Saturday, November 21, 2009

Case Law, Under Section 1, Rule 10, CPC

O 1 R 10
The Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.

Only necessary or proper parties can be added. Not any other parties.
A 1951 M 665, A 1934 N 228

Persons indirectly or remotely interested are not necessary or proper parties.
1996 SCMR 781, 1996 CLC 678, P 1972 L 169, A 1941 FC 16, A 1943 A 289, 20 IC 658, 1996 CLC 456, P 1996 K 467, A 1918 PC 49

Trial should not be embarrassed by simultaneous investigation of unconnected controversies.
11 SWR 23 FB

Persons who have no interest should not be added.
PLJ 1975 SC 345, 2004 CLC 1567, 1994 MLD 1489, A 1937 M 200, A 1929 B 353,

Persons cannot be added as parties to add a new cause of action which does not concern the plaintiff at all.
PLJ 1985 SC 461, 1999 CLC 2077, 1992 CLC 700, 1984 CLC 286, 1979 CLC 891,

A person who has a champertous interest in litigation should not be added.
2004 MLD 1395, 1996 CLC 678, 1996 SCMR 781

Parties cannot be added after decree is drawn up.
A 1924 M 648

Mere fact that a person may, by some chance, become interested in claiming property adversely to plaintiffs is no ground for his being so impleaded because that would necessitate importation of facts not found in suit.
NLR 1992 Civil 250

Not made party if application to prolong litigation.
1992 CLC 1432

Not made party if application suffering from inordinate delay.
NLR 1992 AC 204, 1989 SCMR 1589, PLD 1980 Lah 804

Where rights of parties could be effectively determined in suit without impleading any other party and claim of parties inter se arose out of contractual obligation to which party sought to be impleaded was not a party, impleading of same would be neither necessary nor proper.
1988 CLC 2014

Case Law, Territorial jurisdiction of Civil Courts


v AIR 1926 PC 88

v 1970 PLD SC 273

Ordinary residence connotes occasionally or temporary residence

v 1981 SCMR 494

Suit by or against corporation--corporation can be said to be carrying on business at head office, or at place where its branch exists in respect of a cause of action arising wholly or in part at place where its branch office situated.

v 1986 CLC 2173

Suit could be instituted at a place where DEFENDANT or each of them, when there are more defendant in suit at time of filing such suit actually or voluntarily resides or carries on business or permanently works for gain.

v 1987 SCMR 393
To or more courts having jurisdiction to trial a suit---agreement between parties, that any dispute arising between them shall be tried only by one of such courts, held, could not be consider contrary to public policy as it would neither contravene provisions laid down in Sec. 28, Contract Act, 1872, nor violate in any manner provisions of Sec. 9 or Sec. 20 of C.P.C.--- appeal allowed and the order of Administrative Civil Judge as well judgment and order of High Court, whereby objection of defendant to the jurisdiction of the court other then the agreed one was overruled was set aside.

v 1992 SCMR 1174
Suit for recovery---Plaint showed that defendant resided at Karachi and their principle office was also located at Karachi---original contract between the parties which has given rise to the filing of the suit for recovery was negotiated an entered into at Karachi---primarily the Courts at Karachi has jurisdiction to trial the suit according to Sec 20(1)(c).

v 1995 CLC 259

v 1997 CLC 1722

v 1998 SCMR 1618

Award arising out of an International Arbitration Agreement---all action can be maintained when a cause of action, wholly or in part arises with in the jurisdiction of a Municipal Courts concerned---not rise to urged that a municipal court can retain an action against a foreigner only when he either permanently or temporarily resides within the limits of a municipal courts or he submits to its jurisdiction.

v 2000 CLC 1405
---S. 7---Civil Procedure Code(V of 1908), S.20 & O.XXXVII, Rr. 2 & 3---Proceedings for recovery of loan initiated by Bank against the borrower--- Territorial jurisdiction of Banking Court---No specific jurisdictional clause was incorporated in the loan agreement between the parties---Mere incorporated of defendant-company in U.K. or their necessarily exclude the jurisdiction of the Banking Court in Pakistan in the recovery proceedings initiated by the Bank---Subsequent conduct of borrowers, the change of their ordinary residence, the law applicable to the parties and the forum which would be just and proper would also be decisive factors while deciding the question of territorial jurisdiction---Borrowers having given their address in Pakistan in the affidavit, in the identity card and having admitted in the correspondence with the Bank that they had shifted to Pakistan, they were estopped to raise the question of territorial jurisdiction by asserting that the resided in the U.K., therefore, a Court in U.K, would be more convenient forum was repelled being not tenable—Borrowers being citizens and residents of Pakistan were subject to ordinary law of he land and S.20, C.P.C. was relatable to the territorial jurisdiction where a suit was to be filed.

