INCIDENTIAL & SUPLIMENTAL PROCEEDINGS

1- Commissions

Sections 75-78, Order XXVI of CPC, 1908

Introduction
In civil litigation, courts often require evidence collection, witness
examination, or investigations beyond their jurisdiction. Order XXVI of the
Civil Procedure Code (CPC), 1908, empowers courts to issue
commissions under Sections 75 to 78 to facilitate fair and efficient judicial
proceedings. These provisions reduce procedural delays, ensure access
to evidence, and accommodate witnesses who cannot physically
appear in court.
Key Provisions
1. Section 75 – Power of Court to Issue Commissions
The court has discretionary power to issue commissions for:
 Examining witnesses who are ill, aged, or reside far from the court.
 Conducting local investigations in property disputes.
 Examining financial accounts in complex financial cases.
 Partitioning immovable property in civil disputes.
2. Section 76 – Commission for Examination of Witnesses
 A court may issue a commission to another court in a different
jurisdiction to record a witness’s statement.
 The witness is examined as per the commission’s directions, and the
evidence is sent back to the issuing court.
3. Section 77 – Letter of Request for Witness Examination
 When a witness resides outside Pakistan, courts may send a letter
of request to foreign authorities for evidence collection.
 This provision ensures international legal cooperation in cross-
border cases.
4. Section 78 – Commissions in Foreign Jurisdictions
 Pakistani courts may issue commissions to foreign courts for
evidence collection.
 This applies where international agreements or diplomatic
arrangements exist between Pakistan and the foreign country.
Significance in Civil Litigation
 Ensures procedural efficiency by collecting evidence beyond the
court’s jurisdiction.
 Facilitates access to justice by accommodating witnesses unable to
attend hearings.
 Supports cross-border litigation by ensuring international
cooperation in legal matters.
Conclusion
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Sections 75 to 78 of Order XXVI CPC play a crucial role in ensuring fair

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trials, efficient evidence collection, and international judicial

cooperation. However, timely execution and judicial oversight are
essential for their effective implementation.

2- Suits by or against Government

Suits by or Against the Government or Public Officers (Sections 79-82

& Order XXVII CPC, 1908)

Introduction
Legal proceedings involving the Government or public officers require
adherence to specific procedural safeguards under the Code of Civil
Procedure (CPC), 1908. Sections 79-82 and Order XXVII govern such
suits, ensuring fairness while preventing unnecessary disruptions in public
administration. These provisions mandate prior notice, representation
rules, and execution procedures for suits against the Government or its
officials.
Key Provisions
1. Sections 79-82: Suits Involving the Government
 Section 79 – Naming the Government in Suits
o Central Government is sued as "Federal Government."
o Provincial Government is sued as "The Province."
 Section 80 – Mandatory Two-Month Notice Before Filing Suit
o Notice must state the cause of action, plaintiff details, and
relief claimed.
o Sent to the relevant Secretary, Collector, or Railway
General Manager.
 Section 81 – Protection of Public Officers
o No arrest or property attachment unless in execution of a
decree.
 Section 82 – Execution of Decrees Against the Government
o Court reports non-compliance to the Government.
o Execution is delayed for three months to allow compliance.
2. Order 27: Suits by or Against the Government
 Rule 1-2 – Government can appoint a representative to sign and
verify pleadings.
 Rule 4 – Government Pleader acts as the legal representative.
 Rule 5 – Courts grant reasonable time for Government responses.
 Rule 6-8 – Public officers may request exemptions, extensions, and
Government defense.
Significance in Civil Litigation
 Ensures procedural discipline when suing the Government.
 Protects public officers from undue harassment.
 Facilitates dispute resolution while maintaining administrative
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efficiency.
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Conclusion
Sections 79-82 and Order XXVII (27) of CPC create a balanced legal
framework for Government-related litigation, safeguarding both citizen
rights and public administration. Understanding these provisions is
essential for legal practitioners handling public law disputes.

