SET-OFF...CPC

 

DIFFERENCE BETWEEN

                                   SET-OFF

                                          &

                            COUNTER-CLAIM

                         

INTRODUCTION .

CPC,1908 is simultaneously  substantive law creating  rights and obligations  and tells the procedure  how to  get them in pursuance of the LAW.Defendant is equiped with right to raise set off or couner claim in the suit brought by the plaintiff insead of filing a separate suit.

CPC.O.viii.r.6. 

     Ingredients of set-off  

 * suit must be for the recovery of money ,

* The defendant can claim set-off against the plaintiff's demand.

* Ascertained sum of money in set off.

* Legally recoverable by D from the plaintiff, 

* Not to exceed the pecuniary jurisdiction  of  the Court, 

* Both parties fill the same character as they fill in the plaintiff's suit,

* The defendant may raise set off at the first hearing of the suit, 

afterwards  permitted by the Court, 

* Present a written statement containing the particulars of set-off.

* The written statement shall have the same effect as a plaint. 

* Enable the Court to  a final judgement  of the original claim and of the set-off:

  * The rules of written statement apply to a reply  of set-off by the plaintiff .

 SET OFF DIFFERS FROM COUNTER-CLAIM-

         a. Both are cross-actions, 

         b.  a set–off is also a ground of defence. 

          c. It affords an answer to the plaintiffs’ claim either wholly or pro tanto, 

Set–off is a debt claimed by a defendant against the plaintiff balancing a debt claimed by the plaintiff against the defendant. 

A counter-claim, 

      a..a weapon of offence and 

      b...enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action.

NATURE- 

* Both the set-off and counter-claim follow procedural nature.

 * way to short out the two claims in a single suit, 

*  gives a right to the defendant that instead of filing an independent action, he can seek that relief in a suit filed by the plaintiff against him.

* It is substantially a cross-action by the defendant against the plaintiff and entitles  the defendant full relief as in  a separate action at law.

* Set off  needs to be arising from the same action as filed by the plaintiff.

* The counterclaim is not confined to the claim made against the plaintiff.

 * Besides the plaintiff, other interested persons may be made be impleaded.

   * Set off does not permit  third party debt to set off against an un-related liability.

  *All forms of set-off require mutuality between claim and cross-claim.

   *There is no kinds of counter-claim.

   * Two Kinds of Set off.

      1-Legal set off .     

   .An ascertained sum of money which is legally recoverable from the plaintiff, is known as a legal set-off

    2-Equitable set off.

An unascertained sum of money is equitable set-off,may be claimed but not as of right.principle of equitable set-off is founded on the fundamental principles of equity, justice, and good conscience., None of the rules bar the defendant to claim equitable set-off.equitable set–off. The principle contained in Order 8 rule 6 applies not strictly but only by analogy.

The claim of the defendant’s inequitable set–off relates to transactions that can be suitably investigated in the suit itself, and then even if it is a claim for the unliquidated sum it should be taken up.It is ultimately one regarding the convenience and of the stratagem  of the litigation.

CONCLUSION-

 The terms of Set-off and counter-claim germinated in the CPC to make justice convenient for the judiciary and general people to save them from burden of fresh and separate suits.

CPC Amendment2018

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         THE CODE OF CIVIL         PROCEDURE (PUNJAB AMENDMENT) ACT 2018

(Act XIV of 2018)

C O N T E N T S

 

SECTION                                HEADING

 

           1.      Short title and commencement.

           2.      Amendment in section 3 of Act V of 1908.

           3.      Omission of section 7 of Act V of 1908.

           4.      Amendment in section 9 of Act V of 1908.

           5.      Amendment in section 12 of Act V of 1908.

           6.      Amendment in section 24 of Act V of 1908.

           7.      Amendment in section 30 of Act V of 1908.

           8.      Substitution of section 33 of Act V of 1908.

           9.      Amendment in section 35 of Act V of 1908.

           10.    Amendment in section 35-A of Act V of 1908.

           11.    Substitution of section 44-A of Act V of 1908.

           12.    Amendment in section 91 of Act V of 1908.

           13.    Amendment in section 92 of Act V of 1908.

           14.    Substitution of section 95 of Act V of 1908.

           15.    Amendment in section 97 of Act V of 1908.

           16.    Substitution of section 102 of Act V of 1908.

           17.    Amendment in section 104 of Act V of 1908.

           18.    Amendment in section 114 of Act V of 1908.

           19.    Amendment in section 115 of Act V of 1908.

           20.    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:

1.   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.

 

2.   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.

 

3.   Omission of section 7 of Act V of 1908.- In the Act, section 7 shall be omitted.

 

4.   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.

 

5.   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.”.

 

6.   Amendment in section 24 of Act V of 1908.- In the Act, in section 24, subsection (4) shall be omitted.

 

7.   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.”.

 

8.   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.”.

 

9.   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).”.

 

10. Amendment in section 35-A of Act V of 1908.- In the Act, in section 35-A, in subsection (2):

(a)        for the words “twenty five thousand”, the words “one hundred thousand” shall be substituted;

(b)  first proviso shall be omitted; and

(c)        in the second proviso, the expression “, further,” shall be omitted.

 

11. 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.

(2)  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.

(3)  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.”.

 

12.       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.

 

13.       Amendment in section 92 of Act V of 1908.- (1) In the Act, in section 92:

(a)        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

(b) 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.”.