v PLD 2002 K 420

(P.425) A Where two courts
have may jurisdiction In respect
of same claim then it is the prerogative
of the plaintiff that weighs more in
determining the place of suing.

v 2002 CLC 527

v 2004 MLD 662

---S.28---Civil Procedure Code (V of 1908), S.20 & O.CII, R.10---Territorial Jurisdiction of Court-Suit between principal and agent instituted at place “K”---Agency agreement between parties through such agreement had agreed that in case of any dispute, only Court at place “R” would have jurisdiction to deal with same---Parties were required to abide by terms of their agreement and submit their dispute to Courts at Place “R” ---Plaint was returned for its presentation before the proper court. [p.666] A & B.

v PLJ 1992 SC 289

---S. 20—Dispute between parties-Adjudicaiton of-whether controversy could only be adjudicated upon by Karachi Courts and Courts at Rawalpindi had no jurisdiction—Question of-According to plaint, defendant No. 1 reside at Karachi and their principal office is at Karachi—Original contract as negotiated and entered into at Karachi—Held: Courts at Karachi ubdoubedly have jurisdiction to try suit according to Section 20, sub-clauses (a) and (c) of C.P.C.

v 2003 CLC 1744

v 199CLJ 229

v PLJ 1975 Lahore 56

v 2002 CLD 527

v 2004 YLR 2503
---Territorial jurisdiction---Friction of cause of action will be part of cause of action and will confer jurisdiction on a Court within the territorial jurisdiction of which same occurs [p. 2510] C
---Court may exercise its discretion to avoid injustice or inequity. [p. 2511] I
---Determination of ----Question whether the Court had jurisdiction over he civil matter, was to be decided in accordance with the general provisions in the C.P.C. [p. 2511] N

v PLJ 1986 Lahore 169

v PLJ 1982 Quetta 76

v NLR 1999 Lahore 84

v PLJ 1978 Lahore 233

v 2003 CLJ 268

v AIR 1941 Calcuta 64

v PLD 1952 Dacca 155

Case Law, Arbitration


1971 LAH 38
DB Arbitrator not bound to give reason for every issue or point or for the judgment.

1971 LAH 522
Proceeding on basis of unstamped as deficiently stamped document, illegal and without jurisdiction.
-- S. 41(b) Temp. Injunction can be issued by Civil Court even if no proceeding pending before Civil Court and reference to arbitration also without reference to court.

1980 SC 62
Arbitration - Award made rule of court but not registered though registration necessary - Not nullity and can not be avoided by party to the decree.

1982 PSC 1135
Court has no power to
(Bremer Vulcan) dismiss proceeding before Arbitrator.
PLD 1982 Kar 778 Court can stay Arb. proceeding only if....

Case Law Time is essential on Contract



(Time is The Essence of the Contract)

1. 2008 CLD 38

Cancellation of Bail

Cancellation of Bail by Supreme Court

i) Grant of Bail

PLD 1996 SC 241 (b)

ii) Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.

PLD 1995 SC 34 (e)

iii) The words used in Sec. 497(1) & Sec. 497(5) Cr. P.C. are different in as much as the word “shell” in Sec. 497(1) Cr. P.C & word ‘may’ in Sec. 497(5) Cr. P.C. The discretion left in the Court u/s. 497(5) Cr. P.C was pari materia with the principles which apply to the setting aside of the orders of acquittal.

1992 SCMR 1286

iv) The orders passed by High Court in the present case are not based on fanciful & arbitrary grounds.
1976 SCMR 286
1978 SCMR 346


Supreme Court would not interfere in the discretion of High Court in Bail matter unless the order involves some violation of law.

PLD 1997 SC 545 (h)
1987 SCMR 432
2002 P Cr.L.J 1106: SC (A J & K)

Order of Bail passed in judicial discretion would not be interfered unless arbitrary or departed from settled principles of law.

PLD 1987 Sh. C (A J & K) 63
1987 SCMR 879

Proper exercise of discretion by High Court. Supreme Court would not interfere.

1986 SCMR 475/1978
1990 SCMR 270
NLR 1989 SCJ 330
1979 SCMR 523
1981 SCMR 860
1994 SCMR 1064
1996 SCMR 1685

Grant or refusal of bail by HC, purely discretionary; can not lightly be interfered with.