3- Suits by or Against Aliens, Ambassadors, and Envoys Sections 83

to 87

Introduction
The Code of Civil Procedure (CPC) 1908 regulates lawsuits involving foreign
individuals, states, and diplomatic agents in Pakistan. Sections 83 to 87
provide special rules ensuring international relations, national security, and
fairness in litigation involving non-citizens.

a. Suits by Aliens (Section 83 CPC)

Who Can Sue?
✅ Alien friends (foreigners from non-hostile nations) can sue like Pakistani
citizens.
✅ Alien enemies (from a country at war with Pakistan) can sue only if
they reside in Pakistan with government permission.
Who Cannot Sue?
❌ Alien enemies residing in a foreign country without a Pakistani license
cannot file suits.
Example:
 A British tourist legally staying in Pakistan can sue for a contractual
dispute.
 A citizen of a country at war with Pakistan, living abroad, cannot sue
in Pakistani courts.

b. Suits by Foreign States (Section 84 CPC)

Conditions to Sue in Pakistan:
✔ The foreign state must be recognized by the Central Government.
✔ The suit must be for enforcing a private right vested in:
 The head of state, or
 A public officer in an official capacity.
Example:
 An officially recognized foreign government can sue a Pakistani
company for breach of contract.
 An unrecognized rebel government cannot sue in Pakistani courts.
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c. Representation of Foreign Rulers (Section 85 CPC)

Foreign rulers cannot appear in person but must be represented by a
government-appointed individual.
Example:
 The King of XYZ country wants to file a suit in Pakistan; he must be
represented by an appointed agent.

d. Suits Against Foreign Rulers (Section 86 CPC)

When Can a Foreign Ruler Be Sued?
Only if the Central Government consents, and:
✔ The ruler has already filed a suit in the same court.
✔ The ruler conducts business in Pakistan.
✔ The ruler owns property in Pakistan related to the dispute.
Example:
 A foreign king buying real estate in Lahore can be sued in a property
dispute.
 A foreign ruler cannot be sued for diplomatic actions without
government approval.

e. Immunity of Diplomats (Section 86-A CPC)

Diplomats Cannot Be Sued Except In:
✔ Private property disputes in Pakistan.
✔ Inheritance matters where the diplomat is an heir/executor.
✔ Personal business dealings in Pakistan.
Example:
 A diplomat running a private business in Karachi can be sued for
fraud.
 A diplomat acting in their official capacity cannot be sued for
government actions.

f. Naming Foreign Rulers in Suits (Section 87 CPC)

✔ A foreign ruler must be sued in the name of their state, unless directed
otherwise.
Example:
 Suing "The Kingdom of XYZ" instead of suing "King John of XYZ."

Conclusion
Sections 83 to 87 of CPC balance sovereignty, diplomatic relations,
and justice in cross-border litigation. While immunity prevents
unnecessary litigation, exceptions exist for commercial dealings,
property disputes, and private contracts. Understanding these
provisions is crucial for lawyers handling international legal matters.

4- Inter pleader Suit

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Inter pleader Suits under Section 88 and Order XXXV of the CPC
Introduction
Inter pleader suits are a legal remedy available to a person (stakeholder)
who holds property, money, or debt claimed by multiple parties. Instead of
facing multiple lawsuits and conflicting claims, the stakeholder can file an
inter pleader suit under Section 88 and Order XXXV of the CPC 1908.
Key Objective
 To protect a neutral stakeholder from double liability.
 To ensure that the rightful claimant receives the disputed property or
money.
 To prevent unnecessary litigation.

Legal Framework:
Section 88 CPC – Who Can File an Interpleader Suit?
A person can file an inter pleader suit if:
✅ Two or more parties claim the same property or debt adversely to each
other.
✅ The plaintiff (stakeholder) has no personal interest except lawful costs.
✅ The plaintiff is ready to deposit the disputed property in court.
✅ There is no collusion between the plaintiff and any claimant.

Example: A bank holds Rs. 500,000 from a deceased depositor. Two heirs
claim ownership. The bank can file an interpleader suit to let the court
decide.