 

14. 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:

(a)        such arrest, attachment or injunction was applied for insufficient grounds; or

(b)        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.

(2)  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.

(3)  An order under this section shall bar any suit for compensation in respect of such arrest, attachment or injunction.”.

 

15. 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.

 

16. 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.”.

 

17.       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;”.

 

18. 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:

(a)        by a decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred; or

(b)        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.”.

 

19. Amendment in section 115 of Act V of 1908.- In the Act, in section 115:

(a)        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

(b)        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.”.

 

20. 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.

Khasra Girdawari

            Khasra Girdawari.

           

               خسرہ گرداوری

The Patwari make enteries in the Khasra Girdawari:-

the name of owner,

 cultivator, 

land/khasra number, 

area, kind of land, 

cultivated and non cultivated area, 

source of irrigation,

 name of crop and its conditions, 

revenue and rate of revenue, minimum twice in a year.

Q....If possession is changed then how it is mentioned in the khasra girdawari?

   It can be done either If the previous owner and new cultivator agree or also if there is any court order for the same.

Q......What is Khewat/account?

   It is also called as revenue record/jamabandi number and it is ownership number.

Q......What is sub account/.khatoni?

The sub account number is a number , given to the cultivators.

Q......Which is Banjer Jadid Land?

Cultivated land which is not continuously cultivated for four cropings is called Banzer Jadid Land.

Q.What is Banjer Kadeem land ?

The cultivated land which is not cultivated or cropping continuously upto 8 croppings is called Banjer Kadeem land.

Q....What is Uncultivated land?

The non cultivated land such as mountains/Maruthal/sandy land/house, canal, or choe etc.etc. are called uncultivated land.

Q....Where there is exemption in revenue for a field, how it is shown in Khasra Girdawari?

   There is crossed circle with red ink around the land numbers under exemption from revenue.

Q.....Whether any Permanent survey demarcation given any number of cultivation in the girdawari?

     No, it is mentioned with red ink without giving any number.

Q.......What is spoil?

When a crop spoils due to natural disaster then the same is called Spoil/loss.

Q......How does the patwari write a Colour/Thur sem land in the khasra girdawari?                  

 Patwari writes down with (Vacant ( word in the khasra girdawari by writing ‘Thur cause’ or Colour cause’.

Q......If there is no change in the cultivator then how does the patwari mention it in the khasra girdawari?

     If there is no change in cultivator then in the column of cultivation , during rainy giridawari, patwari marks a cross a line on the left hand side from upper corner to right hand below corner and like this in rainy girdawari, from upper right hand corner to left right hand below corner.

Q......Under what circumstances the patwari can change the entries of khasra girdawari?

       The patwari can change the entries only if both the concerned parties are agreed or if any such decision is given by any appropriate authority or court.

Q.......Whether the patwari can change the entries of girdawari on the basis of sanctioned mutations?

      If through any mutation, if the change in possession is accepted then by giving the reference of this mutation, at the time of inspection of next cropping the girdawari can be changed.

Q...Can the patwari make corrections in the book entries of the khasra girdawari?

If the patwari has to make corrections in the book entries of khasra girdawari then first of all he will enter the report in the register and then will make corrections with red ink in the register and then get the same scrutinize from the area kanoongo.

Q....The year, when a revenue record is to be prepared, what should be take in mind by claimants regarding girdawari?

     As there is entry of last cropping of rainy in the record hence the owners must get satisfaction about the entries of rainy cropping and the patwari must prepare the girdawari carefully by presenting on the spot.

Q......How is the possession of uncultivated given and how is it entered in the girdawari?

   As per the orders of court, the possession of the uncultivated land is given to the degree holder by verifying the fact that entire area aroundand the description of khasra girdawari is made in the khasra girdawari regarding ownership and revenue.

Q......What procedure is followed while giving possession as per court orders?

     The degree holder, By getting Execution from the executing court, warrants are  issued by the court.The concerned revenue officer will execute the warrant and send report to the court.

The area patwari enters the proceedings of giving possession in the register as it is and after possession .The warrants after implementation are sent to the concerned court through the higher revenue officers.

Q.....If there is crop on the spot then what should be do more while proceedings of possession?

      In this regard, the area kanoongo implements the order of court.If the court has not clearly given any order then get the information about it from the court. Either the court sends orders to take possession after cutting of cropping or to settle the compensation of cropping and asks the degree holder to deposit the same in the court and orders for possession with cropping.

 Q....When girdawri is made and it's procedure ?

Girdawari , is generally done twice a year, the detail of which is as under :

√ Winter/rabi -             1 March to 31 March

√ Rainy /Haari. kharif- 1 October to 31 

Except of above, twice in a year, the additional winter and additional rainy girdawari is made as under :

Additional Rabi 1 May to 15 May

Additional rainy 16 Nov. to 30 Nov.

As per the Punjab Land record manual‘s para 9.9, before starting the girdawari, it the  duty of the patwari to give information of Girdawari to the sarpanch and Numberdar of village by which it maybe known that in that particular village what is the date on which the Girdawari will be done

Also while doing girdawari, the patwari is supposed to take along the Numberdar, sarpanch, members panchayat or other prominent persons in the field and get their signatures in the entry document.

Before starting the Girdawari, it is to be ensured that proper announcements for the same are made in the concerned village through the village chowkidar but now it is in the books only.

The land owners and cultivators should give full cooperation to the patwari while girdawari of their field is done.

