1.

Appeal

Introduction

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

Relevant Provisions

Following are the relevant Provisions regarding appeal and second appeal

(1) Section 96, 97, 98, 99, of CPC for 1" Appeal

(ii) Section 100, 101, 102, 103 of CPC for 2nd appeal

Order 41, 42 of CPC

Meaning of Appeal

"Appeal means removal of a cause from inferior to a superior court for the purpose of a testing
soundness of decision of an inferior court".

Definition of Appeal

"Judicial examination of the decision by a higher court of the decision of the inferior court".

Right of Appeal

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

Nature of Right of Appeal

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

Appeals from a decree

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

Kinds of Appeal

Appeal may be classified not following two kinds..

1st Appeal

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

Forum of Appeal:

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

Person who may Appeal:

1. parties to the suit

2. persons adversely affected by the decree

Person otherwise competent to file appeal:

1. Legal representatives of the party

2. Transferee of the interest of party,

3. A benamidar on behalf of a real owner

4. A guardian on behalf of a minor

5. Government (Federal or Provincial)

Appeal against preliminary decree:

Preliminary decree is not allowed to appeal after passing of specified time.

Decisions in Appeal under section 98:

When the appeal is heard by two or more judges then it will be decided by majority.

When the appeal is heard by two judges and they differ upon a matter of fact then decision
despite of differed opinion shall stand confirmed.
When the appeal is heard by two judges but the point of difference is about law then they will
refer the matter to referee judges of the same court and decion shall be confirmed by the
majority including the judges who referred the matter. but if they will not agree to refer it then the
decision shall be confirmed.

Grounds of first Appeal:

1. judicial mind not applied

2. misreading or non reading of evidence

3. any other irregularity in procedure

Effect of irregularity in decree at appeal stage u/s 99:

The decree shall not be remanded, varied, or reversed merely on the ground of irregularity
during the proceeding except:

1. Where the decision is not on merit

2. The court was not competent with regard to jurisdiction

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

Grounds for Second Appeal.

(i) Decision being contrary to law

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

(iii) Decision having failed to determine some material issue of law or usage having the force of
law

(iv)Substantial error or defect in procedure.

Cases where second appeal is barred:

1. Small cause court's decree where the value of suit does not exceed 25000/-

2. where the value of suit is upto 250000/= in court other than small cause
Powers of High Court to determine issues of fact

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

1. Where there is sufficient evidence, on the record, for determining issue of fact, necessary for
the disposal the lower appellate court but that inferior court fails to consider.

2. An issue of fact, necessary for the disposal of the case, has been wrongly determined by the
lower appellate court by reasons of any omission, error or defect to determine some material
issue of law.

Conclusion

To conclude that appeal is a substantive right, and it is a matter inter parties. The question as to
whether the appeal is competent or not can only be decided by the court hearing the appeal.
Appeal may be filed against original or appellate decree passed by a court subordinate to High
Court. Appeal only lies against a decree and not against Judgment. The right of appeal is a
creation of statute.

Procedure of Appeal order 41

Appeal from original decree

Memorandum of appeal must be signed and presented by

a. Party in person

b. Authorized agent

c. Authorized pleader

Memorandum of appeal must be presented to

a The court

b. Officer authorized

Documents to be annexed with memorandum

a Copy of decree

b. Final judgement not interim

c. Grounds of objection from pleadings or evidence numbered connectively

It is duty of officer the officer of the court to verify whether it is validly presented keeping all
requirements above stated in mind and limitation period. Grounds of objections not raised at
time of presentation of appeal shall not be heard as matter of right but with leave of court.

Date of filing of appeal is considered two ways

a. By receipt of memo of appeal

b. By refiling if memo was filed without copy of judgment

Rejection of memo of appeal at any stage with reasons and after hearing appellant

a Not on prescribed form

b. On the grounds of rejection of plaint U 7/11

c. Rejection is a decree appealable

Return of appeal at any stage for removal of defects

a Technical defects and irregularities in memo of appeal.

b. After removal of defects it may be presented fresh

c. Amended appeal shall be signed by the judge or officer on his be

Stay of proceedings and execution during pendency of appeal

Court possesses power to stay proceedings and execution after the appeal is filed and mere
filing does not affect execution and proceedings of interim relief. On application of appellant
court which pronounced decree can grant stay if ame Crame

a. Decree is appealable

b. If application is filed before expiry period of filing appeal

Conditions for stay

a Sufficient cause

b. Without reasonable delay

c. Security

d. Prove that substantial loss in result of execution

Security in case of stay of execution

If the appeal is filed either at the direction of the appellate court or at the application of appellant
the

court which passed the decree shall take the security for

1. Restitution of property which in future may be taken in execution of decree

2. Restitution of property which has already been taken in execution of a decree

3. Payment of the value of property which may or has been in execution of decree or order

4. due performance of the decree or order

Court shall order for stay of sale of immoveable property if the order is made in execution and
judgment debtor has deposited the decretal amount or security for decree holder's cost.

