise objections on such issues, and shall provide a list of witnesses and certificate of readiness for production of evidence.

Upon framing of the issues, filing of the list of witnesses and certificate of readiness for production of evidence, the Court may itself record the evidence or may direct a Commission to record the evidence in the prescribed manner.

For purposes of subsection (3), the Court shall appoint a Commission from a list of approved panel, comprising of advocates and retired judges, maintained by the District Judge concerned, on payment of such fee and terms and conditions as may be determined by the Court.

The Court or the Commission, as the case may be, shall complete recording of evidence and proceedings in writing and through audio and video recording within ninety days of fulfilment of the requirements contained in subsection (3).

The Court, upon completion of evidence of the parties, shall complete the hearing of final arguments of the parties within twenty days:

Provided that the parties may file written arguments in the Court within the time frame under this subsection.”.

Insertion of section 27A in Act V of 1908.- In the Act, after section 27, the following section 27A shall be inserted:

“27A. Process of summons. – (1) The summons shall be issued simultaneously, unless otherwise ordered by the Court, to the defendant, by registered post acknowledgment due and another copy of the summons by courier service signed and sealed in such manner as may be prescribed, or as the Court may determine, by urgent mail service of Pakistan Post, at the expense of the plaintiff.

The Court shall order simultaneous service by-

affixing a copy of the summons at some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain;

any modern device including electronic device of communication which may include mobile, telephone, telegram, phonogram, telex, fax, radio, television etc. in the prescribed manner;

urgent mail service or public courier services;

publication in the press in the prescribed manner; and

(g) any other manner or mode as it may deem fit.

Location of the process server serving the summons shall be monitored by modern devices in the prescribed manner, and the process server shall take photograph of the defendant or the premises or the person accepting service of summons on behalf of the defendant, which shall be made part of the record as a proof of service of the process.”.

Substitution of section 96 of Act V of 1908.- In the Act, in section 96, in subsection (1), for the full stop at the end, the expression “, and the Court shall decide the appeal within sixty days from the date of first appearance of the respondent in appeal.” shall be substituted

Amendment of section 106 of Act V of 1908.- In the Act, for section 106, the following shall be substituted:

“106. What Courts to hear appeals. –

Where an appeal from any order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court not being the High Court in exercise of appellate jurisdiction, then to the High Court.

A Court shall decide an appeal under subsection (1) within thirty days of the first appearance of the respondent.”.

Amendment of section 115 of Act V of 1908.- In the Act, in section 115:

in subsection (1), in the second proviso, for the word “six”, the word “three” shall be substituted;

in subsection (2), for the full stop at the end, the expression “, and the District Court shall decide the application within two months from the date of first appearance of the respondent.” shall be substituted.

Amendment of section 128 of Act V of 1908.- In the Act, in section 128, in subsection (2):

in clause (i), the word “and” appearing after the semicolon shall be omitted;

in clause (j), for the full stop at the end, the expression “; and” shall be substituted;

after clause (j), the following new clause (k) shall be added “(k) case management.”.

Substitution of section 141 of Act V of 1908.- In the Act, for section 141, the following shall be substituted:

“141. Proceedings regarding interlocutory applications. –

The Court hearing a suit shall concurrently hear the interlocutory applications filed in the suit according to such timelines and in such manner as may be prescribed.

The filing of any application under subsection (1), including an application for the rejection of the plaint or dismissal of a suit, shall be no ground to halt the proceedings in the suit or to dispense with or waive the requirement of filing a written statement within the timelines as provided in this Code.”.

Insertion of section 159 in Act V of 1908.- In the Act, after section 158, the following section 159 shall be inserted:

“159. Savings of proceedings. – All proceedings instituted prior to coming into force of this Ordinance shall be dealt in accordance with the provisions of the Act which existed prior to coming into force of this Ordinance.

Explanation. In this section, the expression “proceedings” includes suits, appeals, reviews, revisions, execution applications and anything incidental thereto.”

ⁱ [1] This Act, which amended the Code of Civil Procedure, 1908 (V of 1908); was passed by the Punjab Assembly on 29^th April 2020; assented to by the Governor of the Punjab on 29^th April 2020; and, was published in the Punjab Gazette (Extraordinary), dated 29 April 2020, pages 3977-80.