The Sindh High Court (Original Side) Rules 2012

(ON THE ORIGINAL SIDE)

PART I
GENERAL

CHAPTER 1
PRELIMINARY

1. Short title- These rules may be cited as The Sindh High
Court (Original Side) Rules 2012.

2. Commencement- They shall come into operation from
the date* of their publication in the official Gazette and shall apply to proceedings and matters in the High Court commenced on, or subsequent to, that date and, so far as may be, also to proceedings and matters pending on that date.

3. Interpretation- In these rules, unless there is something
repugnant in the subject or context,-

(!) “Additional Registrar (O.S.) means Additional Registrar original side;

(2) “Bench” includes a Judge sitting alone;

(3) “Certified” in relation to a copy means certified as provided in article 87 of the Qanun-e-shahadat order 1984;

(4) “Chief Justice” includes, in his absence, the Judge authorized to act on his behalf;

(5) “Code” the Code of Civil Procedure, 1908, as amended from time to time, and reference to an Order means reference to an Order of first Schedule thereto;

(6)” Constitution” means the Constitution of Islamic Republic of Pakistan;

(7) Court- means the High Court.

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(8) “First Hearing” includes the hearing of a suit for settlement of issues and any adjourned hearing thereof;

(9) “High Court” means the High Court of Sindh.

(10) “Interlocutory Application” means an application in any suit, appeal or proceeding, already instituted in the High Court, not being a proceeding for execution of a decree or order;

(11) “Judge” means Judge of the High Court;

(12) “Miscellaneous Application” means an application whereby any proceeding is instituted including under rules 46-A, 58, 97 and 100 of Order XXI of the Code, a proceeding under section 7 of the Insolvency (Karachi Division) Act (III of 1909), an appeal under section 8(2)(a) of that Act, and an analogous proceeding under the Companies Ordinance 1984, but does not include a suit or an appeal or a proceeding in insolvency or a proceeding in execution of a decree or order;

(13) “Notice” includes summons;

(14) “Oath Commissioner” means a person appointed by the High Court under Clause (b) of Section 139 of the Code of Civil Procedure, 1908, and under Section 539 of Criminal Procedure Code, 1898, before whom affidavits and affirmations may be sworn and affirmed;

(15) “Prescribed” means prescribed by or under these rules;

(16) “Sealed” means sealed with the Seal of the Court;

(17) “Taxing Officer” means an officer appointed by the Chief Justice to perform the functions of taxing officer under the Court Fee Act, 1897;

(18) “Vacation Judge” means the senior-most Judge on duty during vacation at main seat at Karachi.

(19) “Verified” means verified in the manner provided by Order VI, rule 15 of the Code” and

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(20) The General Clauses Act, 1897, shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament and in the matters not covered by that Act, by the West Pakistan General Clauses Act, 1956 as it applies for interpretation of an Act of the Province of Sindh.

4. Reckoning of time- Where any particular number of
days is prescribed by these rules, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a day on which the offices of the court are closed, in which case the time shall be reckoned exclusively of that day also and of any succeeding days or days on which the offices of the court continue to be closed.

5. Service of notice- Except where otherwise provided by
these rules, a notice directed to be given to a party on an interlocutory application shall be in writing, and may be served by the party or his advocate on the other party or his advocate personally or by fax or by Courier Service or by sending the same by post in a registered prepaid cover to the address or on e-mail address provided by the advocate for service of the party or his advocate.

6. Use of forms in appendixes- The forms given in the
appendixes with such modification as the circumstances of each case may require, shall be used for the purposes therein mentioned.

7. Alteration, etc. Code
of rules in First Schedule to the Code- The rules contained in the First Schedule to the Code shall, so far as they are inconsistent with or contrary to these rules be deemed to have been thereby altered or superseded.

CHAPTER II
EXERCISE OF ORIGINAL CIVIL JURISDICTION

8. Holding of Court on Original Side- A Court for the
exercise of the Original Jurisdiction of the High Court on its several sides may be held before one or more Judges. Such Judge or Judges may, Subject to any rules, exercise in court or in chambers all or any part of the original Jurisdiction of the High Court.

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Note- Ordinary Original civil jurisdiction of the High Court extends to Karachi (division) only, consisting of Karachi south, East, West, Central and Malir civil districts.

9. Jurisdiction to be exercised by a Judge- Subject to
the provisions of section 7 of the Sindh Civil Courts Ordinance, 1962, and of these rules any Judge may exercise all or any part of the jurisdiction vested in the High Court on its Original Side.

10. Reference to two or more Judges- If it shall appear to
a Judge either on the application of the party or otherwise, that a suit or matter can be more advantageously heard by a Bench of two or more Judges, he may report to that effect to the Chief Justice who shall make such order thereon as he thinks fit.

11. Distribution of business- suits and proceedings
instituted on any of these several sides of the Civil Original Jurisdiction of the High Court shall be heard before the Chief Justice, or such Judge or Judges as the Chief Justice shall from time to time nominate for that purpose.

12. Disposal of miscellaneous matters- The Judge or, if
there be more than one, one of the Judges sitting on the Original Side from time to time nominated by the Chief Justice shall ordinarily sit once every week to hear miscellaneous matters.

13. Definition of miscellaneous matters- The following
matters may be disposed of as miscellaneous matters:

(1) Rejection of plaints;

(2) Application for arrest before judgment, for attachment before judgment, for injunctions and for appointment of a receiver;

(3) Applications under rules 161, 165, 168, 170, 172, 173, 175 and 176;

(4) Settlement of issues;

(5) Applications to amend the plaint, petition or subsequent 4 proceedings where the amendment sought is not formal or applications to strike out any matter therein;

(6) Applications for commissions to examine witnesses under O.XXVI, rule 4 (1) (a) & (c) of the Code;

(7) Applications for leave to defend under O.XXXVII of the Code;

(8) Attachment of property of absconding witnesses;

(9) Applications by receivers, guardians and others relating to the management and disposal of the property;

(10) Applications in all matters arising under the Companies Ordinance 1984, Trustees Act, the Trustees and Mortgagees’ Powers Act, Trusts Act, the Arbitration Act and generally in the matter of any Act, unless otherwise provided in the Act itself or by these rules;

(11) Inquiries in lunacy ordered to be taken before a single Judge;

(12) Inquiries directed by the Court as to the fitness of persons to act as trustees, receivers, and committees of lunatics;

(13) Inquiries as to the persons constituting a class;

(14) Inquiries as to a scheme for charity;

(15) Matters referred by the Additional Registrar (O.S.) and appeals against his order passed under these rules except those in execution proceedings;

(16) Applications for orders of production of prisoners and other under the Prisoners Act, 1900;

(17 other interlocutory applications and any such matter as the Judge thinks fit to dispose of a miscellaneous matters, and such other applications as by these rules and directed to be so disposed of.

14. Disposal of applications by Additional Registrar (O.S.)
The Additional Registrar (O.S.) shall dispose of all contested or

5 uncontested applications or applications for consent orders of the following description:

(1) Applications for admission of plaints;

(2) Applications for leave to verify plaints, written statement petitions or any other proceedings in a suit or matter;

(3) Applications for leave of the Court to file a plaint when such leave is necessary;

(4) Applications under O.1., R.8 (i) for leave to sue or defend on behalf of, or for the benefit of, all in the same interest

(5) Applications for leave under O. Il, sub-rule (3) of rule 3;

(6) Applications under O. II, R. 4, to join causes of action in a suit for the recovery of immovable property;

(7) Applications for the admission or appointment of a next friend or guardian ad- Iitem of a minor or a person of unsound mind or new next friends or guardians ad - Iitem;

(8) Applications for fresh summons or notice and for short date summonses and notices;

(9) Applications for orders for substituted service of summons or notice

(10) Applications for transmission of process for service to another Court, etc;

(11) Applications for orders regarding issue of summons or notices and regarding service thereof;

(12) Applications for permission to withdraw a suit or application by consent, or where the other side, has not been served;

(13) Applications against a party in default to compel filing of written statement or affidavit or documents;

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(14) Applications arising from the death, marriage or insolvency of parties to suits or petitions or from the assignment, creation or devolution of any interest, estate or title, pendente Iite;

(15) Applications to amend plaint, petition or subsequent proceedings where the amendment asked for is purely formal;

(16) Applications for further and better statement of particulars under O. VI, R.5;

(17) Applications for leave to file further written statements;

(18) Applications for return of documents under O XIII, R. 9

(i) of the Code;

(19) Receiving draft issues and attempting to bring about a consensus between the parties before placing the same in court U/O XXIV CPC

(20) Applications for order for discovery and for orders concerning the admission, production and inspection of documents;

(21) Applications for leave to deliver interrogatories;

(22) applications for order for execution of a decree or order for arrest of a judgment-debtor when such judgment debtor does not appear on the day of hearing fixed under the notice issued or on such day as the. hearing thereof may be postponed to, or by attachment or sale with power to order issue of notice under sections 74 and 145 and under O.XXI, rules 2,16, 22, 34(2) 37 or 66(2) of the Code, or where notice is otherwise necessary or considered desirable;

(23) Applications for order for the transmission of a decree with the prescribed certificate, etc.

(24) Applications for the execution of a document or for the endorsement of a negotiable instrument under O.XXI,

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R.34;

(25) Applications for examination of judgment-debtor as to his property under O.XXI, R. 41;

(26) Applications falling under section 52 of the Code

(27) Applications for leave under O.XXI, R. 50, sub-rule (2) except where liability is disputed;

(28) Applications for the issue of proclamations of sale under O.XXI, R.66, and for direction as to the publication thereof under R.67;

(29) Applications for confirmation of sale and certificate of sale of purchaser of immovable property;

(30) Applications for possession under O.XXI, Rules 95 and 96;

(31) Applications for special costs in connection with the attachment and/or sale of immovable property;

(32) Applications for special directions to the Nazir as to the service or execution of any process of the Court;

(33) Applications for order for withdrawal of attachment or for return of a warrant;

(34) Application for stay of execution under O.XXI, R. 26(1) and (2);

(35) Applications for order for payment of money realized in execution or otherwise deposited in Court including applications to share in assets realized under section 73, unless the case is on one of the cause lists for the day.

(36) Applications for commissions to examine Witnesses under O.XXVI, Rule 1, unless the suit is on one of the lists of causes for the day, and applications for de bene esse examination;

(37) Applications for extension of time under O.XXVII, R. 7, 8 or by a party in default for further time to file written statement or affidavit or documents, and generally all applications for further time not otherwise provided for;

(38) Applications for statement of names and disclosure of partners’ addresses and residence under O.XXX, Rules I and 2;

(39) Applications for leave to issue execution under O.XXX, Rule 9;

(40) Applications for leave to sue in forma pauper/s and investigation as to the pauperism of petitioner for leave to sue or to appeal as a pauper;

(41) Applications for orders of reference to arbitration unless the suit is on one of the lists of causes for the day;

(42) Applications for order requiring a, party to a suit or matter to produce and leave with the Additional Registrar any document not in the English language in his possession for the purpose of being officially translated;

(43) Applications for return of exhibits;

(44) applications for order for the production of records or documents in the High Court, Original Side, or accounts filed in such records, before any other Court;

(45) Applications for an order for the issue of a precept to another Court for the production of a record of such Court or of notice or summons to a Public Officer for the production of public record or register;

(46) Applications for the taxation and delivery of bills of costs;

(47) Applications for production, inspection of a will or a copy thereof;

(48) all matters affecting procedure arising out of applications under the Succession Act, 1925, the Court-fees Act, 1870, the Companies Ordinance 1984, the Arbitration Act, 1940, and generally in the later of any 9 Act unless otherwise provided in the Act itself or by these rules:

Provided that

(i) when the Additional Registrar (O.S.) shall refuse any uncontested application under this rule, it shall, at the request of the applicant or his advocate, be referred to the Judge hearing miscellaneous matters or if the application relates to a matter in execution proceedings, to the Judge hearing such matters; and

(ii) the Additional Registrar (O.S.) may refer to such Judge as aforesaid any matter which he considers to be a fit and proper one to be so referred by reason of its importance or difficulty or novelty or by reason of the order to be made thereon being appealable or for any other cause.

15. Appeal from the Additional Registrar to a Judge- A
party desiring to have any question which has been decided by the Additional Registrar (O.S.) referred to Court, may apply there for within eight days from the date of the order complained of or within such further period as the Judge for sufficient cause may allow even after the expiry of the aforesaid period of eight days. Such application may be made by petition. Nothing in this rule applies to the provisions of Rule 153.

16. Date to be fixed for hearing reference in Court-
When a matter is referred to the Court under the first and the second proviso to Rule 14 or when an application referred to in Rule 15 is made, the Additional Registrar (O.S.) shall fix a date for the hearing in Court and inform the parties or their advocates accordingly.

17. Costs of proceedings before Additional Registrar (O.S.)
Unless the Judge otherwise orders or the Additional Registrar (O.S.) otherwise directs, the costs of all orders passed by and of all proceedings before the Additional Registrar (O.S.) shall be costs in the cause.

18. Additional Registrar (A.S.) to dispose of business in absence of Additional Registrar (O.S.)
In the absence of the 10 Additional Registrar (O.S.), the Additional Registrar, Appellant Side shall, unless otherwise provided by these rules perform all the functions required by these rules to be performed by the Additional Registrar (O.S.), and in such cases the words “Additional Registrar (O.S.)” in Rules 14 to 17 above shall be construed to include the Additional Registrar, Appellate Side.

19. Disposal of applications by the Deputy Registrar-
The Deputy Registrar shall dispose of the following applications:

(1) Applications to record payments out of Court under O. XXI, Rule 2(1) of the Code and also under Rule 2(2) of the Code when no cause is shown; and

(2) Applications for transfer or filing of decrees under O.XXI Rules 5, 7 and 8 of the Code.

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CHAPTER III
THE ORIGINAL SIDE OFFICE
DATES AND CAUSE-LISTS

20. Additional Registrar, (O.S.) to fix dates on Saturday-
(1) Saturdays on which the office of the Court is open the Additional Registrar (O.S.) or, in his absence, the Deputy Registrar shall sit at 12 noon to fix dates in suits or matters pending on the Original Side and shall for the purpose be attended by the Assistant Registrar or one of his assistants.

Dates in interlocutory proceedings in suits or matters shall be fixed by the Assistant Registrar concerned on every Saturday as aforesaid.

(2) The matters adjourned in Court during the week without dates shall be deemed to be adjourned to the following working Saturday for the purpose of dates being fixed.

21. Day for short causes- Short causes shall be set down
for final disposal on such day as the Judge sitting on the Original Side shall appoint.

22. What are short causes? The following suits or matters
shall be deemed to be short causes:

(1) ex parte suits;

(2) undefended suits;

(3) suits in which written statement filed discloses no defence;

(4) suits under O.XXXVII (in which leave to defend has been granted);

(5) mortgage suits, rent suits, suits on bonds or acknowledgements;

(6) objections to commissioner’s report; 12

(7) such other suits or matters as may, by special order of the Judge, be directed to be tried as short causes.

(8) Any other suit or matter shall be deemed to be a long cause.

23. Transfer of short causes to long causes- Any short
cause which the Judge before whom it is set down for final disposal does not think fit to try as a short cause, may be transferred to the long Cause List.

24. Days for execution proceedings, etc- Proceedings in
execution of a decree or order and proceedings under Special Acts when set down for hearing in Court shall be set down for that purpose on such days and before such Judge as the Chief Justice may from time to time by general or special order prescribe.

Explanation:- The following applications and proceedings shall be deemed to be proceedings in execution for the purpose of this Rule:

(1) applications and proceedings under section 47 and O.XXI of the Code

(2) applications for leave to issue execution under O.XXX. Rule 9;

(3) proceedings on the returns of writs or notices issued before or after judgment requiring cause to be shown;

(4) proceedings in execution referred by, or in appeal from the Additional Registrar (O.S.).

25. Fixing of dates for final disposal- (1) Summary suits
under O.XXXVII of the Code shall not be set down for hearing till the expiration of ten days from the date of service of summons. If an application for permission to defend is filed within the ten days, notice shall be given to the plaintiff or his advocate and the suit shall be set down for hearing of the application instead of for final disposal.

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(2) Unless otherwise ordered, long causes in which the defendant has been duly served with summons but is called absent on the date fixed in the summons shall not be set down for final disposal:-

(a) until eight clear days from the service of the summons if the defendant or any of the defendants, as the case may be, resides within the local limits of the High Court;

(b) until fourteen clear days from such service if the defendant or any of the defendants, as the case may be, resides outside the local limits of the High Court but in Pakistan: and

(c) until such time in other cases as the Additional Registrar (O.S.), may fix having regard to the place where the summons is to be served.

(3) In other long causes fifteen days at least shall ordinarily intervene between the settlement of issues and the date for final disposal.

26. Cases to be brought to trial in order of their age-
Subject to Rules 21 and 24 and to any special order in that behalf, in fixing dates for final disposal the Additional Registrar (O.S.) or the Deputy Registrar, as the case may be, shall see

(1) that cases are brought to trial in the order of their age irrespective of their length or difficulty;

Provided that preference may be given so far as is reasonable to:

(i) matters involving probate, letters of administration and succession certificate

(ii) matters in which Government, public servants or soldiers are parties.

(iii) part-heard matters:

(iv) all matters the lack of decision which is delaying decision in other proceedings; and

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(2) that sufficient matters are set down for each day to secure that the day shall be fully occupied.

27. Cause-List- (1) On the last working day in every week a
list of suits, miscellaneous applications and interlocutory applications appointed to be heard on each day of the second following week shall be posted on a notice board and website of the Court, showing the day of the week and date, the number of suit or miscellaneous application, names of parties and the purpose for which they are fixed.

(2) Matters fixed for final disposal on any day of the week shall be entered in the list for that day according to the date of their registration, irrespective of their length or difficulty;

Provided that precedence may be given, so far as is reasonable, to,

(i) matters in which Government, public servants or soldiers are parties;

(ii) matters involving probate, letters of administration and successions certificates.

(iii) part-heard matters;

(iv) commercial suits;

(v) references in income-tax and sales tax; and

(vi) petitions in Company matters when set down for hearing in Court.

(3) The cause-list shall be prepared under the directions of the Additional Registrar (O.S.) or in his absence, of the Deputy Registrar, and signed by him.

(4) If there be more Judges that one on the Original Side, a separate cause-list for the board before each of the Judges shall be prepared and posted in the manner aforesaid.

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(5) Unless the Judge otherwise orders, matters fixed for any day shall be called on the day in the order in which they stand in the cause-list.

28. General Cause List Book- (1) A General Cause List Book
shall be maintained.

(2) The entries shall distinguish suits, execution applications and miscellaneous applications and shall give their numbers and years as registered.

(3) Interlocutory applications shall be entered under the number and year of the proceedings to which they relate and not as independent proceedings.

29. Sealing of summons, order, etc- The seal of the Court
shall not be put to any writ of summons, warrant, order or other mandatory process unless the same is signed by the officer whose duty it is to prepare and make out the same.

30. Duties of Assistant Registrar- The Assistant Registrar
shall perform the following duties:

(1) sign memoranda and attest copies of documents filed therewith:

(2) cancel court-fee stamps;

(3) grant summonses for witnesses not being summonses for the appearance of public officers or for the production of public records, and to sign all civil process;

(4) dispose of applications for the return of documents and other material objects in civil matters after the expiry of the period or disposal of appeal;

(5) dispose of applications by parties for copies and translation and certify copies;

(6) sign registers and diaries and certify decisions and orders to lower Courts;

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(7) be interpreter and attend on the Judge in Court

(8) perform such other duties as are prescribed under these rules or as the Chief Justice may, from time to time, by general or special order direct.

31. Registers- The following judicial Registers shall be kept
on the Civil Original Side by such ministerial officer or officers as the Additional Registrar (O.S.) may, subject to any order of the Chief Justice direct:-

(i) Register of Rejected Plaints;

(ii) Register of Civil Suits;

(iii) Register of documents filed in Civil Suits:

(iv) Register of Miscellaneous Applications;

(v) Register of Wills;

(vi) Register of Decrees received for execution from other Courts; and

(vii) Register of Execution Applications.

(viii) Register of cases referred for Alternate Dispute Resolution (ADR)

32. Arrangement of record in pending matters- The
record of a regular suit shall be divided into the following four parts:-

(i) main file;

(ii) interlocutory file;

(iii) process file; and

(iv) execution file.

33. Contents of each file- (1) In the main file shall be filed
in the following order the

(i) diary;

(ii) plaint together with any schedule annexed thereto;

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(iii) order sheet:

(iv) written-statement;

(v) memorandum of issues;

(vi) all the evidence, including the documents exhibited in evidence;

(vii) application for reference to arbitration, the award of arbitrators, petition of compromise and report of the Commissioner, if any:

(viii) judgment and decree: and

(ix) copy of the judgment and of the decree of the Appellate Court or Courts, if any.

(2) In the interlocutory file shall be filed (i) the index and (ii) all petitions, affidavits and other documents not specified as included in any other file:

Provided that all documents produced in a pending suit or matter shall, until exhibited in evidence, be deposited for safe custody in the safes in charge of the Record-Keeper.

(3) The process file shall contain-

(i) the index;

(ii) powers of attorney;

(iii) summons and other processes and affidavits relating thereto;

(iv) applications for summoning witnesses;

(v) letters, etc. calling for record, etc;

(vi) all other miscellaneous papers.

(4) The execution file shall contain

(i) the diary;

(ii) the execution application;

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(iii) the order sheet;

(iv) processes and other papers connected with such execution proceedings.

34. Binding and title page- The splitting up of the record
and the distribution of the papers into the proper files shall in all cases be done at the outset and shall be continued from time to time as and when they are received; papers in each file shall be paged separately.

The different files shall be kept together.

35. One file in miscellaneous applications- In
miscellaneous applications there may be only one file with a title page prefixed to it. Immediately after the title page, shall be filed the diary, the miscellaneous application, the order sheet and then other documents.

36. Diaries- Diaries shall be kept in Form No.1 in Appendix
A by the Assistant Registrar or his assistant attending in Court. They shall be written legibly. The diary in the main file shall show a concise history of the suit or matter including the substance of the order passed on all interlocutory applications therein. The diary in execution proceedings shall contain a complete record of all proceedings in execution of a decree.

37. Order sheet- (1) The order sheet shall contain all orders
passed by the Court at any hearing.

(2) Orders shall be written in the order sheet in English to be dictated by the Judge which may be typed and placed immediately after the order sheet:

Provided that formal orders may be written by the Assistant Registrar or other officer attending the Court, but they shall be signed by the Judge.

(3) The order sheet shall also contain reference to the number of the page of the application, return, report or other similar document with respect to which an order is made.

(4) Except in the case of such routine orders as “call for the record” “put up with the record” and orders made in chambers, orders 19 shall not be written on applications, returns, reports and other similar documents.

38. Removal of record from Court-house- Member of the
establishment shall not remove any official paper or record whatever from the Court-house without the special sanction of the Additional Registrar (O.S.).

PART II
PROCEDURE ON THE ORIGINAL SIDE

CHAPTER IV
GENERAL PRACTICE AND PROCEDURE

Form of Proceedings

39. Proceedings how written (1) Plaints, written
statements, miscellaneous applications, originating summons and like document presented to the Court shall be correctly written, typewritten or printed fairly and legibly on durable lager foolscap paper or other paper similar to it in size and quality, with an inner margin of about an inch and a quarter wide and with at least an inch and a half of open sheet being left at the top and the bottom of each sheet;

(2) Cause shall be entitled “In the High Court of Sindh” and shall state the jurisdiction (whether Original Civil, Testamentary or Intestate, etc.,) in which it is presented;

(3) Paragraphs shall be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate allegation;

(4) Where Islamic dates are used, shall give the corresponding English dates; and

(5) Where vernacular documents are attached or relied on shall be accompanied with an application for translation into English.

40. Names etc., of parties- (1) The full name, residence
and description of each party and, if such is the case, the fact that any

20 party sues or is sued in a representative character, shall be set out at the beginning of the plaint or miscellaneous application, and need not be repeated in the subsequent proceedings in the same suit or matter.

(2) Names of parties shall bear consecutive numbers and a separate line should be allotted to the name and description of each person.

(3) These numbers shall not be changed, and in the event of the death of a party during pendency of’ the suit or matter, his heirs or representatives, if more than one, shall be shown by sub-numbers. Where fresh parties are brought in, they may be numbered consecutively in the particular category in which they are brought in.

41. Authority to be stated- Every proceeding shall state
immediately after the cause title the Act and section of the Act or other authority under which it purports to be made.

42. Draftsman’s endorsement- At the foot of every
pleading and miscellaneous application there shall appear the name and signature of the person who has drafted it and if the draftsman is not the advocate of the party presenting it also the signature of his advocate, if any, in token of his acceptance of the draft and responsibility thereof.

43. Particulars to be stated in address for service- The
address for service required to be filed under Rules 19 to 26 of O. VII, Rules 11 to 13 of O. VIII, Rule 38 of O. XLI, Rule 8 of O. XLVI and Rule 10 to O. XLVII shall state the following particulars:

(i) the name of the street, lane or section and number of the house (if any);

(ii) the name of the town or village

(iii) the post office; and

(iv) the taluka and district.

44. Initialing alteration etc- Interlineations, erasure or
correction in any pleading, miscellaneous application, execution

21 application or like document shall be initialed by the party or his recognized agent or advocate presenting it.

45. Form of Vakalatnama- Vakalatnama shall be in Form
No. 2 in Appendix A.

46. Execution and attestation of vakalatnama- Execution
of a vakalatnama by a party shall in any case, where a party is illiterate, be by thereon and shall be attested by a person whose presence such thumb impression affixing his thumb-impression is affixed and who shall certify such fact on the vakalatnama under his signature.

47. Endorsement on Vakalatnama (1) Advocate filing a
vakalatnama shall endorse thereon under his own signature the following particulars:

(i) his acceptance and the date thereof’

(ii) his address including e-mail address (if any) for service, his license no. as assigned to him by Sindh Bar Council; and

(iii) the name of the person from whom it is received,

(2) Advocate shall not be entitled to act under a vakalatnama which is not endorsed as herein provided.

48. Notice of change of advocate- Party desiring to obtain
an order for change of his advocate on record in a suit or matter shall first give notice of his intended application for change to that advocate, and the fact of such notice having been served shall be stated in the affidavit in support of such application.

49. Notice of discharge to a client- Advocate on record in
a suit or matter desiring to obtain an order for his discharge, shall first give notice of his intended application for discharge to his client and the fact of such notice having been served shall be stated in the affidavit in support of such application.

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50. Advocate-General and Government advocates not to file vakalatnama
The Advocate-General, the Government advocates in the High Court or any other advocate appearing on behalf of the Federal Government, or the Provincial Government shall not be required to file a vakalatnama.

Affidavits and Oath Commissioners

51. Appointment of Oath Commissioners- (1) The Chief
Justice or the Judge nominated by him may from time to time appoint such person as he may consider fit to be Oath Commissioner specifying the period or periods for which they have been appointed.

(2) The Chief Justice or the Judge nominated by him may in his discretion remove an oath commissioner from his office.

52. Ex-officio Commissioners- (1) The Additional
Registrar, Appellate Side, the Additional Registrar (O.S.), the Deputy Registrar, the Official Assignee, the Nazir, the Readers, the Deputy Nazir and the Assistant Registrar on the Original and Appellate sides shall be ex-officio Commissioners for taking affidavits in respect of matters and causes to be instituted or instituted in the High Court.

(2) The ex-officio Commissioners will sit, in glass fitted cubical with CCTV installed, in rotation to sworn affidavits, in respect of causes to be instituted or instituted in this Court. The credentials of the deponents have to be verified from N.A.DR.A system through online subscribed connection.

53. Fees- Such fees shall be paid for the verification of affidavits
before oath commissioners as may be prescribed from time to time by the committee. Provided the fees shall be charged by ex-commissioners in the shape of adhesive coupon of prescribed fees that shall be available at the counter.

54. Register- Oath Commissioners shall maintain a register or
registers which shall contain the following particulars with respect to each affidavit sworn before them, namely-

(a) Serial number;

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(b) Date and time of making affidavit;

(c) Particulars of the case to which affidavit relates;

(d) On whose behalf the affidavit has been filed;

(e) Full particulars of the person making the affidavit;

(f) Particular of the person identifying him;

(g) Fee paid;

(h) Name of oath commissioner before whom affidavit is sworn; and

(i) Signature of oath commissioner and remarks if any.

The registers shall be open to inspection by the Registrar or any officer nominated by him.

55. Title- Affidavit shall be entitled in the suit or matter in
which it is sworn or affirmed; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant, respectively and that there are other plaintiffs or defendants as the case may be.

56. Form- Affidavit shall be drawn up in the first person and
shall be divided into paragraphs and every paragraph shall be numbered consecutively and, as nearly as may be shall be confined to a distinct portion of the subject. No costs shall be allowed for an affidavit or part of an affidavit substantially departing from this rule.

57. Deponent’s description- Affidavit shall state the name
description, C.N.I.C. number, place of residence and occupation, if any, of the deponent.

58. Endorsement should state on whose behalf filed-
Affidavit shall bear at the head an endorsement stating on whose behalf it is filed.

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59. Source of information to be disclosed- (1) Affidavit
shall express clearly how much is a statement of the deponent’s own knowledge and how much is a statement made on his information or belief and shall also state the source or grounds of the information or belief with sufficient particularity.

(2) When a particular fact is not within the deponent’s own knowledge but is stated from information obtained from others, the deponent must use the expression “I am informed” and should add “and verily believe it to be true” if such be the case. He must also state the name and address of, and sufficiently describe for the purpose of identification, the person or persons from whom he received such information. When the statement rests on facts disclosed in documents or copies of documents, procured from any Court of justice or other source, the deponent shall state what is the source from which they were procured and his information or belief as to the truth of the facts disclosed in such documents.

(3) The documents referred to in such affidavit and as shall be in the possession of the deponent shall be produced in original, unless copies thereof are admissible in evidence or are permitted by the Additional Registrar (O.S.) to be produced pending production of the original and shall bear numbers or letters of identification.

60. Affidavit stating matter of opinion- An affidavit stating
any matter of opinion shall show the qualifications of the deponent to express such opinion by reference to the length of experience, acquaintance with the opinion is with the person or matter as to which the opinion is expressed or other means of the knowledge of the deponent.

61. Scandalous matters- The Court may order to be struck out
from an affidavit a matter which is scandalous, and may order the costs of an application to strike out such matter to be paid as between advocate and client.

62. Alterations and interlineations- Alterations and
interlineations shall, before an affidavit is sworn or affirmed, be authenticated by the initials of the Officer taking the affidavit

25 (hereinafter in this Chapter called the Commissioner) and no affidavit having therein any alteration or interlineations not so authenticated, or any erasure, shall, except with the leave of the Court be filed or made use of in any matter.