As per this para, the patwari has no right to make changes in the girdawari. The patwari can only change the name of one person to another in the girdawari only when both the parties are agreed and may put signatures in front of the report in daily dairy otherwise the patwari can make changes only when gets orders from higher officers/courts or orders from the area revenue officers for implementation. It is the duty of the patwari that the mutations accepted by area revenue officers, must be referred in front of land numbers of the concerned owners.

When there is requirement of correction in the possession of Khasra Girdawari then the concerned person can give application to the area officer for correction by affixing the court fee stamp ., and the page of girdawari must be enclosed with it. As per the decision given by the area revenue officer the correction in the record is made by the patwari.

Q...What are  Duties of patwari or public at the time of any Natural disaster(Regarding special girdawari)

When there are natural disasters (floods, heavy rain or drought etc.) which further effects the croppings or animals.Such kind of losses are settled as per the below special girdawaris and adverse to it, if there is no instruction of government the losses of croppings are given as Govt likes.

RULINGS OF SRA 1877

Case Laws of Specific Relief Act.

       SPECIFIC RELIEF ACT I OF 1877

Section 8

*  Partition---Possession, recovery of---Proof---Land in question was jointly owned by both the parties and plaintiffs sought recovery of possession on the basis of partition of land between them---Judgment and decree passed by Trial Court was set aside by Lower Appellate Court and the suit was decreed in favour of plaintiffs---Validity---Plaintiffs during evidence neither exhibited the order of partition nor copy of Roznamcha Waqiati showing delivery of possession to their predecessor-in-interest nor “Tatimma” made in favour of plaintiffs as a result of partition was produced---Plaintiffs relied more on “Naqsha Jeem” but such docu8ment was not signed by revenue officer or any other competent authority---Entries on the mutation were also not countersigned by competent authority---Mere entry in Register of Mutations did not have any sanctity in the eye of law---Plaintiffs failed to prove that suit-land was partitioned and possession of land was handed over to predecessor-in-interest of Plaintiffs---Judgment and decree passed by Lower Appellate court was set aside and that of the Trial Court was restored---Revision was allowed in circumstances.    

Shahnaz Akhtar and others    Versus    Riaz Hussain and others.

2012 C L C 366

Section 9

*   Suit for possession---Prerequisites stated.

    While deciding the suit under section 9 of the Specific Relief Act, 1877, the following prerequisites must be followed for arriving at lawful conclusion:

(i)    That the person suing must have been dispossessed;

(ii)    That such dispossession must be of immovable property;

(iii)    That such dispossession should be without consent and should be otherwise than in due course of law and

(iv)    That the suit is to be brought within the period of six months from the date of dispossession.

Zahir Hussain and 4 others    Versus      Bashir Muhammad and 5 others.

2012 C L C 377

SECTION 12 AND Sec 10, 11, 14, 15, 16, of Contract Act.

     No partial specific performance of conteact unless share of vendee, preoportion of price paid was mentioned in agreement in question.

1995 CLC 1751 LAH

SECTION 12(c) ,21(a) -19,22.

-Agreement providing adequate compensation in terms of money in case of non performance-specific performance shall not be granted.

PLD 1958 P.C 150

AIR 1929 P.C 190

1989 ALD 501

1989 CLC 916

specific relief act (India) by Annad & Ayyer 9th edition at page 660-661.

Three situations

1 penalty clause as a bond –for performance.

2 liquidated damager as compensation.

3 sums named is good substitution.

AGAINTS

Existence of penalty clause –no bar to specific performance.

PLD 1952 PESH 32

1989 ALD 445

1990 ALD 776

1090 MLD 712

PLD 1991 S.C. 905

1991 CLC note 255 at p.198

SECTION 12 & 22

-Inadequacy of price no ground to refuse specific performance.

PLD 1994 SC 326

REL PLD 1981 KAR 170

SECTION 15

-Vendor contracting on his behalf and on behalf of  some body else and the contact unenforceable in law to the extent of such some body’s share. Sec 15 held attracted and plaintiff could not cucceed unless he relinquished all claim to further performance and all right to compensation.

AIR 1925 LAH 465

AIR 1926 LAH 136 (DB) (MINER’S SHARES RELINQUISHED)

AIR 1930 LAH 34

AIR 1930 CAL 457

AIR 1932 P.C. 43

AIR 1943 Nagpur 313

1979 CLC 499

AIR 1037 MAD 596

SECTION 12

-Transaction proved to be for benefit of vendors including minors whose interest was safeguard and taken into consideration in sale transaction- suit rightly decreed by three courts.

1995 SCMR 982

-inadequacy of price no grant for refusing specific performance.

1995 CLC 1705

Sc.12, 27(b), 42, 54 of Specific Relief Act.

Sec. 41, proviso – Transfer of Property Act.

      Equitable doctrine of proviso to S. 41 which protected a subsequent transferee, it is upon subsequent transferor to establish that he had acted in good faith and had taken reasonable care such as checking with the Sub-Registrar etc. before entering into transaction and that he had given valuable consideration for such transfer. Such equitable doctrine was a deduction from the law of estoppel which must be pleaded clearly with specific facts. Burden of proof is always on the person who pleaded such protection.

Mst. Rubina Badar        Vs.    M/S Long Life Builders.

2012 SCMR 84

Rel: 2002 SCMR 2003

SECTION 29(b)

-subsequent purchase during pendency of suit steps into the shoed of alienor (original defendant) –agreement of sale in favour of plaintiff executed by ailerons could be specifically enforced as against subsequent purchase in terms of sec 29(b).

