Study CircleProvisions of CPC

affecting Administration of

Justice By

Mohammad Zeb Khan,

Director Instructions,

1KP Judicial Academy

A study circle is a small group of people who meet multiple times to discuss an issue. Study circles may be formed to discuss anything from politics to religion to hobbies. They are differentiated from clubs by their focus on exploring an issue or topic rather than on activities or socializing.

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What is a study Circle?

Administration of justice is the process and structure which allows conflicts between parties to be settled by a body dedicated to that purpose.

Administration of Justice?

Chapter IX, X of Specific Relief Act, 1877

Order XXXIX of Code of Civil Procedure, 1908.

Injunction

A judicial order restraining a person from beginning or continuing an action threatening or invading the legal right of another, or compelling a person to carry out a certain act.

Definition of Injunction?

53.SRA:

Temporary injunctions are such as are to continue until a specified time, or

until the further order of the Court. They may be granted at any period of a suit, and are regulated by the Code of Civil Procedure 1908 (V of 1908).

Temporary Injunction?

53 Specific Relief Act.

Perpetual injunction product of Decree of Court

Complete appraisal of evidence the defendant is thereby perpetually

enjoined from the assertion of a right, or from the commission of an act, which would

be contrary to the rights of the plaintiff.

Perpetual Injunction?

Suit proved through Affidavit otherwise

i. Suit property in danger of a. wasted, b. damaged, c. alienated

ii. wrongfully sold in execution of a decree

iii. Deft threatens or intend a. sale b. removal c. disposition

Grant temporary injunction

until disposal of suit or until further orders

Order XXXIX Rule 1 CPC

Breach of obligation Stay Judicial proceedings except avoid multiplicity proceedings

Invasion or threat of invasion over easement rights of property

Restrain from applying to legislative body

No standard determination of actual damage

Interference public duties ,Dept, Government, Sovereign acts of Foreign Government.

Pecuniary compensation inapt

Stay of criminal matters

Prevent multiplicity of proceedings

Prevent breach of contract not specifically enforceable

Prevent nuisance when nuisance cannot be established

Continuing breach applicant acquiesced

Availability efficacious remedy + conduct + aggrieved party

PERPETUAL INJUNCTIONS Grant : 54 SRA Refusal: 56 SRA

Dr. A sued Dr.B besides PMDC. His plea is that the fitness certificate by PMDC to Dr. B is incorrect, as Dr. B is not qualified. Dr. A seeks injunctive order against the employment of Dr. B against the post of Professor on this basis.

PMDC statutory rules prescribes a forum of appeal.

Would you grant an injunction?

Case # 1

Mr. A was employed in a University as Assistant. He was issued a show cause notice for misconduct. A hearing was held before the Disciplinary Committee and was found guilty. In the meanwhile he brought a civil suit; (though the University bylaws prescribed a forum of Appeal); alleging that the whole exercise was with malice. He thus sought injunctive order restraining the Disciplinary Committee.

Case # 2

Ex DebitoJustitiae

(General Rule)

The claimants would not be entitled to discretionary relief of injunction

A matter ex debito justiciae is one which a litigant is entitled merely upon the asking for it; as opposed to something which may be a matter of judicial discretion or determination.

Justice Beetz of Canada's Supreme Court, writing in Harelkin v University of Regina, adopted these words:

Mr. A cannot seek injunctive order against the University; as ex debito justiciae because the bylaws of the University has prescribed a right of appeal against the findings of the disciplinary committee; similarly, Dr. A cannot be granted injunction as he can seek remedy before PMDC.

If it was not the case, then under ex debito justiciae the matter could be agitated

In simpler words

1963 PTD 633 [Supreme Court Pakistan]

NAGINA SILK MILL, LYALLPUR-Appellantversus

(1) THE INCOME-TAX OFFICER, A-WARD LYALLPUR AND

(2) THE INCOME-TAX APPELLATE TRIBUNAL, PAKISTAN-Respondents

Mr. A. R. Cornelius, C J, S. A. Rahman, Fazle-Akbar, B. Z. Kaikaus and Hamoodur

Rahman, JJ

This principle is incorporated in our law

In cases of absence or excess of jurisdiction or where the impugned order suffers from illegality on the face of the record, a certiorari may be granted even though the right of statutory appeal had not been availed of. A certain amount of flexibility is allowed by the law in the case of a prayer for a writ of certiorari as compared with a case for a mandamus. If the application for certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae……This would specially be the case where the alternative remedy provided by the relevant statutes is

i. not as efficacious, Ii. speedy or Iii convenient as the one available under the writ jurisdiction of the High

Court.