Order XXXV CPC – Procedural Rules

🔹 Rule 1: Essential Statements in Plaint
 Plaintiff must declare no personal interest.
 Outline the claims of both defendants.
 Assure the court there is no collusion.
🔹 Rule 2: Deposit in Court
 The court may require the plaintiff to deposit the disputed
property/money.
🔹 Rule 3: Stay of Parallel Litigation
 If a claimant has sued the plaintiff elsewhere, the court can pause
that case.
🔹 Rule 4: Court’s Powers at the First Hearing
 Discharge the plaintiff once they deposit the disputed property.
 Allow defendants to litigate ownership.
 Frame issues and proceed to trial.
🔹 Rule 5: Who Cannot File an Interpleader Suit?
 Agents cannot sue their principals.
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 Tenants cannot sue landlords unless the dispute is between two

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landlords.
📌 Example: A security company holds a gold necklace left by a client. If two
people claim ownership, the company can file an interpleader suit.
However, if the company is an agent, it cannot file the suit.
🔹 Rule 6: Costs and Protection
 The court may award costs to the plaintiff.

Conclusion
Inter pleader suits under Section 88 & Order XXXV CPC prevent multiple
lawsuits and protect neutral parties from conflicting claims. This ensures
fairness and judicial efficiency in property disputes.
📌 Key Takeaway: If you hold disputed property but have no interest in it,
file an inter pleader suit to avoid liability!

5- Appearance of Parties & Consequences of Non-Appearance

(Order IX of the CPC)

Introduction
In civil litigation, both the plaintiff and the defendant must appear before
the court on the date fixed for hearing. Order IX of the Civil Procedure
Code (CPC) 1908 governs the rules related to appearance and the
consequences of non-appearance.

Key Rules & Consequences

 Duty to Appear (Rule 1)
 On the date fixed, both parties must appear in court personally or
through their pleaders.
🔹 Example: If a plaintiff files a suit against a defendant for recovery of
money, both must be present on the given date.

 Dismissal of Suit for Plaintiff’s Default

 If the plaintiff fails to pay court fees or postal charges for service of
summons, the court may dismiss the suit (Rule 2).
 If neither party appears, the court can dismiss the suit (Rule 3).
🔹 Example: A plaintiff files a property suit but fails to deposit summons
fees. The court may dismiss the suit under Rule 2.

 Reinstatement of a Dismissed Suit (Rule 4 & 5)

 The plaintiff can file a fresh suit (subject to limitation law) or
apply for restoration by showing sufficient cause for non-
appearance.
🔹 Example: If a plaintiff was hospitalized on the hearing date, they can
apply for restoration of the suit under Rule 4.

 Ex Parte Decree Against Defendant (Rule 6 & 7)

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 If the defendant does not appear, the court may:

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 o Pass an ex parte decree if summons was properly served
(Rule 6).
o Issue a new summons if service was defective.
o Postpone the hearing if the defendant had insufficient time to
respond.
 If the defendant later appears and provides a valid excuse, the
court may allow them to defend the suit (Rule 7).
🔹 Example: A landlord sues a tenant for eviction. If the tenant does not
appear despite proper summons, the court can pass an ex parte decree
under Rule 6(a).

 Dismissal of Suit When Defendant Appears but Plaintiff Does

Not (Rule 8 & 9)
 If the defendant appears but the plaintiff does not, the court shall
dismiss the suit.
 The plaintiff cannot refile the suit but can apply for restoration by
proving a valid excuse.
🔹 Example: A bank sues a customer for loan default but fails to appear in
court. The case may be dismissed under Rule 8.


 Consequences for Multiple Plaintiffs or Defendants (Rules 10 &

11)
 If one or more plaintiffs appear, the suit may proceed.
 If some defendants appear and others do not, the court can
decide the case for the appearing parties.
🔹 Example: In a partnership dispute, if two partners appear but the third
does not, the case proceeds against the absent partner under Rule 11.

 Setting Aside an Ex Parte Decree (Rule 13 & 14)

 A defendant against whom an ex parte decree was passed can apply
for setting it aside if:
o Summons was not duly served.
o The defendant had a valid reason for not appearing.
 The court may restore the case upon sufficient cause.
🔹 Example: If a defendant was out of the country during summons
service, they can apply to set aside the ex parte decree under Rule 13.