PLD 1995 LAH 255

 

SECTION 34 & 42 OF SPECIFIC RELIEF ACT(ARBITRATION ACT 1940)

-    Admittedly there being an arbitration agreement, defendant could not invoke Section-34 without resorting to arbitration procedure – Arbitration clause was an independent agreement between the parties which could be invoked, if a dispute or difference had arisen between the parties, therefore, termination of agreement would not supersede it…

Irrespective of non0existence of agreement, the arbitration clause survived and arbitrator had the power to resolve the dispute.

Mobilink  v.  Niamatullah Achakzai

2012 CLC 12 (Bloc) (DB)

SECTION 42+39

-Void transaction would create no legal effect.

PLD 1995 LAH 313

Sect. 42

         Suit for declaration. One can file suit in respect of his own title to such legal character or right to property. Sect. 42 does not apply to a case where plaintiffs do not allege their entitlement to any legal character or right or its denial by defendants. But where right to his own legal character or property is not involved, such suit is not maintainable.

    Plaintiff did not approach the Court for declaration of his own right but challenged the defendants pretention. Suit was barred by Sect. 42.

Ilyas Ahmad        Vs.    Muhammad Munir.

PLD 2012 Sindh 92

Sect. 42

      Thumb impression on Sale Deed having been admitted, suit for declaration was not competent. However, suit for cancellation of sale deed was required to be filed.

Abul Rehman     Vs.    Mst. Karam Mai.

2012 CLC 238 Lah.

STAMP ACT

SECTION 35

-Instrument not properly stamped not invalid but subject to disabilities –can be admitted in evidence on payment of deficit.

PLD 1989 KAR 371

 

Doctrine of Estoppel

Doctrine of Estoppel prohibits,
 a person from going back stated earlier  in a Court of Law.

                    Basis:-

                       Equity..... Good faith. 

                 Object:-   1.To prevent Fraud. 

                                    2.To promote Honesty. 

           

                                   Art.114..

                              * If one person 

                                                  * by his declaration, 

                                                                              *act or omission,

                                      *intentionally 

                                                     *caused or permitted

                       *another person

                                                   *to believe a thing/ Fact, 

                                                                                      * to be true 

                     * for acting upon such Belief,

                    √• He / His representative can't deny the truth of that thing

                               * in any suit or proceeding inter se. 

                            "Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxcxx

                     Illustration. 

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby 

induces B to buy and pay for it. 

The land afterwards becomes the property of A, and A seeks to set aside the sale on the 

ground that, at the time of the sale, he had no title. He must not be allowed to prove his 

want of title. 

           Art.115.     Estoppel of tenant and of licensee of person in possession:

                 Applies to:-

                      1- Tenant & Landlord. 

                     2.Licensee. 

                     3.Mortgagee. 

                     4.Fiduciary relationship Capacity. 

                             No Tenant of 

                  1-immovable property,

                 2-   or person claiming through such tenant,shall,

                 3- during the continuance of the tenancy,

                 4- Is permitted to deny the title of the landlord;

           Licensee of:-

                   1.   √ Immovable property 

                   2.  √ Is not Permitted to deny, 

                  3.  √The title of Licensor's possession. 

                               Xxxxxxxxxxxxxxxxxxxxxxxx

                 Art.116. 

                             Estoppel of acceptor of bill of exchange bailee or licensee:

              1- No acceptor of a bill of exchange ,

              2-shall be permitted to deny the authority of drawer,

              3-To endorse it; 

              4-No Bailee or licensee is permitted to deny  his bailor's or licenser's authority. 

         Explanation 1: The acceptor of a bill of exchange may deny that the bill was really drawn 

                                  by the person by whom it purports to have been drawn. 

          Explanation 2: If a bailee delivers the goods bailed to a person other than the bailor, he 

                                    may prove that such person had a right to them as against the bailor.

                                                Xxxcccccccc

                       Bailor..... Bailee.... Baliment... 

                          Defined. 

                                 1-  A bailment is , 

                                         A) a delivery of personal property by one person to another ,

                                        B) for a specific purpose & understanding to be returned attaining the object. 

                                 2-A bailor is the person who delivers the property. 

                                 3-A bailee is the person who receives it.

                 Zzzzzzzzzzzzzz

                                        What Is Bill of Exchange?

                                              A bill of exchange:-

                                                                  1.√ is a written order, 

                                                                 2* used primarily in international trade, 

                                                                3* Binds one party to pay to another party,

                                                               4* Amount must be fixed one. 

                                                               5* on demand or at a predetermined date.

                                                              6* Bills of exchange are  as of checks and promissory notes.

                                                             7* They can be drawn by :-

                                                                                                    •  Individuals or

                                                                                                   •  Banks, 

                                                                                                   •  Generally transferable by endorsements.

                                                                    Xxxxxxxxxxxxx

                   Principles of Estoppel. 

               The representation is an essential element of estoppel & it must be :-

      1-By one person to another person.

      2- As to facts and not of law.

     3-As to an existing fact.

     4-It makes the other person believe the Fact is true.

     5-Pursuation to act upon the Fact.

    6-Other person suffered a loss by such representation. 

   7-Other person is unaware of the actual situation. 

   8- It must be intentional. 

   9- No Estoppel if fact (s)  is known the parties. 

  10-No Representation- No Estoppel. 