63. Affidavit how taken outside Court House- When an
affidavit is required to be sworn or affirmed outside the Court House, a written requisition shall be made to the Additional Registrar, Original Side, along with the fee prescribed in the scale in Chapter IV in Appendix C stating where the Commissioner is required to attend and for what purpose and why he is so required. On receipt of such requisition the Additional Registrar, Original Side, shall, unless he sees any reason to the contrary, require a qualified officer of the High Court to attend as Commissioner at such time as he thinks proper. Fees for attestation done without the precincts of the High Court shall ordinarily be paid to the officer making the attestation provided it is done outside office hours.

64. Reading of contents of affidavit to deponent- (1) The
Commissioner shall, before the affidavit is sworn or affirmed, ask the deponent if he has read it and understood its contents. If the deponent says that he has not read the affidavit or is ignorant of the language in which it is written, or appears to the commissioner to be illiterate, blind or not otherwise able to understand the contents thereof, the Commissioner shall read and explain the affidavit to the deponent in a language which he understands.

(2) If it is necessary to employ an interpreter for this purpose, the interpreter shall be sworn to interpret truly.

(3) When an affidavit is read, translated or explained as hereinabove provided, the Commissioner shall certify in writing at the foot of the affidavit that it has been so read translated or explained by him or in his presence, as the case may be, and that the deponent appeared fully to understand the same at the time of swearing or affirming the affidavit and made his signature or thumb-impression in his presence.

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(4) Where an interpreter is employed, he shall swear or affirm an affidavit that he is thoroughly conversant with the language in which the affidavit is written and the language spoken by the deponent and that he truly and accurately interpreted and explained the affidavit.

65. Endorsement of the Commissioner- The
Commissioner shall endorse at the foot of the affidavit the date on which and, in the event of the affidavit having been taken elsewhere than in the Court House, the place where the affidavit is taken, and shall sign his name and description at the end and initial each page.

66. Identification of deponent- Where the deponent of an
affidavit is personally known to the Commissioner, the fact shall be stated in the attestation. Otherwise, the affidavit shall be attested by some person who knows the deponents personally and is also known to the Commissioner personally.

67. Pardanashin woman- Where the deponent is a
pardanashin woman, she shall be identified by a person to whom she is known and before whom she is accustomed to appear unveiled, and such person shall, at the foot of the affidavit, certify that the deponent was identified by him and sign his name thereto, and shall also prove such identification by a separate affidavit.

68. Exhibits to be initialed and dated- Exhibits annexed to
any affidavit shall be initialed and dated by the Commissioner.

69. Form of certificates- The endorsements on the affidavit
shall be as in Form No. 3 in Appendix A.

70. What affidavit shall not be used in evidence? An
affidavit not sworn or affirmed in the manner hereinbefore provided shall not be used in evidence.

71. Use of defective affidavit- The Court may receive any
affidavit sworn or affirmed for the purpose of being used in any suit or matter, notwithstanding any defect due to a miss-description of parties or otherwise in the title or any other irregularity in the form thereof, and may make a memorandum on the affidavit that it has been so received.

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72. Special time for filing affidavit- Where a special time
is allowed for filing an affidavit, no affidavit filed after that time shall be used unless by the leave of the Court obtained on an application made in that behalf.

73. Proof on affidavits- (1) Unless otherwise provided by
these rules or ordered by the Court, any facts required to be proved in the following matters may be proved by affidavit:

(a) the Succession Act, 1925, and the Guardians and Wards, Act, 1890;

(b) suits in which defendants do not appear when called on for hearing;

(c) interlocutory application; and

(d) proof as to the ability of the judgment-debtor to pay the decretal amount in execution applications for arrest, where the judgment-debtor does not appear at the hearing though served with notice.

Explanation- For the purpose of this Rule, an application under Rules 58, 89,90, 97, 99 or 100 of O. XXI of the Code shall be deemed to be an interlocutory application.

(2) Nothing in this rule shall be deemed to affect the provisions of section 12 of the Sindh Agriculturists’ Relief Act 1879, or limit or otherwise affect the power of the Court to order or permit proof by affidavit in other cases as provided in Order XIX of the Code.

74. Interpretation-The word “Affidavit” in this chapter except in
rule 57 shall include Plaint, Written Statement, Petition, or other document required to be sworn; and the word “swear” and ‘sworn’ shall include “affirm” and “affirmed” respectively.

Interlocutory Proceedings

75. Form- Interlocutory application shall be entitled in the
suit or matter in which it is filed.

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76. Contents thereof- (1) Except where otherwise provided
by these rules or by any law for the time being in force, an interlocutory application:

(a) shall contain only one prayer or one series of alternative prayers of the same kind;

(b) shall not contain any argumentative matter;

(c) shall be supported by affidavit stating clearly the grounds and the facts on which the application is based; and

(2) An application not in accordance with this rule shall be returned for amendment.

77. Counter-affidavits, etc- (1) Unless the Court in its
discretion extends or abridges the time, counter-affidavits must be filed not less than 4 days before the hearing.

(2) Not more than one affidavit in rejoinder may be filed without the leave of the Court and that not less than 2 days before the hearing unless the Court in its discretion extends or abridges the time. Such affidavit shall be confined strictly to matter of reply in response to the contents of the counter affidavit.

(3) Counter-affidavit and affidavit in rejoinder shall not be filed unless a copy thereof and copies of accompaniments thereto has been previously served on each party or his advocate if a party or his advocate served with such copies shall give a receipt thereof. Copies shall be authenticated by the signature of the parties or their advocates, if any, on each page at the bottom of the left hand margin.

(4) Except by leave of the Court, no affidavit in support of an application no counter-affidavit and no affidavit in rejoinder beyond those which are filed and copies of which with accompaniments thereto are served in time as aforesaid shall be used at the hearing, or allowed on taxation.

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(5) Where any affidavit, counter-affidavit or affidavit in rejoinder is not filed and served as aforesaid, it shall be filed separately in the record of the case until leave of the Court has been obtained under sub rule (4).

78. Procedure in applying for interim relief-
Notwithstanding anything contained in Rule 123, the plaintiff may move the Court ex-parte for interim relief on the ground of urgency and the Court on such application may, if it shall think fit grant interim relief on such terms as shall seem just

Receivers

79. Application for appointment of receiver to be by petition supported by affidavit
Application for the appointment of a receiver shall be made by petitioner supported by affidavit.

80. Form of order of appointment- The order appointing a
receiver may be in Form No. 4 in Appendix A, or in such other form as the Court may direct.

81. Register of receivers- An order for the appointment of
a receiver being drawn up and filed, an entry shall be made in a register in Form No.1 in Appendix B, to be kept for that purpose. A copy of the order of appointment shall be sent to the receiver.

82. Receiver other than Official Receiver to give
security Where an order is made directing a receiver to be appointed, the person appointed, if not the Official Receiver, shall unless otherwise ordered, first give security to the satisfaction of the Nazir for the due performance of his duties as receiver. Unless the Court otherwise orders, the Nazir shall take the recognizance of the receiver himself and two sureties and the amount of the bond shall be double the annual rental of any immovable property, or the value of the movable property, which is likely to come into the hands of the receiver. Such annual rental or value shall be estimated after notice to the parties and the receiver, and in case of disagreement the matter shall be placed before the Additional Registrar (O.S.) for orders.

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83. Surety may point out omission or neglect of duty cast on receiver
If the security mentioned in Rule 82 be furnished by the receiver by his executing a bond with a surety or sureties (including in the latter term a Guarantee.), the surety or sureties shall be entitled, by an application, to bring to the notice of the Court any act, omission or neglect of any duty cast on the receiver by law or any other circumstances, which would entitle the surety or sureties to be discharged from the obligation created by such bond and the Court may thereupon make such order and on such terms as it may think fit.

84. Notice to surety of application affecting surety’s risk
The surety or sureties mentioned in Rule 82 shall be entitled to notice of any application to the Court on the part of the receiver or any party interested relating to any property in the management or under the control of the receiver which may affect the risk undertaken by the surety or sureties under the security bond furnished by the receiver and the Court upon hearing the said surety or sureties may make such order as to his or their cost of appearance in such application as it may think fit.

85. Powers of a receiver- In the absence of any order in
that behalf, every receiver of immovable property shall have all the powers of an owners specified in Order XL, Rule 1 (d) of the Code except that he shall not, without the leave of the Court, (1) grant leases for a term exceeding three years, or (2) bring suits, except suits for rent, or (3) institute an appeal in any Court (except from a decree in a rent suit), where the value of the appeal is over Rs. 1,0000/-, or

(4) expend on the repairs of any property in any period of two years more than half of the net annual rental of the property to be repaired, such rental being calculated at the amount at which the property to be repaired would let when in a fair state of repair.

86. Receiver’s remuneration- A receiver shall be allowed such
remuneration not exceeding the rates prescribed in Chapter III in Appendix C as the Court may order, and may also be allowed the necessary expenses of management.

87. Establishment and costs thereof to be detailed in the appointment order
The establishment, clerical or otherwise,

31 required by a receiver in addition to his ordinary establishment, if any, and the cost thereof chargeable to the estate or property of which he is appointed receiver, shall as far as possible be detailed in order of appointment or subsequent order.

88. No charge for additional establishment allowed- Unless
otherwise ordered, no charge for any establishment in addition to his ordinary establishment, if any shall be allowed to the receiver.

89. Receiver, to file half-yearly accounts- Receiver shall,
unless otherwise ordered, file his half-yearly accounts in Court, the first of such accounts to be filed within one month after the expiration of six months from the date of his appointment, and every subsequent account within one month after the expiration of each succeeding period of six months, or in a case where the purpose for which the receiver was appointed has been carried out or completed before the expiry of six months from the date of appointment, within one month from the date of carrying out or completion.

90. Account to show balance in hand and how much may be paid into Court, etc., to be filed with affidavit. Form of affidavit
may be paid into Court, etc., to be filed with affidavit. Form of affidavit- Unless otherwise ordered, every such account shall show what the balance in hand is, whether any, and if so what portion thereof is required for the purposes of the estate, and how much may be paid into Court or invested, and shall be filed together with an affidavit verifying the same in Form No. 5 in Appendix A.

91. Examining and vouching of accounts by officers-
Such account, before being submitted to the court, shall be examined and vouched for by the Deputy Registrar or such other officer as the Court may either generally from time to time, or particularly with reference to a particular estate or account, appoint for that purpose. Such officer shall have all the powers of the Official Commissioner of the Court and may require the attendance of the receiver or his explanation or his evidence upon oath or affirmation, or the production of any document by him and receive within such time as he may appoint and decide objections to the account and shall embody the result of his examination in a report.

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92. Appointment for passing accounts-Notice thereof-
After the officer shall have submitted his report to the Court under Rule 90, he shall obtain a date from the Court for passing such accounts, of which date notice shall be given to the parties, the sureties and to the receiver.

93. Objections to report to be filed- Objections if any to
the report shall be filed in Court one week before the day fixed for the passing of the accounts or within such further time as may be allowed by the Court. They shall specify in a concise form the nature of the objections and shall be signed and verified.

94. Passing of accounts by Court- Where no objections
are filed, the Court shall, if otherwise satisfied, pass such accounts. Where objections have been filed, the Court shall, subject to rule 93, after hearing the objections make such order as it may think proper.

95. Procedure as to hearing of objections- The Court
may, from time to time, adjourn the hearing of any objections or may refer them to an officer of the Court, or to any other person, with such directions as the Court may deem fit.

96. Auditing of difficult and complicated accounts- In a
case where the accounts are difficult and complicated, the Court may order such accounts to be audited at the expenses of the State by a Registered Accountant enrolled on the Register of Accountants maintained by the federal Government under the Auditors Certificate Rules, 1950.

97. Order as to payment of balance- The Court, on the
passing of the accounts, may make such order as to the payment of the balance, or any part thereof, either into Court or in such other manner as may seem proper.

98. Consequence of receiver’s negligence to file accounts or pay the balance, etc
Where any receiver other than the Official Receiver neglects to file his accounts, or to pass the same or to pay the balance or any part thereof as ordered, the matter shall be reported by the officer mentioned in rule 92 to Court and the Court may, from time to time, when the accounts of such receiver are

33 produced to be examined and passed, not only disallow the remuneration therein claimed by such receiver but also charge him with interest not exceeding nine per cent per annum upon the balance if any, so neglected to be paid by him during the time, such balance shall appear to remain in the hands of such receiver.

99. Consequence of default by receiver- Where a
receiver other than the Official Receiver fails to file an account or affidavit, or to make any payment or commits any other default, the receiver or the parties, or any of them, may be required by notice to attend the Court to show cause why such account or affidavit has not been filed or such payment made, or any other proper proceeding taken, and thereupon the Court may give such directions as may be proper, including the discharge of any receiver and appointment of another and also the payment of costs by the defaulter.

100. Rule 87 applicable to manager or guardian- Rule 87
shall apply to a manager or guardian of the person or estate of a minor and a committee of the estate of a lunatic appointed by the Court where a Government official is appointed as such manager or guardian or a committee member.

101. Interim receiver- The provisions of Rules 80 to 99 shall
apply mutates mutandis to orders for appointment of interim receivers.

Security Procedure

102. Security summons- Where security is ordered to be
given to the satisfaction of the Nazir, the party ordered to give security shall take out a summons in Form No.6 in Appendix A and shall serve the summons upon the opposite party within 24 hours of the order if no time has been fixed by the Court for giving security, or if time has been fixed for giving security, not less than one clear day before the expiry of the time so fixed.

The summons shall state the name and address of each surety to be tendered and the description of property in respect of which each surety will offer to justify:

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Provided that it shall not be necessary to take out the summons-

(1) where the Court has ordered security to be furnished forthwith and directed the parties concerned to appear before the Nazir to proceed with the taking of the security and the examination into the sufficiency of the surety or sureties tendered; or

(2) where cash or Government Promissory Notes of the amount or value of the security required have been paid into or lodged in Court to the credit of the suit or matter in which security is to be given to a separate account.

103. Production of title deeds; affidavit of justification, examination
A person offering himself as surety shall produce before the Nazir his title deeds and vouchers and shall be examined by him on oath or solemn affirmation, touching the value of his property, and the debts and liabilities to which it is subject. After being examined and allowed, the surety shall swear or affirm and file his affidavit of justification and sign the bond and shall deposit his title deeds and vouchers:

Provided that in cases where the amount of the bond does not exceed Rs.5000/-, the Nazir, and where the amount does not exceed Rs. 25,000/-, the Additional Registrar (O.S.), and in other cases the Court may, on good cause shown, dispense with the deposit of title deeds and vouchers.

104. Contents of affidavit of justification- Affidavits of
justification shall be deemed insufficient unless it state that each person justifying is worth the amount required by the Nazir over and above what will pay his just debts and over and above every other sum for which he is then surety, and that his property is unencumbered.

105. More than two sureties irregular- A tender of notice of
more than two sureties shall not be accepted except by order of the Court.

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106. Property in respect of which a surety may justify-
The title deeds may relate to immovable property situate beyond the local limits of the ordinary jurisdiction of the Court, but shall in all cases be in the name of the proposed surety. A surety may justify also in respect of movable property of which he can produce evidence satisfactory to the Nazir, such as deposit receipts, Government Promissory Notes, National Saving certificates or other evidence of title.

107. Who are not competent sureties? An agriculturist, and
unless the Court otherwise orders, an advocate practicing within the local limits of the jurisdiction of the Court, a clerk of such advocate, or a partner, assistant, clerk or other employee of any person tendering security, or of any person proposed as surety, shall not be accepted as surety to a bond.

108. Who may be present at the examination? No person
other than the party giving security, the sureties and their respective advocates, the party or parties, if any, on whom notice has been served and his or their advocate or advocates, shall be present at the examination of any surety by the Nazir.

109. Reference to Court- In cases in which the security is
disputed or challenged, the Nazir shall make an order in writing and shall, if so required, refer it to the Judge.

110. Security for costs- If a party is required to give security
for costs; unless the Court otherwise orders, the penal sum in the bond shall be twenty five thousand rupees.

111. Custody of securities and security bonds- Papers
and records relating to the taking security including securities and security bonds, shall be kept by the Nazir in safe custody in his safe in the strong room after making, an appropriate entry in a register to be maintained by him in Form No. 2 in Appendix B. The Nazir should also note on the case papers, below the Court’s order which has to be permanently preserved, that he has taken the required security

36 mentioning also the names of the principal and the surety and the amount.

MISCELLANEOUS

112. Urgent motions- Motions shall ordinarily be made to
the Judge nominated for the purpose on such days as may, from time to time, be prescribed, but if urgent; they may be made on any day.

113. Oral motions- Except as otherwise expressly provided
by these rules; motions may be made orally in matters of routine or indulgence or in matters wholly within the discretion of the Judge or Judges.

114. Urgent matters- Precedence shall be given to urgent
matters and the officer receiving them shall forthwith enter thereon also the hour of presentation. Each ministerial officer of the Court, through whose hands such matters pass, shall in his turn put his initials and the hour of receipt and passing on by him.

115. Only one Advocate to be heard for a party- No more
than one advocate shall be heard on behalf of each party or set of parties,

Provided that the opening address and the reply may be made by different advocates.

116. Notice of proceedings to Advocate-General- (1) In a
suit in which it appears to the court that any substantial question as to the interpretation of constitutional law is involved, the court shall not proceed to determine that question until after notice has been given to the Attorney General for Pakistan if the question of law concerns the Federal Government and to the Advocate General of the province if the question of law concerns a provincial Government.

(2) The court may at any stage of the proceedings order that the Federal Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to interpretation of Constitutional law if the Attorney General for Pakistan or the Advocate General of the Province as the case may be, whether upon receipt of notice under sub rule1, or otherwise, applies for such addition and the court is satisfied that such addition is necessary or

37 desirable for the satisfactory determination of the question of law involved.

CHAPTER V
INSTITUTION OF PROCEEDINGS

117. Appearance by agent- (I) When a party appears by a
recognized agent other than an advocate, the agent shall, before making or doing an appearance, application or act in or to the Court, file in the Court a power-of-attorney, if it is not already filed; or, in the case of an agent carrying on a trade or business on behalf of a party, file an affidavit stating the residence of his principal, the trade or business carried on by the agent on his behalf and the connection of the same with the subject matter of the suit or matter and further that no other agent is expressly authorized to make or do such appearance, application or act.

(2) The Additional Registrar (O.S) shall examine the power-of-attorney and, if it contains the necessary powers, shall make an entry to that effect at the foot of the proceeding and return the power-of-attorney. Provided always that a party shall, on receiving notice requiring him to do so, forthwith produce and leave such power-of attorney at the office of the Additional Registrar (O.S) for inspection by the opposite party or his advocate.

118. Leave to verify- When application is made for the Court’s
permission to a plaint or an application being verified by some person other than a plaintiff or person on whose behalf the application is made, the application shall be accompanied by an affidavit of the person proposing to verify, showing clearly his connection with the facts alleged in the plaint or application.

119. Suit against corporation or a firm- Where a corporation
or a firm is sued as a defendant, the plaint shall be accompanied by a separate application under O.XXIX rule 2 or O.XXX Rule 3 of the Code as the case may be, duly stamped stating where, in what manner and on whom the plaintiff wishes the summons to be served.

120. Copies to be filed of applications etc- A party presenting
a Plaint or an application of which a notice is to be issued by the court to any person, shall file with it in Court a sufficient number of copies

38 thereof and of the affidavit in support thereof and other documents filed therewith, if any, for service on the person concerned along with the summons or notice.

Where notice of an interlocutory application is served by a party or his advocate under rule 5, a copy of application and affidavits and other documents, filed therewith, if any, shall also be served along with the notice.

The aforesaid copies shall show the date of presentation of the original and the name of the advocate, if any, of such party.

121. List of presumptive legal heirs to be filed- In every suit,
the plaint shall be accompanied by a statement giving:

(a) the names and addresses of the persons who, in the event of the death of the plaintiff, may be made a party as his legal representatives;

(b) the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the court and furnish the court with the names, particulars and addresses of the legal representatives of the plaintiff and make an application for the legal representative to be made a party.

122. Presentation of proceedings on Original Side- (1)
Plaints and execution applications shall be presented to the Additional Registrar (O.S) including application for leave to sue in forma pauperis and insolvency petitions under section 10 of the Insolvency (Karachi Division) Act, (III of 1909). All other proceedings including written statements, applications, affidavits and documents shall be presented to the Assistant Registrar concerned or to such officer as may be appointed by the Chief Justice for that purpose.

(2) The officer concerned shall forthwith enter and initial the date of receipt on the proceedings and attest documents or copies of documents filed therewith and cause the Court fee stamps to be cancelled.

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123. Examination of proceedings-(1) The officer concerned
shall examine the proceedings in the order in which they are presented.

(2) If any proceeding is not in proper form, is not properly stamped or is otherwise defective, he shall endorse the objections thereon and return it to the person presenting it for compliance thereof within a time to be prescribed by him.

124. Admission of plaints- If a plaint filed is in order if the
objections, if any thereto have been complied with

(i) It shall be admitted with the words “Admitted this day. Issue summons,” endorsed thereon and dated and initialed by the Additional Registrar, (O.S.). The Deputy Registrar (O.S) shall fix a day for the defendant’s appearance and shall cause a summons to be prepared and issued upon payment by the plaintiff of the proper process fee for service of summons;

(ii) Translation fees, if any, shall be paid to the Head Translator within seven days of the date of the order admitting the plaint or within such further time as may be allowed by an order in writing of the Additional Registrar (O.S.).

125. Plaint liable to be rejected to be submitted to Judge hearing miscellaneous matters
If a plaint is liable to be rejected under O. VII, Rule 11 of the Code, the Additional Registrar (O.S) shall note thereon the reasons for its rejection and submit it for the orders of the Judge hearing miscellaneous matters.

126. Admission or rejection of execution application- (1)
If an execution application is not in order or if it is liable to be rejected under O.XXI, Rule 17 of the Code, the Additional Registrar (O.S) shall submit it to the Court for orders after noting thereon his reasons for its rejection.

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(2) The court may reject the application, or may allow the defect to be remedied then there or within a time to be fixed by it.

127. Notice to the other party- Except in cases in which party
is entitled as a matter of right and of course to the order asked for in a petition, notice shall ordinarily be issued to the other party interested to show cause why the order asked for should not be granted. If a party making an application desires that the order asked for be made without notice to any other party interested, reasons for making the order without such notice shall be set out in the petition.

128. Registration of proceedings admitted- On the
admission or rejection of plaints, miscellaneous applications and execution applications, they shall be registered in the appropriate registers and their number entered thereon and on the title page, and documents produced therewith shall be received into safe custody and registered.

129. Procedure for return of plaint- On returning a plaint, the
Additional registrar shall endorse thereon the date of its presentation and return, the name of the party presenting it, and brief statement of the reasons for returning it.

130. Ex-parte amendments- Amendments in pleadings, which
are made only for the purpose of rectifying some clerical error or errors in names, dates or sums, may be made on an order of the Additional Registrar (O.S.), without notice.

131. Amendments how to be made- Subject to the
provisions of O.I., Rule 10 (4) of the Code, if in any amendment the new matter can conveniently be entered on the original proceeding, such proceeding shall be amended by an interlineation or if the amendment be by omitting some original matter, the same shall be struck out of the record. Such amendment or variation shall be made in red-ink and shall be initialed by the Additional Registrar (O.S.) in all other cases an amended proceeding shall be filed and annexed to the original.

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132. Attestation of amendment- The attestation of an
amendment under O.II Rules 6 and 7, O.VI Rules 16 and 17, and O.XXI Rule 17 of the Code shall, unless otherwise ordered by Court, be done by the Additional Registrar (O.S).

CHAPTER VI
PROCESSES

133. Time for payment of process fee and consequence of nonpayment
Process fees for the issue of summon, notice or other process and costs of advertisements shall be paid at the rate prescribed in chapter I of Appendix C, to the Nazir within seven days from the order directing such summons, notice, process or advertisement to issue or within such further time as may be allowed by an order in writing of the Additional Registrar, (O.S.). In default of such payment, the plaint or application shall be struck off by the Additional Registrar, (O.S.), who shall make an endorsement to that effect on the plaint or application and sign it. The plaintiff or applicant or his advocate presenting the plaint or application is expected to ascertain and shall be presumed to know the date of the order directing the issue of the process or advertisement.

134. Restoration- A plaint or miscellaneous application struck
off the file under the last preceding rule may be restored to the file, as of the date on which it was originally filed; on the application of the plaintiff or applicant and on sufficient grounds being shown to the satisfaction of the Additional Registrar (O.S.).

135. Fresh plaint- When a Plaint or miscellaneous application
is so struck off the file, the plaintiff or the applicant shall be at liberty subject to the law of limitation to present a fresh Plaint or miscellaneous application for the same matter.

136. Parties or their advocates may file processes duly filled up
Parties or their respective advocates may, on receiving intimation of receipt of orders for issue of process, prepare correctly on forms supplied by the Court, the Court copies of processes and the necessary copies thereof for service and enter thereon the value of the claim. They shall present them to the Assistant Registrar concerned and shall be responsible for the accuracy of the information entered

42 therein. The Assistant Registrar shall, after scrutinizing the copies so prepared and completing them where necessary, transfer the Court copies for payment of process and traveling expenses and subsistence money if any according to the prescribed scales to the Nazir. If the amounts due have been or are paid, the Court-fee stamps shall be affixed to the copies and the copies shall be retransferred with endorsements as to payment by the Nazir. Thereupon the Court-fees stamps shall be cancelled and the necessary copies for service shall be sent for service as hereinafter prescribed, if the amount due is not paid within the time prescribed by Rule 133, the copies shall be retransferred, with endorsements to that effect, by the Nazir, and shall be filed in the record.

137. When process fee not to be levied- Process fee shall
not, however, be levied in respect of process received for service from other Courts in Pakistan, where it is certified on such process that the proper process fees have been levied according to the rules in force in such Courts; nor shall process fee be levied in respect of process received for service from Courts outside Pakistan to which the provisions of section 29 of the Code apply, whether or not the levy of the proper process fees has been so certified by such Courts.

138. Full address to be given of persons on whom process to be served
Persons on whom processes are to be served or executed shall be described therein fully by a statement of the name, father’s name and surname (if possible), occupation, address and such further particulars as well facilitate identification and service. In the case of service and execution of process in towns, the name of the street, lane or section and the number of the house (if any), shall also be given.

139. Process for service on persons of rank and gazetted officers
(1) Processes for service on persons of high rank shall be sent to them direct in the form of a letter.

(2) Processes for service on gazetted officers shall be sent in the form of a letter addressed to the heads of their offices. But in special cases, for reasons to be recorded in writing, they may be sent direct to them. In the latter cases, the Additional Registrar (O.S.) shall

43 give intimation to the head of the office concerned with notice of the date for which the gazetted officer has been summoned.

140. Summons for final disposal and settlement of issues
Summons shall issue for final disposal in short causes and for settlement of issues in long causes.

141. Returnable date of summons- Unless otherwise
ordered, every writ of summons shall be made returnable as follows-

(1) if the defendant or the defendants reside within the local limits of the Court, in three weeks from the date of the admission of the plaint;

(2) in all other cases, within such time as may be considered sufficient for the transmission, service and return of the summons.

142. Processes to be served or executed within jurisdiction to be addressed to Head Bailiff
Processes for service or execution within jurisdiction shall be issued, as soon as they are ready, to the Head Bailiff for service or execution:

Provided that process for service under O.XVI Rule 7A, may be issued to the party for service and receipt obtained on the application for summons.

143. Endorsement on process for service outside jurisdiction
Processes for service outside jurisdiction shall be endorsed with the fact of payment of process fees according to the rules in force within jurisdiction and shall be sent with the travelling and subsistence money, if any.

144. Process to be served without identification by party-
The serving officer shall serve all processes entrusted to him without the aid of the party at whose instance the process is issued and after due enquiry as to the identity of the person on whom, or the house or property where, the same is to be served:

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Provided that if it appears to the Additional Registrar (O.S.) or in his absence to the Deputy Registrar that sufficient information cannot be given as to the identity and place of residence of the person on whom process is to be served, or as to the house or property where process is to be served, or if the Additional Registrar (O.S.), or in his absence the Deputy Registrar is satisfied from the affidavit of the serving officer or upon his examination on oath (if necessary) that the person or the house or property or the place of residence of the person aforesaid could not be identified after due diligence and enquiry, he may ask the party concerned to supply an identifier.

145. Endorsement of identifier on the original process- If
the serving officer is not personally acquainted with the person to be served, he shall, whenever possible, obtain on the original process the endorsement by signature or thumb-impression of a respectable person of the locality identifying such person or place of residence or the house or property on which the process is served, and also obtain photo copy of CNIC.

146. Procedure where defendant refuses to accept service or cannot be found
Where the person to be served refuses to sign the acknowledgement or cannot be found, the serving officer shall whenever possible, before affixing a copy of the summons on the outer door of the house of such person, obtain on the original process the endorsement by signature or thump-impression of at least one respectable person of the locality in support of such fact, and also obtain photo copy of CNIC.

147. Return of service- (1) Process serving officer shall
immediately after completion of a duty connected with a process, record with his own hand upon the original process at the place of execution and in the presence of witnesses (if any) his report specifying the manner of execution or the causes which prevented execution. Such report shall be sworn or affirmed before the Nazir or the Deputy Nazir and shall, together with the process, be filed in the record.

(2) Process serving officers must invariably note the date hour and exact place of service of each individual process.

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(3) If the process is addressed to more than one person, the report shall describe the manner of service on each person and also the sequence in which the processes are served on different persons.

148. Service by affixing to outer door- If a process is affixed
to the outer door of the house in the absence of the person to be served, the serving officer shall make an affidavit as to the following matters:

(1) the number of times and the dates and hours at which he went to the house;

(2) the attempts made by him to find the person to be served;

(3) whether he had any, and what reason to suppose that such person was within the use or in its neighborhood, or endeavoring to evade service;

(4) whether any adult male member of the family of the person to be served was residing with him.

149. Notice where summons is affixed to outer door- If a
summons to a defendant is affixed to the outer door of a house, the serving officer shall affix therewith a notice that the person so served can, upon application to the Court, obtain a copy of the plaint, and shall in his return state that he has done so and shall return the plaint to the Court. If the summons has been sent by another Court for service and the defendant does not apply for the said copy before the summons is returned to the said Court, it shall be returned to that Court along with the summons.

150. Inquiry as to sufficiency of service- The Additional
Registrar (O.S.) shall hold an inquiry as to the sufficiency of service of process in all cases in which it has been returned and in which an appearance has not been entered on the day appointed therefore in such process by or on behalf of the person or persons against whom it has been issued.

46 Such inquiry may be adjourned, if necessary, from time to time. Affidavits and further affidavits may be received or evidence taken viva voce at such inquiry.

151. Fresh process not to Issue until previous one returned
Unless otherwise ordered, a second or subsequent process shall not be issued until after the one previously issued has been returned.