2000 SCMR 1438
PLJ 1979 SC 202
1979 SCMR 479/19
1980 SCMR 13

SC will not interfere in the case of bail unless circumstances are of exceptional character and refusal might entail risk of grave illegality or abuse of process or gross injustice

1979 SCMR 146

Supreme Court would not interfere with exercise of discretion unless:

i) Exercised not judicially
ii) Perverse
iii) Miscarriage of Justice would result

NLR 1980 SCJ 25
1981 SCMR 504
1981 SCMR 202/394/397/504
PLD 1986 SC (A J & K) 105/31
1986 SCMR 169
PLD 1988 SC (A J & K) 148
1979 SCMR 434
2001 P Cr. L.J 1059: SC (A J & K)
PLD 1963 SC 46
PLJ 1997 SC (A J & K) 37

Administration of justice: No exception can be taken to the exercise of discretion of High Court if no violation of Fundamental nature has taken place.

1979 SCMR 146
1980 SCMR 369
PLD 1981 SC (A K & K) 10
1981 SCMR 1216/397
1982 SCMR 894
PLD 1986 SC (A J & K) 105
1987 SCMR 432
1989 SCMR 1821
1995 SCMR 1249
2003 YLR 1309 : SC (A J & K)

II. Supreme Court would not interfere, where case is of further inquiry

1994 SCMR 454
2000 SCMR 161
2002 SCMR 1415
2003 P Cr. L.J 20: SC (A J & K)

III. No fundamental error of law or procedure was committed in granting the bail.

1979 SCMR 351/362/377
1981 SCMR 894
PLD 1988 SC (A J & K) 181

IV. Issue of Cancellation of Bail must come to an end at High Court level:

1989 SCMR 1388

V. Strong And Exceptional Grounds With Proof

Once bail is granted, the prosecution should make string case for cancellation by not making allegation alone but giving substantial proof.

1994 SCMR 1283

Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.

PLD 1995 SC 34 (e)
PLD 1996 SC 241
1996 SCMR 984
1997 SCMR 915
PLJ 1997 SC (A J & K) 349

Bail not cancelled on the statement of co-accused, where the prosecution does not show any piece of evidence directly or indirectly against the accused.

2001 SCMR 14

Bail could not be recalled in absence of cogent reason.

1979 SCMR 65


Before cancellation of Bail, there should be a clear proof that privilege of bail was misused or abuse of freedom was made.

PLD 1994 SC 88
1993 SCMR 714
2004 SCMR 243
1981 SCMR 565
1985 SCMR 1528


Bail will not be cancelled if the application for cancellation is

i. Mala Fide
ii. Frivolous
iii. Without any basis

1994 SCMR 1283


1982 SCMR 626
2001 SCMR 1412


Leave to appeal was refused, when bail was granted to Lady by HC in exercise of its discretion.

1999 SCMR 2622

Order granting bail does not suffer from any legal or factually infirmity.

1979 SCMR 91/438
1988 SCMR 1129
PLD 1988 SC (A J & K) 181/48
1986 SCMR 1843

Cancellation declined on the grounds of i) Old age, ii) Disease and ii) No misuse of bail privilege.

1988 SCMR 28
PLD 1983 SC 83
1987 SCMR 1522

SC declined to interfere where bail was granted on medical grounds by HC.

PLD 1966 SC 708
1981 SCMR 686

SC refused to set aside bail where without full examination of evidence is required to ascertain whether accused was falsely implicated.

1986 SCMR 1387

No overt act is attributed to accused.

1978 SCMR 32

No overt act by accused, they could not be saddled with vicarious liability

2001 P Cr.L.J 1973: SC (A J & K)

Allegations were not substantiated in investigation.

2000 SCMR 1074

Grounds for cancellation of bail already taken into account and rejected. Leave to appeal was refused.

1979 SCMR 479
1982 SCMR 205
1987 SCMR 1879

Accused if powerful, bad relations of complainant and accused or accused not surrendering to police are not consideration for setting the bail aside.

1979 SCMR 119

Cancellation of bail refused where the name of accused appear in column 2 of the Challan.

1982 SCMR 440
1984 SCMR 1378

Accused not named in F.I.R and no Identification Parade was held.

2002 SCMR 1304

After careful examination of facts HC granted bail since opposite party was already allowed bail in the counter case

2002 SCMR 201

Cancellation of bail sought on ground that accused was threatening witnesses with dire consequences- no ground for cancellation

NLR 1980 SCJ 126

SC finds no reason for canceling the bail, where the case was fixed for arguments or trial is to be commenced soon.

1989 SCMR 520
1988 SCMR 1129
PLD 1989 SC 585

Where the defense version was still to be investigated.