                   Types of Estoppel 

                            1-Estoppel of Record or Quasi-record. (S.11CPC) 

   This doctrine prohibits the parties to a case from instituting another suit in the same matter or the facts already decided by the court. 

√ Estoppel by Deed

      Bilateral agreement executing a deed as to certain facts is binding upon the executent and his legal representatives. 

       * Estoppel by Pais or Estoppel by Conduct

       * Estoppel by Pias’ is ‘Estoppel in the Country’ or ‘Estoppel before the public’.

      * Estoppel by conduct means when a person through ,

    *agreement,

   *misrepresentation or

  *negligence 

 *makes the other person believe in certain Facts. 

* Other person had taken some action in any mode,

 *The first person cannot deny the veracity of the statements given by him earlier. 

 *Doctrine of estoppel by Election. 

  The person receiving the gift or claiming the right can enjoy one of them and not both of them. 

 * Equitable Estoppel

A person can't bring legal action in conflicting with his statements, claims or acts earlier. 

* Estoppel by negligence. 

Ground of negligence is included in the plea of estoppel as, the party owned a duty towards the general public or anyone else towards whom he has acted negligently through words or conduct. Such estoppel is based on the existence of a duty which the person estopped is owing to the person led into the wrong belief or to the general public of whom the person is one.

* Estoppel by Benami Transaction.

If the owner of property clothes a third person with the apparent ownership and a right of disposition thereof, not merely by transferring it to him, but also by acknowledging that the transferee has paid him the consideration for it, he is estopped from asserting his title as against a person to whom such third party has disposed of the property and who has taken it in good faith and for value. (Li Tse Shi v Pong Tse Ching, (A.I.R. 1935 P.C. 208)

* Estoppel on a Point of law. 

The principle of estoppel cannot be invoked to defeat the plain provisions or a statute. There is no estoppel against an Act of Legislature.The Doctrine of estoppel does not apply to statutes but only to the facts. 

* Equitable Estoppel:

     Art.115 only deals with the estoppel that arises against a tenant or licensee, a similar estoppel has been held to arise against a mortgagee, an executor, a legatee, a trustee, or an assignee of property, precluding him from denying the title of the mortgagor, the testator, the author of the trust, or the assignor, as the case may be.

* Proprietary Estoppel.

We often see promises being made and later broken. While in some cases we can do nothing about it, but in certain circumstances, particularly in matters related to land or property, there is a possibility to bring a claim to enforce a broken promise. This is called proprietary estoppel. 

* Estoppel by Convention.

The parties to an agreement could not deny to the assumed facts, because if the party or parties are allowed to go back on their assumptions, it would be unfair and lead to injustice. 

* Estoppel by Acquiescence.

When one party served a legal notice upon other party nexus with the facts of a claim, and the other party fails to acknowledge or refute it.The other party is said to have accepted the claim and has acquiesced it.

Collateral Estoppel. 

The doctrine is to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata).

* Contractual Estoppel.

The parties signing the contract agreed to the fact that in case of any dispute between them, the case would be filed in the court of in Lahore. Once agreed the parties cannot, later on, assert to change the jurisdiction in the particular case. They are bound by the principle of contractual estoppel. 

Issue Estoppel. 

•√ Issue estoppel is a sub-species of the res judicata doctrine. 

Issue estoppel arises :-

* where an issue(s) germinating the cause of action  litigated and decided in the first Lis. 

*  In the subsequent proceedings inter se the same parties having a different cause of action but the same issue is relevant. 

* One of the parties intends to reopen the decided issue(s).

* Buurden of Proof. 

BOP is on the party claiming estoppel. 

Exceptions. 

1.jurisdiction of courts.  2.Minors. 

3.Silence.                         4.criminal case. 

5.Expert opinion. 

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz  Continued,,,,,,...

Urban Partition Act 2012

THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012

 (Act IV of 2013)

C O N T E N T S

SECTION                                HEADING

      1.           Short title, extent and commencement.

   2.           Limitation on scope.

 3.           Definitions. 

     4.           Suit for partition of immovable property. 

      5.           Appearance of defendants and consequence of non-appearance.       6.           Written statement.

  7.           Mesne profits pending adjudication. 

  8.           Question of title or share.

  9.           Appointment of referee for partition.

10.          Internal auction.

  11.          Open auction.

  12.          Mesne profits.

 13.          Private settlement.

  14.          Time limit for disposal of the suit.

 15.          Application of Act V of 1908.

 16.          Instructions of High Court.

 17.          Repeal.

 [1]THE PUNJAB PARTITION OF IMMOVABLE PROPERTY ACT 2012

(Act IV of 2013)

[5 January 2013]

 

An Act to amend and reform the law relating to

partition of immovable property.

 

Preamble.– Whereas it is expedient to amend and reform the law relating to expeditious partition of immovable property and to provide for ancillary matters;

      It is enacted as follows:-

 

1.   Short title, extent and commencement.– (1) This Act may be cited as the Punjab Partition of Immovable Property Act 2012.

      (2)  It shall extend to whole of the Punjab.

      (3)  It shall come into force at once.

 

2.   Limitation on scope.– Nothing contained in this Act shall be deemed to affect any law providing for the partition of agricultural land or land subservient to agriculture.