152. Acts of Additional Registrar (O.S) to be effectual as acts of Court
The acts which may be done by the Court under O.V., Rules 19, 20, 21 and 21-A of the First Schedule to the Code may be done by the Additional Registrar (O.S.) and service of process as may be ordered by the Additional Registrar (O.S.) shall be as effectual as if the same had been ordered by the Court.

CHAPTER VII
SUITS BY OR AGAINST MINORS AND PERSONS
OF UNSOUND MIND

153. Admission of next friend to bring a suit, Order not
necessary When a suit is brought on behalf of a minor the next friend shall make an affidavit, to be presented with the plaint in the suit, that he has no interest directly or indirectly adverse to that of the minor, and that he is otherwise a fit and proper person to act as such next friend. The age of the minor shall also be stated. No formal appointment of the person instituting the suit as next friend need be made.

154. Next friend to file address for service- (1) Unless the
next friend is a public officer of a ministerial officer of the Court, he shall file along with the plaint a memorandum in wiring stating his address for service. Next friend appointed under sub-rule (2) of Rule 9 or under Rule 10 of Order XXXII of the Code shall, immediately on being so appointed, file his address for service.

(2) If the next friend fails to file his address for service as aforesaid or within such further time as the Additional Registrar (O.S.) may allow, the plaint shall not be admitted or, if it has already been 47 admitted, such failure may be deemed to be sufficient cause for removing him under Rule 9 of Order XXXII of the Code.

155. List of likely guardians ad Iitem to be filed- (1) In
suits where the defendant is a minor, the plaintiff shall file with the plaint a list of persons (with correct addresses) who are suitable for appointment as guardian ad Iitem.

(2) A notice shall be issued in Form No. 8 in Appendix A, simultaneously on two or three such person, single process fee being levied, such persons shall be deemed to be unwilling to act as guardian ad Iitem, if they do not sign the certificate at the root or the prescribed notice, or having signed it, fail to appear, after service or notice, on the date fixed;

(3) if the person specified in the list filed under sub-rule (1) are unwilling to act as guardian ad Iitem, the Additional Registrar (O.S.) may, if there be more defendants than one and their interests are not adverse to the minor, appoint one of such defendants who may be willing to act as guardian ad litem; or may appoint forthwith one of the officers of the Court as such guardian ad Iitem.

156. Address for service of guardian ad litem- Every
guardian ad litem other than a public officer or a ministerial officer of the Court, shall, within seven days of the order of his appointment as such or such further time as the Additional Registrar (O.S.) may allow, file in Court a memorandum in writing stating his address for service. Failure on his part to do so may be deemed sufficient ground for removing him under Rule 11 of O.XXXII of the Code.

157. Duty of the Officer of the Court appointed guardian ad litem
When an officer of the Court is appointed guardian ad litem; he shall communicate with the minor, if of an age to understand, and with the minor’s relations if any, in order to ascertain what defence ought to be made; and he shall appear at the hearing and explain to the Court the steps taken.

158. Application of Rules 154 to 158 to persons of unsound mind and to appeals and applications
The provisions contained in Rules 154 to 158, so far as they are applicable, shall extend to person adjudged to be of unsound mind, and to persons 48 who, though not so adjudge, are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued; and shall also apply to appeals and applications.

CHAPTER VIII
APPEARANCE BY DEFENDANT-WRITTEN
STATEMENT, COUNTER CLAIM

159. Hearing of applications- The Additional Registrar
(O.S.) on being satisfied as to due service of the notice of an application on the defendant(s) or respondent(s) shall, if or as soon as the application is ripe for hearing and disposal, proceed to dispose of it, if it is one which he is empowered to deal with himself or shall set it down for hearing and disposal in Court on the next or some subsequent miscellaneous business day.

160. In default of appearance of defendant suit to be posted on short cause day
If on the day fixed for his appearance in the writ of summons the defendant does not appear and it is proved that the summons was duly served, the suit shall, whether the summons was issued for final disposal or not, be set down for final disposal on the next or some subsequent short cause day.

161. Procedure when defendant appears- If the defendant
appears personally or by an advocate before or on the day fixed for his appearance in the writ of summons

(1) if the summons had been issued for final disposal, the suit shall be set down for final disposal on the next or subsequent short cause day;

(2) if the summons had been issued for settlement of issues, the defendant shall be directed to file his written statement within fourteen days of such appearance, unless the Additional Registrar, (O.S.) for sufficient reasons, allows more than fourteen days time for the purpose.

162. Ordinarily one extension allowed for filing W.S.
Ordinarily not more than one extension shall be granted to the defendant for filing a written statement:

Provided that a second or any 49 further extension shall be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit.

Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days.

163. Procedure where no written statement filed by any defendant
If the defendant(s) in a suit shall have failed to file his or their written statements within the time allowed under Rule 158 or any time extended by order, the suit shall be set down for final disposal by the Additional Registrar (O.S) on the next or subsequent short cause day. Should the defendant or one or more of several defendants then appear and show good cause of his or their default, he or they may be allowed to defend on payment of costs to the plaintiff not exceeding ten thousand rupees and the suit may be transferred to long causes or may be postponed.

164. Procedure if written statement; not filed by some of the defendants
If in a suit where there are more defendants than one, any defendant shall have failed to file his written statement within the time fixed under Rule 158 or any time extended by order, he shall not be allowed by the Additional Registrar (O.S) to appear and defend except with the leave of the Court upon such terms as to the filing of his written statement, giving discovery and the payment of costs of adjournment as a condition precedent to leave to defend or, otherwise, as the Court may order, or upon such other terms as the Court may think proper.

165. Service of copies of written statement and list of documents on the other side
Written statement or list of documents shall not be filed without the leave of the Court unless a copy thereof has been previously served on each party or his advocate, if any. Parties or their advocates served with such copies shall give a receipt therefore. Copies shall be authenticated by the signature or initials of the parties or their advocates, if any, on each page at the bottom of the left hand margin.

166. Court may disallow set-off- Where a defendant pleads
a setoff under O.VIII, Rule 6 of the Code, the Court may, on the

50 application of the plaintiff made in that behalf at any stage of the proceedings and after hearing the defendant, make an order directing the claim for set-off may be tried separately and may make such other order as shall be just.

167. Counter claim, by defendant- (1) A defendant in a suit,
in addition to his right of pleading a set-off under O.VIII, Rule 6 of the Code, may set up by way of counter claim against the claims of the plaintiff any right or claim, whether such counter claim sounds in damages or not.

(2) Subject to the provisions of Rule 167, such counter claim shall have the same effect as a cross-suit so as to enable the Court to pronounce final judgment in the same suit, both on the original and on the counter claim.

168. Counter Claim- Where a defendant seeks to rely upon
any grounds as supporting the right of counter claim he shall; in his written statement, state specifically that he does so by way of counter claim.

169. Reply to counter claim- When a counter claim is made
in a written statement, plaintiff may deliver a reply to the counter claim within the time within which he may deliver a written statement if the counter claim were a plaint.

170. Excluding counter claim- Where a defendant sets up a
counter claim, the Court may, on the application of the plaintiff made in that behalf at any stage of the proceedings and after hearing the defendant, make an order directing that the counter claim may be tried separately and may make such other order as shall be just.

171. Proceeding with counter claim where action stayed-
If in a case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter claim may nevertheless be proceeded with.

172.
O.XX, R. 19 to apply to decree in such suits- Sub-rules (1) and (2) of Rule 19 of Order XX of the Code shall apply to the decree in a suit in which counter claim is made.

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CHAPTER IX
THIRD PARTY PROCEDURE

173. Third party notice- (1) Where in a suit a defendant claims
as against any person not already a party to the suit (hereinafter in this Chapter called the third party) that he is entitled to contribution or indemnity, he may make an application to the Court for leave to have a notice (hereinafter in this Chapter called the third party notice) issued to that effect to the third party. The Court may give such leave on an ex parte application.

(2) The application shall state the nature and grounds of the claim and shall be supported by an affidavit.

(3) The third party notice shall be in Form No. 9 in Appendix A and shall be served together with a copy of the aforesaid application and a copy of the plaint in the manner provided for service of summons.

174. Effect of notice- Subject to the provisions of section 22
of the Limitation Act, 1908, the third party shall as from the time of the service upon him of the third party notice, be a party to the suit with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant.

175. Appearance of third party, default of- If a third party
desires to dispute the plaintiffs claim in the suit as against the defendant on whose behalf the notice has been given or his, own liability to the defendant, the third party must enter an appearance in the suit on the day fixed there for in the third party notice. In default of his so doing, he shall be deemed to admit the validity of, and shall be bound by the decree, obtained against such defendant, whether obtained by consent or otherwise, and shall also be deemed to admit his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice:

Provided that a third party failing to appear on the day fixed in the third party notice or any

52 adjourned hearing may apply to the Court for leave to appear, and such leave may be given upon such terms as the Court shall think fit.

176. Procedure on default before trial- (1) Where third
party makes default in entering an appearance in the suit or deliver any pleading which he has been ordered to deliver and a decree has been passed against the defendant giving the notice of default, such defendant shall, on an application made for a motion in that behalf be entitled at any time after satisfaction of the ‘decree against himself or before such satisfaction by leave of the Court, to a decree against the third party to the extent of any contribution or indemnity claimed in the third party notice.

(2) The provisions of Order IX, Rule 13 of the Code shall apply to such decree against a third party.

177. Third party directions- If the third party enters an
appearance, the defendant giving the third party notice may, after serving notice of an intended application upon the plaintiff, the third party and any other defendant, apply to the Court for directions, and the Court may.

(a) where the plaintiffs claim is admitted by the defendant giving the third party notice and the third party and the claim of such defendant for contribution or indemnity is admitted by the third party the Court may pass such decrees in favour of the plaintiff and in favour of the defendant giving the third party notice as the nature of the case may require:

Provided that execution shall not be issued without leave of the Court until after satisfaction by such defendant of the decree against him;

(b) if satisfied that there is a question or issue proper to be tried as between the plaintiff and the defendant and the third party or between any or either of them as, to the liability of the defendant to the plaintiff or as to the liability of the third party to make any contribution or indemnity claimed, in whole or in part:-

(i) order such question or issue to be tried in such

53 manner before, at or after the trial of the suit as the Court may direct, or

(ii) give the third party liberty to defend the suit, either alone or jointly with the original defendant, upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, pleadings or documents to be delivered, or amendments to be made, and give such directions as to the Court shall appear proper for having the question and the rights and liabilities of the parties most conveniently determined and enforced, and as to the mode and extend in or to which the third party shall be bound or made liable by the decree in the suit; or

(c) dismiss the third party application.

178. At trial- Where the suit is tried, the Court may, at or
after the trial, pass such decree as the nature of the case may require for or against the defendant giving the third party notice against or for the third party:

Provided that execution shall not be issued without leave of the Court,until after satisfaction by such defendant of the decree against him.

179. Costs- The Court may decide all questions of costs as
between a third party and the other parties to the suit, and may order any one or more to pay the costs of any other or others, or give such direction as to costs as the justice of the case may require.

180. Fourth and subsequent parties- (1) Where a third
party makes as against any person not already a party to the suit a claim that he is entitled to contribution or indemnity, the provisions of this chapter regulating the rights and procedure as between the defendant and the third party shall apply mutates mutandis as between the third party and such other person, and the Court may give leave to such third party to have a third party notice issued and the preceding rules of this Chapter shall apply mutates mutandis and the 54 expressions “third party notice” and “third party” shall apply to and include every notice so issued and every person served with such notice respectively.

(2) Where a person served with a notice under this rule by a third party in turn makes such a claim as aforesaid against another person not already a party to the suit, this chapter as applied by this rule shall have effect as regards such further person and any other person or persons so served and so on successively.

181. Defendant claiming against co-defendant- (1) Where
a defendant claims against another defendant that he is entitled to contribution or indemnity, the defendant making the claim may make an application to that effect and may without any leave of the Court have a notice issued by the Additional Registrar (O.S.) of such application to other defendant.

(2) No appearance to such notice shall be necessary and the same procedure shall be adopted for the determination of such claim between the defendants as would be appropriate under this chapter if the defendant making a claim were a third party.

(3) Nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the suit.

CHAPTER X
SUMMARY SUITS

182. Written statement- When an order has been made giving
leave to the defendant to defend a suit filed under Order XXXVII of the Code, the defendant shall, within fourteen days from the date of such order, file his written statement, unless the Judge, who grants leave, orders the affidavit of the defendant to be taken as his written statement or allows a longer time for filing the written statement. The suit may be set down for directions upon a written statement being filed or upon such order being made as aforesaid.

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183. On default by defendant suit to be set down forthwith-
Where the defendant makes default in filing his written statement or in complying with any conditions which may have been imposed on him within the time limited in the order, the plaintiff shall be at liberty to have the suit set down for hearing forthwith as if no such order had been made.

184. Ex-parte decree may be set aside on application- An
ex-parte decree may be set aside by petition after notice to the Plaintiff provided the defendant shall satisfy the Court the existence of special circumstances in his favour that is either service of summons was not affected on him or he was prevented from the circumstances beyond his control and he has merit in his defence.

185. Judgment for part of claim- If it appears that the defence
set up by the defendant applies only to a part of the plaintiffs claim or that any part of his claim is admitted, the plaintiff shall have judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, the taxation of costs, or otherwise, as the Court may think fit; and the defendant may be allowed to defend as to the residue became plaintiffs claim.

186. Leave to defend- If it appears to the Judge that a
defendant has a good defence to or ought to be permitted to defend the suit, and that other defendant has no such defence and ought not be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitle to the judgment and decree against the latter, and may execute such decree without prejudice to his right to proceed with his suit against the former.

CHAPTER XI
COMMERCIAL SUITS

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187. What are commercial causes? Commercial suits include
suit arising out of the ordinary transactions of merchants, bankers and traders; amongst others, those relating to the construction of mercantile documents, export or import of merchandise, freight, carriage of goods by land, insurance banking and mercantile agency and mercantile usages

188. Plaint in such suits to be marked “commercial suits”-
Where a plaintiff at the presentation of the plaint, applies that his suit may be dealt with as a commercial suit, the Additional Registrar or other officer to whom the plaint is presented for admission, shall if satisfied that the suit is a commercial suit and has been brought with undue delay, cause the plaint to be marked with the words “Commercial Suit” in addition to the usual endorsements.

Explanation- A suit which has been brought within six months of the cause of action having arisen has been brought without undue delay.

189. Setting down of Commercial suits- Commercial suits
shall, so far as possible, be set down for hearing before the Judge appointed from time to time by the Chief Justice for that purpose and to be called the Commercial Judge, and shall be heard in priority to all other suits appe aring on the board on that day, except part heard suits and other commercial suits on the same board fixed for hearing on prior dates.

190. Decision of Commercial Judge may by consent be final
The parties may, where they so desire, agree in writing to be signed by them or their advocates, that the judgment or decision of the Commercial Judge shall be final, when such judgment or decision shall not be liable to appeal or revision.

CHAPTER XII
ALTERNATE DISPUTE RESOLUTION

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191. Definition- In these rules unless the context otherwise
requires:-i. The term alternative dispute resolution (ADR) refers to the following mode / method for the resolution of disputes. a) Mediation b) Conciliation c) Case Evaluation ii. Mediation refers to the process where one or more neutral mediator facilitates a mutually acceptable resolution / settlement of dispute through negotiations and discussions with and between the parties, the mediator having no decision making power or authority to impose solutions on the parties or force settlement between the parties. iii. Conciliation refers to the process where the disputants with third party interventions may be guided to settlement of disputes. iv. Case Evolution refers to the process wherein a lawyer preferably, with expertise in the subject matter of dispute acts as evaluator of the respective claims of the parties on the basis of their submissions and materials placed before him, thereby assists in narrowing down the differences and provide a basis for settlement.

192. Reference by Courts- (i) Cases of civil or commercial or
matrimonial nature if at any stage of the case preferably at the initial stage, before or after the recording of admissions and denials under rule I of order X of Civil Procedure Code, the court considers the dispute / case is likely to be successfully resolved under one of the alternative dispute resolution (ADR) methods the court shall require the parties to have resort to such methods.

(ii) In cases of civil or commercial or matrimonial nature if all the parties consider the dispute involved to be such us is likely

58 to be resolved by alternative dispute resolution (ADR) mode, the court shall on the request of the parties, refer the matter to a registered institution specializing in alternative dispute resolution or to any person professionally trained and accredited in mediation/conciliation skills or any of the persons mentioned in rules 191 or192 below.

(iii) The court, while nominating any person as mediator or conciliator shall consider his suitability for resolving the particular class of dispute involved in the case and may give preference to a person who has proven record of successful mediation/conciliation or who has special qualification/expertise or experience of mediation/conciliation in similar matters.

(iv) Where a case/dispute has been referred by the court under section 89-A CPC or under any provision of these rules or otherwise, for disposal / resolution by ADR mode but could not be resolved within a period of sixty days of its reference or such extended period, not exceeding thirty days, as the court may allow, the case/dispute shall be returned to the court with direction to the parties to appear before the court on a date to be specified in the direction.

193. Reference by Parties- In respect of any dispute of civil
or commercial or matrimonial nature the disputant parties may resort to mediation and/or conciliation method for its resolution/settlement before legal proceedings are commenced in any court and in that event, if as a result of such mediation and/or conciliation a settlement is reached between the parties, the mediator and/or the conciliator shall record such settlement which shall be duly signed by him and all the disputant parties and the same shall be submitted to the appropriate court having jurisdiction in the subject matter of the dispute and registered as a “Judicial Miscellaneous” matter and thereupon the court shall-a) if all the disputant parties are present before the court, proceed to pass consent decree in terms of the settlement; b) if all the disputant parties are not present before the court, the court shall issue 7 days notice to the parties for their

59 presence in court and for filing of objection, if any, to the settlement and where the notice is served and i. objection is filed, the court shall after expiry of the notice period proceed to pass consent decree in terms of the settlement, ii. if any party files objection, the court shall adopt such summary procedure for its disposal as the court considers appropriate in the circumstances.

194. Qualification of persons/organizations for appointment as mediator / conciliator
Inter alia the following persons and organizations/institutions etc. are eligible to act as mediator:

(i). Institutions having specialized in ADR methods and having available persons professionally trained/accredited in mediation or conciliation skills and such institutions having been recognized as such by the High Court;

(ii). Persons, who are certified by institutions referred at clause (i) above to be professionally trained/accredited mediators /conciliators;

(iii). Retired Judges of superior judiciary, retired District and Sessions Judges or Judges of Civil Court or Courts of equivalent status who have substantial experience in mediation/conciliation;

(iv). Legal practitioners with at least seven years standing at the Bar at the level of District Courts or Civil Courts and having attended skills-based trainings in mediation/conciliation;

(v). Experts or other professionals with at least ten years standing with documented experience in mediation/conciliation or retired senior bureaucrats or retired senior executives who have served in law and

60 administrative related fields and have substantial experience and skills in mediation/conciliations.

195. Panel of mediators / conciliators- (i) The High Court
may prepare and maintain a panel of such individuals as the court considers to be competent, suitable and qualified to render services as mediators and/or conciliators and of such law firms and other organizations as are competent to render or are engaged in rendering services of mediation and/or conciliation directly or through qualified persons affiliated to or registered with them; the High Court may from time to time review, revise or update such panel.

(ii) The panel referred to in sub-rule (i) to contain the particulars and details of those listed therein including educational and other qualifications, professional and technical experience etc.

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196. Duty of mediator/conciliator to disclose certain facts- (i)
Where a person is approached in connection with his possible appointment as a mediator/conciliator, he shall disclose in writing to the parties any circumstances likely to give rise to a justifiable doubt as to his/her independence or impartiality.

(ii) Every mediator/conciliator shall, from the time of his appointment and throughout the continuance of the mediation/conciliation proceedings, without delay, disclose to the parties in writing, about the existence of any of the circumstances referred to in the procedure clause.

197. Cancellation of appointment- Upon information furnished
by the mediator/conciliator under Rule 191 or upon any other information received from the parties or other persons, if the court in which the case is pending, after conducting such inquiry as it deems fit, and after giving a hearing to the mediator/conciliator, is satisfied that the said information has raised a justifiable doubt as to the mediator’s/conciliator’s independence or impartiality, it, shall cancel the appointment of such mediator/conciliator by a reasoned order and replace him by another appropriate person.

198. Procedure of Mediation- (i) The parties may agree to the
procedure to be followed by the mediator / conciliator in the conduct of the mediation / conciliation proceedings and where the proceedings are in an organization / institution referred to in rule 191(i), the rules of such organization / institution will apply;

(ii) Where the parties do not agree on any particular procedure to be followed by the mediator/conciliator, the mediator/conciliator shall generally follow the procedure hereinafter mentioned, namely:

(a) he shall fix, in consultation with the parties, a time schedule, the dates and the time of each mediation/conciliation session, where all parties have to be present;

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(b) he shall hold the mediation/conciliation at any convenient location agreeable by him and the parties, as he may determine;

(c) he may conduct joint or separate meetings with the parties;

(d) each party shall, ten days before the first session, provide to the mediator/conciliator a brief memorandum setting forth the issues, which according to it, need to be resolved, and its position in respect of those issues and all information reasonably required by the mediator / conciliator to understand the issues; such memoranda shall also be mutually exchanged between the parties;

(e) each party shall furnish to the mediator/conciliator such other information as may be required by him in connection with the issues to be resolved;

199. Mediator/conciliator not bound by Qanun-e-Shahadat Order, 1984 or Code of Civil Procedure, 1908
The mediator / conciliator shall not be bound by the Qanun-e-Shahadat Order, 1984 or the Code of Civil Procedure, 1908, but shall be guided by the principles of fairness and justice, have regard to the rights and obligations of the parties, usages of trade, if any, and the circumstances of the dispute.

200. Non-attendance of parties at sessions or meetings on due dates
(i) The parties shall be present personally and/or through their counsel or representative holding power of attorney at the meetings or sessions notified by the mediator/conciliator.

(ii) if a party fails to attend the session or the meeting notified by the mediator / conciliator, other parties or the mediator/conciliator may apply to the Court which referred the case for disposal through mediation / conciliation mode, for appropriate directions to that party to attend before the mediator/conciliator and if the Court finds that the party has absented before the mediator /

63 conciliator without sufficient reason, the Court may take action against the said party by imposing costs or by taking action for contempt.

(iii) The parties not resident in Pakistan may be represented at the sessions or the meetings by their representative holding power of attorney or by counsel.

201. Administrative Assistance- In order to facilitate the
conduct of mediation/conciliation proceedings, the parties or the mediator/conciliator with the consent of the parties, may arrange for administrative assistance by a suitable organization / institution or person.

202. Offer of settlement by parties- A party to a dispute may,
“without prejudice”, offer a settlement to the other party at any stage of the proceedings, with notice to the mediator / conciliator, and such offer shall normally be considered as confidential and will have no legal or evidentiary value unless accepted by the parties.

203. Role of Mediator/Conciliator- The mediator/conciliator
shall act to facilitate voluntary resolution of the dispute by the parties and communicate the views of each party to the other, assist them in identifying issues, reducing misunderstandings, clarifying priorities, exploring the real cause of conflict and generating options in an attempt to solving the dispute, emphasizing that it is the responsibility of the parties to take decisions which affect them; the parties must understand that the mediator / conciliator only facilitates in arriving at the decision to resolve disputes and that he will not and cannot impose any settlement nor does he give any warranty that the mediation/ conciliation will result in a settlement. The mediator/conciliator shall not impose any decision on the parties nor force a settlement.

204. Representation of Parties- Parties may be present before
the mediator / conciliator personally or may be represented through their Counsel or representative holding power of attorney.

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205. Confidentiality, disclosure and in-admissibility of information
(i) When the mediator/conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party, so that the other party may have an opportunity to present such explanation as it may consider appropriate,

Provided that, when the party gives information to the mediator / conciliator subject to the condition that it will be kept confidential, the mediator shall not disclose that information to the other party.

(ii) Receipt or perusal, or preparation of records or reports or other documents by the mediator/conciliator, while serving in that capacity, shall be confidential and the mediator / conciliator shall not be compelled to divulge information regarding those documents nor as to what transpired during the mediation / conciliation;

(iii) Parties shall maintain confidentiality in respect of evidence produced or relied upon by the parties or what transpired during mediation / conciliation and shall not rely on or introduce the said information in any other proceedings as to: a. views expressed by a party in the course of the mediation/conciliation proceedings; b. documents obtained or other notes, drafts or information given by parties or mediators/conciliators during the mediation/conciliation which were expressly required to be treated as confidential; c. proposals made or views expressed by the mediator/conciliator; d. admission made by a party in the course of mediation/conciliation proceedings; e. as to whether any party had or had not indicated willingness to accept a proposal;

(iv)There shall be no stenographic or audio or video recording of the mediation proceedings.

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206. Privacy- Mediation / conciliation sessions and meetings
are private and only the concerned parties or the Counsel or representative holding power of attorney can attend. Other persons may attend only with the permission of all the parties and with the consent of the mediator/conciliator.

207. Immunity- Mediator/conciliator shall not be held liable for
anything bona fide done or omitted to be done by him during the mediation/conciliation proceedings nor shall he be summoned by any party to appear in a Court of law or any other forum to testify in regard to information received by him or action taken by him or in respect of drafts or records prepared by him or shown to him during the proceedings.

208. Communication between mediator/conciliator and the Court
(i) In order to preserve the confidence of parties in the Court and the neutrality of the mediator/conciliator, there should be no communication between the mediator/ conciliator and the Court, except as is stated in sub rules (ii) and (iii) of this rule.

(ii) if any communication between the mediator/conciliator and the Court is necessary, it shall be in writing and copies of the same shall be given to the parties or their counsel or representative holding power of attorney.

(iii) Communication between the mediator/conciliator and the court shall be limited to communication by the mediator/conciliator:

(a) with the Court about the failure of parties to attend,

(b) with the Court with the consent of the parties,

(c) regarding his assessment that the case is not suitable for settlement through mediation/conciliation,

(d) that the parties have settled the dispute or disputes.

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209. Settlement / Agreement- (i) Where an agreement is
reached between the parties whether in regard to all the issues involved in the dispute or only to some of the issues, the same shall be reduced to writing and signed by the parties or the representative holding power of attorney and if any counsel has represented the parties, the counsel shall attest the signature of their respective clients.

(ii) The agreement of the parties so signed, shall be attested by the mediator/conciliator who shall, forward the same with covering letter to the court in which the case is pending.

(iii) Where no agreement is reached between the parties, within the time provided under rule 187 (iv),or where, the mediator is of the view that no settlement is possible, he will return the case to the Court in writing in the manner provided under rule 187 (iv).

210. Court to fix a date for recording settlement and passing decree
(i) Within seven days of the receipt of any settlement, if all the parties are not present before the court, the court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement, and on such date the Court shall record the settlement and,

(ii) if the settlement disposes of all the issues involved in the case/dispute the court shall pass a decree in accordance with the settlement so recorded, and

(iii) if the settlement disposes of only some of the issues involved in the case/dispute, the Court shall record the settlement on the date fixed for recording the settlement and shall include the terms of the said settlement in its final judgment, while disposing of the other issues not disposed of by the settlement.

211. Fee of Mediator / Conciliator and cost- (i) At the time of
referring the dispute for mediation / conciliation, the Court may, after consulting the mediator / conciliator and the parties, fix the fee for the mediator/conciliator, costs of administrative assistance and all other 67 ancillary and related expenses and such fee, costs and expenses shall, unless otherwise directed by the Court, be borne equally by the various contesting parties.

(ii) Where any dispute / case is referred to some recognized institution mentioned in rule 189 for mediation/conciliation the parties shall pay fee and all other expenses as required by such institution.

(iii) Each party shall bear the costs of production of its witnesses, experts, and/or documents.

(iv) If the expenses of mediation/conciliations including fee, are not paid by the parties, the court shall, on the application of the mediator / conciliator or any party recover the said amount from the defaulting parties and direct its payment to the mediator/conciliator or to the person to whom it is due.

212. Ethics to be followed by the Mediator/Conciliator- The
Mediator / Conciliator shall –

(i) at all times act, and endeavour to be seen to act, independently, fairly and with complete impartiality towards the parties in mediation / conciliation without any bias in favour of any party or any discrimination against any party;

(ii) not carry on any activity or conduct which could reasonably be considered as conduct unbecoming of a mediator/conciliator;

(iii) provide accurate information about his or her education, background, mediation/conciliation training and experience, in any representation, biographical or promotional material and in any oral presentation / explanation.

(iv) uphold the integrity and fairness of the mediation/conciliation process;

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(v) have an obligation to acquire and maintain professional skills and abilities required to uphold the quality of the mediation/conciliation process;

(vi) conduct himself/herself professionally at all times, and shall not engage in behaviour that will bring disrepute to the mediator / conciliator or the system,

(vii) provide information to the parties at the commencement of and during the proceeding about the procedural aspects of the mediation / conciliation process and about his or her role in the mediation / conciliation and that authority for decision making rests with parties and not the mediators / conciliators;

(viii) recognize and respect the principle that parties in mediation/conciliation have the right to make their own voluntary, non-coerced decision regarding the possible resolution of any issue in dispute;

(ix) not to provide any legal or professional advice to the parties in mediation / conciliation.

(x) disclose any interest or relationship likely to affect his impartiality or which might give rise to an appearance of partiality or bias;

(xi) disclose to the parties, any matter which could be regarded as involving a conflict of interest (whether apparent, potential, or actual) in the mediation / conciliation, such disclosure shall be made in writing to all parties as soon as the mediator / conciliator becomes aware of it and in that event he will not act or continue to act as the mediation / conciliation unless all the parties specifically acknowledge the disclosure and agree, in writing, to his acting or continuing to act as mediator / conciliator;

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(xii) not to act for any of the parties individually in connection with the dispute which is the subject of mediation / conciliation while acting as the mediator or at any time thereafter, without the written consent of all the other parties;

(xiii) not to disclose to anyone information and / or documents that have come to his knowledge and / or exchanged between the parties during the mediation / conciliation process except, i. with the express consent of the parties involved in mediation / conciliation, ii. when required to do so by law, iii. when the information / documentation discloses an actual or potential threat to human life, iv. any report or summary that is required to be prepared by the mediator/conciliator, or v. where the data about the mediation / conciliation is for research and education purposes, and where the parties and the dispute are not, nor may reasonably be anticipated to be, identified by such disclosure.

(xiv) maintain confidentiality in the storage and disposal of mediation / conciliation notes, records and files.

(xv) refrain from making promises or giving guarantees about the results in the mediation / conciliation proceedings;

(xvi) withdraw from the mediation / conciliation proceedings, if he / she -

70 a) is required to do so by any of the parties, b) is in breach of these rules, c) is required by the parties to do something which would be in material breach of these rules,

(xvii) withdraw from the mediation / conciliation at his / her own discretion if-a) any of the parties is in breach of the mediation / conciliation agreement, b) any of the parties is, in the mediator’s / conciliator’s opinion, acting in an unconscionable or criminal manner, c) the mediator / conciliator decides that continuing the mediation/conciliation is unlikely to result in settlement, or d) any of the parties allege that the mediator / conciliator is in material breach of these rules.

