Untitled 2
Posted on Mar 15, 2023 in Other subjects
Injunction
1. Introduction
An injunction is a judicial process through which some litigant is ordered to do a particular act or to refrain from doing a particular act. As far as nature of injunction is concerned, it can be mandatory or prohibitory. And as far as duration is concerned, it can be permanent or temporary. Temporary injunction is that injunction, which can be granted at any time of some suit and continues for a specified period or till further order of court is not passed.
2. Relevant Provision
Following are the relevant provisions of CPC regarding the topic of temporary Injunction.
vOrder 39 Rule 1, 2, 3, 4, 5 of Code of Civil Procedure
Cross Reference
vSection 94 and Section 151 of CPC
vSection 52, 53, 54, 55, 56, 57 of Specific Relief Act.
3. Basic Ingredients of Temporary Injunction
Following are basic ingredients of temporary Injunction:
i. Prima Facie Case
Temporary injunction can be granted when applicant is able to show that he will get decision of case in his favor. Therefore, first ingredient of temporary injunction is prima facie case. To grant temporary injunction, court is to assess whether applicant’s case is prima facie or not and applicant is to prove existence of prima facie case in his own favor.
ii. Irreparable Loss
Temporary injunction can be granted when there is possibility that applicant will suffer irreparable injury or damage. Therefore, second ingredient of temporary injunction is irreparable loss. However, temporary injunction cannot be granted when loss is ascertainable and pecuniary compensation is available for such loss.
iii. Balance of Convenience
Temporary injunction can be granted when balance of convenience is in favor of applicant. In fact, court is to examine whether applicant will suffer greater inconvenience in case of withholding of temporary injunction or not. If applicant will suffer greater inconvenience, court is to grant temporary injunction.
4. Procedure regarding issuance of Temporary Injunction
Following points are important for explanation of procedure regarding issuance of temporary injunction
i. Suit or application for Temporary Injunction
ii. Suit for restraining of repetition or continuance of Breach
iii. Issuance of Notice to opposite party
iv. Exception
In following cases, issuance of notice to opposite party is not necessary
a. Sale of goods
b. Case against government or government Servant or Statutory authority, Board or corporation
v. Issuance of Temporary Injunction
a. Interim injunction in absence of Defendant
a-i. Failure of Service of Injunction on defendant
a-ii. Defense of application for injunction
b. Ceasing of order of injunction after hearing of parties or after notice to defendant
vi. Discharging, Varying or setting aside of order for injunction
5. Disobedience or Breach of Injunction
Following points are important for explanation of disobedience or breach of injunction
i. When court can deal with disobedience or Breach of injunction
ii. Attachment of Property of guilty
iii. Duration of attachment
iv. Sale of Property of guilty
v. Awarding of compensation
vi. Detaining of guilty in prison
vii. Duration of imprisonment
Conclusion
To conclude, it can be stated that temporary injunction can only be granted in pending cases. It reveals that court cannot grant temporary injunction after final disposal of suit or after dismissal of suit in default. However, temporary injunction can be granted when application of restoration of suit is pending. Another settled principle is that no permanent structure can be made through temporary injunction because effect of temporary injunction remains subject to final decision of case.
Minor
1. Introduction
Settled principle is that minor cannot sue and cannot be sued. Therefore, it has been made compulsory that minor plaintiff and defendant should be represented by proper and fit person in some litigation. When some suit is to be instituted by minor plaintiff, such suit is instituted in minor plaintiff’s name by his next friend. Similarly when some suit is instituted against minor defendant, guardian for suit is appointed for such minor defendant and such guardian is called guardian ad litem.
2. Relevant Provisions
Following are the relevant provisions regarding manner in which suit against minor can be instituted.
Order 32 Rule 1, 3, 4 of Civil Procedure Code.
3. Object of having next Friend or Guardian Ad-Litem
A minor is deemed incapable of prosecuting or defending a suit himself, it is necessary that his interest in the suit should be watched by an adult person. Such person is, in the case of a minor plaintiff called his next-friend and in the case of a minor defendant his guardian ad-litem or guardian for the suit.
4. Next Friend
“The person, who represents a minor plaintiff in a suit or proceeding, is called next friend of the minor”.
5. Guardian Ad-Litem
Where the defendant is minor, that Court, on being satisfied by the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
6. Manner in which suit against Minor can be instituted
A suit against minor can be instituted through his guardian appointed by the Court i.e guardian ad-litem.
7. Mode of making appointment
The appointment of a guardian is made by the court either.
a. Application by Plaintiff
It is the duty of the plaintiff to apply for the appointment of minor defendant’s guardian.
i. List furnished by plaintiff
The plaintiff shall file with his plaint a list of relatives of minor and other person who can be appointed as guardian and such list shall constitute an application by the plaintiff.
ii. Application by Defendant
A guardian may be appointed by the court where the defendant pleads minority. Where the fact of minority is disputed it is the court who shall determine it.
8. Verification by Affidavit
Any application whether it is made by plaintiff, or by defendant or a list furnished by plaintiff must be supported by an affidavit, verifying the fact that the proposed guardian has no interest in the suit adverse to that of a minor and that he is a fit person to be appointed.
9. Notice to the Guardian
Before appointing a guardian court must serve a notice to the minor as well as to the natural guardian of the minor or father or guardian appointed by competent authority or person in whose care the minor is as the case may be.