 

3.   Definitions.– (1) In this Act–

       (a)  “Code” means the Code of Civil Procedure, 1908 (V of 1908);

       (b)  “Court” means the Court of original civil jurisdiction competent to entertain and decide suits for partition of immovable property;

       (c)  “immovable property” means an immovable property, other than agricultural land or land subservient to agriculture, jointly owned by two or more persons;

       (d)  “internal auction” means the auction of the immovable property amongst the co-owners of the property in which at least two co-owners are eligible to participate; and

       (e)  “mesne profits” means the approximate rental benefit which the co-owner in possession of the immovable property gains to the exclusion of any other co-owner during the pendency of the suit under the Act.

      (2)  An expression used in the Act but not defined shall mean the same as in the Code.

4.   Suit for partition of immovable property.– An owner of immovable property may file a suit for partition of the property, giving details of the property, citing all other co-owners as defendants and attaching all the relevant documents in his reach or possession.

 

5.   Appearance of defendants and consequence of non-appearance.– (1) The Court shall issue notice to the defendants for appearance on a date, not later than ten days, through the process serving agency and registered post or courier service and, where possible, also through electronic and telecommunication means.

      (2)  Copies of the plaint and the documents annexed with the plaint shall be attached with the notice under subsection (1) served through the process serving agency and sent by registered post or courier.

      (3)  If a defendant fails to appear and the Court is satisfied that the notice has not been served on the defendant or the defendant is willfully avoiding the service of the notice, the Court may direct service of the notice by–

             (i)   affixing a copy of the notice at some conspicuous part of the residence of the defendant; or

             (ii)   publication in the press, electronic media or any other mode.

      (4)  If the defendant fails to appear on the date fixed and the Court is satisfied that the notice had been duly served, it may proceed ex-parte against such defendant.

      (5)  If an ex-parte order is passed against a defendant, he may, within fifteen days from the date of knowledge, apply to the Court for setting aside the ex-parte order and shall submit along with the application the written statement and attach with such written statement copies of all the relevant documents in his reach or possession.

      (6)  If the defendant submits the written statement and shows sufficient cause for his non appearance, the Court may set aside the ex-parte order on such terms as it may deem fit.

 

6.   Written statement.– (1) Subject to section 5, a defendant in a suit for partition of immovable property shall file the written statement within thirty days of his first appearance in the Court and shall attach with the written statement copies of all the relevant documents in his reach or possession.

      (2)  If a defendant fails to file the written statement within the period mentioned in subsection (1), the Court shall strike off his defence and in that event he shall not be entitled to lead any evidence.

 

7.   Mesne profits pending adjudication.– (1) On the first date of hearing or as soon as thereafter, the Court may, pending adjudication of the suit, direct the co-owner, in possession of the immovable property, to deposit, either on monthly or quarterly basis, such interim mesne profits in the Court as it may determine on account of share of a co-owner not in possession of the property.

      (2)  If an order under subsection (1) is passed, the co-owner in possession of the property shall deposit the amount on or before the date fixed by the Court and, in the absence of any such order, on or before 15th of the month or the first month of the quarter for which the amount is due.

      (3)  If the co-owner fails to deposit the amount under this section within the time specified under subsection (2), the Court shall–

             (a)  in case he is plaintiff, dismiss his suit; and

             (b)  in case he is defendant, strike off his defence and in that event, he shall not be entitled to lead any evidence.

 

8.   Question of title or share.– (1) When there is a dispute as to the title or share in the immovable property, the Court shall decide such question before proceeding further in the suit under this Act.

      (2)  The determination of a question of title or share of the immovable property by the Court under subsection (1) shall be deemed to be a decree in terms of the Code.

 

9.   Appointment of referee for partition.– (1) If all the co-owners agree in writing on partition of the immovable property through appointment of a referee, the Court shall appoint a referee for partition of the property within such specified or extended time as the Court deems appropriate.

      (2)  Subject to the restrictions imposed under any law governing town planning, the referee shall decide whether the immovable property is partible and if so, the referee shall propose partition of the immovable property.

      (3)  [2][* * * * * * *]

      (4)  The referee may, with the written consent of two or more co-owners of the immovable property, combine the shares of such co-owners in the proposal of partition.

      (5)  The Court shall affirm the proposal of the referee for partition of the immovable property through decree unless the Court is satisfied that the proposal is in contravention of any law.

      (6)  The Court may fix the fee of the referee to be paid by the co-owners according to their respective shares in the immovable property.

 

10.    Internal auction.– (1) If on the date fixed by the Court for the purpose, the co-owners fail to submit written agreement about the partition of the immovable property through appointment of a referee or the referee is of opinion that the property is not partible or the Court finds that the proposal of the referee is in contravention of any law, the Court shall determine the reserve price of the immovable property and direct sale of the property through internal auction on the next date of hearing.

         (2)  The Court shall require the co-owners to be present in person or through their authorized agents on the date of internal auction.

         (3)  The internal auction shall be conducted in the Court and the Court shall maintain record of internal auction which shall form part of the suit.

         (4)  Any two or more co-owners of the immovable property may submit their written offers or counter written offers until one of them makes the highest written offer.

         (5)  The Court shall declare the highest bidder as auction purchaser in internal auction and direct the auction purchaser to deposit the auction price within fifteen days of the auction but the auction purchaser may deduct from the auction price to be deposited such amount as equals his share in the immovable property.

         (6)  If the auction purchaser deposits the auction price under subsection (5) within the prescribed time, the Court shall confirm the sale, put the auction purchaser in possession of the property and distribute the auction price amongst the other co-owners according to their respective shares.

         (7)  If the auction purchaser fails to deposit the auction price under subsection (5) within the prescribed time, the Court shall fix another date for internal auction but such auction purchaser shall not participate in the subsequent internal auctions.