CHAPTER XIII
DIRECTIONS

213. Setting down for directions- (1) When the pleadings
have been closed, the suit shall be set down before the Additional Registrar (O.S.) for directions;

Provided that any party may apply to the Additional Registrar, (O.S.), before the closing of the pleadings for directions, and the Additional Registrar (O.S.) may grant or refuse such application as he thinks fit.

(2) On the suit coming before him for directions, the Additional Registrar (O.S.) shall, so far as practicable, make such orders as may be proper with respect to the following matters:-

Pleadings, better particulars, admissions, discovery, interrogatories, inspection of documents or of movable or immovable property and the mode in which particular facts may be proved. 71

214. Any party may apply for directions at the hearing-
Upon the hearing for directions the plaintiff or any of the defendant who has appeared and is contesting the suit shall, so far as practicable, apply for any order or directions with respect to any of the matters set out in sub-rule (2) of Rule 213.

215. Subsequent application must be by petition to Court
An application subsequent to the hearing for directions as to an interlocutory matter by a party shall be made by petition, three clear days’ notice whereof shall be given to the other party or parties stating the grounds of the application. Such application must be to the Court.

216. Costs of subsequent application- An application by a
party which might have been made at the hearing for directions shall, if granted on a subsequent application, be granted at the costs of the party applying unless the Judge is of the opinion that the application could not properly have been made at the hearing for directions.

217. Appeal from Additional Registrar to a Judge- Rule 15
shall apply in the event of any party wishing to have any matter, on which directions have been given by the Additional Registrar (O.S.), under Rules 213 and 214 of this Chapter referred to the Court.

218. Discovery- Agent may make affidavit of documents
when none of the parties reside in Karachi- Notwithstanding anything contained in Rule 13 of O. Xl of the Code, where the transactions which form the subject matter in a suit have been carried on wholly or principally in Karachi and any of the parties are not residing in Karachi at the time, an affidavit of documents is required to be filed, such affidavit may be made by the agent in Karachi of such absent party on his behalf.

219. Procedure where the affidavit is required to be made by the absent parties
If in the case provided for by the last preceding rule any party desires to have such affidavit made by all or any of the absent parties personally, he shall be at liberty to apply for an order to that effect to the Additional Registrar. (O.S.) setting forth the grounds for making such order and the Additional Registrar, after hearing the opposite party may, if he thinks it, right and just, make such order; but the party obtaining such order shall deposit in Court on

72 account of the costs of such order and affidavit a sum of not less than Rs.1500/-. Such costs shall be dealt with by the Judge who tries the case.

220. Date for settlement of issues by Court- After the
pleadings having been closed and the directions given have been duly complied with, a date shall be fixed for settlement of issues by the Court.

CHAPTER XIV
COMMISSIONS
COMMISSIONS FOR EXAMINATION OF WITNESSES

221. Parties to notify commission- (1) Where a party to a
suit or matter intends to apply for a commission to examine a witness, he shall notify his intention to do so at the first hearing, and thereupon, unless otherwise ordered by the Court, the suit or matter shall not be set down for final disposal.

(2) Applications for the issue of such commission as aforesaid shall not be entertained after the suit or matter has been set down for final disposal in default of such intimation unless the Court is satisfied that the application could not have been made earlier, and in that case the court may make such orders as to costs as it deems fit.

222. Commission on interrogatories- (1) Applications for
issue of commissions to examine witnesses on interrogatories shall be made by a party within the time allowed by the Court, and shall be supported by an affidavit and be accompanied by interrogatories. Copies of such application, affidavit and interrogatories shall be served on the opposite party.

(2) If the opposite party objects to the issue of the commission, he shall, within seven days of the service on him of the aforesaid documents, file his objections.

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(3) If the objections to the issue of the commission are disallowed by the Court or if the opposite party does not object to the issue of the commission, such party, shall, within seven days of the dismissal of the objections or of the service on him of the interrogatories, as the case may be, file cross interrogatories, and serve copies thereof on the other party, who shall, within seven days thereafter, file re-interrogatories if any. The objections, if any, to the cross interrogatories and re-interrogatories will then be heard and disposed of by the Court.

223. Commission for viva voce examination- Applications
for issue of commission for viva voce examination shall be made by a party within seven days of notifying his intention under Rule 221, and shall be accompanied by an affidavit disclosing the nature of the evidence sought for from the witness.

224. Final hearing may be fixed after return of commission
If the application referred to in Rule 221 or 222 is granted the matter may not be set down for final disposal before the return of the Commission except by order of the Judge.

225. Preparation etc., of commission- Commission shall be
prepared by the Additional Registrar (O.S.) who shall seal the same and annex thereto the interrogatories, cross-interrogatories, re-interrogatories and documents, if any, and shall enclose them with directions that the same be returned to him when executed in a sealed envelope.

226. Commission to be executed by the listed Commissioner
High Court shall maintain a list of suitable persons from the Advocate having five years practice in High Court as Commissioner for examination of the witness. The Court shall issue commission to them according to seriatim as Commissioner for recording of evidence. High Court shall maintain a register of commissioners with following particulars, namely:-

(a) The name of the advocate and his parentage,

(b) Enrolment number,

(c) Standing at the Bar,

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(d) Office and residential address.

(e) Remarks

227. Procedure in examination of witnesses- (1) The
commissioner shall follow the provision of Qunaun-e-Shahadat Order and shall, in the case of person the witness presses any question which the commissioner shall have disallowed, record such question and the answer thereto unless the commissioner is satisfied that any such question is put for the purpose of obstruction or delay. He shall also record any objection to the production of a document by or through a witness.

(2) Where times or dates according to any other than Christian era are mentioned, the commissioner shall add the times or dates of the Christian era corresponding era thereto.

228. Deposition to be read over to and signed by the witness
(1) After the deposition of any witness shall have been taken down and before it is signed by him, it shall be distinctly read over and, when necessary, translated to the witness in order that mistake or omissions may be rectified or supplied.

(2) The deposition shall then be signed by the witness and left with the commissioner who shall sign his name and write the date of the examination.

229. Notice of filing of report and filing objection thereto-
(1) On receipt of the report of the commissioner other than the report forwarding the deposition of a witness recorded by him, the Registrar (O.S.) shall give notice to the parties to the suit or the matter of the filling of the report.

(2) A party desiring such report to be discharged or varied shall, unless the Registrar (O.S.), otherwise direct, within ten days from the date of the service of such notice on him, file his objections thereto, and served a copy of the same on the other parties to the suit or matter. After the objections have been filed aforesaid, the suit shall be set down for hearing of such objections. If a party, after having filed objections, abandons or does not proceed with them, any other party in the same interest shall be at liberty to proceed with such objections.

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230. Examination de bene esse- Commissions for
examination of witnesses de bene esse may be issued at any time notwithstanding anything herein before contained in cases where it is not possible for the examination to be conducted by the Judge. Such examination shall be viva voce.

COMMISSIONS FOR TAKING ACCOUNTS, LOCAL

INVESTAGATION AND PARTITION OF IMMOVEABLE PROPERTY

231. Commissioner to execute Commissions for accounts etc
The Court shall issue Commissions to such person as it deems fit or Nazir or Official Assignee as Commissioner for taking accounts, making local investigations and effecting partition of immovable property.

232. Additional Registrar, (O.S.) to send necessary proceedings to Commissioner
The Additional Registrar (O.S.) shall furnish the Commissioner with such part of the proceedings as may be necessary.

233. Commission for taking accounts how executed- (1)
The Commissioner shall direct which party shall file a statement of accounts before him and which party shall file a statement of objections and surcharge. He shall also fix the period within which the statements of accounts, objections and surcharge are to be filed.

(2) The statement of account shall be in the form of a debt and credit account and shall be verified by the accounting party or his agent. The items on each side of the account shall be numbered consecutively and a balance shall be shown.

(3) The statement of objections shall specify the items to which objections are taken by reference to their numbers in the statement of account.

(4) The statement of surcharge shall specify the amount with the receipt of which it is sought to charge the accounting party, the date when the person from whom and the particular account on

76 which, the same was received by him. The items of surcharge shall be numbered consecutively.

(5) The statement of objections and surcharge shall also state (a) the grounds of each objection and surcharge and (b) the balance, if any, admitted or claimed to be due, and it shall be verified by the affidavit of the party concerned or his agent.

(6) If any party fails to file his statement of account or objections or surcharge within the period allowed, the Commissioner shall report the fact to the Court.

(7) When the case before him is ready for hearing the Commissioner shall, after reading the statements filed before him and after examining the parties, if necessary, ascertain the points on which the parties are at issue and require them to produce their oral and documentary evidence on such points.

(8) After the evidence has been duly taken and the parties have been heard, the Commissioner shall submit his report together with a statement in the form of a diary of the proceedings had before him. The report shall state (a) the contested items allowed or disallowed by the Commissioner, (b) and reasons for allowing or disallowing them, (c) the amount found due, (d) the name of the party to whom it is due and (e) the name of the party by whom it is due.

234. Commission for local investigations- (1) The Court may
issue Commission to Nazir, Official Assignee or such person as it thinks fit to make local investigation for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mense profits or damages or annual net profits.

(2) The commissioner, after such local inspection as he deems necessary and after recording the evidence taken by him, shall return such evidence, together with his report in writing to the Court.

(3) The report of the Commissioner together with evidence taken by him shall be the evidence in the matter and shall form part of the record; provided the Court or with the permission of the Court, any of the parties to the proceedings may examine the Commissioner in

77 Court touching any of the matter referred to him or mentioned in his report, or as to his report or the manner in which he has made the investigation

(4) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it may think fit.

235. Commission to make partition of immoveable property
(1) The court may issue a Commission to such persons as it thinks fit to make partition or separation according to the rights as declared in preliminary decree (not covered by Section 54 of the Code) passed by it.

(2) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the decree/ order under which the Commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of shares.

(3) The report shall be prepared by the Commissioner, appointing the share of each party and distinguishing each share by metes and bounds. Such report duly singed by the Commissioner shall be transmitted to the Court and intimation to the parties.

(4) The Court, after hearing any objection which the parties may have filed to the Commissioner’s report, shall confirm, vary or set aside the same.

(5) Where the court confirms or varies the report it shall pass a decree in accordance with the same as confirmed or varied; but where the court set aside the report it shall either issue a new Commission or make such other order as it shall think fit.

General Provisions as to Commission

236. Deposit of commission fees- (1) Commission fees
shall be payable according to the scale prescribed in Chapter V in Appendix C.

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(2) The Court or the Additional Registrar (O.S.), as the case may be, may order that such amount as it or he considers proper be deposited in Court in advance towards the Commissioner’s fees together with the Costs of issue of the commission within seven days of the grant of the commission or Letters of Request or within such further time as may be allowed. In default, the matter shall be set down for final disposal in due course, unless otherwise ordered for reasons to be recorded in writing.

(3) If at any subsequent time the Court is satisfied that the deposit made under sub-rule (2) is not sufficient to cover the remuneration of the Commissioners, it may, after notice to the parties or their advocates, order that such further amount as it considers proper be deposited in Court within seven days from the date of such order or within such further time as the Court may allow. In default, the procedure prescribed in sub-rule (2) shall be followed.

(4) No fees shall be paid to the Commission without an order in writing of the Court or the Additional Registrar (O.S.). Except for special reasons recorded in writing such payment shall not be ordered until the commission has been executed and the objections, if any, to the Commissioner’s report have been disposed of.

(5) Commission shall not be issued unless the party, at whose instance or for whose benefit such Commission is to be issued, has deposited with Nazir with in such time as may be fixed, along with expenses of the Commission.

237. Powers of Commission- Commissioner appointed under
this chapter may, unless otherwise directed by the order of appointment,--

(a) examine the parties themselves and witness whom they or any of them may produce, and other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him;

(b) call for and examine documents and other things relevant to the subject of inquiry;

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(c) at a reasonable time enter upon or into land or building mentioned in the order.

238. Return of commission- (1) Order for the issue of a
commission or Letter of Request shall appoint a date allowing sufficient time for its execution and return.

(2) If the Commissioner is unable to return the commission duly executed within the time fixed by the Court, he shall apply to the Court for extension of the time and the Additional Registrar (O.S.), may extend the time or the Court may cancel the commission and may appoint another commissioner in his place.

CHAPTER XV
WITNESSES

239. Summons to witnesses (1) An application for calling
witnesses before the court or a Commissioner appointed to take evidence, shall set forth a list of the witnesses and state, in addition to the particulars required by rule 138, whether they are required to give evidence as experts or otherwise or to produce any document, and, in the latter case, shall specify the date and description of the document so as to identify it.

(2) If the applicant desires to serve the witnesses or any of them personally under O. XVI, Rule 1-A of the Code, the fact shall be stated in the application.

(3) Upon the grant of process, the process fee, travelling expense and subsistence money chargeable, if any, in respect thereof shall be calculated forthwith.

240. Summoning public officers as witnesses- (1)
Application for summons for the appearance of public officers whose absence from duty may be detrimental to the public service shall not be granted, unless it is shown by affidavit that their examination on commission will not answer the required purpose.

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(2) Except in urgent cases or as otherwise ordered for reasons recorded in writing, a summons requiring a public officer to give evidence or produce documents shall be served on the head of his office or, as the ease may be, on the witness directly under Rule 134 at least seven days before the date when the witness is required to attend or the document is required to be produced.

(3) When public officers are summoned, they shall be examined promptly and if necessary, de bene esse.

241. Summoning Finger Print expert- When an opinion is
desired on documents bearing finger prints the documents shall be sent to the Officer in charge, Finger Print Bureau, Karachi, for opinion.

If it is necessary subsequently that an officer of the Bureau should appear to give evidence in Court, the officer-in-charge may be requested to send a suitable officer, but no particular officer should be summoned by name. Care shall be taken that all the documents concerning to an opinion if required are available in Court on the day on which the officer is summoned.

242. Payment of expenses to witnesses who are public officers
(1) A Government servant or an employee of the Railway whose salary does not exceed ten thousand rupees per month whether he is or is not entitled to travelling allowances under the rules regulating the conditions of his service, shall, when summoned as a witness in his official capacity to give evidence or to produce a document before a Court, be paid travelling expenses in accordance with the prescribed scale.

A Government servant or the employee of the Railway, whose salary exceeds ten thousand rupees per month but who is not entitled to travelling allowances under the rules regulating the conditions of his service by reason of the fact the Court is situated not more than five kilometers from his headquarters, shall be paid travelling expenses in accordance with the prescribed scale.

Any sum payable to such servant on account of subsistence allowance shall be credited to the Federal or the Provincial Government or the Railway, as the case may be.

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(2) Where the expenses of such servant whose salary exceeds ten thousand per month and who is summoned as a witness in his official capacity and is entitled to traveling allowance under the rules regulating the conditions of his service, have to be deposited in advance by a private party, the term ‘expenses’ shall be interpreted to mean the travelling and halting allowances admissible under the rules regulating the conditions of his service (but not subsistence allowance), and the sum so deposited shall be credited to Government.

(3) A Government servant or the employee of Railway, who has not been paid travelling expenses under sub-rule (1) and who is entitled to receive travelling allowances under the rules regulating the conditions of his service shall obtain from the Court a certificate that he has attended in his official capacity for the purpose of giving evidence of facts which had come to his notice or of facts with which he had to deal in his official capacity or of producing a document from public records, stating the date of his appearance, the period for which he has been detained, and that he has received no payment from the Court.

243. Payment of expenses to other witnesses and issue of certificate to Railway servants
Subject to the provisions of rule 241, witnesses shall be paid their expenses at the rate prescribed in Chapter II in Appendix C daily during attendance. Certificates showing the number of days and attendance shall, if required, be granted in the case of Railway servants.

244. Re-attendance of witnesses on adjourned hearing-
When the hearing is adjourned, re-attendance of the witnesses present may be secured by payment to them of travelling and subsistence allowances at the prescribed rates and by service upon them of an order of re-attendance in Form No. 10 in Appendix A.

PRODUCTION OF PUBLIC DOCUMENTS

245. Production of public documents- (1) An application
for summons for production of public documents shall be supported by an affidavit stating

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(i) the document or documents, the production of which is required,

(ii) the relevancy of the document or documents,

(iii) why the production of a certified copy of the same would not serve the purpose, and

(iv) in cases where the production of a certified copy would serve the purpose, whether application was made to the proper officer for a certified copy and the result of such application.

(2) The Additional Registrar (O.S.) shall not issue such a summons unless he considers the production of the original necessary or is satisfied that the application for a certified copy has been duly made and has not been granted. The Additional Registrar (O.S.) shall in every case record his reasons in writing.

(3) Nothing in this rule shall apply to an application under Order XIII Rule 10 of the Code for production of the record of any other suit or proceeding from the record of the High Court.

246. Return of original public record after its production in evidence
When public records are produced and put in evidence in original, the Court, unless it thinks it necessary to retain the original, shall direct a copy to be made at the expense of the applicant and shall return the original.

247. Power of Courts to summon public records suo
motu Nothing in rule 242 shall prevent the Court of its own motion from sending for public records or other documents in the custody of a public officer or Court if it thinks it necessary for the ends of justice. Costs in such a case of summoning and of production of such evidence shall be paid by such party as the Court directs.

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CHAPTER XVI
ADJOURNMENTS

248. Adjournments to be to a day certain- Adjournments
shall be to a day certain. Suit or matter shall not be adjourned sine die except for reasons recorded in writing.

249. Adjournment granted only on good cause- An
adjournment shall not be granted except on good cause which shall be shown in the order granting adjournment. The consent of parties shall not of itself be a good cause for adjournment.

250. Costs of adjournment- (1) If an adjournment is
rendered necessary by the conduct of a party, the Court, when granting it, shall impose such terms as to costs and expenses as it thinks proper and may, as a condition precedent, require the party applying to pay forthwith or within such time as the Court may allow to the opposite party such sum as in its opinion will cover all such costs and expenses as are incurred by him by reason of the adjournment.

(2) The Court may forthwith on the application of the party to whom costs are awarded enforce the payment of such costs by attachment and sale of the property of the defaulting party, and may direct that the suit or matter shall proceed as if the application for adjournment had been refused.

251. Notice of antedating of hearing- (1) A party, who
desires that the hearing may be antedated, may apply therefor by interlocutory application of which notice shall he given to the other party or his advocate.

(2) The party served with notice may give to the other party or his advocate notice in writing that he consents to or will oppose such intending.

(3) On the day appointed for hearing of such application the Court will pass necessary orders granting or refusing the application.

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252. Advocate’s application for postponement of his cases-
(1) The Chief Justice or the Judge nominated by him may on the application of an Advocate postpone his cases for such time as he may deem proper, if he is satisfied that such postponement is necessary on account of an unavoidable or urgent reason.

(2) An application under this rule shall be accompanied by a list of cases desired to be postponed specifying the occasion or occasions, if any, when any such case was previously postponed under this rule. It shall also indicate the cases in which the date of hearing has been fixed by a bench.

(3) If the date of hearing in any such case has been fixed by a Judge any alteration in such date shall, so for as possible, be made after consulting him.

CHAPTER XVII
ORIGINATING SUMMONS

253. Who may take out originating summons and in respect of what matters
The executors or administrators of a deceased person or any of them, and the trustees under any instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative, or as cestui qui trust under the trusts of any deed or instrument, or as claiming by assignment or otherwise, under any such creditor or other person as aforesaid, may take out, as of course, an originating summons for such relief of the nature of kind following as may by the summons be specified and the circumstances of the case may require that is to say, the determination without an administration of the estate or trust of any of the following questions or matters:

(1) any question affecting the rights or interest of the person claiming to be creditor, devisee, Legatee, heir, or legal representative, or cestui qui trust;

(2) the ascertainment of any class of creditors, devisees legatees, legal representatives or others;

(3) the furnishing of any particular accounts by the executor 85 administrators or trustee, and the vouching (where necessary) of such accounts;

(4) the payment into Court of any monies in the hands of the executors, administrators or trustees;

(5) directing the executors, administrators or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees;

(6) the approval of any sale, purchase, compromise or other transaction;

(7) the determination of any question arising in the administration of the estate or trust.

254. Order for administration of estate or of the trust- Any
of the persons named in the last preceding rule may, in like manner, apply for and obtain an order for-

(1) the administration of the estate of the deceased;

(2) the administration of the trust.

255. Persons to be served with summons- The persons to
be served with the summons under the last two preceding rules in the first instance shall be the following, that is to say.

(1) where the summons is taken out by an executor or administrator or trustee-

(a) for the determination of any question under sub-rules

(1), (5) (6) or (7) of rule 250, the persons or one of the persons whose rights or interests are sought to be affected;

(b) for the determination of any question under sub-rule (2) of rule 250, any member of alleged member of the class;

(c) for the determination of any question under sub-rule (3) of rule 250, any person interested in taking such accounts;

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(d) for the determination of any question under sub-rule (4) of rule 250, any person interested in such money;

(e) for relief under sub-rule (1) of rule 251, the residuary devisees, legatees or heirs or legal representatives or some of them;

(f) for relief under sub-rule (2) of rule 251 the cestui qui trust or some of them;

(g) where there are more than one executor or administrator or trustee and they do not all concur in taking out the summons, those who do not concur.

(2) where the summons is taken out by any person other than the executors, administrators or trustees, the said executors, administrators or trustees.

256. Vendor or purchaser may take out summons- A
vendor or purchaser of immovable property or their representatives respectively may, at any time or times and from time to time, take out an originating summons for the determination of any question which may arise in respect of any requisitions or objections or any other question arising out of or connected with the contract (not being a question affecting the existence of validity of the contract or any claim for compensation).

257. Persons to be served with such summons- The
summons under the last preceding rule shall be served upon such person as under the existing practice would be the proper defendants to a suit for the specific performance of the contract out of which the question to be settled arises.

258. Mortgagee or mortgagor may take out such summons
Mortgagee or mortgagor, whether legal or equitable, or a person entitled to or having property subject to a legal or equitable charge, or a person having the right to foreclose or redeem a

87 mortgage, whether legal or equitable, may take out, as of course, an originating summons for such relief of the nature or king following as may be the summons be specified and as the circumstances of the case may require, that is to say, sale, foreclosure, delivery of possession by or recovery of any deficiency from the mortgagor; redemption, re-conveyance and delivery of possession by the mortgagee.

259. When may a partner take out such summons- Where
the existence of the partnership or the right to or the fact of the dissolution thereof is not in dispute, any partner in a firm or his representatives may take out an originating summons against his partners or former partners or their representative (if any) for the purpose of having the partnership dissolved (if it be still subsisting) and for the purpose of taking the accounts of, and winding up, such partnership, and for the determination of any question arising in such partnership whether to be dissolved or wound up or not.

260. Persons interested under will, etc., may take out such summons
A person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons, for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the person interested.

261. Court not bound to determine question of construction
The Court shall not be bound to determine any such question of construction if in its opinion it ought not to be determined on originating summons.

262. Persons to be served with such summons- The
summons under either of the rules 256 or 257 shall be served upon the person who would be proper defendants under the existing practice if the same relief were sought in a suit.

263. Service on other person by direction- The Court may,
in all cases, direct such other person to be served with an originating summons as it may think fit.

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264. Plaint and document alone to be filed- An originating
summons shall be in Form No. 11 in Appendix A. The person entitled to apply shall present with it to the Additional Registrar (O.S.) a plaint, setting forth concisely the facts upon which the relief sought by the summons is founded. The plaint shall specify at the end but not in the form of a prayer the relief which is sought by the summons. No documents shall be annexed to the plaint unless greater brevity or clearness would be gained by reference to annexed documents as opposed to setting out in the plaint itself the contents of documents which are not annexed thereto.

265.
O.s. plaint how to be marked- The plaint when accepted shall be filed and numbered as an ordinary suit, and entered in the Register of Civil Suits, but after the serial number the letters “O.S.”, shall be placed to distinguish it from plaints filed in ordinary suits.

266. Service of originating summons- Originating
summons shall be signed by the Additional Registrar (O.S.) and shall, together with a copy of the plaint, be served in the manner provided for the service of summons on a defendant, and the summons after service shall be filed in the proceedings.

267. Returnable date of originating summons- Originating
summons shall, in ordinary cases, be made returnable in fourteen days from the date of the admission of the plaint, but the Additional Registrar (O.S.) may fix such longer period as to him may seem proper.

268. Appearance- A party served with an originating summons
shall appear before the Additional Registrar (O.S.) on the day fixed for his appearance in the summons and shall present a written statement of his defence, if he so desires. The Additional Registrar (O.S.) shall then fix a date for the hearing of the summons in Court.

269. When may be supported by evidence- On the hearing
of the summons, if the parties thereto do not agree to the correctness of the facts set forth in the plaint, the Court may order the summons to be supported by such evidence as it may think necessary; and may give such directions as it may think just for the trial of any question arising therefrom. The Court may make such amendment in the plaint 89 and summons as may seem to it, to be necessary to make them accord with the existing state of facts, so as properly to raise the questions in issue between the parties.

270. What may be done on bearing originating summons-
If it appears to the Court that the matters in respect of which relief is sought cannot be disposed of in a summary manner on originating summons, it may refuse to pass any order on the summons, may dismiss, the same and refer the parties to a suit in the ordinary course; and in such case may make such order as to costs already incurred as may seem to it to be just.

In dismissing the summons the Court may, instead of referring the parties to a suit in the ordinary course, direct that the plaint filed in support of the summons with necessary amendments shall be admitted as the plaint is an ordinary suit. Upon such direction being given, the letters “O.S.” placed in pursuance of rule 263 against the entry of the case in the Register of civil Suits shall be struck off and the suit shall proceed on the amended plaint in all respects as an ordinary suit, and the defendant shall be required to file a written statement if no written statement has been previously filed by him.

271. Costs in originating summons- In originating
summons advocates’ fees shall ordinarily be taxed in accordance with clause 2 of Chapter VII in Appendix C.

272. Order made on originating summons to be drawn up as decree of Court
If the Court is of opinion that the matter is fit to be dealt with on an originating summons, it may pronounce such judgment as the nature of the case may require, and any order made by it shall be a decree of the Court and shall be drawn up as such;

Provided that if the Court dismissed the summons under rule 267, it shall be sufficient for it to sign an order to that effect, which shall be filed in the proceedings.

273. Direction as to carriage or execution of decree- The
Court may give an special directions touching the carriage or execution of such decree, or the service thereof upon persons not parties, as it may think fit.

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274. Subsequent summons about same estate- When any
summons under rules 250 and 251 has been taken out, every subsequent summons relating to the same estate or trust shall, so far as possible, be heard by the Judge who heard the original summons.

275. O.II, R.2 of the Code not to apply to plaints filed in
support of originating summons Nothing in O.II, Rule 2 of the Code shall apply to plaints filed to support an originating summons or to any proceedings there under.

276. When costs of originating summons shall be allowed in a suit
Where at the hearing of a suit it shall appear to the Court that the party instituting the suit might have obtained the desired relief by originating summons, it may direct that such party shall be allowed on taxation only such costs as would have been incurred in an originating summons.

CHAPTER XVIII
PROCEEDINGS AT THE HEARING OF SUITS,
AND UP TO AND INCLUSIVE OF DECREES

277. Evidence, how taken- At the hearing of any suit the
evidence of witnesses shall be taken down by, or in the presence and under the superintendence of, the Judge or one of the Judges, not ordinarily in the form of question and answer, but in that of a narrative. The evidence so taken shall be signed by the Judge and shall form part of the record.

278. Any particular question and answer may be taken down
The Court may, of its own motion or on the application of a party or his advocate take down or cause to be taken down a particular question and answer, or an objection to a question, if there appears to be a special reason of so doing.

279. Question objected to and allowed by Court- Where
any question put to a witness is objected to by party or his advocate and the Court allows the same to be put, the Judge may take down or may cause to be taken down the question, the answer, the objection and the name of the person making it together with the decision of the Court thereon.

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280. Remarks on demeanour of witnesses- The Court may
record such remarks as it thinks material respecting the demeanour of any witness while under examination.

281. Assistant Registrar to bring to Judge’s notice erasures, etc., and documents tendered in evidence
The Assistant Registrar or other officer in Court shall examine all documents produced or offered in evidence and bring any apparent erasures or interpolations or any apparent insufficiency of the Court-fee or other stamps to the notice of the Judge or Commissioner for orders. He shall endorse the documents admitted in evidence and the documents rejected with the particulars required by law and sign or initial such endorsements.

282. Exhibits how marked- Depositions recorded of
witnesses of both sides and documents admitted in evidence shall be numbered with cardinal numbers 1, 2, 3 and the following numbers, in one continuous series.

283. Numbering lines of depositions, etc- The Assistant
Registrar shall cause every tenth line of all depositions, judgments and orders to be numbered consecutively 10, 20, and 30, and so on for convenience of reference.

284. Proceedings in another suit, how put in evidence-
When a proceedings in a suit in the Court are necessary as evidence in another suit in the Court, they shall not be removed from the file of the former suit unless true copies thereof are substituted in the file of the former suit, unless the Judge shall otherwise direct.

285. Witnesses not to be present in Court during hearing
of the sui-. Witnesses other than the parties shall not except by consent of parties, be present during the hearing of the suit or other matter in Court before their deposition have been recorded.

286. Exhibits to be officially translated- Document, not in
the English language, shall not be read or received in evidence without an official translation thereof, except by leave of the Judge.

287. No compromise without leave of Court in pauper suits
Where a plaintiff has been permitted to sue in forma pauperis,

92 the suit shall not be compromised without leave first had and obtained from the Court.

288. Judgment how delivered- (1) Judgments may be
either oral or written.

(2) When the Court delivers a written judgment, no further record of such judgment shall be necessary.

(3) When the Court delivers an oral judgment, it shall be taken down by the personal secretary of the Judge. A transcript shall then be prepared for correction by the Judge or Judges who delivered the judgment. A fair copy of the transcript so corrected shall be signed by the Judge or Judges and dated with the date of delivery and shall be the record of the judgment.

289. Written judgment of two or more Judges how pronounced
When a suit or matter is heard by two or more Judges.

(1) If they have agreed to a written judgment and signed it, one of them may pronounce the judgment in the absence, for any reason, of the other or others;

(2) If each one of them has written a separate judgment and signed it, one of them may pronounce the judgment written and signed by the other or others in his or their absence.

290. Payment of costs a condition precedent in order for
withdrawal-. When a suit is allowed to be withdrawn with liberty to bring a fresh suit on the same matter, unless the Court shall otherwise direct, the order shall be drawn up so as to make the payment of the costs of the suit a condition precedent to the plaintiff bringing a fresh suit.

291. Setting of draft of decree- (1) Advocates shall give
notice at the time of judgment if they desire to examine and sign the draft decree before submission to the Additional Registrar (O.S.) and shall in such cases and in all complicated cases, but not otherwise, be given notice as soon as the draft decree is prepared. They shall within three days from the date of service of such notice examine and sign the draft decree if found correct or file objections thereto, if any.