12. Conclusion
To conclude, that according to law minor is a person, under legal disability he cannot sue and be sued in his own name. A usit against minor can only be filed through his guardian appointed by the court which is mandatory is nto considered to be a party to the suit, unless he is represented by guardian party ad-litem and any decree obtained against minor defendant guardian is nullity in the eye of law.
Suits in Civi courts
1. Introduction
Disputes can be either of criminal nature or of civil nature. Disputes of criminal nature are resolved by criminal courts while disputes of civil nature are resolved by civil courts. Under Civil Procedure Code, suits of civil nature can be brought against civil courts as far as jurisdiction of civil courts over suits of civil nature is concerned.
2. Relevant Provision
Section 9 of Civil Procedure code 1908
3. Basis of Section 9 of CPC
The basis of section 9 lies in the maxim ubi jus ibi remedium (where there is right there is remedy). Civil rights like the freedom of speech, liberty, religion, Association, office etc., are guaranteed by the constitution. So, the infringement of these rights shall result the remedy, which is asked from civil courts.
4. Nature of Suit
For determination of jurisdiction of the court, the nature of suit is determined on basis of pavements made in the plaint and not on the basis of defense.
5. What kind of Suits can be brought into civil courts?
Here following points are important
i. Suits of Civil Nature
Disputes are either of a civil nature or not of a civil nature Section 9 of Civil Procedure code, 1908, only empowers a court to entertain suits of civil nature. A suit of a civil nature is a proceeding the object of which is enforcement of rights and obligations of citizens.
ii. Bar against Jurisdiction
Against jurisdiction of civil courts, bar is that civil courts cannot exercise jurisdiction when cognizance of suits of civil nature by civil courts is barred. Such bar can be express or implied.
a. Express bar
Civil courts do not have jurisdiction to try suits of civil nature when cognizance of such suits is expressly barred. Legislature can restrict or modify jurisdiction of civil courts to try suits of civil nature through express legislation or through necessary enactment. For example, West Pakistan Land Revenue Act, 1967 has placed bar jurisdiction of civil courts to adjudicate upon any matter in which powers of adjudication has been given to revenue authorities.
b. Implied Bar
There can be implied bar against jurisdiction of civil courts to try suits due to principles of law or public policy. For example, jurisdiction of court to try suit can be implicitly barred when suit relates to act of state or when adjudication of some matter is against public policy or when special tribunal is created for adjudication of some matter.
iii. Which suits are suits of civil nature?
To determine suits of civil nature, following points are important.
a. Suit about right to property or office, b. Civil Proceeding
Civil proceeding involves assertion or enforcement of civil right and is considered is process for recovery of individual right or redress of individual wrong. It reveals that object of civil proceeding is enforcement of civil rights and obligations of citizens. Such proceeding is considered suit of civil nature.
c. Determination of some Proceeding as suit of civil nature
Proceeding can be determined as suit of civil nature through subject matter of some suit and not through status of parties to suit.
Conclusion
To conclude, it can be stated that civil procedure code has granted general jurisdiction to civil court to try all suits of civil nature. No-doubt bar has also been provided against such general jurisdiction of civil court. However, civil courts have been exempted from such bar in specific circumstances.
Order and decree
Law implies a body of rules which are recognized by a country to govern the action and behavior of the citizens. It can be grouped as substantive law – that ascertains the rights of the parties and procedural/adjective law – that determines the practice, procedure and machinery to implement the rights and duties. On the grounds of decree or order, a judgment is passed by the court. An order is nothing but a judgment while a decree is a final part of judgement.
The primary difference between decree and order is that the decree is given in a suit, which determines the substantive legal rights of the parties concerned, the order is given in the course of proceedings, and determines the procedural legal rights of the parties concerned. In the give article excerpt, you can find some more points of differences, amidst the two, take a read.
Definition of Decree
As per section 2(2) of Code of Civil Procedure 1908, a decree is a legal pronouncement of an adjudication by the court, that ascertains the rights of the plaintiff and defendant, about all or any matters of the suit. It is derived from the judgment, i.e. a decree comes into being as and when the judgment is expressed and not on the date when it is duly signed and authorized.
Definition of Order
The order can be defined as the legal declaration of the decision, by the judge or the panel of judges in the court, which does not include a decree, ascertaining the legal relationships between the plaintiff and defendant, of the court proceedings, trial or appeal.
Key Difference Between Decree and Order
The formal proclamation of the adjudication by the court of law explaining the rights of the parties concerned judgment the suit, is called decree. The legal announcement of the judgement taken by the court, defining the relationship of the parties, in the proceedings, is called an order.
A decree is given in a suit initiated by the presentation of a plaint. On the contrary, an order is given in a suit initiated by the presentation of the plaint, application or petition.
A decree is concerned with the substantive legal rights of the contesting parties, whereas the order takes into account the procedural rights of the parties concerned.
While a decree is defined under section 2 (2) of the Code of Civil Procedure Act, 1908 order is defined under section 2 (14) of the Act.
In a decree, the rights of the plaint and defendant are clearly ascertained. As against this, in case of an order, may or may not clearly ascertains the rights of the plaint and defendant.
There can be many orders in a suit, while there is only one decree in a suit. A decree can be preliminary, final or partly preliminary and partly final, whereas an order is always final.
A decree is usually appealable, except when it is specifically barred by law. Conversely, an order is appealable and non-appealable. Conclusion
The Civil Procedure Code, 1908 defines both decree and order which are given by the civil court, and formally express a decision, in matters of controversy between the opposing parties. While a decree finally decides the rights of the plaint and defendant, order may or may not clearly determine the rights.