         (8)  The second or subsequent internal auction shall be held, as far as possible, in accordance with the procedure contained in this section for the first internal auction.

 

11.    Open auction.– (1) If the co-owners refuse to participate in the internal auction or only one co-owner shows his willingness to participate in such auction or the internal auction under section 10 has failed, the Court shall fix the reserve price of the immovable property and direct open auction of the property.

         (2)  A co-owner of the immovable property may participate in the open auction of the property.

         (3)  The Court shall appoint a court auctioneer for conducting the open auction and fix fee of the court auctioneer to be paid by the co-owners in proportion to their respective shares in the immovable property.

         (4)  The court auctioneer shall submit in the Court an auction plan in the form of a public notice which shall include detailed specifications of the immovable property, the time, date and place of open auction, and the amount of bid security for participating in the open auction, and the Court may approve the auction plan with or without modification and direct its publication in such manner as it deems appropriate.

         (5)  The court auctioneer shall conduct open auction under the auction plan approved and published by the Court and direct the highest bidder to deposit–

                (a)  earnest money equal to twenty per cent of the bid price immediately on the close of bidding; and

                (b)  the remaining amount of the bid price in the court within seven days.

         (6)  The court auctioneer shall maintain the record of the auction proceedings and return the bid security to unsuccessful bidders but shall adjust the bid security of the highest bidder in the bid price.

         (7)  The court auctioneer may, in an appropriate case, accept deposit under clause (a) of subsection (5) in the form of cash, crossed cheque, demand draft or banker’s cheque against a receipt.

         (8)  The court auctioneer shall, immediately after conclusion the auction, deposit in the Court the auction price collected by him along with the auction report.

         (9)  If the highest bidder deposits the auction price under subsection (5), the Court shall confirm the sale, put the highest bidder in possession of the property and distribute the auction price amongst the co-owners according to their respective shares.

         (10)   If the highest bidder fails to deposit the auction price under subsection (5), the amount deposited by him shall stand forfeited and the immovable property shall be put to open auction again, as far as possible, in accordance with the procedure contained in this section.

 

12.    Mesne profits.– (1) Subject to sections 10 and 13, the Court may, at the time of final settlement, award mesne profits to a co-owner not in possession of the joint immovable property by deducting the same from the share of the co-owner in possession of the property or by directing the co-owner in possession of the property to pay the same to the co-owner not in possession of the property.

         (2)  The Court shall, while awarding mesne profits under subsection (1), take into account the interim mesne profits deposited under section 7.

 

13.    Private settlement.–(1) All the co-owners of the immovable property may, at any stage of the proceedings before the date of open auction of the property, submit a private settlement in the Court.     (2)  If the co-owners submit the private settlement under subsection (1), the Court shall pronounce judgment and decree in terms of the private settlement and cancel the order of open auction if already passed.

14.    Time limit for disposal of the suit.– (1) The Court shall finally dispose of the suit under this Act within six months from the date of the institution of the suit, failing which, the Court shall submit the case to the District Judge, with cogent reasons, seeking extension of time for disposal of the suit.

(2)  The District Judge may, subject to such conditions as he deems appropriate to impose, grant extension in time to dispose of the suit taking into consideration the facts and circumstances of the case.

15.    Application of Act V of 1908.– Subject to this Act, the provisions of the Code shall apply to any proceedings under this Act.

16.    Instructions of High Court.– The Lahore High Court may issue instructions necessary for purposes of the Act.

17.    Repeal.– (1) The Partition Act, 1893 (IV of 1893) is hereby repealed.

  (2)  Notwithstanding the repeal of the Partition Act, 1893 (IV of 1893) and without prejudice to any previous proceedings in a suit, the suit for partition of immovable property pending in any court under the repealed Act shall be proceeded with and decided by the Court in accordance with the provisions of this Act.[

1]This Act was passed by the Punjab Assembly on 27 December 2012; assented to by the Governor of the Punjab on 3 January 2013; and, was published in the Punjab Gazette (Extraordinary), dated 5 January 2013, pages 1961-65.

[2]The following subsection (3) omitted by the Punjab Partition of Immovable Property (Amendment) Act 2015 (X of 2015):“

(3) Notwithstanding anything in subsection (1) but subject to subsection (2), the Court may, on an application of one or more co-owners who desires his or their shares in the immovable property partitioned, appoint a referee who shall determine whether such share or shares is partible and if so, he shall propose partition of the property to that extent.”

Partition of Land:

                                   

                    Partition of Land. 

(S.135) 

   Where agricultural land is under joint holding and joint owners want to have separate shares, they may apply for partition of their share in the 

WHO CAN APPLY?

a) at the date of the application the share is recorded under Chapter VI as belonging to

him; or

(b) his right to the share has been established by a decree which is still subsisting at the

date; or

(c) a written acknowledgment of that right has been executed by all persons interested

in the admission or denial thereof

 Jurisdiction of the Revenue Officer.

1-The land belonging to agriculture only.

2-Village site, structure, or area included in town is not subject of Land Revenue Act,1967.

(S.136)   Restriction and limitation: 

Exclusion from Partition. (136)

 

A.Places of worship .

B. Burial grounds held in common before partition shall

continue to be so held after partition; and

C.any embankment,

D.water-course,

E. Well or tank and

F. Any land on which the supply of water to any such work may depend;

G. Any grazing ground;

H. Any land which is occupied as the site of a town or village, may be refused.

    Reason.