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(2) If the objections filed are such that in the opinion of the Additional Registrar, (O.S.) the other party ought to be heard concerning them, he shall fix a day for hearing them and direct that the other party shall be served with a notice of such hearing together with a copy of the objections filed.

(3) If the Additional Registrar (O.S.) allows the objections, the necessary correction or alteration shall be made in the draft decree and initialed by the Additional Registrar (O.S.) and the decree shall be drawn up accordingly and singed by the Assistant Registrar and submitted to the Judge for signature.

(4) If the Additional Registrar (O.S.) disallows the objections or if no objections are filed within the prescribed time, the decree shall be signed by the Assistant Registrar and submitted to the Judge for signature.

292. Directions under rule 288(3) and (4) liable to be referred to Court
A matter on which directions have been given by the Additional Registrar (O.S.) under sub-rules (3) and (4) of rule 288 shall, at the request of a party or his advocate be referred to the Court. Such matter shall ordinarily be heard by the Judge who passed the decree.

293. Date of signing decree to be also endorsed- The
Judge when signing the decree shall write below his signature also the date, month and year on which the decree is actually signed by him.

294. Copies of decrees to Revenue authorities- (1) The
Deputy Registrar shall cause copies of decrees to be prepared without delay for communication to the. Revenue authorities in cases in which pauper costs are recoverable by Government and in cases affecting immovable property coming within the scope of the provisions of Chapter VI of the Sindh Land Revenue Act of 1967, and shall append to the judgment a copy of the communication.

(2) The Deputy Registrar shall also cause the certificate mentioned in section 11 of the Court Fees Act, 1870 as amended by

94 Sindh Act X of 1939, to be sent without delay to the. Revenue authorities.

295. Errors how rectified after decree sealed- After a
decree or order has been sealed, any application to rectify any inaccuracy, or clerical or arithmetical error or otherwise, to make it in accord with the judgment, shall be made to the Judge who passed the decree or order, or in the event of his absence on leave or retirement, to any other Judge, and he may (in his discretion) after notice to the parties, when the Judge deems it necessary, amend the same so as to bring it into conformity with the judgment, or rectify such inaccuracy or error. Save as aforesaid no alteration or variation shall be made without a review of judgment and rehearing under the provisions of section 114 and O. XLVII of the Code.

CHAPTER XIX
TAXATION OF COSTS

296. What bills of costs are to be taxed by the Deputy
Registrar? The Deputy Registrar shall tax all bills of costs on every side of the Court and in the insolvency Court.

297. Time for filing bill of costs- Each party shall within five
days from date of a judgment or order submit his bill of costs.

298. Receipt and advocate’s certificate to accompany bill
of costs-The bill of costs shall be accompanied by the Nazir’s receipt for process fees expenses of witnesses and all other monies paid into the Court. It shall also be invariably accompanied by a certificate from the advocate concerned that he had not agreed to receive less than the amount of advocate’s fees entered in the bill of costs or to return any part of the same. In default of such certificate advocate’s fees shall not be allowed under the decree on taxation of costs. In the event of any advocate having agreed to receive less, the amount actually agreed to be received shall be certified and entered in the bill of costs and that amount shall be allowed on taxation of costs.

299. Notice for taxation- When a bill of costs has been duly
lodged before taxation of costs, two days’ notice shall be given to the 95 opposite party:

Provided that no-notice shall be necessary in any case when the defendant has not appeared in person or by his advocate or guardian.

300. What expenses of witnesses may be included in costs
No expenses of witnesses other than those paid through the Nazir shall be included in the costs allowed.

301. Condition for taxing expenses of copies of documents
Copies of documents required by any party in whose favour costs have been awarded must be applied for and all charges therefore paid before taxation of costs and no expenses of procuring such copies shall be allowed after taxation.

302. Taxation of costs- (1) Except as otherwise provided in
rule 495, advocate’s fee shall be taxed according to the scale prescribed in Chapter VII in Appendix C. Rest costs shall be taxed according to the charges necessarily and actually incurred. The charges shall be included in addition to other costs allowable under the rule, the cost of mediation, cost of typing according to the ordinary scale or where the cost of printing is shown, cost of printing, pleadings for the use of the Court, the fee paid at the Registration Office for searching and for obtaining copies of the necessary documents filed in Court, and the cost of preparation of process taxed according to the scale prescribed in Chapter VIII in Appendix C.

(2) Costs Consequences of Failure to Accept offer to settle.

(I) When a plaintiff makes an offer to settle, that is not accepted by the defendant, the court may award the plaintiff an amount not exceeding twice the cost of the action, if the following conditions are met:

(i) The plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer.

(ii) The offer was made at least seven days before the trial. 96

(iii) The offer was not withdrawn and did not expire before the trial.

(II) When a defendant makes an offer to settle that is not accepted by the plaintiff, the court may award the defendant an amount not exceeding twice the costs awardable to a successful party, from the date of the offer was served, if the following conditions are met:

(i) The plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer.

(ii) The offer was at least seven days before the trial.

(iii) The offer was not withdrawn and did not expire before the trial.

(3) Unless the court expressly directs otherwise, the following costs shall not be deemed to have been incurred necessarily within the meaning of sub-rule (1) and shall not be taxed;-

(i) Court-fee stamps on applications dismissed, or not allowed or not pressed;

(ii) Court-fee stamps on unnecessary or defective applications or applications to suit the convenience of a party such as for adjournment of hearing, for time to file written or other statements or to take some step for showing cause in case of any default or omission, for withdrawing a claim or for amendment of any pleading or petition;

(iii) Expenses of affidavits improperly or unnecessarily incurred;

(iv) Expenses of filing and proving unnecessary documents or documents which the other party was no previously called upon to admit by notice (O. XII, 97 r. 2), or of exhibiting interrogatories unreasonably, vexatiously or at improper length (O.XI, r. 3);

(v) Process-fee for serving persons found by the Court to have been unnecessarily impleaded or the suit against whom has been dismissed, withdrawn or not prosecuted; and

(vi) Charges incurred in procuring the attendance of unnecessary witnesses.

(4) At the time of passing an order disposing of an application, the Court or the Additional Registrar (O.S.) shall direct whether or not the costs of it shall be costs in the cause.

303. Compensatory Costs- If in a Suit or other proceeding
including Execution Proceeding the Court, at the time of passing final order, for the reason to be recorded in written, can award in addition to costs under rule 299, compensatory Cost not exceeding rupees twenty-five thousand if claim or defence is false or vexatious to knowledge of the parties asserting it or party approach the Court with ulterior motive or concealed material facts.

304. Review of taxation only on notice to the opposite side-
No application for review of taxation, unless the taxation was ex parte, shall be made except on notice to the opposite side.

305. No review of taxation of costs if bill of costs not filed in time
If the bill of costs is not filed within the time fixed under rule 288, the bill will be prepared by the taxing officer and no application for review of taxation shall be allowed, unless made before the decree is signed.

306. What costs allowed after taxation- The only costs
which shall be allowed after taxation shall be the costs of execution or of transmission of the decree to another jurisdiction. Such subsequent costs shall be entered on the face of the decree.

307. Meaning of “proportionate costs”- Where
“proportionate costs” or “costs in proportion” are allowed, such costs 98 shall bear the same proportion to the total costs as the successful part of the claim bears to the total claim.

308. Application to Court for review of taxation- A party
who may be dissatisfied with the decision of the Deputy Registrar as to any item or part of any item may, not later than fourteen days from the date of the decision or within such further time as the Court may allow, apply to the Court for an order to review the taxation as to the said item or part of any item, and the Court may thereupon after notice to the other side, if necessary, make such order as to it may seem just; but the taxation of the Deputy Registrar shall be final and conclusive as to all matters which shall not have been objected to in manner aforesaid.

309. Hearing of such application- Such application shall be
heard and determined by the Court upon the evidence which shall have been brought in before the Deputy Registrar, and no further evidence shall be received upon the hearing thereof, unless the Court shall otherwise direct.

CHAPTER XX
RULES UNDER THE ARBITRATION ACT, 1940

310. Preliminary- The rules contained in this Chapter are made
under Section 44 of the Arbitration Act, 1940 (hereinafter referred to as) “the Act”.

311. Proceedings under Chapter III and IV how entitled- (1)
An application under Section 20(1) the Act and rule 309 shall be made by petition and shall be presented to the court in the same manner as plaint or other application. The petition shall be verified, numbered and registered as a suit and shall, if necessary, be supported by an affidavit. All subsequent applications shall be entitled in such suit.

(2) Applications under Chapter IV of the Act shall be entitled in the suit in which they are filed.

312. Form of petition- The petition shall be divided into
paragraphs, numbered consecutively, and shall contain the name,

99 description and place of residence of the petitioner as well as the opposite party and a statement in summary form—

(a) of material facts;

(b) of facts that the Court to which the application is presented has the jurisdiction; and

(c) of the nature of relief asked for; and shall specify the names, descriptions and place of residence of other persons likely to be affected by it.

313. Statement of special case under Section 13 (b) of the Act
(1) In reference under Section 13 (b) of the Act, the question of law on which the opinion of the Court is sought and the facts out of which it arises shall be distinctly stated in Form no. 12 of Appendix A, concisely, in paragraphs numbered consecutively, such facts and refer shortly to such documents as may be necessary to enable the Court to decide the said questions and shall be signed by the arbitrators or umpire. A copy of arbitration agreement, if any, shall also be annexed to such reference. The arbitrators or the umpire making the reference shall give notice of the action taken by them to the parties.

(2) A special case shall be forwarded to the Additional Registrar (O.S.) accompanied by the documents therein referred to. Who shall fixed a day for appearance of the parties before him and shall issue a notice accordingly to the parties. On his being satisfied as to the service of the notice on the parties shall, as soon as the special case is ripe for hearing, fix it or hearing in Court.

(3) When the court has pronounced its opinion under Section 14 (3) of the Act, a copy thereof shall be sent to the arbitrators or the umpire making the reference and they shall have such opinion added to and made part of award.

314. Cases to be registered as suits or miscellaneous applications
A case in which the award is filed under Section 14 (2) or an application made under Section 20 (1) of the Act shall be

100 numbered and registered as a suit. Other applications under the Act shall be numbered and registered as miscellaneous applications.

315. Issue of notice- After the petition has been presented the
Court may, if it is not in order or according to law, reject it. If it is not so rejected, the Court shall direct notice thereof to be given to all persons mention in the petition and to such other persons as may seem to it to be likely to be affected by the proceedings, requiring all or any of such persons to show cause, within the time specified in the notice, whey the relief sought in the petition should not be granted. Such notices shall be accompanied by such copies of the petition and the affidavit, if any, copies being supplied by the petitioner.

316. Payment of process-fees- (1) The petitioner shall deposit
the necessary process-fees for the service of notice on the other parties concerned within seven days of the order directing the issue of notice or within such further time as the Court may, for sufficient cause shown, allow.

(2) The party who have requested the arbitrators or umpire under Section 14 (2) of the Act to cause an award to be filed shall, within seven days of filing of the award or within such further time as the Court may, for the sufficient cause shown, allow, deposit the necessary process-fees for the service of notice on the other parties concerned.

317. Mode of filing award- (1) Where the award is filed by the
arbitrators or umpire under Section 14 (2) of the Act they shall send to the Court under sealed cover the award or a signed copy thereof together with any proceedings or depositions and documents which may have been taken and proved before them and the opinion pronounced by the Court on the special case under Section 14 (3) of the Act, if any. They shall also send with the award a copy of notice given to the parties concerned under Section 14 (1) of the Act. If the sealed cover is send by courier/ post it should be send under registered cover.

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(2) If the Court makes an order under Section 38 of the Act directing the award to be delivered, it shall further direct that the arbitrators or the umpire shall deliver it any proceedings or depositions and documents which may have been taken and proved before them together with record of arbitration which may have been in their possession to the applicant who shall cause the award to be filed in Court by forwarding the same together with the aforesaid documents under sealed cover to Court with a petition in form no 13 in Appendix A.

(3) Where an award made without intervention of Court has been filed, the accompanying petition shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested under the reference a plaintiff or plaintiffs and the reminder a defendant or defendants.

An award made and a special case stated in arbitration under Chapter III and IV of the Act shall be entitled in such suit.

318. Notice to parties of filing of Award- (1) The Additional
registrar (O.S.) shall issue notice to parties other than the party referred in rule 314(2) of the filing of an award in Form 14 of Appendix A. If a special case is stated in the form of an award, the provisions of rule 310 (2) shall so be followed, so for as may be, for hearing the special case.

(2) The arbitrator or the umpire or the party referred in rule 314

(2) shall deposit fifty rupees in first instance in Court to meet the cost of such notices.

319. Issue of process at the request of arbitrators or umpire
(1) The Court shall cause processes to be issued to the parties to an arbitration proceeding or to the witnesses on the written request of the arbitrators or umpire.

(2) If the proceedings are under Chapter II of the Act the request for the issue of such process shall be accompanied by a copy of the agreement under which the arbitrators or umpire are acting.

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320. Form of award- (1) An award shall so far as possible be in
Form No. 15 in Appendix A.

(2) Form of Award in special case. Where the arbitrators or umpire state on award wholly or in part in the form of a special case, they shall follow the provisions of rule 310 and shall also, so far as it is practicable, state the award on various points of law in the alternative. Where it is not practicable to do so, they shall state the award according to the view they take of the law.

321. Form of application to modify, correct or set aside award
An application to modify, correct or set aside an award, or to remit an award to the arbitrators or umpire for reconsideration shall be made by a verified petition which shall set out the grounds on which the application is made. Such petition shall be entitled in the suit in which it is filed. A notice of such petition shall be served on the opposite party.

322. Applications for interim orders to be by interlocutory applications
(1) Applications under section 18 of the Act shall be by interlocutory applications, which shall, so far as may be and subject to the provisions of section 18 of the Act, be-regulated by rules 76 and 77.

(2) The affidavit filed with such application must among other things show that the provisions of rule 311 have been duly complied with, that the arbitration agreement, the reference and the award passed thereon are prima facie free from objection and that delay in granting the application pending the service of notice under rule 312 or pending expiry of the Act, as the case may be, is likely to prejudice him.

323. Service of notice of interim order on opposite party-
(1) A copy of an interim order passed under section 18 (1) of the Act together with a copy of the application made and affidavit filed in support of it shall be served on the person against whom such interim order has been passed.

(2) If the party to whom notice has been served wish to show cause, the provisions of rule 78 shall, so far as may be, be followed.

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324. Form of other applications under the Act and their registration
(1) Save as aforesaid, all applications under the Act shall be made by petition entitled in the matter of the Act and the arbitration.

(2) There shall be annexed to every such petition the documents, if any, relating to the subject matter of such application.

(3) Every such petition shall be supported by affidavit and, unless otherwise ordered by the Court, the provisions of rules 77 to 79 shall, so far as may be apply.

The person making an application shall be the petitioner and the person served therewith, the respondent.

(4) Every petition or copy thereof shall specify the persons affected thereby and upon whom notice must be served as hereinafter provided.

(5) Every such petition and every special case in a arbitration without intervention of a Court (not being a special case stated in the form of an award) shall be numbered and registered as a miscellaneous application:

Provided that if more applications are made in the same arbitration for extension of time under section 28 of the Act, subsequent applications shall bear the number and title of the first such application.

(6) This rule shall not apply to an application under section 34 of the Act.

325. Notice to persons concerned- Notice shall be served
upon all person specified in the application under rule 331 (4), upon the arbitrator, arbitrators or umpire against whom an application under section 11 of the Act is made and upon such other person as may appear to the Court to be affected by or concerned with the application.

326. Title of applications, etc., under section 34- (1)
Applications, affidavits and proceedings under section 34 of the Act

104 shall be entitled in the suit or the proceeding which the applicant seeks to have stayed.

(2) No proceeding shall be stayed under section 34 of the Act without notice to the opposite party, except where it appears that the object of granting a stay would be defeated by the delay occasioned by the notice, when an interim stay may be granted.

327. Notice of appointment of arbitrators- (1) A notice of
appointment of the arbitrators, and of umpire, as the case may be, under Section 8 (2), 12, 20 or 23 of the Act shall be in Form 16 in Appendix A. Such notice shall be served on them personally at the costs of the party making the application.

(2) Arbitrators, appointed under sub-rule (1) or otherwise, shall not be bound by the rules of procedure, however, the parties are free to agree on procedure to be adopted in conduct of the proceedings and the time frame thereof. Such agreement shall be made by the parties in writing or recorded in writing by the Arbitrator at the request of and the authority of the parties. The agreed procedure may be, set out at the time of preliminary hearing that shall be not later than seven days of the intimation by Arbitrator to the parties of his appointment.

(3) The stages agreed may be as follows:-

(a) Within seven days of the preliminary hearing, the Claimant shall submit his Statement of Claims in sufficient details, the fact and contentions of law on which he relies, together with the reliefs claimed against the respondent, and simultaneously shall serve a copy thereof on him.

(b) Within seven days of the receipt of Statement of Claims, the respondent shall submit a Statement of Defence setting out in sufficient details which of the facts and contentions of law in the Statement of Claims he admits or denies and on what grounds and on what other facts and contentions of law he relies. Counter-claims, if any, shall be submitted with the Statement of Defence in the same manner as Claims are set out in the Statement of Claims. The respondent shall serve copy of Statement of Defence and Counter-claims, if any, to Claimant.

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(c) Within seven days of receipt of the Counterclaims, if any, the Claimant shall submit a reply in the manner as a defence is to be set out in the Statement of Defence.

(d) Within seven days of submission of Statement of Defence or reply to the Counter-claim, as the case may be, the parties shall produce the testimony of their witnesses in written form as a sworn affidavit. If a party fails to produce the witness or witness fails to attend the hearing for cross-examination, the Arbitrator may exclude his affidavit. A witness who comes for oral evidence shall be subject to cross-examination by opposite party. The Arbitrator may put questions at any stage of his evidence.

(e) At the conclusion of the evidence, the parties may address the arguments on issues, thereafter, the Arbitrator shall make its Award in writing and shall state the reasons on which its Award is based. The Award shall state the date when the Award is made and shall be signed by him.

(f) If the respondent fails to submit a statement of Defence or the claimant a reply statement to counter-claims, or if any point any party fails to avail itself an opportunity to presents its case in the manner agreed, the Arbitrator may, nevertheless, proceed with the arbitration and make an Award.

328. Award includes interim award- The foregoing provisions
relating to an award shall apply, so for as may be, to an interim award:

Provided that in case of arbitration without intervention of a Court an award or awards subsequent to the first interim award shall bear the same title and number as the first interim award.

329. Court-fees and process-fees- Court-fees and Process-
fees chargeable with respect to matters, under the Act shall, as nearly as may be, be in accordance with the provisions of the Court fee Act, 1870, and the rules for time being in force relating to the payment of such fees on the original side.

330. Procedure- In matters not provided for in this Chapter the
provisions of the Code and any rules governing the proceedings of the Court shall, so far as may be and with necessary modification and 106 adoptions, apply to all proceeding including appeals under the Act before the Court.

CHAPTER XXI
RULES UNDER THE RECOGNITION AND ENFORCEMENT
(ARBITRATION AGREEMENTS AND FOREIGN ARBITRAL
AWARDS) ACT, 2011

331. Title of applications, etc- Applications, affidavits and
proceedings under the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011 (hereafter referred to in this chapter as the Act) shall be instituted in the matter of the Arbitration:

Provided that the applications, affidavits, and proceedings under Section 3 of the Act shall be entitled in the suit or matter which the applicant seeks to have stayed.

332. Mode of Applications- An application under Section 3, 4
and 6 of the Act shall be made by petition which shall be presented to the Court for orders after its scrutiny by the Additional Registrar (O.S.)

333. Contents of petition- Petitions shall be divided into
paragraphs, numbered consecutively, and shall contain in a summary form a statement of the material facts relied on and the nature of the relief asked for, and shall specify the persons liable to be affected thereby.

334. Stay of the proceedings under Sub-Section 2 of Section 3
(1) Upon an application for stay of proceedings, the Court shall direct notice to be given to the party or parties to the proceeding, other than the applicant, requiring him or them to show cause, within the time specified, why the order should not be made, unless the Court is satisfied that the object of the application would be defeated by the delay occasioned by the notice.

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(2) Any order for stay made under sub-rule (1) may be varied or set aside by the Court on application made thereto by any party dissatisfied with such order.

335. Enforcement of Foreign Award and the Documents to be produced with petition
(1) The Party seeking to enforce a foreign award shall produce with his petition-

(i) The duly authenticated original award or a duly certified copy thereof;

(ii) The original agreement or a duly certified copy thereof;

If the award or agreement is not made in English language, the party applying for the enforcement of Award shall produce a translation of these documents into said language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

(iii) an affidavit or affidavits showing—

(a) that the said agreement was valid under the law by which it was governed,

(b) that the award was made by the tribunal provided for in the agreement or constituted in the manner agreed upon by the parties,

(c) that it was made in conformity with the law governing the arbitration procedure,

(d) that it had become binding on the parties in the country in which it was made; and

(iv) other documents, if any, in support of his petition.

(2) Effect of non-production of documents with petition. If the application is presented without the documents specified in sub-Rule

(1), it shall forthwith be returned to the party presenting it. If such 108 application is unaccompanied by the documents specified in sub-rule

(1), the Court may allow time within which such documents must be filed.

336. Presumption as regards certain copies- (1) The Court
shall presume that a copy of an agreement for arbitration or of an award required to be produced under sub-rule (1) of rule 342 is duly authenticated in manner required by the law of the country in which it was made if it is certified on the face of such copy by a diplomatic or consular agent of the country and it was made that the authentication is in the manner commonly used in that country for the authentication of copies of such documents.

(2) The Court shall presume that any document purporting to be a copy of the arbitration proceeding relating to the award is genuine and accurate if it is certified on the face of such document by a diplomatic or consular agent of the country in which the arbitration proceedings took place that the document is authenticated in manner commonly in use in that country for the authentication of copies of such documents.

337. Jurisdiction of the Court- Court shall exercise exclusive
Jurisdiction to adjudicate and settle matters related to or arising from this Act,

In the exercise of its Jurisdiction, the Court shall,-

(a) follow the procedure as nearly as may be provided for the Code of Civil Procedure, 1908;and

(b) have all the powers vested in Civil Court under the Code of Civil procedure,1908.

33. Code of Civil Procedure and Original Side Rules to apply- In cases not provided for in the rules contained in this Chapter, the provisions of Code of Civil Procedure, 1908 and the rules of the Court in suit and matters on Original side of the Court shall, with any necessary modifications, apply to all proceedings before the Court under the Act.

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339. Execution of decree and orders- The provisions of the
Code and the Rules and Forms of this Court relating to execution of decrees and orders shall, mutatis mutandis, be applicable to the execution of decrees for enforcement of award.

CHAPTER XXII
ARREST AND ATTACHMENT BEFORE JUDGMENT

340. Arrest and attachment before judgment- The application
for arrest or attachment before judgment under Order XXXVIII of the Code shall be made supported by affidavit, stating distinctly the ground on which the warrant is sought and the reason for the believing such ground to exist.

A party applying under this rule shall give an undertaking in writing, or through his advocate to pay such sum by way of damages as the Court may award as compensation in the event of the party affected sustaining prejudice by such order

341. Conditional attachment duration of- When a conditional
attachment is granted under Order XXXVIII, rule 5 of the Code, shall only continue until the day named in the warrant or until further order of the Court.

342. Rule 406 to apply- Rule 406 shall apply, with modifications,
to warrant of arrest and attachment before judgment.

343. Procedure on the surety rendering the principal or principal surrendering himself
If the surety be desirous of rendering the principal or if the principal be desirous of surrendering himself, such surety or principal shall give notice to bailiff to attend the Court at the time of render or surrender, in order that the bailiff may take immediate charge of principal.

344. When principal may be rendered- Sureties shall be at
liberty to render the principal at any time during the last day for rendering provided such render is made before the prison doors are closed for the night.

345. Stay of the proceeding- A party shall not be at liberty to
proceed on the bond, pending a rule to bring in the body of principal.

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CHAPTER XXIII
PROCEEDINGS IN EXECUTION

346. Interpretation- In this chapter the word “decree” includes
order.

APPLICATION FOR TRANSMISSION

347. Transmission of decree for execution- (1) An
application for the transmission of a decree to another Court for execution shall be entitled in the suit, shall specify the Court to which the transmission of the decree is sought and be supported by an affidavit stating the grounds. It shall be accompanied by a certified copy of the decree or an application for the same.

(2) If the application is granted, the applicant shall within three days thereafter deposit in Court the expenses for preparing a certified copy of the decree, if it is not filed with the application.

(3) The Additional Registrar (O.S.) shall transmit by registered post, at the cost of the applicant, the certified copy of the decree together with the other documents mentioned in Order XXI, rule 6 of the Code to the Court to which the transmission is sought in accordance with the provisions of rules 4 and 5 of O.XXI of the Code.

348. Stay of execution on transmission- When a decree is
sent to another Court for execution, execution of the decree will not be stayed in the proceedings in this Court unless this Court shall, on such terms as it thinks fit, otherwise, direct.

349. Transmission of decree in two or more districts simultaneously
When a person against whom execution is sought has property in two or more districts, the Additional Registrar (O.S.) may, on being satisfied of the necessity cause a copy of the decree obtained against such person to be transmitted for execution in some or all of such districts, contemporaneously. In the certificate of non-

111 satisfaction, to be sent therewith to the Court of each of such districts it shall be stated to what other Courts a copy of the decree or order has been sent for execution. At the same time a letter shall be sent to the Judge of one of such Courts requesting him to attach and sell the property in his district (hereinafter mentioned as district A), or a sufficient portion thereof, and certify the result to this Court, and with such letter shall be sent a copy of the letter sent to the Judge of each of the other Courts. A letter shall also be sent to the Judge of each of the other Courts, requesting him to attach the property in his district, but not to sell the same until furnished by this Court with information as to the result of the sale of the property in district A.

350. When insufficient amount realized in first district- If
the amount realized in district A shall not be sufficient to satisfy the decree, a certificate stating the result of the sale shall be sent to the Judge of another of such Courts with a letter requesting him to sell the property under attachment in his district (hereinafter mentioned as district B), or a sufficient portion thereof, and certify the result to this Court.

351. Also in second or succeeding districts- If the amount
realized in execution in district B shall not be sufficient to satisfy the balance payable under the decree, the proceedings indicated in the last preceding rule shall be followed, and so, on as to each of the other districts successively.

352. When sufficient amount realized in execution- If the
amount realized in execution in district A. or district B or any other district except the last, shall be sufficient to satisfy the decree, a certificate that such case shall be sent to the Court of each district, in which property shall at the time be under attachment in execution of the decree.

353. Notice of execution of foreign Court decree to issue to judgment-debtor
Unless the Court otherwise directs, notice of the decree of another Court transmitted to this Court for execution shall issue to the judgment-debtor.

354. Register of decrees received from other courts-
Decree received for execution from other Courts shall be entered in the Register of Decrees received for execution from other Courts; 112 whether they be decrees of Courts within Pakistan or of Courts outside Pakistan covered by section 43, and 44-A of the Code.

355. Return of decree to the transmitting Court- If, after a
decree has been sent to the High Court for execution, the decree-holder does not within six months from the date of the transfer apply to the Court for the execution of his decree, the Additional Registrar (O.S.), shall certify to the Court which passed the decree the fact that no application for execution has been made to this Court and shall return the decree.

APPLICATION FOR EXECUTION

356. Application under O. verified by the applicant
XXI, R. 11(2) to be signed and verified by the applicant- (!) An application under rule 11(2) of 0.XXI of the Code shall be in writing, signed and verified by the applicant and shall contain in a tabular form with particulars specified in sub-rule (2) of Rule 11.

(2) The Court may require the applicant to produce a certified copy of the decree.

357. Checking and admission of execution petition- The
applications for execution shall ordinarily be checked in the order in which they have been filed as reference to the execution proceedings and to the Register of Civil Suits and all objections thereto, if any, shall be noted thereon. They shall then be submitted to the Additional Registrar (O.S.), for orders. All applications for execution, when admitted, shall be entered in the Register of Execution Applications.

358. Procedure in execution application under O.XXI, R.15
When an application is made by one or more of several joint decree-holders, unless a written authority signed by the other decree-holders for the applicant to execute the decree and to receive the money or property recovered, is filed in Court, the Court or the Additional Registrar (O.S.), may give notice of the order, if any, passed for the execution of the decree to all the decree-holders who have not joined in the application and may also give notice of any application for

113 payment or delivery to the applicant of any money or property recovered in execution.

359. Procedure when cause not shown- Where execution
is for the arrest of a judgment-debtor, if the judgment-debtor does not appear on the day of hearing fixed under the notice issued or on such day as the hearing thereof may be postponed to the notice and the affidavit of service thereof shall be filed and the Additional Registrar (O.S.), after being satisfied that it is a fit case for a warrant of arrest to issue, shall make an order for the issue of warrant of arrest.

360. Additional Registrar, (O.S.), not to issue execution simultaneously against person and property
The Additional Registrar (O.S.) shall not issue execution against the property of a judgment-debtor at the same time that he or the Court has issued execution against his person. But a decree-holder desiring to proceed against both at once, must apply specially to the Court on affidavit, and in case of such application being refused, shall not be allowed to include the costs thereof in his costs as against the debtor without the special order of the Court. But when a warrant for the arrest has not been executed, the Additional Registrar (O.S.), may, at the request of the decree-holder, forthwith issue a warrant for the attachment.

361. Application for receiver in execution of decree- An
application for the execution of a decree by the appointment of a receiver under section 51 and Order XL, rule 1 of the Code to realize or otherwise deal with property under attachment shall be made to the Court, and such receiver shall, unless otherwise ordered, be subject to the rules of this Court applicable to persons appointed receivers of property, the subject-matter of a suit.

MODE OF EXECUTION

Execution of documents

362. Decree-holder to file in Court the draft and fees for service
The decree-holder shall file two copies of the draft referred to in Order XXI, rule 34(1) of the Code and two copies of the Notice in Form No.19 in Appendix A together with the prescribed process fee for service thereof. One of the copies of the draft shall be served on the person directed to execute the document in the manner prescribed for service of summons on the defendant to a suit.

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363.
Execution of document under O. XXI, rule 34(5)- Unless otherwise ordered by the Court, a document shall be executed or negotiable instrument endorsed under Order XXI, rule 34 (5) of the Code by the Additional Registrar (O.S.).

Arrest

364. Production of persons arrested after sunset- A person
arrested after sunset shall be immediately lodged in the prison and brought before one of the Judges at the opening of the Court on the next working day. If such day be a Sunday or other holiday, he shall be brought before one of the Judges at his place of residence.

365. Superintendent to keep in custody- The Superintendent
of the Central prison, Karachi, shall receive and keep in his custody any person arrested till the said person can be placed before a Judge for an order of committal or otherwise;

Provided that on committal an order of committal shall be lodged with the Superintendent.