Admission of appeal by the court

Court or officer on behalf of court shall take following procedure

a Endorse on the memo date of presentation

b. Register the appeal in the court book

Rejection of Appeal

If on the application of the respondent, appellant fails to submit the cost for appeal or original
suit as a security before disposing of appeal and after giving reasonable opportunity court shall
reject the appeal which is not a decree and not appealable.

Notice by appellate court to court which passed the decree to order for dispatch of
material regarding suit

Notice of day of hearing appeal

a. to court which passed the decree

b. to respondent or his pleader

c. all provisions of service of summon shall be applicable

d. notice shall contain text that if respondent will not appear appeal will be heard Ex-parte

e. appeal shall be dismissed if appellant will not be appeared on the fix day

f. appeal shall be dismissed if appellant will not submit the cost to serve the notice

g. such order shall not be made before the date of hearing and if the respondent himself
appears to the court

h. appeal shall be Ex-parte if the respondent will not be appeared on the fix day

i. if the appeal is dismissed on default an application may be made for restoration

J. If the appeal is Ex-parte then application for setting aside of the Ex-parte may be made

Readmission of Appeal by application within 30 days of dismissal or knowledge against

cost

a. U/R-11(2) dismissal for not submitting security for cost of appeal

b. U/R-17(1) dismissal of appeal for non appearance of Appellant

c. U/R-17(1) dismissal of appeal for non appearance of Respondent

d. U/R-18 where the cost of serving notice is not submitted by the Appellan

Rehearing of respondent after Ex-parte order against order for cost

Cross objection by respondent U/R-22

wherever the relief claimed in the suit was decreed partly in favor of plaintiff and partly in favor
of defendant and also where the original appeal is not filed by the appellant then the respondent
may file cross objections upon the points which were decided against him and may object
against any party to appeal and also to any person party to original suit by filing memo of appeal
with cross objections after getting leave to file by application within 30 days of notice of hearing
of appeal. if the appeal is dismissed or withdrawn the court will hear the cross objections even
by serving notice to the opposite parties.

Remand of case
Where the lower court has determined the suit on a preliminary issue (jurisdiction, Res-judicata
or limitation) and disposed of the suit the appellate court may after considering following points
may remand the case to that lower court for re-determining under the same number of register
of civil suits.

a Entire suit must have been disposed of by the trial court

b. Trial court has disposed of the issue at preliminary point

c. Appellate court has reversed the decree

But if the evidence on record is sufficient to pronounce the judgment appellate court may
determine it by itself.

Trial court fails to any material issue

Appellate court may frame issues and sends the suit for collection of evidence on that point and
then try the suit by itself.

Memorandum of objection on the new evidence

Opposite party may object by filing memo of objection to new objection and case is heard by the
appellate court who remanded the case.

Production of Additional Evidence in Appellate court

as a general rule appellate court cannot call for additional evidence but rule 27 is an exception
to general rule where appellate court may order for sending paper for inspection, issue
commission and examine parties by recording such reason and applying judicial discretion in
the following circumstances;

a Where trial court had refused to record the evidence necessary

b. Where Appellate court cannot pronounce judgment without taking or requiring such additional
evidence

c. Where appellate court may require such additional evidence for any other substantial cause

Mode of recording such Additional evidence

a. By Appellate court itself

b. By Trial Court on the orders of Appellate Court

c. By another Lower Court

Points to be specifically defined to which additional evidence is recorded

Judgment in Appeal

a After hearing both parties or their Pleaders

b. After giving notices to the parties or their pleaders

c. On some future day

Essentials of judgment

a Concise statement of the facts of the case

b. Issues

C Decision issue wise

d. Reasons for decision

e. Relief reversal, varied

f. Date and signature judge/judges

Incidental proceedings

Relevant sections and order are

1) Section 75, 76, 77, and 78

2) Order 26 Rules 1-16

Incidental proceedings = issuing of commissions for the purposes mentioned in section