                 If he partition of such property is likely to

1-cause inconvenience to the co-sharers or other persons directly or indirectly

interested therein, or

2- to diminish the utility thereof to those persons.

 

(137. )   Procedure to be adpoted

Notice of application for partition.– Firstly, The Revenue Officer Shall see,

1- It is not against the provisions of the West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No. 64),]

2- Not open to objection on the face of it,

 

 

 

Further Procedings:- 

(a) Issuance  of notice of the application for hearing to the  parties.

(b) Notice to the  co-sharers recorded in the Record of rights

as have not joined in the application; 

(c) Issue notice to be served on or proclaimed for the information of any other persons whom he may deem                 to be directly or indirectly interested in the application

 

                                              Addition of the Parties.  (138)

On the day of hearing Revenue Officer shall:- 

1-ascertain whether any other co-sharer desires to join partition and if so, Revenue Officer shall add his name as applicant in partition.

139=

1-R.O.shall Examine the co-sharers and other persons as may be present on that day,

2-There must be good and sufficient cause,

3-R.O. may reject or allow the partition.

4-Revenue Officer shall record the grounds of such rejection.

     Admission of application:

The Revenue Officer shall:

1. Ascertain the questions as to the title in the property for which partition is applied.

2. How the property is divided and what shall be the mode of partition.

      Determining the question as to title: 

Modes to decide the title of the land under partition:

 

1-The Revenue Officer may decline to grant the application for partition until

the question has been determined by a competent Court.

2-He may himself proceed to determine the question as  Civil  Court.

             Further Procedure by R.O.

1-If R.O. may not himself proceed to decide the question of title, them require the party to institute a civil suit not exceeding ninety days from the date of his order.

2-He may  fix time for obtaining a decision regarding the question.

3-If  a civil suit by the party requires is filed within the specified period,

4-The Revenue Officer shall suspend further action on the application for partition till

the said civil suit is decided by the Court and a copy of the Court’s order is produced before

him.

5-the party so required fails to file a suit within the specified period, the

Revenue Officer may proceed with the partition and decide the question of title himself.

        Rules of Procedure for R.O.

to determine the question,

 a) the Revenue Court has jurisdiction over the Question of Title.

b) the Revenue Officer shall proceed as a Revenue Court under the lex lata.

b) If the question is one over which a Civil Court has jurisdiction, the procedure of

the Revenue Officer shall be as that of  a Civil Court, and he shall record a judgement and a decree containing the particulars required by the Code of Civil Procedure 1908 (Act V of 1908), to be specified therein.

(c) An appeal shall lie from the decree of the Revenue Officer under CPC.

(d) The Appellate Court, may issue an injunction to the Revenue Officer requiring him to stay proceedings pending the disposal of the appeal.

(e) From the appellate decree of a District Court upon such an appeal,

(f) a further appeal shall lie to the High Court, if such further appeal is allowed by the law for the time being in force.

 

Other Questions of  the Property.142.

 

(1) Other Question as to the property to be divided, or

 2-  The mode of making a partition,

3-the Revenue Officer shall  make inquiry 

4-record an order stating his decision on the question with reasons for the decision.

5- An appeal may be preferred within thirty days from the date thereof,.

6- When  appeal is preferred & certified to by the Appellate Authority.

7-The Revenue Officer shall stay further proceedings pending the disposal of the appeal.

8-If an applicant for partition is dissatisfied with an original or appellate order but applies for permission to withdraw , shall be permitted .

9- The Revenue Officer may continue  the partition of the shares of other applicants if they desire.

 

143.   Administration of property excluded from partition.

1- property  referred to in clause (b) of section 136 (see Supra) is excluded from partition,

2- the Revenue Officer may determine the use thereof,

3- the proportion of expenditure incurred thereon .

4-  profit derived therefrom .

5- Mode of Expenditures borne and profits divided among the sharers.

 

 

144.

Distribution of revenue and rent after partition.

 

(1) The amount of revenue to be paid by each holdings  shall be determined by the Revenue Officer .

(2) The decision of the Revenue Officer  as to the revenue  shall be deemed to be an order under sub-section (1) of section 67.

(3) Where new estates have been created at a partition and the land-revenue has

been fraudulently or erroneously distributed among them, the Board of Revenue may, within

twelve years from the time of discovery of the fraud or error, order a new distribution of the

land revenue among the several estates, on an estimate of the assets of each estate at the time

of the partition to be made conformably to the best evidence and information procurable

respecting the same

 

 

 Instrument of partition (145,146)

1- R.O. shall prepare Instrument of Partition after conclusion of proceedings.

2- Records the date of so effect.

3-Revenue Officer shall give possession to the parties concerned.

4-If any application is made within three years of such partition, he shall give effect to it.

5-If application is not made within three years after partition, then right of Revenue Officer shall come to an end as to hear any objection.

8- Re-distribution if custom allows and application is made to revenue Officer Grade-1.(149)

 

147. 

Affirmation of Private Partition.

 

1-If partition may be made without the intervention of a Revenue Officer.

2-Any party thereto may apply to a Revenue Officer for an order affirming the partition.

3- The Revenue Officer shall enquire into the case.

4- If he finds that the partition has in fact been made, he may make an order affirming it .

5- R.O. shall proceed under sections 143, 144, 145 and 146, as the case may be.

6-He Shall proceed as the partition had been made himself under this Chapter.