366. Production before Judge under fresh warrant of persons already in custody
When a warrant is received to arrest a person already in custody of the Superintendent of the Central prison, Karachi, on process, the Superintendent shall forthwith cause the person to be brought before a Judge for an order of committal.

Attachment

367. Application of incumbrancer to be made a party to the suit or to join in the sale
An incumbrancer, not a party to the suit, may at any time before the sale apply to the Court to be made a party or for leave to join in the sale; and such order shall be made thereon and in protection of his rights and as to costs as to the Judge shall deem fit.

368. Inquiry before the Additional Registrar, (O.S.) as to matters specified in O.XXI, rule 66
(1) If the judgment-debtor appears before the Additional Registrar (O.S.), pursuant to the notice issued under Order XXI, rule 66(2) of the Code, the Additional Registrar (O.S.), shall examine him on any matter affecting his title to the attached property. The decree-holder may also examine him on

115 any matter relating thereto. If the judgment-debtor fails to attend, the Additional Registrar (O.S.) shall proceed ex parte.

(2) The Additional Registrar (O.S.) may also exercise powers under order XXI, rule 66 (4).

(3) Documents produced (if any) shall be left with the Additional Registrar (O.S.), and shall be subject to his directions both as to their custody pending the sale and their ultimate disposal, such directions being subject to appeal to the Court.

369. Receipt of attached property to be given- A bailiff
attaching movable property shall, if required, furnish to the judgment-debtor or other person, from whose possession the movable property is attached, a receipt in the form of a list of the said property signed by the said bailiff.

370. Procedure where property is already under attachment by revenue authorities
When property to be attached is already under attachment by the revenue authorities, the bailiff shall require the Makthiarkar or, in his absence, the Head Munshi of the place to give him a certificate to that effect stating also the amount of the Government demand. On such certificate being issued to him, the bailiff shall refrain from attaching the property and shall report to the Nazir.

371. Removal of property attached under O.XXI, Rule 43 to the Court
live-stock and other movable property attached under Order XXI, rule 43 of the Code shall ordinarily be removed and conveyed by the attaching officer or by his subordinate or by persons specially engaged by him for the purpose to the Court premises or other appointed place and there kept under due custody till sold or otherwise disposed of according to law:

Provided that if the property attached consists of cash, Government or other securities, jewels or other valuable articles of small bulk, the Nazir may keep the same for safe custody in strong room or may send to the Government Treasury after obtaining an order to this effect from the Judge.

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372. Removal to Court by judgment-creditor on executing bond
In cases where it is found more convenient so to do, the property may be handed over to the decree-holder for removal and conveyance to the Court premises or other appointed place for the purpose specified in the next succeeding rule, provided such person enters into a bond in Form No. 21 in Appendix A.

373. Procedure where removal impracticable or costly-
(1) When the property is of such a nature that, in the opinion of the attaching officer, its removal to the Court premises or other appointed place is impracticable or can only be effected at a cost out of proportion to its value, the attaching officer shall report his opinion to the Additional Registrar (O.S.), and, pending receipt of his order, shall arrange for its proper maintenance, guarding and custody at or near the place at which it has been attached.

(2) The Additional Registrar (O.S.), on receipt of such a report as is mentioned in sub-rule (1), may either order the removal of the property to the Court premises or other appointed place or sanction its detention at the place at which it has been attached or elsewhere under such conditions as to its maintenance, guarding and custody as he thinks fit.

(3) Nothing in this rule affects the power of the attaching officer under the provisions of Order XXI, rule 43 of the Code to sell such property at once if it is subject to speedy and natural decay.

374. Deposit of cost for removal or maintenance of property
Before making any order for the attachment of live-stock or other movable property, or at any time after any such order has been passed, the Court or the Additional Registrar (O.S.), may require the person at whose instance the order of attachment is sought or has been made to deposit in Court such sum of money as the Court or the Additional Registrar (O.S.) may consider necessary-

(a) for the removal of the property to the court premises or other appointed place and its maintenance, guarding and custody till arrival thereat.

(b) for the maintenance, guarding and custody of the property at the Court premises or other appointed place till it is sold or otherwise disposed of; and

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(c) for the maintenance, guarding and custody of the property at the place at which it was attached or elsewhere.

In case of failure to deposit such sum within the time prescribed by the Court or Additional Registrar (O.S.), the Court or Additional Registrar (O.S.) may either refuse to issue or may cancel the order of attachment, as the case may be.

375. Account to be rendered on demand- An account of
the expense actually incurred shall, on demand being made on or before the date of the sale, be furnished to the decree-holder on whose instance attachment was made and to the person whose property was attached and the amount that the Additional Registrar (O.S.), after hearing their objections to the account, if any, made within three days after furnishing the same, finds to be properly due, shall be deducted as a first charges from the proceeds of the sale of the property and paid to the attaching creditor along with any balance that there may be of the deposit.

376. Restoration of attached property on payment of costs incurred
(1) If in consequence of the cancellation of the order of attachment or for any other reason the person whose property has been attached becomes entitled to receive back the live-stock or other movable property attached, he shall be given a notice by the Additional Registrar (O.S.), that he should take delivery of it within the time prescribed by the Additional Registrar (O.S.) on payment by him of all charges, if any, found by the Court or the Additional Registrar (O.S.) to have been properly incurred and which have not been defrayed or for the defrayal of which no money has been deposited by the decree-holder.

(2) If he commits default in taking delivery of the property by failure to pay the requisite charges or otherwise, the Additional Registrar (O.S.) may order that the property be sold by public auction and that after defraying the charges referred to in sub-rule (1), if any, and the expenses of the sale, the balance of the sale-proceeds be credited to his account.

Sale of attached property

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377. Notice regarding sale of guns and other arms, etc., attached
Whenever guns or other arms in respect of which licenses are to be taken by purchasers under the Arms Ordinance 1965 or any other articles in respect of which Licenses have to be taken under any law in force, are sold by public auction in execution to decrees, the Additional Registrar (O.S.), shall give due notice to the Licensing Authority or other appropriate officer of the names and addresses of the purchasers and of the time and place of the intended delivery to the purchaser of such arms or other articles.

378. Sale of Government Promissory Notes, how made-
Government Promissory Notes attached in execution of a decree, which have to be disposed of in satisfaction of the decree, shall be sent by the Additional Registrar (O.S.), to the State Bank of Pakistan, with instructions regarding the disposal of the sale-proceeds of the notes.

379. Immediate sale of movable property- In the case of
property to be sold under the proviso to rule 43 of Order XXI of the Code:

(i) if such property is in the Court premises in the custody of the Nazir, the Additional Registrar (O.S.), may authorize him to sell the same by public auction and may give such directions as to the date and place of sale and the manner of publishing the same as the circumstances of the particular case admit;

(ii) in other cases the sale shall be made by public auction and after such publication and notice as the circumstances of the particular case admit.

380. Place of sale of Live-stock, etc- Save as provided by
the last preceding rule and rule 74 of Order XXI of the Code and unless the Court otherwise orders, sale of live-stock, articles of local manufacture, and other things commonly sold at local markets, which have not been brought to Court shall be held at such market in the neighborhood of the place where the goods were attached as may appear to be for the greatest advantage of the debtor, regard being had to the prospect of good prices and to the saving of expenses in carriage.

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381. Application for sale to be accompanied by abstract of title
An application for sale of immovable property attached shall be accompanied by an abstract of the title of the judgment-debtor so far as it can be ascertained and if the original title deeds are in the hands of the decree holder, they shall be produced in Court.

382. Contents of sale proclamation- In addition to the
particulars specified in sub-rule (2) of rule 66 of Order XXI of the Code the proclamation shall contain a notice that only the right, title and interest of the judgment-debtor is to be sold that purchasers must satisfy themselves as to the judgment-debtor’s title to the property, and that the title deeds or an abstract of the judgment debtor’s title will be open for inspection at the office of the Nazir.

The proclamation shall, whenever such information is available also state in whose possession and occupation the property is and the tenancy or terms on which any person is in occupation or possession.

383. Publication of proclamation- Whenever the sale of
moveable or immoveable property exceeding one hundred thousand rupees in value is ordered, the Nazir shall, with the permission of the Court, advertise such sale in a local newspaper or newspapers as may be ordered by the Additional Registrar (O.S.).

384. Copy of sale proclamation to be sent to Revenue authorities in case of sale of land
When a land or share of land is ordered to be sold in execution of a decree, the Court shall send a copy of the proclamation of sale issued under Order XXI, rule 67 of the Code to the Revenue authorities.

385. Place of sale of immovable property- As regards sale
of immovable property, the Additional Registrar (O.S.) in fixing the place of sale will consult the wishes of the parties, preference being given to those of the judgment-debtor. In the absence of any expressed wish on the subject by the parties, the sale shall be held where the property is situated except in cases in which in the opinion of the Additional Registrar (O.S.), some particular advantage is to be obtained by holding it at the Court house.

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386. Sale at Court house, how conducted- Such sale
when held at the Court-house shall be conducted by the Nazir or other responsible officer of the Court and shall take place on some fixed day of week and at such hours of such day as the Court shall make generally known.

387. Leave to bid at reserved price- (1) Application for
leave to bid at the sale shall be supported by an affidavit giving reasons why the decree-holder should be permitted to bid.

(2) In cases in which the Additional Registrar (O.S.) considers that the decree-holder should not be allowed to bid for less than a sum to be fixed, it shall be competent to the Additional Registrar (O.S.) to give leave to bid at the sale only on condition that his bid shall not be less than the amount so fixed, which amount shall so far as practicable, be determined with reference to the probable market value of the property or of the lot or lots into which the property is divided for sale.

388. Sale- On the day and at the time and place appointed
for the sale, the proclamation of sale shall be read out before the property is put up for sale.

389. Postponement of sale for want of sufficient bidding-
If there be no bid or the highest bid be below the reserved price (if any) or be deemed insufficient by the Nazir or other officer conducting the sale he shall postpone the sale and record the reason for such postponement in the bidding paper.

390. Postponement of sale otherwise than under rule 396
The Nazir or other officer conducting the sale may postpone it if he is unable to attend on the appointed day or for other sufficient cause or with the consent of the Parties. The costs of a postponement rendered necessary by the absence of the Nazir or other officer conducting the sale shall be costs in the cause. The costs of a postponement made at the request of the party or by reason of his conduct shall be borne by him or as shall be consented to by the parties.

121

391. Bidding papers to be signed by the purchaser- The
name of each bidder at the sale of property shall be noted on a paper to be called “the bidding paper” and the amount of the bid shall be entered opposite his name. If there be no bid, the words “no bidding” shall by written in the bidding paper opposite the property or, as the case may be, the number of the lot. If the highest bid be deemed insufficient, the words “not sold” shall be written opposite the property or the number of the lot. If the property be sold, the highest bid shall be inserted opposite the property or the number of the lot and the purchaser shall write his full name opposite such entry and shall add his address and occupation. All notices thereafter served at the address so given shall be deemed to have been duly served on the purchaser.

392. Or by his agent as such- A person purchasing as duly
authorized agent for another shall sign the bidding paper as such giving the full name, address and occupation both of himself and his principal. Notices thereafter served at either of the addresses given shall be deemed to have been duly served.

393. Declaration of purchase- If the highest bid be equal to
or higher than the reserved price (if any), the Nazir or other officer conducting the sale shall, make an entry in the bidding paper to the following effect:

“I declare to have been the highest bidder for the purchase of the property above set forth (or of lot No...........) for the sum of Rs...............” and has deposited a sum of Rs.--------being 25% of sale price.

394. Report of sale- Upon the completion of the sale the
Nazir or other officer conducting the sale shall file in Court his report of the sale.

395. Time for confirming sale- A sale of immovable
property shall not be confirmed until after the expiration of thirty days from the date of such sale and the purchaser has deposited the balance of sale price.

Delivery of possession of immovable property

122

396. Possession of house how delivered to decree-
holder or purchaser- When immovable property of which possession is to be given under Order XXI, rules 35 or 95 of the Code is found locked, notice shall be issued by the officer executing the warrant for delivery of possession to the person bound by the decree and in possession of the house requiring him to unlock it within a given time. If on the day so appointed it is still locked, it may be broken open in the presence of two respectable persons of the locality and given into the possession of the decree-holder or the purchaser; as the case may be.

397. Decree-holder or purchaser to give notice to owner regarding removal of property therein
When there is movable property in a judgment-debtor’s immovable property of which the decree-holder or purchaser has been put in possession, it is for the decree-holder or purchaser to give notice to the owner, if he is known to remove such property; and if the owner fails to do so, to take such steps as he may be advised.

GENERAL

398. Preparation and issue of processes in execution-
Process in execution shall not be prepared unless process fee have been paid within seven days or such extended time as may be allowed by the Additional Registrar (O.S.). Process in execution shall not be issued until the requisite Court-fee stamps have been affixed and cancelled and the process has been signed and sealed by the proper officer of the Court.

399. Costs of execution to be specified on warrant of arrest and attachment
Warrant of arrest of a person or warrant of attachment of property in execution of a decree or order shall, in addition to the amount due and payable under the decree or order for principal, interest and costs, specify a sum for the costs of the execution, unless so directed by the Court.

400. Procedure on stay of execution- When execution of a
decree is stayed by a competent Court, the application for execution of the decree shall not, unless withdrawn by the applicant, be struck off the file but shall be adjourned pending the final order of the Court staying execution. 123

401. Recording of evidence and order in execution proceedings
In proceedings in execution other than those in which proof is given on affidavit in accordance with these rules or under an order of the Court or the Additional Registrar (O.S.), evidence shall be recorded and exhibits admitted in evidence shall be marked in accordance with the provisions of Order XVIII of the Code and these rules, so far as they are applicable.

CHAPTER XXIV
NAZIR’S OFFICE

402. Nazir and Deputy Nazir to execute or to cause to execute processes
The Nazir and, subject to his directions, the Deputy Nazir shall execute or cause to be executed through the officers of the Court processes including warrants or orders for the delivery, attachment or sale of property in execution, or for the arrest or custody of a person, which may be entrusted to the Nazir for execution. They shall return warrants and orders within the time prescribed, with an endorsement specifying the manner of execution or the causes which prevented execution. Such warrants and orders shall be filed in the record. A Process Service Register shall be kept in Form No. 3 in Appendix B.

403. Noting of date on processes- The Nazir or the Deputy
Nazir shall note on process the date on which it was delivered to him.

404. Service on holidays- Process shall not be served or
executed and sale shall not be held in execution on Sundays or during holidays or vacation of the High Court, except by leave of the Court or the Additional Registrar (O.S.).

405. Service on the firm of advocates- Where the service
is affected on a firm of Advocates, such service may be on one or more of the partners of such firm.

406. Payment of money- (1) The Nazir and, subject to his
directions, the Deputy Nazir shall receive all monies paid under due authority into the Court and shall pay out all monies duly ordered to be paid out of Court.

124

(2) Money may be paid or deposited in Court by Banker’s Cheque / money order. In that case the person making the payment shall send to the Nazir a statement containing full particulars regarding the intended payment or deposit.

407. Notice of payment or deposit to decree-holder or revenue authorities
(1) A person paying money into or depositing property in the Court in part payment or full satisfaction of a decree shall give notice through the Court of such payment or deposit to the decree-holder.

(2) Where the decree orders payment of Court fees to Government under O.33, Rule 10 of the Code, no order shall be made on the application, for payment of such money or delivery of such property without giving notice thereof to the Revenue authorities at the expense of the applicant.

408. Delivery of securities, jewelry or other valuables into Court
When jewelry or other valuables are brought into Court, two copies of a descriptive list thereof shall be presented and shall be checked and signed by the Nazir in the presence of the depositor. The jewelry or other valuable shall be placed in a box furnished with a lock and key to be provided by the depositor. The box shall then be locked and sealed with the seal of the Court and be kept in strong room of Nazarat together with one of the copies of the said list and the key shall be retained by the Nazir, a receipt shall be given to the depositor.

409. Application for payment of money, etc- Application
for payment of money or delivery of property deposited in Court shall be entitled in the suit or matter and shall also show the number of the execution application, if any, is pending showing the right and interest of the party applying and the amount claimed.

410. Applications to be checked- Applications to make or
receive payments shall be duly checked by reference to the record of the suit or matter and to the Nazir before submission for orders to the Additional Registrar (O.S.), or, as the case may be, the Additional Registrar, Appellate Side.

125

411. Payment by money order, bank draft etc- On the
application of the decree holder or other person entitled to any money deposited in court and not expended for the purpose for which it was deposited, if there is no objection to the payment of money on the ground of attachment or otherwise, the Additional Registrar (O.S.) may order that the amount, after making all necessary and lawful deductions, be sent to the applicant at his risk;

(i) by money order if the amount does not exceed one thousand rupees.

(ii) by bank draft by registered post acknowledgement due, or

(iii) in any other, manner specified by the applicant, which the Additional Registrar (O.S.) approves:

Provided that, before payment is ordered to be made under clause (ii) or (iii) the applicant shall submit a duly stamped receipt for the amount due in the form given below:

FORM OF RECEIPT

Received the sum of Rs. (rupees only) from the High Court of Sindh at Karachi being the amount deposited in the said Court in connection with

(Stamp) Date: (Signature of the Payee)

412. Written authority of client requisite for payment to advocate
Unless otherwise ordered by the Court, no payment in a suit or matter, save and except when it is in respect of costs, shall be made to an advocate on behalf of his client without a written authority of the client signed by him for such payment:

Provided that if an advocate has been adjudged insolvent or if an application to adjudge him insolvent is pending, no such payment as aforesaid shall be made to him until he is discharged or the application to adjudge him insolvent is dismissed.

126

413. Account books to be kept- The following account
books shall be kept in the form and in the manner prescribed for the Civil Courts subordinate to the High Court:-

A. Book of receipts for money paid into Court.

B. Process fee receipt book.

C. Register of deposit receipts, viz., register of sums received in Court in connection with suits or, judicial proceedings and deposited with Government (to be kept in duplicate).

D. Register of deposit payments, viz., register of payments from sums received into Court in connection with suits or judicial proceedings and deposited with Government (to be kept in duplicate).

E. Files of applications for refund of lapsed deposits and of statements of lapsed Civil Courts deposits.

F. Register of attached property.

G. Register of money received on account of expenses of witnesses and miscellaneous petty items required for immediate disbursement.

H. Register of payments on account of expenses of Witnesses and miscellaneous petty items required for immediate disbursement.

I. Cash book.

J. Ledger.

K. Bank Cheque book, or Treasury pass book.

414. Signing of Cheque and checking of accounts by D.D.O
The Drawing & disbursing Officer is authorized to sign Cheque. He shall at least once a month call for the Registers and accounts and to satisfy himself that the entries have been carefully and properly

127 made. When such inspection is made, he should note the fact with his own hand on the register or account inspected.

415. Account books to be kept in minors or lunatics’ estates
The Nazir shall in connection with minors’ or lunatics’ estates under his administration keep the following account books in the manner prescribed for the Civil Court subordinate to the High Court:-

(1) day book,

(2) ledger,

(3) counterfoil receipt book, and

(4) such other account books as the Chief Justice may from time to time prescribe.

The record of each estate should be kept in separate file papers being arranged in chronological order, with an index for the same.

416. Return of minors’ estates under administration The
Nazir shall prepare in the month of April of each year a history sheet in such form as the Chief Justice may from time to time prescribe showing the minors estates still under his administration. The history sheet shall be examined by the Additional Registrar, (O.S) and submitted to the Chief Justice for such order as may be necessary.

417. Charge of property in criminal cases- (1) The Nazir
shall take charge of all property sent to the Court in connection with criminal appeals, references, and revisions, and shall keep thereof, in the form now in use, a Criminal Property Register.

Charge of dead stock

(2) The Nazir shall have charge of all dead stock and shall keep a dead stock Register in Form No. 4 in Appendix B.

(3) All amounts deposited under orders of the court with the Nazir shall be invested forthwith in govt. securities.

128

CHAPTER XXV
TESTAMENTARY AND INTESTATE
JURISDICTION

Preliminary

418. Interpretation- In this Chapter
(j) “Act” means the Succession Act, 1925;

(ii) “Letters of Administration” includes letters of administration with the will annexed; and

(iii) “Will’ includes a “codicil”

Application for Probate, etc

419. Application for probate- Application for probate shall be
made by petition in Form No. 25 in Appendix A and shall be accompanied by-

(a) affidavit of one of the attesting witnesses, if procurable, in Form No. 26 in Appendix A;

(b) valuation of the property prepared strictly in the form set forth in the third schedule to the Court Fees Act, 1870;

(c) a deposit of the amount payable upon grant of probate under the Court Fees Act, 1870; if payable, and

(d) affidavit of proof or certificate of death.

420. Application for letters of administration where the deceased died intestate
Application for letters of administration shall be made by petition in Form No. 27 in Appendix A, and shall be accompanied by the annexures (b) and (d) and the deposit mentioned in the last preceding rule.

421. Application for letters of administration where the deceased has left a will
Application for letters of administration with the will annexed shall be made by petition in Form No.28 in Appendix

129 A and shall be accompanied by the annexures (a) (b) and (d) and the deposit mentioned in Rule 426.

422. Application for succession certificate- Application for
succession certificate shall be made by petition in Form No. 29 in Appendix A and shall be accompanied by the Deposit of a sum equal to the fee, if payable under the Court fees Act; 1870 in respect of the certificate.

423. Address for service- Applications for probate, letters of
administration with or without the will annexed or succession certificate shall also state the address for service of the petitioner.

424. Delay in application- In any case, where, probate,
letter of administration or succession certificate is for the first time applied for after the lapse of three years from the death of the deceased, the reason for delay shall be explained in the petition. Should the explanation be unsatisfactory, the Court may require such further proof of the alleged cause of delay as it may deem fit.

425. Interlineations, alterations etc. sworn to by the attesting witness
in the will should be sworn to by the attesting witness- Where interlineations, alterations erasures or obliterations appear in the will (unless delay executed as required by the Act, or recited or otherwise identified by the attestation clause) a statement must, if possible, be made in the affidavit of the attesting witness whether they existed in the will before its execution or not.

426. In absence of attesting witnesses with other evidence must be produced
If no affidavit by any of the attesting witnesses is procurable, an affidavit shall be procured (if possible) from some other person (if any) who may have been present at the execution of the will; but if no affidavit of such person can be obtained, evidence on affidavit must be produced, of that fact and of the handwritings of the deceased and of the attesting witnesses, and also of any circumstances which may raise a presumption in favour of due execution.

130

427. Attempted cancellation must be accounted for- An
appearance of an attempted cancellation of a testamentary writing by burning, tearing, and obliteration or otherwise, and every circumstance leading to a presumption of abandonment or revocation of such writing or part thereof must be accounted for.

428. Unsigned or unattested will- In cases in which it is not
necessary that a will should be signed by the testator or attested by witnesses to constitute a valid testamentary disposition of the testator’s property, the testator’s intention that it should operate as his testamentary disposition must be clearly proved by affidavit.

429. Production of deed, paper, etc., referred to in will- If
a will contains a reference to any deed, paper, memorandum or other document of such a nature as to raise a question whether it ought not to form a constituent part of the will, such deed, paper, memorandum or other document shall be produced with a view to ascertain whether it is entitled to probate and if not produced, its non-production must be accounted for.

430. Administration to a creditor- In applications by a
creditor for letters of administration, it shall be stated particularly how the debt arose.

431. Renunciation- Person, who renounces probate of a will or
letters of administration of the property of a deceased person in one character, shall not, without leave of the Court, take out representation to the same deceased in another character.

432. Grants throughout Pakistan- In cases under the Act,
in which it is sought to obtain a grant of probate or letters of administration with or without the will annexed to have effect throughout Pakistan, such grant must be expressly asked for, and it must be further stated in the petition that, so far as the petitioner has been able to ascertain or is aware, there are no property and credits other than what are specified in the schedule attached to his affidavit of valuation.

131

433. Applications for probate, etc., to be registered as miscellaneous applications
Applications for probate, letters of administration with or without the will annexed and for succession certificate, when admitted, shall be registered and numbered as miscellaneous applications.

Citation

434. Notice of application to be given to Revenue authorities
The Additional Registrar (O.S.) shall give notice of the applications for probate or letters of administration to the Revenue authorities, in Form No. 30 in Appendix A.

435. Notice to next-of-kin- When administration or
succession certificate is applied for by one or some of the next-of-kin only, there being another or other next-of-kin equally entitled thereto, the Additional Registrar (O.S.), may direct notice of such application to issue to such other next-of-kin.

436. Citation to Administrator-General- Grant of letters of
administration, other than letters of administration pendente Iite, shall not be issue to a creditor, or to a legatee, other than a universal Legatee; or to a friend of the deceased until citation has first issued to the Administrator-General of Sindh.

437. Form of citation- A citation under section 283 and a
notice of an application under section 373 of the Act shall be issued in Form No. 31 in Appendix A.

438. When citation to be dispensed with- In applications
for probate or for letters of administration with or without will annexed where the gross value of the estate is five hundred thousand rupees or less: the Additional Registrar (O.S.), may, if he thinks fit, allow publication of citation in one or more newspapers only or may dispense with it altogether.

132 Proof

439. Proof of identity- The Court may in case where it is
deemed necessary, require proof, in addition to the usual statement required to be made in the application, of the identity of the deceased or of the party applying for the grant.

440. Blind or illiterate testator- The Court shall not grant
probate of the will or administration with the will annexed of any blind or obviously illiterate or ignorant person unless it or he has, satisfied itself or himself that the said will was read over to the testator before its execution, or that the testator had at such time knowledge of its contents.

Limited Grants

441. Order for limited grant- Except by order of the Court,
no, person entitled to a general grant of administration of the property, of the deceased will be permitted to take a limited grant.

Administration Bond

442. Forms of administration and succession certificate bonds
An Administration bond shall be in form No. 32 in Appendix. A. A. Succession certificate bond shall be in Form No. 33 in Appendix A.

443. Amount of administration bond and succession certificate bond
Unless otherwise ordered by the Court, an administration bond or succession certificate bond shall be given with two or more sureties, approved by the Nazir, for the amount of the value of the property for which the grant is made or succession certificate issued:

Provided that, if the value is under fifty thousand rupees, one surety only may be taken.

444. Insurance Companies as sureties- A bond from an
approved Insurance Company may be accepted in lieu of a bond from two sureties.

133

445. Attestation of bonds- Administration bonds shall be
attested by the Deputy Registrar or by such other two officers of the Court as may be nominated by the Additional Registrar (O.S.)

Grants and extensions thereof

446. Grants limited to Province of Sindh- Grant of probate
or letters of administration (with or without the will annexed) shall, unless otherwise ordered be drawn up so as to have effect only throughout the province of Sindh.

447. Affidavit of valuation of property to be annexed to grants
A copy of the affidavit of valuation of the property of the deceased accompanying an application for probate or letters of administration shall be annexed to the grant of probate or letters of administration.

448. Extension of grant to have effect throughout Pakistan
An order for the extension of a grant limited to the Province of Sindh to have effect throughout Pakistan shall be made on an interlocutory application filed for that purpose supported by an affidavit stating where the additional property and credits are situate and accompanied by the annexure (b) and the deposit mentioned in rule 426 in respect thereon

Provided that in case of a grant of letters of administration with or without the will annexed the petitioner shall give a further bond before the grant may be extended, as aforesaid.

449. Extension of succession certificate- An application
for the extension of a succession certificate shall be by interlocutory application stating the particulars of the additional debt or security and accompanied by a deposit of a sum equal to the fee payable under the Court, Fees Act, 1870, in respect of such extension. Before the certificate is extended, the petitioner shall give a further bond, if so required.

Inventory and Accounts

450. Form of inventory- (1) Inventory and the account required
by section 317 of the Act to be exhibited shall be in Forms Nos. 34 and 35 respectively in Appendix A.

134 Form of register

(2) A register shall be kept in Form No. 5 in Appendix B and the particulars therein prescribed shall be entered from time to time as occasion requires.

451. Non- contentious matters- Non-contentious matters shall
include application for probate or letter of administration or succession certificate and the obtaining thereof where there is no contest as to the right thereto. They shall also include the issuing of Probate or Letter of Administration or Succession Certificate in contentious cases when the contest is terminated, and all ex-party applications in matters of testacy and intestacy, not being proceeding in any suit.

Contentious Proceedings

452. Particulars in caveat- A caveat shall, in addition to the
particulars prescribed by section 284 (4) and schedule V of the Act, state the address for service of the caveator.

453. Notice of caveat- Notice of the filing of a caveat shall
be given to the petitioner or his advocate.

454. Affidavit supporting caveat- Where a caveat is
entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, affidavit or affidavits in support of the caveat shall be filed within eight days of the caveat being lodged. Such affidavit shall state the right and interest of the caveator and the grounds of the objections to the application. No such affidavit shall be filed after the expiration of the said eight days without the order of the Court.

455. Notice to caveator to file affidavit- Where an
application for grant of probate or letters of administration with or without the will annexed is presented after a caveat has been filed, notice shall forthwith be issued to the caveator calling upon him to file his affidavit or affidavits in support of his caveat within eight days from the service of such notice.

135

456. Consequence of not filing affidavit- Where the
caveator fails to file any affidavit in support of his caveat in compliance with rule 461 or in compliance with the notice issued under rule 462, the caveat may be discharged by an order of the Court.

457. Procedure- (1) Upon the affidavit in support of the
caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner), the proceedings shall be numbered and registered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall be, as nearly as may be, according to the provisions of the Code. The decree shall be in Form No. 36 in Appendix A.

(2) Probates or letters of administration or succession certificates shall be drawn up by the office of the Additional Registrar (O.S.) and shall be in Forms Nos. 37(Probate), 38 (letters of administration with the will annexed), 39 (letters of administration) 40 (succession certificate) and 41 (extension certificate) as the case may be, with such variation as the circumstances of each case may require.

(3) The copies of the schedules of the properties annexed to the petition for probate or letters of administration shall be annexed to the grant of probate or letters of administration.

458. Notice in probate suit- In a probate suit the party
opposing a will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will being proved solemn form of law and only intends to cross-examine the witnesses produced in support of the will and he shall thereupon be at liberty to do so and shall not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the will.

136

MISCELLANEOUS

459. Certificates under section 274 (1) (b) of the Act- The
certificate to be sent to a High Court under the provisions of section 274 (1) (b) of the Act, the Additional Registrar, (O.S.) shall send to the other High Courts a copy of so much of the affidavit as aforesaid as well, as it relates to the state within the jurisdiction of such High Court.

460. Notice by executor or administrator to creditors under sections 360 and 367 of the Act
Where an executor or administrator has given notice to creditors and others in Form No. 42 in Appendix A, such notice shall be deemed to satisfy the requirements of sections 360 and 367 of the Act.