75

Purposes for issuing commission section 75

(a) Examining a person

(b) To conduct local investigation

(c) To examine and adjust accounts

(d) To make partition

Examination of a person with in Pakistan in any other Province

A) For examining a person for securing the ends of justice when the evidence of that
person is very necessary court either it's on motion or on the application supported by
affidavit by suit party may issue commission for following reasons U/S 75-76 U/O 26
Rules 1-7

1. A person resides in court's local jurisdiction but cannot attend the court due to sickness,
infirmity or any other inability

2. Any person who resides outside of court's local jurisdiction

3. Any person who is about to leave that jurisdiction before the date of his examination by court

4. Any person who is due to service of state cannot attend the court.

Court may issue commission to a court other the High court in another province where the
person resides. Court to which the commission is issued shall either examine by itself or through
some pleader or any other person and shall return such commission along with evidence
collected with report of such examination to the court issuing commission.

B) For conducting local investigation and for securing the ends of justice court may
issue commission for following reasons U/S 75 Order 26 Rules 9 & 10

1. For explaining a matter in dispute

2. For ascertaining the market value of any property

3. For ascertaining amount or mesne profits or damages or annual net profits

After execution of task assigned the commission will write a report and then sign it and then
return it along with evidence to the court. Any party to the suit may examine the commissioner
personally regarding the matters referred to him and mentioned in his report or the manner in
which investigation was conducted.

Status of such evidence

Evidence shall become part of the evidence and if the court becomes dissatisfied from the work
of the commissioner for any reason after reason to be recorded may order for further inquiry.
C) Court may issue commission to examine and adjust accounts along with necessary
instructions and if dissatisfied May order for further inquiry U/S 75 U/O 26 Rules 11-12.

D) Court may issue commission to make partition of immoveable property where

preliminary decree regarding partition of immoveable property has been passed to make
partition according to rights and commission shall perform following functions U/S 75
U/O 26 Rules 13-14;

1. Divide the property into shares

2. Allotment of such shares to the parties

3. Prepare a report and sign it

4. Transmit it to the court

Court will hear the objections of the both parties then confirm, vary or set aside the report so
made and pass decree for confirmation or varied and if the court set aside the report it shall
then either issue a new commission or issue any other order which it thinks fit.

Examination of a person (witness) outside Pakistan U/S 77

Court may also issue letter of request to the court of a state under the Federal authority for such
examination and provisions of this code will mutatis mutandis apply.

Examination of a person by or at the instance of the foreign court U/S78

Court may also issue commission at the instance of the court of foreign state for such
examination and provisions of this code will mutatis mutandis apply.
Cost incurred in these proceedings
Cost to be submitted before such proceedings in the court at time fixed by the court

Interpleader suit

Introduction:
Interpleader suit has some peculiarity with regard to the contest on it's subject matter, It is a suit
where there must be more than one defendants and the defendants contest against each other
for the disputed property. In an interpleader suit the plaintiff holds the movable or immovable
property and files the suit only to ascertain as to whom he should deliver the property because
the defendants claim the property against each other or they interplead against each other. In
every interpleader suit, there must be some debt or sum of money or other property in dispute
between the defendants only. And the plaintiff must be a person who claims no interest therein
other than for charges or costs and who is ready to pay or deliver the property to such of the
defendants as may be decided by the court to be entitled to the property.

Interpleader suit: An interpleader suit is a suit in which the real dispute is between the
defendants only and the defendants interplead, that is plead against each other (instead of
pleading against the plaintiff as in an ordinary suit).

Illustration #1: P is in possession of jewel box, wherein he claims no interest in it, and is ready
and willing to hand it over to the rightful owner. The box is claimed by A and B. P may file an
interpleader suit against A and B.

Illustration # 2: Where goods in the possession of a railway company are claimed by two
persons adversely to each other, and the company claims no interest in these goods (other than
a lien thereon for wharfage, demurrage and freight) it may institute an interpleader suit.