1989 SCMR 2028

Case Law on Limitation


à Alteration in Limitation Act shall not have retrospective effect

& 1985 SCMR 190

& 1984 CLC 1907

à Duty of Court to determine that action is not barred by limitation.

& 1999 SCMR 1060 (f)

& 2003 SCMR 1815

& PLD 1993 SC 147 (a)

& PLD 1969 SC 167

& PLD 1985 SC 153

à Special Limitation overrides the general Limitation

& PLD 1964 Kar.399



1. 2008 YLR 328: (Lahore)
Before Fazal-e-Miran Chauhan, J
Sec. 497(5) Penal Code .Sec 489-F P.P.C, Bail, Cancellation of ---- After transfer of investigation, the police, in the subsequent investigation, having declared accused as guilty, his case fell under sub-clause (ii) of S. 497(5), Cr. P.C.---Complaint,, who was necessary party, was not present at the time of granting bail to accused---Court confirmed bail before arrest of accused was found innocent and a compromise had also been effected between the parties, however in the subsequent investigation accused was found guilty--- After second investigation the police had collected record making out a reasonable ground for believing accused to be guilty of offence under Sec. 489-F, P.P.C, which was sufficient ground to re-call the earlier order obtained by misrepresentation--- Mere fact that offence against accused did not fall within prohibitory clause of S.497(1), Cr.P.C. bail could not be claimed as a matter of right—Bail granting order passed by the Court was recalled.

2. 2008 YLR 760 (LAH) :
Muhammad Akhtar Shabbir, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused seemed to be in habit of committing fraud with people--- Offence Under S, 489-F, PPC, though did not fall with in the prohibition as contained in S-497 Cr. P.C., but in the present case of Rs. 1,50,00,000/- was involved—If accused was released on bail, likelihood was of his absconsion from the country--- Cases which were not covered within the prohibition clause as contained in S-497, Cr.P.C, grant of in such cases through was a rule and refusal an exception, but in view of circumstances , the case was covered within the exceptional clause of the rule---Sufficient material being available on record to connect accused with the commission of the offence., bail petition of accused was dismissed.

3. 2008 YLR 762 (LAH) :
Fazal-e-Miran Chauhan, J
---- S, 497—Penal Code (XLV of 1860), S, 489-F—Bail Grant of—
Offence against accused did not fall within the prohibitory clause of S, 497, Cr.P.C. maximum punishment of which was only 3 years--- Accused was in jail for the last 2 months---dispute arose between the parties on account of business transaction and in that connection Civil litigation was pending between the parties before the competent Court—Accused was no more required by the police and nothing was to be recovered from him--- Keeping accused behind the bar for an indefinite period would not serve or advance the prosecution case and it would amount to punishment before the conviction, which was not permissible under Criminal jurisprudence—Accused was admitted to bail, in circumstances.

4. 2008 SCMR 164 :
Rana Bhagwandas. Acting CJ
Sardar M. Raza Khan, JJ
Sec. 497(5) Penal Code (XLV of 1860),Sec 489-F P.P.C, Dismissed.
Constitution of Pakistan (1973), Art,185(3)--- Application for cancellation of bail, refusal of--- Accused earlier had been admitted to pre-arrest bail which had been maintained by High Court—Bail of accused had been cancelled only due to his absence during trial and he was taken into custody—High Court thereafter refused the accused on bail---admittedly accused was a citizen also of Norvey and usually resided there--- High Court had rightly observed that the accused was never served in connection with proceedings at trial--- Trial Court had fallen into a misconception that absence of accused was bound to entail the cancellation of bail under the orders of High Court--- Sessions Court had maintained the Order of Trial Court without even hearing the accused whose bail stood cancelled and who was then in custody--- Reasons advanced by High Court for granting bail to accused did not suffer from any infirmity--- Leave to appear was declined to complainant in circumstances.

5. 2008 MLD 450 (Lah) :
M Bilal Khan J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused had been taken divergent stands at different times; at one stage he stated that he had been compelled by the S.H.O. to execute the cheques in question while he was in illegal custody at the Police Station whereas on another occasion he stated that since the complainant being a Police Official he forcibly procured the cheques from him---Accused had also filed a suit for permanent injunction seeking a stay order against presentation of cheques---Filing of Civil suit by accused instead of strengthening his case, had weakened the same---Accused did not deserve the concession of bail in view of peculiar facts and circumstances of the case.

6. 2008 P. Cr. L.J 412 (KAR) :
Syed Zawwar Hussain Jaffery, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Grant of—
Delay of 84 hours in lodging F.I.R was not explained properly—Complainant was not owner of property, but he had left rented premises after termination of tenancy--- Counter-suits between accused and complainant regarding such property were pending in Civil Court--- Accused had filed suit ten (10) days before occurrence--- Interim bail granted to accused was confirmed in circumstances.