Conclusion
Order IX CPC ensures fairness by allowing suits to proceed only when
parties attend court. However, it also provides remedies for restoring
dismissed suits or setting aside ex parte decrees if justified. Timely
appearance and proper cause for non-appearance are essential to
avoid legal setbacks.
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Pre-Trial Proceedings under CPC 1908 Section 30-32 ( Order
10,12,13)

6- Examination of Parties
7- Discovery and inspection
8- Admissions
9- Production and impounding of documents

Introduction
Pre-trial proceedings are critical in civil litigation as they help:
✅ Narrow down issues before trial.
✅ Ensure fair and speedy justice.
✅ Allow the exchange of evidence between parties.
📌 Sections 30-32 of the Civil Procedure Code (CPC) 1908 lay down the
court's powers in pre-trial proceedings.
📌 Orders 10, 11, 12, and 13 CPC provide the practical framework for
implementing these sections.

Pre-Trial Proceedings – Sections 30 to 32 CPC

📌 Section 30 – Court’s Power to Order Discovery, Inspection, and
Interrogatories
"The court may, at any time, order parties to provide documents,
allow inspection of evidence, or answer interrogatories to clarify
facts."
🔹 Key Powers of the Court:
 Direct a party to produce documents.
 Allow one party to inspect the other party’s evidence.
 Order parties to answer interrogatories (written questions).
💡 Example:
 A sues B for breach of contract.
 A claims he made a payment of Rs. 1,000,000, but B denies it.
 The court orders A to produce bank records as evidence.

📌 Section 31 – Summoning Witnesses

"The court may summon any person to give evidence or produce
documents on a given date."

🔹 Key Points:
 The court can call witnesses or experts.
 If a witness refuses to appear, the court can issue a warrant.
💡 Example:
 In a property dispute, A calls a land revenue officer as a witness.
 If the officer does not appear, the court can issue a summons or
warrant.
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📌 Section 32 – Compelling Witnesses to Appear

"The court can enforce the attendance of witnesses through fines,
warrants, or property attachment."
🔹 Key Points:
 If a witness ignores the summons, the court can:
o Impose a fine.
o Issue an arrest warrant.
o Attach property for non-compliance.
💡 Example:
 A doctor is summoned to testify in a medical negligence case.
 If the doctor refuses to appear, the court may impose a fine or
issue a warrant.

Practical Implementation Through CPC Orders

📌 Order 10 – Examination of Parties

Defines how the court examines parties before framing issues.
🔹 Rule 1: The court can question parties at the first hearing to clarify
disputed facts.
🔹 Rule 2: Written or oral responses must be recorded.
🔹 Rule 3: If a party refuses to answer, the court can draw an adverse
inference.
💡 Example:
 A claims B sold him defective machinery.
 The judge directly asks B, "Did you test the machinery before
selling?"
 B’s response helps frame the issues.

📌 Order 11 – Discovery and Inspection

Defines how parties exchange evidence before trial.
🔹 Rule 1: Parties must disclose all relevant documents.
🔹 Rule 12: One party may request the court to order document
disclosure.
🔹 Rule 14: The court may reject undisclosed evidence at trial.
💡 Example:
 A sues B for loan recovery.
 A requests B’s bank statements to prove payment.
 If B refuses, the court can compel disclosure under Order 11.
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📌 Order 12 – Admissions
Defines how parties can admit facts before trial to avoid unnecessary
disputes.
🔹Rule 2: If a party admits a fact, no further proof is needed.
🔹 Rule 4: Admissions can be verbal or written.
💡 Example:
 A files a suit claiming B owes him Rs. 500,000.
 In response, B admits he owes Rs. 400,000.
 The court can directly record this admission, saving time.

📌 Order 13 – Production of Documents

Defines how parties must submit evidence before trial.
🔹 Rule 1: Parties must produce all relevant documents before trial.
🔹 Rule 3: If a document is not submitted in time, it may be rejected.
💡 Example:
 In a land dispute, A submits ownership papers after trial starts.
 B objects, saying A should have submitted them earlier.The court
rejects A’s late documents under Order 13.

10. Adjournments

Order 17 – Adjournments
Order 17 deals with the adjournment of the proceedings.
Key Features:
 The court can adjourn hearings for good cause, but repeated
adjournments should not delay the trial unnecessarily.
 A party seeking an adjournment must show justifiable reasons for it.
 Unreasonable adjournments can lead to costs being imposed on the
requesting party or even the dismissal of the suit.
Example:
 The defendant in a motor accident case requests an adjournment
because the lawyer is unavailable. The court may grant a short
adjournment but warn that future requests will lead to costs being
imposed on the defendant.
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