Excerpt from the Judgment

Case # 3

Mr. Muffakir is employed at a Cadet College as Lecture. He developed grudge with the Principal, and thus was expelled from service.The bylaws of the Cadet College does prescribe a forum of appeal, but the remedy of reinstatement is not provided. He has brought a civil suit and with that is a CMA seeking injunctive order of reinstatement.Would you grant the stay?

Mr. A was employed in PIA as a ‘Security Guard’, was served with show-cause, for having absent. He filed reply but was found unsatisfactory. He was issued formal charge sheet. He failed to meet the charges and dismissed. His departmental appeal also led to failure. Thereafter he filed a civil suit for declaration. Would you grant the injunction directing reinstatement?

Case # 4

Mr. H was employed in an organization having statutory notified rules. He was expelled from service. He brought a suit seeking re-instatement, the statutory bylaws did not provide for the relief of re-instatement but there was remedy of departmental appeal provided. Would you grant injunction to reinstate him?

Case # 5

R.T.H. Janjua vs National Shipping Corporation (1974 PLD SC 146)

Syed Akbar Ali Bokari vs State Bank of Pakistan & other (PLD 1977 Lah 234)

Muhammad Yusuf Shah vs Pakistan International Airlines Corporation (PLD 1981 SC 224)

KAMRAN AHMAD Vs WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and 3 others

2014 P L C (C.S) 332 Lah

 

Doctrine of master / servant

Mr. R obtained loan from Cooperative Housing Society. He made default, it led to arbitration against him. Notice was issued to him by the Cooperative Bank, still no payment, thus his house was auctioned. On knowing of the auction of his house, Mr. R tendered the return of the amount to the Bank, but was not accepted. Thus he brought a civil suit, seeking injunction against the auction purchaser besides declaration etc, and cancellation of whole proceedings. Would you grant injunction, please take note that there is a blanket ouster in the law applicable to the Cooperative Society?

Case # 6

Ouster clauses be construed very strictly. Authority or Tribunal was not validly

constituted. Order or action was with malice. Order or action were such which could not be

passed by the Authority or Tribunal under the law.

In passing the order or taking action the principles of natural justice were violated.

Then Civil Court would have jurisdiction in the matter.

Abbasia Cooperative Bank case PLD 1997 SC 3

Dispute between the parties is over a compartment of a Forest. Matter was referred to arbitration. The award was passed in favor of claimant, that he could extract timber. Claimant moved application for making this award rule of Court. During its pendency claimant moved an application seeking temporary injunction, in terms of allowing him to shift timber to a safe place. Would you grant the injunction?

There is threat of subject matter being wasted.

CASE 7

There must be a greater convenience in granting than refusing the injunction & equally efficacious relief must not be obtainable by other usual mode or proceedings.

Brig. (Rtd) Muhammad Aslam khan case PLD 1973 AJ&K 62

Civil Law Reforms Act, 1994 Rule 2A & 2B inserted in Order XXXIX CPC.

After hearing parties for 6 months, Further extendible but after intimation

to High Court

15 days With hearing defendant

Statutory clog on temporary injunctive orders

i. Prima facie case. ii. Balance of convenience. iii. Threat of irreparable loss.

Define:

Prima facie case: Pleadings containing facts constituting the existence of right of the pltff & its infringement at the hands of the opposite party.

Balance of convenience: means if an injunction is not granted & suit is ultimately decided in favor of the pltff, the inconvenience caused to the pltff would be greater than the one caused to the defendants if the injunction is granted.

Irreparable loss: which is incapable of being calculated on the yardstick of money.

Sajjid Yousaf Husain Shirazi case 2010 MLD 1267 Karachi

Mr. M is owner of plot in Clifton. He paid exorbitant amount on lease as KDA had promised that it would not be commercialize it. Later they did. Mr. B who own a plot there, applied to KDA for conversion of the plot to commercial, but on opposition of Mr. M, it was refused; which led to a constitution petition, that was allowed. Later Mr. M brought a suit over the same subject matter; u/s 91 CPC; he sought injunction debarring Mr. B from the activity; would you grant so?