7. PLJ 2008 Cr.C. (Lah) :
M Bilal Khan, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail Dismissed of—
Pray for –Dishonored of cheque—Prohibitory clause is no sufficient ground--Taking divergent stands at different times—Accused has been taking divergent stands at different times--- At one stage he stated that he had been compelled by SHO to execute the cheque in-question while he was in illegal custody at police station whereas an other occasion he stated that complainant was a police official therefore, he forcibly procured cheque from him--- Held: Offence does not attract prohibitory clause u/s 497(1) of Cr. P.C. by itself is not sufficient to grant concersion of post arrest bail---Peculiar facts and circumstances of the present case, accused does not deserve the concession of bail--- bail was dismissed.

8. PLJ 2008 Cr. C. (LAH) 63 :
M. Khalid Alvi, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Bail Before arrest, Dismissed of—
Prayer for –Cheque was dishonored—Contentions—Cheque-book has been stolen about 7 months prior to registration of case--- Accused has devised a new method of committing fraud by lodging an F.I.R. of method of committing fraud by lodging an F.I.R. of theft of cheque-book and thereafter fleecing money from the accused and issuing cheque out of that cheque book—Although offence is punishable with only three years but the conduct of the accused speaks volumes, therefore he is not entitle to extra-ordinary relief of bail before arrest.

9. 2008 MLD 159 (Lah) :
Sh. Azmat Saeed, J
a). S. 489-F --- Issuance of cheques subsequently dishonoured --- Scope --- Mere issuance of a cheque which is subsequently dishonoured does not constitute an offences under S. 489-F, P.P.C., unless same is issued dishonestly and for the repayment of a loan or for discharging any obligation.

b). ---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—Section 489-F, P.P.C. nor any other provision of the Penal Code could be employed or used as a tool for effecting the recovery of a financial claim --- Such being the exclusive jurisdiction of the civil court, to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by the party, would amount to abuse of the process of law --- Even otherwise , malafides of the police and the complainant were not only floating on the surface but leaping therefrom --- Accused was in police custody in connection with another F.I.R. got registered by the complainant, when in the police station the cheque in question was procured and he had disclosed this fact on being produced before the Magistrate which was even apparent from the order of the Magistrate – Brother of the accused had also been illegally detained who had to be recovered through judicial process---Police had acted in a mala fide manner by becoming a recovery agent of the complainant, rather than servants of the State enjoined to uphold the law--- Offencedid not fall within the prohibitory clause of S. 497, Cr. P.C. --- Cheque was already in the custody of the investigating agency and nothing was to be recovered from the accused --- Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

10. 2008 P Cr. L.J. 701 (Lah) :
Abdul Shakoor Paracha, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Protective Bail, refusal of --- No mala fide appeared against the complainant or the Police --- High Court (Lahore), in circumstances declined to exercise its discretion to allow protective bail in a case which otherwise was registered in North-West Frontier Province.

11. 2008 YLR 1563 (Lahore):
Fazal-e-Miran Chauhan, J
--- S, 497 – Penal Code (XLV of 1860), S, 489-F --- Bail, refusal of --- Accused was named in F.I.R. with specific role of issuing a cheque to the complainant, which, was dishonoured on its presentation, which, prima facie, directly connected accused with commission of alleged offence --- Issuance of cheque in question was not denied by accused --- Section 489-F P.P.C. was added with intent to curb the tendency of issuing of cheques with the intention to cheat the others --- Cheque in question was issued by accused knowing that sufficient amount was not in his account; and steps were taken to ensure that the cheque would be encashed --- Intention of accused was to postpone the demand for the time being, by giving a cheque to the complainant with the knowledge that same would be dishonoured --- Bail, in such-like cases, would not to be granted in routine --- Bail petition was dismissed, in circumstances.

12. 2008 YLR 947 (Lahore):
Iqbal Hameed-ur-Rehman, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Pre-arrest Bail, refusal of --- Cheque issued by accused could not be encashed as the account was closed one day before its encashment --- Accused, thereafter, on the intervention of the respectables of the market, undertook to pay said amount and issued another cheque, which also was dishonoured and could not be encashed --- When accused was seeking pre-arrest bail and no mala fide had been proved against complainant and the police, pre-arrest bail could not be granted to him --- Mala fide on the part of accused and his brother, however was established --- Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of accused was to be taken into consideration --- No case for grant of pre-arrest bail having been made out, accused did not deserve to be granted extraordinary relief of pre-arrest bail --- Bail petition, was dismissed, in circumstances.