461. Disposal of petition for non-prosecution- Any
testamentary application in which grant or certificate has not been issued owing to non-prosecution of the petition for a period of one year, shall be treated as disposed of and no action shall be taken on such petition unless a fresh petition is filed or an order obtained from the Court giving permission to the petitioner to proceed with the petition already filed.

462. Making will- Every will, copy of a will, or other
testamentary paper to which an executor or administrator is sworn or affirmed, shall be marked by the person before whom he is sworn or affirmed.

RULES UNDER SINDH REGULATION, VII OF 1827

463. References from police and magistrates re: un-
claimed property to be accompanied by list and valuation- References and reports from the police and magistrates with regard to unclaimed property shall be accompanied by an accurate list and approximate valuation of the property.

464. Deduction of administration fee- Administration fee shall
be deducted from the proceeds of the property at the rate not exceeding the rate prescribed in Chapter VI in Appendix C before surrender to claimant or deposit in treasury.

137

Note-The form of note to be appended to certificate, and form of order to be in Forms Nos. 43 and 44 in Appendix A.

CHAPTER XXVI
RULES UNDER THE OATHS ACT, 1873

465. Form for witnesses- The following forms of oaths and
affirmations are prescribed under section 7 of the Oaths Act, 1873.

(1) Muslims shall be required to repeat the following words:-

“ I swear by Almighty Allah that the evidence, I shall give before the Court in this case shall be the truth, the whole truth, and nothing but the truth, and that I shall conceal nothing from the Court and that if I say anything which is untrue or conceal anything, the wrath of Allah may fall on me”.

(2) Hindus shall be required to repeat the following words:-

“I swear in the presence of Almighty God that what I shall state, shall be the truth, the whole truth and nothing but the truth.”

(3) Christians shall be required to hold the New Testament in the right hand and to repeat the following words:-

“I swear that what I shall state shall be the truth the whole truth and nothing but the truth, so help me God”

(4) Parsis shall be required to repeat with shoes on their feet and the right hand on the open Zend Avesta the following words:-

“I swear in the presence of Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth. Manasni, Gavasni, Kunasni”

(5) Jews shall be required to hold the Hebrew Testament in the right hand and to repeat the following words:-

138 “I swear that what I shall state shall be the truth, the whole truth and nothing but the truth. So help me God.” And he/she shall be required to kiss the book.

466. Form for interpreters- Oaths and affirmations shall be
administered to interpreters in similar forms with substitution of the words:

“I will well and truly interpret and explain all questions put to and evidence given by the witness”. .

CHAPTER XXVII
RULES UNDER THE TRANSFER OF PROPERTY ACT, 1882

467. Deposit of money due on mortgage- Every deposit
under section 83 of the Transfer of Property Act, 1882 (hereinafter in this Chapter called the Act), shall be accompanied by a verified petition stating the facts in connection with the mortgage and the amount due for principal and interest. Such petition shall be registered as a miscellaneous application and the petition by a mortgagee under section 83 of the Act shall be entitled in such miscellaneous application.

468. Deposit of costs- Unless otherwise ordered, there shall
be paid into Court, in addition to the sum deposited under section 83 or any subsequent section, a sum sufficient to provide for the issue and service of notices by the Court and for the mortgagee’s costs of obtaining payment out of Court and also when such payment is made under section 83 and a re-transfer of the property is required a further sum to provide for the mortgagees costs of transferring the property and causing such transfer to be registered.

469.
Order for payment of money into Court under S. 83- An order for payment of money into Court under section 83 of the Act shall specify the sums to be paid and the purpose for which each sum is intended.

470. Mode of service- Subject to the provisions of sections
102 and 103 of the Act, notice under section 83 of the Act shall be served in one of the modes prescribed for service of summonses by

139 the Code or by sending it by registered post to the address for service of the person to be served.

471. Costs of mortgagee- Where it shall appear that
previous to any payment into Court under section 83 a sufficient tender was made to and refused by the mortgagee, he shall not be allowed to obtain payment of the amount deposited in Court to meet his claim without deduction of the fees and charges which the mortgagor may have incurred by reason of his payment of the money into Court nor shall he be allowed the cost of drawing out the money paid in. Except as aforesaid or when otherwise ordered, the mortgagee shall be allowed all costs properly incurred by him.

472. Court’s order for paying out- On an application for
payment of money out of Court under section 83 by a mortgagee who has complied with the orders of the Court and the provisions of the Act and of the rule, made in this behalf, so far as they relate to him or apply to his case, and who has, when required so to do, transferred the property and possession free from encumbrances and caused such transfer to be registered and has accounted for the document of title which were held by him, the Court shall make such order or orders as to it shall deem fit for the disposal of the capital sum and interest thereon, and of the fund for costs and expenses.

473. Enforcement of order- An enforceable order made under
section 83 may be enforced under the provisions of the Code and shall for that purpose be deemed to have been made in a suit instituted under that Code.

140

CHAPTER XXVIII
RULES UNDER THE PARTITION ACT, 1893

474. Rules 388 to 402 to apply to sales under Partition Act-
The provisions of rules 388 to 402 shall, so far as the same are applicable, apply to a sale under Section 7 of the Partition Act, 1893:

Provided that rule 391 shall not apply to the said sale and the Court may grant leave to any party to bid for and purchase the property or any part thereof on such terms as the Court may think fit.

CHAPTER XXIX
RULES UNDER THE INSOLVENCY
(KARACHI DIVISION) ACT

Preliminary

475. Interpretation of terms- (1) In this Chapter unless the
context or subject matter otherwise requires,

(i) “Act” means the Insolvency (Karachi Division) Act;

(ii) “Court” includes the Additional Registrar (OS) when exercising the powers of the Court pursuant to the Act or these rules;

(iii) “Creditor” includes a corporation and a firm of creditors in partnership;

(iv) “Debtor” includes a firm of debtors in partnership and includes any debtor proceeded against under the Act, whether adjudged insolvent or not;

(v) “Judge” means the Judge for the time being assigned under section 4 of the Act for the exercise of the original Jurisdiction of the Court in insolvency proceedings;

(vi) “Additional Registrar” means Additional Registrar (O.S), and includes in his absence the Deputy Registrar and other officer of the Court appointed to exercise one or any of the powers mentioned in section 6 of the Act and

141 to perform the functions assigned to the Additional Registrar (O.S.), under this Chapter;

(vii) “Scheme” means scheme of arrangement pursuant to the Act;

(viii) “These rule” means rules made in this Chapter;

(ix) “Writing” includes type-writing and print, and “written” includes typed or printed.

(2) The terms and expressions defined in Section 2 of the Act shall, apply to these rules and any other terms and expressions defined by the Act shall, in these rules, have the meanings thereby assigned to them.

COURT PROCEDURE

Court and chambers

476. Matters to he heard in open Court- The following
matters and applications shall be heard and determined in open Court, namely:

(a) the public examination of debtor;

(b) applications to approve a composition or scheme;

(c) applications for orders of discharge or certificates of removal of disqualification.

(d) applications to set aside or avoid any settlement, conveyance, transfer, security or payment or to declare for or against the title of the Official Assignee to any property adversely claimed;

(e) applications for committal of any person to prison for contempt;

(f) appeals against the rejection of a proof or applications to expunge or reduce a proof.

142 Any other matter or application may be heard and determined in Chambers.

477. Adjournment from Chambers to Court and vice versa
Subject to the provisions of the Act and these rules, a matter or application may, at any time, if the Judge (or, as the case may be, the Additional Registrar) thinks fit, be adjourned from Chambers to Court or from Court to Chamber; and if all the contending parties require a matter or application to be adjourned from Chambers into Court it shall be so adjourned.

Proceedings

478. Proceedings how entitled- (I) Proceedings in Court
under the Act shall be entitled “Insolvency Jurisdiction” with the name of the Court and of the matter to which it relates.

(2) Applications and orders shall be entitled ex parte the applicant.

(3) The first proceeding in a matter shall have a distinctive number assigned to it by the Additional Registrar, and the subsequent proceedings in the same matter shall bear the same number.

(4) Form No. 45 in Appendix A shall be used.

479. Publication notices- In every case in which the Act or
these rules require any notice to be published, the publication shall be made in the Official Gazette and in a daily newspaper or advertiser having circulation in Karachi, unless otherwise provided by these rules or ordered by the Judge.

480. Filing, Gazette, & etc- (I) Whenever the Sindh Govt.
Gazette, contains an advertisement relating, to a matter under the Act, the Additional Registrar shall file with the proceedings in the matter a memorandum (which shall be in Form No. 46 in Appendix A) referring to and giving the date of such advertisement.

(2) In the case of an advertisement in a local newspaper, the Additional Registrar shall in like manner file a copy of the paper and a memorandum (which shall be in Form No. 46 in Appendix A) referring to and giving the date of such advertisement.

143 Discovery of debtor’s property

481. Applications for discovery- An application to the Court
under section 36 of the Act shall be in writing and shall state shortly the grounds on which it is made and shall, unless it is made by or on behalf of the Official Assignee or a Special Manager, be verified by affidavit.

Appropriation of pay, salary, etc

482. Application for an appropriation order under section 60
Where the Official Assignee or a creditor who has proved his debt applies to the Court for an appropriation order under section 60 of the Act, notice of the application shall be given to the insolvent. Such notice shall specify the time and place fixed for hearing the application and shall state that the insolvent is at liberty to show cause against such order being made. The notice shall be in Form No. 47 in Appendix A.

483. Communication of order under section 60- Where an
order is made under sub-section (1) of section 60 of the Act, a copy thereof shall be sent by the Additional Registrar to the head of the department under which the pay or salary is enjoyed. In case of an order under subsection (2) of that section, the Additional Registrar shall give to the Official Assignee a copy thereof for communication to the person under whom such salary or income is enjoyed. (Form No. 48 in Appendix A).

484. Review of order- Where an order has been made for the
payment by an insolvent or by his employer for the time being, of a portion of his income or salary, the insolvent may upon his ceasing to receive a salary or income of the amount he received, when the order was made, apply to the Court to rescind the order or to reduce the amount ordered to be paid by him to the Official Assignee.

Warrants, Arrests and Commitments

144

485. To whom warrants addressed- A warrant of seizure or
a search warrant or a warrant issued under the provisions of the Act shall, unless it is addressed to a Police Officer, be addressed to the Nazir of the Court.

486. Production of insolvent before Court & etc- When an
insolvent is arrested under a warrant issued under section 34 of the Act within the local limits of the original civil jurisdiction of the Court, he shall be produced with all convenient speed before the Court: if such arrest has been effected outside such local limits, he shall be given into custody of the Superintendent of the Central Prison Karachi, who shall produce such insolvent before the Court as it may from time to time direct and shall safely keep him until such time as the Court shall otherwise order, and any books, papers, moneys, goods and chattels in the possession of the insolvent which may be seized, shall forthwith be lodged with the Official Assignee.

487. Suspension of issue of committal order- Where an
order of committal is made against a debtor or against a receiver or special manager for disobeying any order of the Court to do some particular act or thing, the Court may direct that the order of committal shall not be issued,

Provided that the insolvent, receiver or special manager, as the case may be, complies with the previous order within a specified time.

488. Committal of contumacious insolvent or witness- (1)
If an insolvent or a witness examined before the Additional Registrar refuses to answer to the satisfaction of the Additional Registrar a question which he may allow to be put the Additional Registrar may report such refusal in a summary way to the Judge and upon such report being made, the insolvent or witness in default shall be put in the same position and be dealt with in the same manner as if he had made default in answering before the Judge.

(2) The report of the Additional Registrar shall be in writing but without affidavit and shall set forth the question put and the answer (if any) given by the debtor or witness.

(3) The Additional Registrar shall before the conclusion of the examination of which the default in answering is made, name the time when and place where the default will be reported to the Judge; 145 and upon receiving the report, the Judge may take such action thereon as he shall think fit. If the Judge is sitting at the time when the default in answering is made, such default may be reported immediately.

(4) The report of the Additional Registrar may be in Form No. 56 Appendix A.

Costs

489. Awarding costs- (1) The Court in awarding costs may
direct that the costs of a matter or application shall be taxed and paid as between party and party or as between advocate and client or that full costs, charges and expenses shall be allowed or the Court may fix a sum to be paid in lieu of taxed costs.

(2) In the absence of an express direction, costs of an opposed motion shall follow the event and shall be taxed as between party and party.

(3) The fees, costs and expenses of and for issue and service processes, traveling and diet expenses of witnesses, the court-fees payable on appeals and applications and all other matters in the Court’s Insolvency Jurisdiction, whether original or appellate shall, unless otherwise expressly provided by these rules or ordered by the Judge or Judges hearing the application or appeal, those prescribed for or actually payable for like matters in the Court’s original or appellate civil jurisdiction, as the case may be, and shall be deposited and paid in accordance with the rules and practice of the Court by the party whose application necessitates them.

(4) For summonses and notices sent by registered post, actual postal charges shall be charged for each cover in substitution of process fee payable under the rules.

146

490. Scale of costs- (1) Fees to advocates may be allowed
in the discretion of the Court. Generally one or the other of the following scales shall be observed:

Scale 1 2 3 Rs. Rs. Rs. Taking instructions and preparing petitions, schedule accounts, etc., of an insolvent preliminary to hearing application for discharge. 10,000 50,00 1,000

Taking instructions and preparing petitions, etc., from and on behalf of a creditor preliminary to hearing application for discharge. 5,000 1,500 1,000

Attendance in Court at an effective hearing of the case, per diem 3,000 1,500 1000

(2) Subject to express provisions in these rules as to costs of certain matters, the Judge may direct that the costs of an insolvent or of a creditor, either generally or in respect of any particular matter, shall be paid out of the insolvent’s estate prior to any distribution of the estate amongst the creditors.

491. Applications for costs- Where a party to or person
affected by a proceeding desires to make an application for an order that he be allowed his costs or any part of them incident to such proceeding and such application is not made at the time of the proceeding--

(1) Such party or person shall serve notice of his intended application on the Official Assignee;

(2) The Official Assignee may appear on such application and object thereto;

147

(3) Costs of or incident to such application shall not be allowed to the applicant unless the Court is satisfied that the application could not have been made at the time of the proceeding.

492. Priority of costs and charges payable out of assets-
The assets in a matter remaining after payment of the actual expenses incurred in realizing any of the assets of the debtor shall, subject to an order of the Court, be liable to the following payments which shall be made in the following order of priority, namely:-

(i) the actual expenses incurred by the Official Assignee in protecting the property or assets of the debtor or any part thereof expenses or outlay incurred by him or by his authority in carrying on the business of the debtor;

(ii) the commission of the Official Assignee, and any other fees payable to or costs, charges’ and expenses incurred or authorized by the Official Assignee;

(iii) the deposit or deposits lodged by the petitioning creditor pursuant to these rules;

(iv) the deposit or deposits lodged on any application for the appointment of an interim receiver;

(v) the remuneration of the Special Manager, if any;

(vi) the taxed costs of the petitioner, except such as have been spent out of the deposit made by him and which are repaid to him as such;

(vii) the remuneration and charges of the person (if any) appointed to assist the debtor in the preparation of his schedule;

(viii) an allowance made to the debtor by the Official Assignee under an order of the Court:

(ix) the Official Assignee’s necessary disbursements other than actual expenses of realization heretofore provided for;

(x) the costs of any persons properly employed by the 148 Official Assignee with the sanction of the Committee of Inspection or of the Court;

(xi) the actual out-of-pocket expenses necessarily incurred by the Committee of inspection subject to the approval of the Court.

493. Disallowance of costs of unnecessary petition- In a
case in which after a petition for an order of adjudication has been presented by a creditor against a debtor and before the hearing of such petition the debtor files a petition and a vesting order is made on the petition of the debtor, unless in the opinion of the Court the estate has benefited thereby or there are special circumstances which make it just that such costs should be allowed, no costs shall be allowed to the debtor or his advocate out of the estate.

494. Apportionment of costs in cases of partnership- In
the case of a petition for adjudication against a partnership, the costs payable out of the estates up to and inclusive of the vesting order shall be apportioned between the joint and separate estates in such proportion as the Official Assignee may in his discretion determine.

495. Costs out of joint or separate estates- (1) Where the
joint estate of a co-debtors is insufficient to defray any costs or charges properly incurred before the vesting order, the Official Assignee may pay such costs or charges out of the separate estate of such co- debtors or one or more of them in such proportion as in his discretion the Official Assignee may think fit. The Official Assignee may also, as in his discretion he may think fit, pay any costs or charges properly incurred as aforesaid for any separate estate out of the joint estate or out of any other separate estate and any part of the costs or charges of the joint estate properly incurred as aforesaid which affects any separate estate out of that separate estate.

(2) Where the joint estate of a Co-debtors is insufficient to defray any costs or charges properly incurred after the making of the vesting order, the Official Assignee, with such consent as is hereinafter mentioned, may pay such costs or charges out of the separate estate of such co-debtors or one or more of them. The Official Assignee with the said consent may also pay any costs or charges properly incurred as aforesaid for any separate estate out of

149 the joint estate, and any part of the costs or charges of the joint estate incurred after the making of the vesting order which affects any separate estate out of that separate estate. Payment under this rule shall not be made out of a separate estate or joint estate by the Official Assignee without the consent of the Committee of Inspection of the estate out of which the payment is intended to be made, or without an order of the Court.

Proceedings by Company or Co partnership

496. Public officer or agent of company- An insolvency
petition against a debtor to a company or corporation duly authorized to sue and be sued in the name of a public officer or agent of such company or corporation may be presented by or sued out by such public officer or agent as the nominal petitioner for and on behalf of such company or corporation on such public officer or agent filing an affidavit stating that he is such public officer or agent and that he is authorized to present or sue out such petition of insolvency and on his producing his power-of-attorney, if any for the Additional Registrar’s inspection.

Proceedings by or against firm

497. Attestation of firm’s signature- Where a notice,
petition or other document is signed by a firm of creditors or debtors in the firm’s name, the partner signing for the firm shall add also his own signature, e.g., “B and Co. by A.B. a partner in the said firm.”

498. Service on firm- (1) A notice of petition or other
proceeding shall be deemed to be duly served if it is served upon one or more of the partners or at the principal place at which the partnership business is carried on within Pakistan or upon a person having at the time of service the control or management of the partnership business there; and such service shall be deemed good service upon the firm whether all or any of the partners are within or without Pakistan.

(2) Where a notice to or petition against a firm is served in the manner provided by sub-rule (1) a person upon whom it is served shall be informed by notice in writing given at the time of such service whether he is served as a partner or as a person having the control or

150 management of the partnership business or in both characters, and in default of such notice, the person served shall be deemed to be served as a partner.

499. Debtor’s petition by a firm- Where a firm of debtors
files an insolvency petition, the same shall contain the names in full of the individual partners; and if such petition is signed in the firm’s name the petition shall be accompanied by an affidavit made by the partner who signs the petition, showing that all the partners concur in the filing of the same.

500. Schedule- The debtors shall submit a schedule of their
partnership affairs and each debtor shall submit a schedule of his separate affairs.

501. Order of adjudication against a firm- (1) An order of
adjudication made against a firm shall operate as an order of adjudication individually against such of the adult partners of the firm as have been duly served individually with the notice of the application for the adjudication of the firm or have applied to be so adjudicated.

(2) Subsequent proceedings shall continue in the name of the firm so far as is practicable but applications for discharge must be made by the partners individually.

502. Acceptance of composition, etc., by joint and separate creditors
The joint creditors and each set of separate creditors may severally accept compositions or schemes. So, far, as circumstances allow, a proposal accepted by joint creditors may be approved in the prescribed manner, notwithstanding that the proposals or proposal of some or one of the debtors made to their or his separate creditors may not be accepted.

503. Voting on composition- Where proposals for
compositions or schemes are made by a firm and by the partners therein individually, the proposals made to the joint creditors shall be considered and voted upon by them apart from every set of separate creditors; and the proposals made to each such separate set of creditors shall be-considered and voted upon by such separate set of creditors apart from all other creditors. Such proposals may vary in character and amount.

151

504. Adjudication and separate committees- Where a
partnership is adjudged insolvent each set of separate creditors may appoint its own Committee of Inspection; but if any set of separate creditors do not appoint a separate committee, the committee, (if any) appointed by the joint creditors shall be deemed to have been appointed also by such separate creditors.

505. Separate firms- If two or more of the members of a
partnership constitute a separate and independent firm, the creditors of such last mentioned firm shall be deemed to be a separate set of creditors and to be on the same footing as the separate creditors of an individual member of the firm. And where a surplus shall arise upon the administration of the assets of such separate or independent firm, the same shall be carried over to the separate estates of the partners in such separate and independent firm according to their respective rights therein.

Lunatics

506. Lunatics- Where a debtor or creditor is a lunatic, so
found by a Civil Court, the Court may appoint such person as the Court shall think to do an act required by the Act or these rules to be done by such debtor or creditor.

PROCEEDINGS FROM ACT OF INSOLVENCY TO

DISCHARGE

Insolvency Petition

507. Form of insolvency petition- A debtor’s insolvency
petition shall be in Form No. 57 in Appendix A and a creditor’s insolvency petition shall be in Form No. 58 in Appendix A.

508. Insolvent to lodge all books, & etc., with the Official Assignee
(1) A debtor, who files a petition, shall lodge forthwith in the office of the Official Assignee in addition to any books produced before the Court under section 15 (3) (a) of the Act all papers, writings and vouchers relating to his estate with a list thereof signed by himself and also a statement of his movable and immovable property; if the debtor is in jail such list and statement as aforesaid shall be forwarded by the jailer.

152

(2) On the debtor complying with the provisions of sub-rule (1) of this rule, the Official Assignee shall give to, the debtor a certificate certifying the same, and no order of adjudication shall be made on the petition unless such certificate is produced.

509. Deposit by petitioner- (1) Upon the presentation of a
petition either by the debtor or by a creditor, the petitioner shall deposit with the Nazir the sum of rupees five thousand, if debtor, or the sum of rupees seven thousand five hundred, if creditor and such further sum as the Nazir may, from time to time, require to cover the fees and expenses to be incurred by the Nazir, and no petition shall be received unless the receipt of the Nazir for the deposit payable on the presentation of the petition is endorsed thereon.

(2) The Nazir shall account for the money so deposited to the creditor, or as the case may be, to the debtor’s estate, and any sum so paid by a petitioning creditor shall be repaid to such creditor, so far as circumstances will permit, out of the proceeds of the estate in the priority prescribed by these rules.

Creditor‘s Petition

510. Security for costs- A petitioning creditor who is
resident abroad or whose estate is vested in a trustee, Official Assignee, Official Receiver or interim receiver under any law relating to bankruptcy or insolvency, or against whom a petition is pending under the Act, or who has made default in payment of any costs ordered by a Court to be paid by him to the debtor, may be ordered to give security for costs to the debtor.

511. Joint, petition- Where a petition is presented, by two or
more creditors jointly, it shall not be necessary that each creditor shall depose to the truth of the statements which are within his own knowledge; but it shall be sufficient that each statement in the petition is deposed to by someone within whose knowledge it is.

512. Death of debtor before service of petition- If a debtor
against whom an insolvency petition has been filed dies before service thereof, the Court may order service to be effected on the legal representative of the debtor or on such other persons as the Court may think fit.

153 Hearing of Petition

513. Adjudication order to make forth with on debtor application
Where a petition is filed by a debtor, the Court shall forthwith make an adjudication order thereon.

514. Proceedings on creditor’s petition- A creditor’s
petition shall not be heard until the expiration of eight days from the service thereof:

Provided that where it is proved to the satisfaction of the Court that the debtor has absconded or in any other case for good cause shown the Court may, on such terms if any, as the Court may think fit to impose, hear the petition at such earlier date as may be deemed expedient.

515. Several respondents- Where there are more
respondents than one to a petition, the rules as to service shall be observed with respect to each respondent; but where all the respondents have not been served, the petition may be heard separately or collectively as to the respondent or such of the respondents as has or have been served, and separately or collectively as to the respondents not then served or as ordered by the Court.

516. Debtor intending to show cause- Where a debtor
intends to show cause against a petition he shall file a notice with the Additional Registrar specifying the statements in the petition which he intends to deny or dispute and deliver or transmit by post or otherwise to the petitioning creditor or his advocate a copy of the notice three days before the date on which the petition is to be heard. (Form No. 55 in Appendix A).

517. Non-appearance of creditor- If the creditor neglects to
appear on his petition; no subsequent petition against the same debtor or debtors, or any of them either alone or jointly with any other person, shall be presented by the same creditor in respect of the same act of insolvency without the leave of the Court.

518. Personal attendance of creditor when dispensed with
The personal attendance of the petitioning creditor and of the witnesses to prove the debt and act of insolvency and other material

154 statements, upon the hearing of the petition, may, if the Court shall think fit, be dispensed with.

519. Proceedings after trial of disputed question- Where
proceedings on a petition have been stayed for the trial of the question of the validity of the petitioning creditor’s debt (Form No. 60 in Appendix A) and such question has been decided in favour of the validity of the debt, the petitioning creditor may apply to the Additional Registrar to fix a day on which further proceedings on the petition may be had, and the Additional Registrar, on production of the decree of the Court in which the question was tried, or a certified copy thereof, shall give notice to the petitioner or his advocate by post or otherwise of the time and place fixed for the hearing of the petition, and a like notice to the debtor at the address given in his notice to dispute, or to his advocate.

520. Application to dismiss- Where proceedings on a
petition have been stayed for the trial of the question of the validity of the petitioning creditor’s debt and such question has been decided against the validity of the debt, the debtor may apply to the Additional Registrar to fix a day on which he may apply to the Court for the dismissal of the petition with costs, and the Additional Registrar, on the production of the decree of the Court in which the question was tried, or a certified copy thereof, shall give notice to both the petitioner, and debtor or to their respective advocates by post or otherwise of the time and place fixed for the hearing of the application.

Interim Receiver

521. Appointment of interim receiver- An application for
the appointment of interim receiver under section 16 of the Act may be made by a creditor or by the debtor himself, and shall, as far as practicable, contain full particulars of the property which is intended to be taken possession of by the interim receiver and upon proof by affidavit of sufficient grounds for the appointment the Court may, if it thinks fit and upon such terms as may be just, appoint the Official Assignee as interim receiver of the property of the debtor or any part thereof. Such appointment shall, unless the Court otherwise directs, carry full powers under Order XL rule 1 of the Code.

155

522. Form and contents of order- The order appointing the
Official Assignee as interim receiver shall be in Form No. 63 in Appendix A and shall state particulars of the property, or any part thereof, of which he is ordered to take possession.

523. Deposit- Before such order is drawn up, if the person
who has made the application is a creditor, he shall deposit with the Official Assignee a sum of rupees eight thousand towards the prescribed fee for the Official Assignee and such further sum as the Court shall direct for the expenses which may be incurred by him.

524. Further deposit, if necessary- If the sum of rupees eight
thousand and such further sum to be deposited for the expenses which may be incurred by the Official Assignee, is proved to be insufficient, the creditor on whose application the order has been made shall, from time to time, deposit with the Official Assignee such additional sum as the Court may, on the application of the Official Assignee, from time to time, direct, and such sum shall be deposited within twenty-four hours after the making of the order therefor.

If such additional sum shall not be so deposited, the order appointing the interim receiver may be discharged by the Court.

525. Repayment of deposit- If an order appointing an interim
receiver is followed by an order of adjudication, the deposits made by the creditor on whose application such interim receiver was appointed shall be repaid to, him except and so far as such deposits may be required by reason of insufficiency of assets for the payment of the costs, charges and expense incurred by the interim receiver out of the proceeds of the estate in the order of priority prescribed by these rules.

526. Damages if petition dismissed- Where after an order
has been made appointing an interim receiver the petition is dismissed, the Court shall, upon application to be made within twenty-one days from the date of the dismissal thereof, adjudicate with respect to any damages or claim thereto arising out of the appointment, and shall make such order as the Court thinks fit; and such decision or order shall be final and conclusive between the parties, unless the order be appealed from.

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527. Order of adjudication- Form and contents- (1) An order
of adjudication on a debtor’s petition under section 15 of the Act shall be in Form No 64 and an order of adjudication on a creditor’s petition under section 13 of the Act shall be in Form No. 65 in Appendix A.

(2) An order of adjudication shall contain at the foot thereof a notice requiring the debtor to attend the Official Assignee forthwith on the service thereof at the place mentioned therein. When the order of adjudication is made on a creditor’s petition, there shall be stated in it the nature and date or dates of the act or acts of insolvency upon which the order has been made.

528. Transmission of copy to Official Assignee and service on debtor
(1) A copy of an order of adjudication, and order for the appointment of the Official Assignee as interim receiver of the debtor’s property, sealed with the seal of the Court, shall forthwith be sent by the Additional Registrar to the Official Assignee.

(2) A copy of the order of adjudication, sealed with the seal of the Court, shall be delivered to or served on the debtor or each of the debtors as soon as possible either personally or by affixing it on a conspicuous part of, his last known place of business or residence or by sending it by registered post to such place of business or residence.

529.
Stay of proceedings.-There may be included in an order of adjudication an order under section 18 of the Act staying a suit or other proceedings against the debtor.

530. Advertisement- (1) Upon an order of adjudication being
made, the Additional Registrar shall forthwith cause notice to be published in accordance with the provisions of section 20 of the Act in one or more issues of the Sindh Government Gazette and such other newspaper or newspapers as the Court may direct.

(2) The notices shall be in the Form No. 67 or No. 68 Appendix A.

531. Costs of petition & etc- Proceedings under the Act
down to and including the making of an order of adjudication shall be 157 at the cost of the party prosecuting the same; but when an order of adjudication is made, the cost of the petitioning creditor shall be taxed and be payable out of the proceeds of the estate in the order of priority prescribed by these rules.

Public examination of Insolvent and his failure to perform the duties imposed on him

532. Form of notice under section 27- The notice under
section 27 of the Act shall be in Form No. 59 in Appendix A.

533. Default of debtor in attending- If the debtor fails to
attend the public examination at the time and place appointed by an order for holding or proceeding with the same, and no good cause is shown by him for such failure, the Court may, upon its being proved to the satisfaction of the Court that the order requiring the debtor to attend the public examination was duly served and without any further notice to the debtor, by warrant cause him to be arrested and committed to prison for contempt of Court under section 33(4) of the Act. The warrant of arrest may be in Form No. 60 and the warrant of commitment may be in Form No. 61 in Appendix A.

534. Service of order and notice to creditors of examination
A sealed copy of the order appointing the time and place for holding his public examination shall be delivered to or served upon the debtor in the manner provided by Rule 533 (2) and notice thereof in Form No. 72 in Appendix A shall be served on the creditors whose names appear in the insolvent’s schedule or upon petitioning creditor and such other creditors, if any as have filed an appearance in the case. Such notices may be served by sending, them by registered post addressed to the creditors at their respective residences as set out in the schedule or otherwise appearing on the record of the case. A list of all such notices dispatched by post shall be made in Form No. 73 and list of those sent to the Nazir shall be made in Form No.74. The details required by the headings in the said Forms shall be entered up before the hearing.