Case # 8

Court has to securitize & analyze the conduct of plaintiffs to access their entitlement to the injunction.

Nuisance is not reasonably clear that it would be a nuisance

It is not sufficient reason for purpose of issuing a temporary injunction that suit would be infructuous if temporary injunction did not issue.

Abdul Razak Adamjee & another’s case NLR 1994 UC 619

There was a dispute in respect of the matters of a society. The aggrieved members brought a petition before its President. He called a meeting. In the meanwhile the Society called for its Annual General Meeting. The plaintiff after one month of the proclamation of AGM brought a suit challenging these acts of the society. With the suit there was a CMA seeking temporary injunction, would you grant the ad interim injunction?

Case # 9

A plaintiff who is guilty of willful delay in approaching the court for relief is not normally entitled to ad interim orders

Arts Council of Pakistan’s casePLD 1969 Kar 349

Mr. A brought a suit in respect of an orchard against Mr. B. During the pendency of the suit he brought a CMA seeking injunction debarring Mr. B from using the passage adjacent to the disputed orchard.

Would you grant stay?

Case # 10

Mr. A cannot seek interlocutory injunction with regard to a matter which is not the subject matter of the suit.

Messrs. U.K. International Proprietorship concern through Sole Proprietor’ case (2006 CLC 679)

1974 SCMR 481 followed

No.

Suit is for declaration perpetual injunction and specific performance of agreement for the purchase of a plot. Pltff claims that besides paying the advance had paid its installments but deft refuse to execute the deed. There is CMA seeking temporary injunction restraining interference. The receipt of payment of monthly installment is not annexed to plaint; would you grant the temporary injunction?

Case # 11

Three ingredients must co-exists only then injunction can be granted.

Mst. Rubina Bibi’s case 2012 YLR 1430 Peshawar High Court.

In absence of first condition, Prima facie case, the injunction cannot be granted.

2012 YLR 809

In a suit for declaration & possession the claim of the plaintiff rest upon a title deed for an area recorded in his favor of 1 kanal.

The defendant’s claim that the entry to the extent of ½ kanal is correct, while the rest is concocted and without recording evidence cannot be relied upon.

Should we grant temporary injunction?

Case # 12

Yes. Documents appended with the plaint must be taken into consideration.

Messrs Decent Marble through Registered Attorney’s case 2008 CLC 737 Kar.

Ad interim injunction can be granted when suit is pending and it cannot be granted when the suit stood dismissed for default.

PLJ 1975 Lah 292

A suit stood dismissed for default, can a CM seeking stay be entertained?

Basic intent and object of an interim relief is always to maintain status quo of suit property and not to create a different situation than what it was existing at the time of filing the suit.

2000 YLR 28981999 MLD 1672

Injunction becomes effective only upon notice being served on the parties. Mere existence of temporary injunction does not render void the alienation of property in contravention of injunction.

1999 YLR 910

Local Commission can be deputed for deciding a stay application.

2009 YLR 171

Loss of money is no loss.

1989 CLC 1813

1. Prima facie case 2. Balance of convenience. 3. Irreparable Loss. 4. Conduct of the parties. 5. Nature of suit. 6. Time likely to be absolved in it. 7. The stakes of the parties involved. 8.Workability & reasonableness of the order proposed. 9. If the order relieve a party an oppression care should

be taken that it does not create oppression for the other party.

PLD 1968 Lah 876 followed in 2008 CLC 930 Peshawar

What are the ingredients for grant of stay?

Approach should not be in a cursory manner but objective to show application of mind and the law.

PLD 1967 Lah 218

Whether deep appraisal of evidence permissible?

Mr. A has a claim over a public road. He applied for injunction and was granted by Senior Civil Judge. The defendant violated the injunctive order; can he be punished for violating the order of injunction of Senior Civil Judge though his defense is that the Court had no jurisdiction over the matter, as it fall within the exclusive jurisdiction of the Tribunal constituted under the Public Property (Removal of Encroachment) Act, 1977.

Case # 13

Injunction granted by Court having no jurisdiction is void. However, it is illegal it should be obeyed unless vacated.

PLD 1967 Kar 468

An observation made by the Appellate Court while deciding the matter of temporary injunction is not binding on trial court while deciding the case

1970 SCMR 654, 1989 MLD 1540

Grant of injunction is a serious matter and Court should always take good care while granting injunction.

2000 PLD Quetta 6

Thanks`