Relevant provisions:

Section 88 and Order 35

Conditions required for an Inter pleader Suit:

1. There must be some debt, sum of money, or other property movable or immovable, in dispute

2. Two or more persons must be claiming the same property adversely to each other

3. Plaintiff must not be interested, partly or wholly, in the same property (subject matter of the
suit)

4. There must not be a suit pending wherein the rights of rival claimants can be properly
adjudicated

5. Where any suit is pending in which the rights of all parties can properly be decided, no such
interpleader suit shall be instituted

6. Where the thing claimed is capable of being paid into court or placed in the custody of the
court, the plaintiff may be required to so pay or place it before he can be entitled to any order in
the suit

Format of interpleader suit:

Format of all civil suits are pretty much the same but in this suit a plaintiff must adhere to these
requirements

1. the plaintiff claims no interest in the subject matter in dispute other than charges and costs
2. the claims have been made by the defendants severally

3. there is no collusion between the plaintiff and any of the defendants

Action of court when interplader suit is instituted:

At the first hearing of the suit the court may declare the plaintiff discharged from all liability to the
defendants in respect of the thing claimed, award him his costs and dismiss him from the suit, or
retain all parties until the final disposal of the suit if it thinks that justice or convenience so
requires.

Person debarred from suing an interpleader suit:

An agent cannot sue his principal or a tenant his landlord for the purpose of compelling them to
interplead with persons other than persons claiming through such principal or landlord.

Procedure when the defendant is suing plaintiff:

The court where the defendant institute a suit against the plaintiff shall inform to the court where
the interpleader suit is filed by the plaintiff and the court of interpleader suit shall stay the
proceedings.

Cost of interpleader suit where the proceedings stayed by the court:

The cost of interpleader suit either recoverable by the plaintiff through the defendant's suit or
through the same interpleader suit.

What is Review, who may apply for review and what are the grounds for filing an
application for review?

Introduction

Civil Procedure code has granted right of reviews, but this right has been made subject to
procedure, conditions and limitations, which have been prescribed in rules of order 47 of Civil
Procedure Code.

Right of review is a substantive right, the main object of which is to enable the courts to correct
errors, in the decisions pronounced by them. If the decree or an order or made on the basis of
some record and there has been some mistake or error apparent on the face of record or some
new and important matter or evidence is discovered after the passage of decree or order or
another such sufficient reasons, the application of review, may be made by the aggrieved party.

Relevant provisions
Section 114 Order 47

Grounds of Review

1. Appealable Decree or Order

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

2. No Right of Appeal allowed

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

3. Discovery of new and important matter or evidence

When new and important matter or evidence is discovered, but such matter or evidence was not
within knowledge of aggrieved person or such matter or evidence could not be produced by
aggrieved person at that time when decree or order was passed, review application can be filed.
Note evidence must be relevant and such nature that would if not allowed effect the decree or
order and party has to show strict proof regarding this ground otherwise application is liable to
be rejected by the court.

4. Mistake or error

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

5. Any other sufficient Ground

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

Forum of Review

An application for review shall lie to the following authorities.

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

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

(ii) Same judge or his successor

When the decree or order is that of court, other than High Court, it shall be reviewed by same
judge or his successor.

Rejection of Application of Review

(i) Where it appears to the court, that there is no sufficient reason for review.

(ii) Where an application for review is heard by more than one judges, and the court is equally
divided.

Order of Rejection non-Appealable

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

Restoration of review application

When application for review is rejected for non appearance of applicant then court application
by the applicant may restore it and shall serve a notice to the defendant.

Limitation Period Application of Review

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

Conclusion

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

Question: Suit by Alien

Relevant provisions:

Section 83 of CPC

Classification of Alien:

a. Alien friend: Those who resides in a country to which their mother land is at friendship.

b. Alien Enemy: Those who resides in a country to which their mother land is at war.
c. Alien Enemy residing in a foreign country: Every person residing and carrying on business
without a license of the Central Government in a foreign country at war with Pakistan, is for this
purpose, deemed to be an alien enemy residing in a foreign country.

1. Conditions to sue as alien by Alien friend:

Alien friends may sue in any Court of competent jurisdiction as if they were citizens of Pakistan..

2. Conditions to sue as alien by Alien Enemy:

Alien enemies can sue with the permission of the Central Government provided they are
residing in Pakistan.

3. Alien Enemy residing in a foreign country:

Alien enemies residing in a foreign country as defined above with the permission of the Central
Government can sue in any Court of Pakistan having competent jurisdiction.

Question: Suit against the government or public officer or by the government

Relevant provisions

Section 79-82 order 27 CPC

Name of Parties to the suit

a) A suit by or against the federal government is filed in the name of Pakistan

b) A suit by or against the provincial government is filed in the name of concerned province

c) A public officer is to be sued personally and not in his public name unless he is a corporation
sole.

Procedure of suit filed against govt or public officer

a) With notice U/S 80(1) CPC

b) Without notice U/S 80(2) CPC

Institution of suit With notice U/S 80(1) CPC

A suit against government or public officer may be filed by giving notice to such government or
public officer two months before such filing.
To whom notice is to be served?

1. In case suit is against federal government notice is to be served to the secretary of the state.

2. In case suit is against provincial government notice is to be served to either to the secretary
of the province concerned or to the collector of the district.

3. In case suit is against Railway the notice is to be served to the the General Manager

4. In case suit is against public officer notice is to be served to such public officer or left at his
office

Contents of notice

1. Cause of Action

2. Description and name of plaintiff

3. Relief claimed

Object of the notice

To give sufficient time to government or pu cofficer that it/he may consider the position and
decide whether claim of the plaintiff should be accepted or defended.

Note:
Where at the expiration of period of two months and plaintiff claim remains unsatisfied the
plaintiff is then allowed to institute a suit.

Plaint under section 80(2)

Plaint in case notice served but claim remains unsatisfied must contain statement of delivery of
such

notice.

Institution of suit without notice/without statement of delivery of notice U/S 80(2)

Court shall allow not less than three months to the defendant for written statement.

Procedure by the government/public officer as a plaintiff/defendant

A) Signing of Plaint and written statement

In any suit by or against government, plaint or written statement should be signed by the
person, whom government appoints in this behalf through general or special order.

B) Verification of Plaint and written statement

In any suit by or against government, plaint or written statement should be verified by that
person, whom government appoints in this behalf through general or special order and who is
familiar with facts of case.

C) Fixing of day for appearance on behalf of Government

In fixing day for government to answer plaint, court should allow reasonable time for necessary
communication with government through proper channel and for issuance of instructions to
government pleader to appear and answer on behalf of Government. Even court possesses
discretion to extend such time.

D) Extension of time

When defendant is public officer and he considers it proper to make a reference to government
before answering plaint and he applies for extension of time so that he can make such
reference and can receive orders, court should extend time for answering to plaint.

Procedure in suits against Public officer

If government undertakes defense of some suit against public officer, government pleader
should apply to court at the time when he is furnished with authority to appear and answer
plaint. And court should enter note of his authority in register of civil suits. But if such application
is not filed, case is considered to be as suit between private parties.

Execution proceeding by or against Government or Public officer

Time for execution of Decree

When decree is against some public officer in respect of that act, which he has done in his
official capacity, time should be specified in decree within which decree should be satisfied.

Reporting of case

When such decree is not satisfied within specified time, court should report case for orders of
provincial government.

Execution after reporting of case

Execution should not be issued on any such decree unless it remains unsatisfied for period of
three months, and this period is computed from that date when case is reported for order of
provincial government.

Arrest/Attachment of property of public officer

Public officer is not liable to arrest or his property is not liable to attachment in that suit, which is
filed against him in his official capacity. However, he can be liable to arrest or his property can
be liable to attachment in execution of decree.

Law regarding cost

Plaintiff is not entitled to cost

a) If the issue is resolved within two months after institution of the suit

b) If the claim of the plaintiff is accepted within the two months after the institution of the suit

Question: When foreign states may sue?

Relevant provisions

Section 84 and 85 CPC

Every foreign state is allowed to sue in any court in the provinces of Pakistan through its
employees who are its agent. The acts of such agents are binding upon the state if such acts
are authorized or ratified by state.

Conditions for filing such suit

1. State recognized by federal government;

2. Enforcement of private right vested in the head of state or any office of such state in public
capacity

What is private right vested in head of state?

The rights which are not of a political or territorial nature. A foreign state can person in Pakistan
but it cannot file a suit against another state in relation file a suit against any

Judicial notice by court of Pakistan

Every court shall take judicial notice of the fact that a foreign the federal government. state has
or been recognized by

Who may prosecute/defend on behalf of foreign ruler?

At the request of the ruler of any foreign state

1. Persons specially appointed by federal government prosecute or defend

2. Any competent person may apply to federal court to prosecute or defend

Powers of recognized agents of foreign rulers

1. To verify and sign pleadings

crame

2. To delegate their powers to any other person

Appointment after the institution of suit is valid although the new appointee has not signed the
pleadings.