A notice of such order in Form No. 75 in Appendix A shall, if it has not been published with notice of the order of adjudication, be also published by the Additional Registrar in one or more issues of any local newspaper or papers as the Additional Registrar deems fit. 158

535. Adjournments sine die- Where the Court is of opinion
that the debtor is failing to disclose his affairs or where the debtor has failed to attend the public examination or an adjournment thereof or where the debtor has not complied with an order of the Court in relation to his accounts, conduct, dealings and property, and no good cause is shown by him for such failure, the Court may adjourn the public examination sine die, and may make such further or other order as the Court shall think fit.

536. Proceedings after adjournment sine die- Where an
examination has been adjourned sine die and the debtor desires to have a day appointed for proceeding with the public examination, the expense of advertising and giving notice to creditors of the day to be appointed for proceeding with such examination shall, unless the Official Assignee consents to such costs being paid out of the estate be at the cost of the debtor, who shall, before examination, any day is appointed for proceeding with the public examination, deposit with the Nazir of the Court such sum and furnish Court-fee Stamps of such value as the Additional Registrar may require to be deposited and furnished.

537. Notice of proceeding after adjournment sine die- In a
case in which a public examination has been adjourned sine die, and the Court afterwards makes an order for proceeding with such public examination, notice to creditors of time and place appointed for proceeding with such public examination shall be sent by the Additional Registrar by post or otherwise, and notice shall also be inserted in the Official Gazette and such other newspaper as the Additional Registrar may direct, at least seven days before the day appointed (Form No. 76 in Appendix A).

Annulment of Adjudication

538. Hearing of application for revocation- In the event of
the debtor or a person interested in the matter of the insolvency of a debtor applying to the Court under section 21(1) of the Act for annulment of the order of adjudication, the hearing of such application shall be fixed for as early a date as possible, consistent with the other business of the Court, and with notice of the application being served upon the creditor on whose petition the order of adjudication shall

159 have been made and on such other person or persons as the Court shall think fit.

539. Order annulling adjudication- (1) An order annulling
adjudication may be in form No. 77 in Appendix A.

(2) Notice of such annulment shall be published in Form No.78 in Appendix A.

540. Form of Security Bond- The Security Bond to be
entered into by the debtor under section 21(2) of the Act may be in Form No. 79 in Appendix A.

541. Vesting order on annulment- (1) A vesting order made
by the Court pursuant to the provisions of section 23 (1) of the Act may be in Form No. 80 in Appendix A.,

(2) A warrant of arrest and warrant of recommitment of the debtor under section 23(2) of the Act shall be in Forms Nos. 81 and 82 in Appendix A respectively.

Proceedings consequent on Order of Adjudication

542. Insolvent’s schedule- (1) The schedule required to be
filed by the debtor under section 24 of the Act shall be in Form No. 85 in Appendix A and shall be made out and submitted in duplicate to the Additional Registrar, one copy being verified by affidavit. The verified copy shall be filed in Court with the record of the case and the other copy shall be forthwith sent to the Official Assignee.

(2) The schedule of a debtor or debtors who has or have carried on business in partnership shall, when his or their firm is in insolvent circumstances, be in two parts; one part shall contain a full and true description as to all matters and things required to be set forth in the schedule relative to the joint creditors, debtors and property: the other shall contain a full and true description as to all matters and things required to be set forth in the schedule relative to his or their separate creditors, debtors and property.

(3) The insolvent shall, on the request of the Official Assignee, furnish him with trading and profit and loss account and such other

160 accounts for a period not exceeding two years prior to the date of the order of adjudication as the Official Assignee may require:

Provided that the insolvent shall, if ordered by the Court so to do, furnish such accounts as the Court may order for any longer period. If the insolvent fails to comply with the requirements of this rule, the Official Assignee shall report such failure to the Court and the Court shall take such action on such report as the Court shall think just.

543. Extension of time to file schedule- Where any debtor
requires any extension of time for the filing of his schedule, he shall apply to the Court therefore on a certificate of the Official Assignee or an affidavit setting forth the cause of his inability to file his schedule within the time prescribed by section 24 of the Act or within such further time as the Court may have allowed him.

(2) Where the debtor fails to file his schedule or answers to the interrogatories referred to in Forms Nos. 82 and 63 within the time provided by these rules or such further time as may be extended by the Court, and no good cause is shown by him for such failure, the Court may, upon its being proved to the satisfaction of the Court that the order requiring the debtor to file his schedule or his answers to the interrogatories was duly served and without any further notice to the debtor, by warrant cause him to be arrested for contempt of Court under section 33 of the Act.

544. Failure of insolvent to file schedule- If the insolvent
fails to prepare and submit his schedule in obedience to the order of adjudication, the Additional Registrar shall submit the case for an order upon creditors to submit their claims, duly verified by affidavit to the Official Assignee.

545. Notice of order to submit claims to the Official Assignee
Official Assignee shall publish notice of such order in Form No 86 in Appendix A. After the date fixed for submitting claims the Official Assignee shall cause a schedule to be prepared as nearly as possible in accordance with Form No. 85 in Appendix A (save that verification by affidavit shall not be necessary) and shall deliver it to the Additional Registrar to be filed with the record of the case.

161 Interim Protection

546. Application for protection order- The application of
the insolvent for protection under section 25 of the Act shall contain a statement by him as to whether any warrant for his arrest has been issued or applied for, and if so, the name and address of the creditor who has taken out or applied for such warrant shall be set out. The application may be in Form No.87 in Appendix A, and shall be verified. The application shall be accompanied by a certificate of the Official Assignee under section 25(4) of the Act; and if the insolvent has not filed his schedule, he shall either annex to the application a certificate of the Official Assignee that in the opinion of that Officer it is necessary in the interests of the creditors that a protection order should be made before the insolvent has submitted his schedule, or state therein that such certificate was asked for but was not granted.

547. Hearing of application- Upon such application being
filed as aforesaid, the Court may, in the exercise of its discretion, either make an order for the protection of the insolvent from arrest or detention for all the debts mentioned in the schedule or for such of the debts (to be mentioned in the order) as the Court thinks fit, or it may direct notice of the application to be served upon the creditors mentioned in rule 552 in addition to or in substitution for a notice in Form No.88 in Appendix A to be published once in a daily newspaper on the insolvent depositing the necessary costs therefore:

Provided that when a creditor has given notice of his intention to oppose the grant of a protection order, the Court shall fix a day for the hearing of the application and cause notice thereof to be served upon that creditor. The hearing of-every such application is business of the Court and with notice of the application, if any being served and / or published as may be directed.

548. Protection order- A protection order shall be in Form
No. 89 in Appendix A and a copy thereof under the seal of the Court shall be given to the insolvent upon his application therefore.

If such order is revoked, the insolvent shall be bound forthwith to deliver up to the Additional Registrar any copy of the protection order, which he may have received.

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549. Warrant of release- A warrant for the release of an
insolvent imprisoned for debt upon his obtaining a protection order shall be in Form No. 90 in Appendix A.

If an insolvent, who has been brought in custody from the jail, is released in the Court-house, notice of such release shall be sent to the Superintendent of the prison in Form No. 91 in Appendix A.

550. Application for direction to hold meetings- An
application for directions to the Official Assignee under section 26 of the Act to hold a meeting of creditors may be made by motion at a sitting of the Court or by petition in writing. When made by a creditor, it shall be supported by an affidavit of the creditor or some person on his behalf setting out the circumstances which render the holding of a meeting of creditors necessary or desirable. Notice of a creditor’s application or a copy of the affidavit filed in support of an intended motion shall be served on the Official Assignee at least three days before the date fixed for the hearing of the application or the date of the intended motion.

551. Order to call meeting- (1) When the Court makes an
order (Form. No.92 in Appendix A) directing the Official Assignee to hold a meeting on the application, of a creditor, the provisions of rule 7 of the First Schedule to the Act as to the costs and expenses of the meeting shall apply.

(2) A sealed copy of the order shall be forthwith sent to the Official Assignee by the Additional Registrar.

552. Notice of meeting- A notice of meeting to a creditor
under rules 2 and 3 of the First Schedule to the Act shall be in Form No.93 in Appendix A and a notice to the debtor under rule 4 of the said First Schedule shall be in Form No. 94 in Appendix A.

553. Copy of Resolution for Additional Registrar- Official
Assignee shall send to the Additional Registrar a copy, certified by him, of every resolution of a meeting of creditors.

554. Adjournment- Where a meeting of creditors is
adjourned, the adjourned meeting shall be held at the same place as the original place of meeting, unless in the minutes or the proceedings 163 of the adjourned meeting another place is specified (Form No. 95 in Appendix A).

Proxies

555. Form of proxies- A general proxy shall be in Form No.
98 and a special proxy shall be in Form No. 99 in Appendix A.

556. Signature of Proxy- A proxy given by a creditor,
resident out of Sindh, shall be deemed to be sufficiently executed if it is signed by his duly constituted attorney or agent, whose power of attorney shall be produced before the Official Assignee, if required.

557. Filing in when creditor blind & etc- The proxy of a
creditor, blind or incapable of writing, may be accepted if such creditor has attached his signature or mark thereto in the presence of a witness who shall add to his signature his description and residence:

Provided that all insertions in the proxy are in the hand-writing of the witness and such witness shall have certified at the foot of the proxy that all such insertions have been made by him at the request of the creditor and in his presence before he attached his signature or mark.

558. Minors not to be proxies- A person who is a minor
shall not be appointed a general or special proxy.

Composition and Schemes

559. Forms where proposal submitted by debtor- (1) A
proposal for composition or a proposal for a scheme of arrangement of his affairs intended to be submitted by a debtor, under section 28 (1) of the Act shall be submitted to the Official Assignee in Form No.100 or 101 in Appendix A.

(2) Notice of the day and time fixed for the meeting of creditors to consider a proposal for a composition or scheme shall be in Form No. 102 and the report of the Official Assignee on any such proposal and voting letter expressing a creditor’s assent to or dissent from the proposal shall be in Form No.103 in Appendix A. 164

560. Form of acceptance, application for approval to Court, & etc
A resolution accepting a proposal for a composition or a scheme may be in Form No. 104 or No.105, and an application to the Court to approve a proposal accepted by the creditors with order appointing a day for the hearing of the application shall be in Form No. 108 in Appendix A.

561. Notice to creditors and Official Assignee- Notice of
the date fixed for hearing the application to be given to creditors under section 29 (1) of the Act shall be in Form No. 109 in Appendix A. When the applicant is the insolvent, such notice shall also be given to the Official Assignee.

562. Order approving a composition or scheme- An order
approving of a composition or scheme shall be in Form No. 110 in Appendix A.

563. Correction of formal slips & etc- At the time a
composition or scheme is approved of the Court may correct or supply an accidental or formal slip, error or omission therein, but no alteration in the substance of the composition or scheme shall be made.

564. Proceedings if scheme approved- When a
composition or scheme is approved of the official Assignee shall, on payment of proper costs charges and expenses of and incidental to the proceeding and his own commission, forthwith put the debtor or, as the case may be, the trustees under the composition or scheme, or other person or persons to whom under the composition or scheme to property of the debtor is to be assigned, into possession of the debtor’s property.

565. When Official Assignee may be the trustee in a composition or scheme
In case of a composition or scheme in which a trustee is not appointed or, if appointed, declines to act or becomes incapable of acting or is removed, the Official Assignee shall, unless and until another trustee is appointed by the creditors; be the trustee for the purpose of receiving and distributing the composition or for the purpose of administering the debtor’s property and carrying out the terms of the composition or scheme, as the case may be.

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566. Default in payment of composition- Where a
composition or scheme has been approved and default is made in payment either by the debtor or by the trustee, if any, no action to enforce such payment shall lie, but the remedy of any person aggrieved shall be by application to the Court.

567. Annulment of composition or scheme- Where a
composition or scheme is annulled, the trustee under the composition or scheme shall account to the Official Assignee for money or property of the debtor which has come to his hands, and pay or deliver to the Official Assignee any money or property which has not been duly administered.

568. Dividends under composition or scheme- Where
under a composition or scheme provision is made for the payment of moneys to creditors entitled thereto, and a claim in respect of which a proof has been lodged is disputed, the Court may, if it shall think fit direct that the amount which would be payable, if established, shall be secured in such manner as the Court shall direct until the determination of the claim so disputed, and on the determination thereof the sum so secured shall be paid as the Court may direct.

569. Proof of debts in composition or scheme- Persons
claiming to be a creditor under a composition or scheme, who has not proved his debt before the approval of such composition or scheme, shall lodge his proof with the trustee there under, if any or, if there is no such trustee, with the Official Assignee who shall admit or reject the same. No creditor shall be entitled to enforce payment of any part of the sums payable under a composition or scheme unless and until he has proved his debt and his proof has been admitted.

570. Application to enforce composition and order- An
application to the Court to enforce the provisions of a composition or scheme under section 30(2) of the Act shall be supported by an affidavit. An order on such application shall be in Form No. 111 in Appendix A.

571. Application for annulment of composition or scheme and order
An application to annual a composition or scheme under section 31(1) of the Act shall likewise be supported by affidavit.

166 An order annulling a composition or scheme shall be in Form No.112 in Appendix A.

572. Application for arrest of insolvent under section 34(1)
An application to the Court under section 34 (1) of the Act shall set forth particularly the acts or omissions on the part of the insolvent relied upon as justifying an order under clause (a), (b) or (c) of that section and the sources of knowledge or belief on the part of the declarant as to such acts or omissions. Such application other than that by Official Assignee shall be supported by affidavit.

Control over Person and Property of insolvent

573. Order for redirection of letters- An application to annual
a composition or scheme under section 31(1) of the Act shall likewise be supported by affidavit. An order annulling a composition or scheme shall be in Form No.112 in Appendix A.

Discharge of Insolvent

574. Application for discharge- An application by an
insolvent for an order for discharge under section 38(1) of the Act shall have annexed thereto a list, certified by the Official Assignee to be correct, of all the creditors who have proved up to the date of the application and their respective addresses.

575. Fixing date for hearing of application for discharge and notice
(1) Upon the application being presented and the necessary process fees being furnished, the Additional Registrar shall appoint a date for the hearing of the application, and notice thereof in Form No.116 in Appendix A. shall be published and sent to the Official Assignee and to each creditor who has proved at least one month before the day so appointed. Such notice shall be served as provided in Rule 539 and the lists prescribed by that rule shall be prepared.

(2) The day which shall ordinarily be fixed for the hearing of the application shall be;-

(a) when all the creditors are resident or have agents in the town of Karachi, the first of second insolvency Court day after the date on which the petition was presented;

167

(b) when some of the creditors are not resident in and have no agents in the town of Karachi but all are resident or have agents in Pakistan, the second or third Insolvency Court day after the date on which such petition was presented;

(c) when some of the creditors reside out of Pakistan and have no agent, resident therein, the third or fourth Insolvency Court day after the date on which such petition is presented.

576. Official Assignee’s report In each case of an
application by an insolvent for his discharge the Official Assignee shall hold an investigation into the insolvent’s conduct and affairs, and shall, at least seven days before the time fixed for hearing the application, file with the Additional Registrar his report under sub-section (2) (a) of section 79 of the Act. The Official Assignee shall also furnish a copy of the report to the insolvent on his application.

577. Opposed application- An application by an insolvent
of his discharge upon which the Official Assignee reports to the Court any fact, matter or circumstance which would under the Act justify the Court in refusing an unconditional order of discharge, shall be deemed to be an opposed application for the purposes of section 6(2) (d) of the Act.

578. Answer to report and creditor’s grounds of opposition
(1) An insolvent who intends to dispute any statement with regard to his conduct and affairs contained in the Official Assignee’s report shall, not less than two days before the hearing of the application for discharge, give notice in writing to the Official Assignee specifying the statements in the report, if any, which he proposes at the hearing to dispute.

(2) A creditor who intends to oppose the discharge of the insolvent on grounds other than those mentioned in the Official Assignee’s report, shall give to the Additional Registrar not less than four days before the hearing of the application, notice of the intended opposition stating the grounds thereof. A copy of such notice,

168 hereinafter called, “grounds of opposition” shall be furnished by him to the Official Assignee, and another copy shall be sent to the insolvent’s advocate, if any, or furnished to the insolvent on his application.

579. Form of grounds of opposition- (1) Grounds of
opposition shall be framed as far as possible to the form of specific charges of acts or omissions on the part of the insolvent on which the creditor relies and on proof of which the Court would be either required to refuse a discharge or be justified in refusing an unconditional order of discharge under section 39 of the Act, and shall contain such particulars as are reasonably sufficient to give the insolvent notice of the specific matters alleged against him.

(2) Unless a creditor files grounds of position framed as above within the time aforesaid, he shall not be entitled, without the special leave of the Judge, to be heard in opposition to the insolvent’s application for his discharge:

Provided that if a creditor who has filed such grounds of opposition abandons them or does not proceed thereon, any other creditor may proceed on such grounds.

580. Hearing of application- At the hearing of the
insolvent’s application for his discharge, the Official Assignee and any creditor may cross-examine the insolvent and offer evidence in support of the grounds mentioned in the Official Assignee’s report, and any creditor who has filed grounds of opposition or any other creditor who is entitled to proceed on such grounds of opposition may cross-examine the insolvent and offer evidence in support of such grounds of opposition, and the insolvent may offer evidence in his defence, and the Court may hear such arguments as may be offered in support of and in opposition to such grounds respectively. No matters which are not specifically included in such grounds and grounds of opposition respectively as aforesaid shall, without the special leave of the Judge, be entered into or considered at the instance of any creditor.

169

581. Order on application for discharge- The order of the
Court made on an application, for discharge shall be dated the day on which it is made and shall take effect from the day on which the order is drawn up and signed; but except in the case of an unopposed application, such order shall not be delivered out or published until after the expiration of the time allowed for appeal, or if an appeal is preferred; until after the decision of the Court of Appeal thereon. The order shall be in one of the Forms Nos. 117 to 120 in Appendix A, as the case may require.

582. Notice of order- When the time for appeal has expired
or, the case may be, when the appeal has been decided by the Court of Appeal, on payment of the necessary advertising charges by the insolvent the Additional Registrar shall publish notice of the Order of discharge once in the Official Gazette, and in a local daily newspaper or advertiser in Form No.121 in Appendix A.

583. Costs of application- An insolvent shall not be entitled
to have any of the costs of or incidental to his application for his discharge allowed to him out of his estate.

584. Conditional orders- (1) When the Court grants an
order of discharge conditionally upon the insolvent consenting to a decree being passed against him in favour of the Official Assignee for a balance or part of any balance of the debts provable under the insolvency which is not satisfied at the date of his discharge, the order of discharge shall not be signed, completed or delivered out until the insolvent has given the required consent in the Form No. 122 in Appendix A. The decree shall be recorded in the Original Jurisdiction of the High Court of Sindh and shall be in the Form No. 123 in Appendix A.

(2) If the insolvent does not give the required consent within one month of the making of the conditional order, the Court may, on the application of the Official Assignee, revoke the order or make such other order as the Court may think fit.

170

585. Execution of decree against insolvent- An application
by the Official Assignee for leave to execute the decree passed against the insolvent pursuant to a conditional order of discharge shall be in writing, and shall state briefly the grounds on which the application is made. On presentation of the application, the Additional Registrar shall fix a day for the hearing and shall give notice thereof to the insolvent not less than eight days before the day appointed for the hearing, and shall at the same time furnish him with a copy of the application.

586. Accounts of after acquired property- (1) When an
insolvent is discharged subject to the condition that a decree shall be passed against him in favour of the Official Assignee or subject to any other condition as to his future earnings or after acquired property, it shall be his duty until such decree or condition is satisfied from time to time to give the Official assignee such information as he may require with respect to his earnings and after acquired property and income, and not less than once a year to file in the court a statement verified by affidavit, showing the particulars of any property or income he may have acquired subsequent to his discharge.

(2) The Official Assignee may require the insolvent to attend before the Court to be examined on oath with reference to the statement contained in such affidavit or as to his earnings, income after-acquired property, or dealings. When an insolvent neglects to, file such a statement or to attend the Court for examination when required so to do or properly to answer all such questions as the Official Assignee; revoke the order of discharge. The affidavit shall be in Form No.124 in Appendix A.

587. Failure to apply for discharge If an insolvent fails to
apply to the court for an order of discharge within eighteen months after the date of the order of adjudication or six months after the conclusion of his public examination, if any, whichever is the later period, the Additional Registrar shall set down the case with notice to the insolvent and the official Assignee of not less than seven days of

171 the date on which it will be set down for the orders of the Court under section 41 of the Act.

588. Renewal of application- After expiration of two years
from the date of an order absolutely refusing a discharge, the Court may, on sufficient grounds being shown such as subsequent good conduct of the debtor and on a certificate of the Official Assignee that the insolvent has furnished and rendered so far as he could such information and assistance as were required of him, permit him to renew his application for discharge.

ADMINISTRATION OF PROPERTY

Proof of Debts

589. Form of proof- A creditor’s proof shall be in Form No.
115 in Appendix A.

590. Wages of laborers & etc- In a case in which it shall
appear from the debtor’s schedule that there are numerous claims for wages by laborers and others employed by the debtor, it shall be sufficient if one proof for all such claims is made either by the debtor or his foreman, or head assistant, or some other person on behalf of all such creditors. Such proof shall be in Form No. 126 in Appendix A and shall have annexed thereto, as forming part thereof, a schedule setting forth the names of the laborers and others and the amounts severally due to them. Any proof made in compliance with this rule shall have the same effect as if separate proofs had been made by each of the said labourers and others.

591. Transmission proofs to trustees- Where a trustee is
appointed in a matter, the proofs of debts that have been received by the Official Assignee shall be handed over to the trustee. But the Official Assignee shall first make a list of such proofs and take a receipt therein from the trustee for such proofs.

172

592. Proofs to be sent by the Official Assignee to Additional Registrar
The Official Assignee where no trustee is appointed, shall forthwith after the final payment has been made in a composition or scheme duly approved by the Court or after a final dividend has been declared in an insolvency send to the Additional Registrar all proofs tendered in the proceeding with a list thereof certified to be correct, distinguishing in such list the proofs which were wholly or partly admitted, and the proofs which were wholly or partly rejected.

593. Proofs to be sent by trustee to Additional Registrar-
The trustee under a composition or scheme other than the Official Assignee shall on the first day of every month send to the Additional Registrar a certified list of all proofs, if any, received by him from the Official Assignee or otherwise tendered during the month next preceding, distinguishing in such lists the proofs admitted, those rejected and such as stand over for further consideration, and in the case of proofs admitted or rejected, he shall transmit the proofs themselves for the purpose of being filed.

594. Procedure where creditor appeals- The Official
Assignee, or as the case may be, the trustee appoint under a composition or scheme shall, within three days after receiving notice from a creditor of his intention to appeal against a decision rejecting a proof, file such proof, with the Additional Registrar with a, memorandum thereon of his disallowance thereof. After the appeal has been heard by the Court, the proof, unless wholly disallowed, shall be given back to the Official Assignee or trustee, as the case may be.

595. Time for admission or rejection of proof by Official Assignee
Subject to the power of the Court to extend the time and not later than fourteen days from the latest date specified in the notice of his intention to declare a dividend as the time within which such proofs must be lodged, the Official Assignee shall in writing either admit or reject wholly or in part every proof lodged with him or require further evidence in support thereof. 173

596. Time for admission or rejection of proof by trustee-
Subject to the power of the Court to extend the time, the trustee under a composition or scheme other than the Official Assignee, within twenty eight days after receiving a proof which has not previously been dealt with by the Official Assignee, shall in writing either admit or reject it wholly or in part or require further evidence in support thereof.

597. Notice of admission or rejection of proof- Where a
creditor’s proof has been admitted, the notice of dividend shall be sufficient notification to such creditor of such admission. Where a proof has been rejected, the Official Assignee shall forthwith deliver or send by prepaid post letter or otherwise notice of the rejection to the creditor concerned in Form No. 127 in Appendix A.

Explanation.- Where a claim for interest after the date of adjudication has been erroneously included in the affidavit and is disallowed by the Official Assignee, it shall not be deemed to be a rejection of the claim or part thereof and it shall not be necessary for the Official Assignee to give notice of the disallowance thereof.

598. Costs of appeals from Official Assignee’s decision as to proof
The Official Assignee shall in no case be personally liable for costs in, relation to an appeal from his decision rejecting any proof wholly or in part.

Application to realize Security

599. Application to realize security- Upon application by a
person claiming to be a mortgagee of any part of the insolvent’s freehold or leasehold property or by the Official Assignee with the consent of such person claiming to be a mortgagee as aforesaid under rule 18 of the Rules in the Second Schedule to the act or by a creditor who holds any other security over the insolvent’s property to have such mortgage or security realized, a day shall be fixed for hearing the application, and notice thereof shall be given to the Official Assignee, if

174 he is not the applicant, and shall be published in Form No. 128 in Appendix A.

600. Report of the Official Assignee and hearing of application
The Official Assignee shall inquire into every such claim and shall report to the Court thereon, and before granting the application the Court shall take into consideration the report of the Official Assignee and shall hear any objections which may be made by or on behalf of a creditor or other person interested in the matter.

601. Order for realization of security- If the Judge orders
the mortgage or other security mentioned in rule 605 to be realized, the order shall be in Form No. 129 in Appendix A.

Unless otherwise ordered, notice of the time, place, & etc., of the sale shall be published in the Official Gazette and one local newspaper.

602. Costs of application- If the claimant succeeds in
proving his claim; the Court may order the creditor or person, who opposed the same, to pay the claimant’s costs of the application. If the claimant fails to prove his claim, the Court may order him to pay the opposing party’s costs in opposing the same.

Realization of property

603. Warrant of seizure and search warrant- Warrant of
seizure and search warrants under section 59 of the Act shall be in Forms Nos. 130 and 131 in Appendix A and when granted to the Nazir of the Court they may be executed personally either by the Nazir or by the Deputy Nazir of the Court All other processes may be endorsed by the Nazir for service to any bailiff working under him.

175 Disclaimer of Lease

604. Disclaimer of lease- (1) A lease may be disclaimed
without leave of the Court in any of the following cases viz:

(i) where the insolvent has not sub-let the demised premises or any part thereof or created a mortgage or charge upon the lease, and

(a) the rent reserved of the property leased is less than fifty thousand rupees per annum or.

(b) the estate is administered under section 106 of the Act, or the Official Assignee serves the lessor with notice of his intention to disclaim and the lessor does not, within seven days after the receipt of such notice, give notice to the Official Assignee requiring the matter to be brought before the Court;

(ii) where the insolvent has sub-let the demised premises or created a mortgage or charge upon the lease and the Official Assignee serves the lessor and the sub-lessee or the mortgagees with notice of his intention to disclaim, and neither the lessor nor the sub-lessee or the mortgagees or any of them, within fourteen days after the receipt of such notice, require or requires the matter to be brought before the Court.

(2) The notices shall be in Forms Nos. 132 & 133 in Appendix

A.

(3) Except as provided by this rule, the disclaimer of a lease without the leave of the Court shall be void.

(4) Where the Official Assignee disclaims a leasehold interest, he shall forthwith file the disclaimer with the proceedings in the Court; and the disclaimer shall contain particulars of the interest 176 disclaimed, and a statement of the persons to whom notice of the disclaimer has been given. Until it is filed by the Official Assignee, the disclaimer shall be inoperative (Forms Nos. 134 to 136 in Appendix A).

(5) Where in pursuance of notice by the Official Assignee of his intention to disclaim a leasehold interest, the lessor, sub-lessee or mortgagee requires the Official Assignee to apply to the Court for leave to disclaim, the costs of the lessor, sub-lessee or mortgagee shall not be allowed out of the estate of the insolvent except in cases in which the Court is satisfied that such application was necessary in order to do justice between the parties.

(6) A disclaimer made without the leave of the Court under this rule shall not be void or otherwise affected on the ground only that the notice required by this rule has not been given to some person who claims to be interested in the demised

(7) Where any person claims to be interested in any part of the property of the insolvent, burdened with onerous covenants, he shall, at the request of the Official Assignee furnish a statement of the interest so claimed by him.

Distribution of Property

605. Notice of intended dividend- (1) One month before the
declaration of a dividend the Official Assignee shall, publish notice of his intention to do so in Form No. 140 in Appendix A and shall at the same time send notice thereof in Form No. 141 to each of the creditors mentioned in the insolvent’s schedule who have not proved his debt. Such notice may be delivered personally or sent by prepaid post letter, as may be convenient and shall specify the latest date up to which proofs must be lodged, which shall not be less than fourteen days from the date of such notice.

(2) Where any creditor, after the date mentioned in the notice of intention to declare a dividend as the latest date upon which proofs may be lodged, appeals or intends to appeal against the 177 decision of the Official Assignee rejecting a proof he shall give notice of his appeal or intended appeal to the Official Assignee within seven days from the date mentioned in the notice of intention to declare a dividend or from the date of the notice of the decision against which the appeal has been or is to be made whichever is the later date; and the Official Assignee shall in such case make provision for the dividend upon such proof as if it was a disputed proof within the meaning of section 71(1) (c) of the Act.

(3) Immediately after the expiration of the above mentioned period of seven days, the Official Assignee shall proceed to declare a dividend and shall send in the manner prescribed in sub-rule (1) of this rule a notice of dividend to each creditor who has proved in Form No. 142 in Appendix A.

(4) On declaring a dividend the Official Assignee shall send to the Additional Registrar for filing with the record of the case a copy of the statement mentioned in sub-section (5) of section 69 of the Act, signed by him, as to the particulars of the estate, which shall be in Form No. 143 in Appendix, A.

606. Production of bills, notes & etc- Subject to any law for
the time being in force and subject to the power of the Court on special grounds being shown to order production to be dispensed with every bill of exchange, hundi, promissory note, or other negotiable instrument or security upon which proof has been made, shall be exhibited to the Official Assignee for payment of dividend thereon, and the amount of dividend paid shall be endorsed on the instrument.

607. Dividend may be sent by post- The amount of the
dividend may, at the request and risk of the creditor, be transmitted to him by Cheque by Post (Form No. 137) in Appendix A in a period, cover or by money order after deducting the money order commission. No postal or other charges shall be levied.

608. Notice of intention to make final dividend- The notice
to be given by the Official Assignee under section 73(1) of the Act 178 shall be in Form No. 144 in Appendix A and may be delivered personally or sent by prepaid post letter as may be convenient to the addressees at the addresses given in the insolvent’s schedule or such other address as may be otherwise known to the Official Assignee. Such notice may also be published in any newspaper or advertiser, if in the discretion of the Official Assignee he considers it fit to do so.

609. Rate of interest on dividends which the Official Assignee is ordered to pay
When the Court makes an order under section 74 of Act for the payment of a dividend by the Official Assignee, the amount ordered to be paid shall carry interest at the rate of six per cent or as prescribed by the State Bank of Pakistan at the relevant time, per annum (Form No. 145 in Appendix A).

610. Appointment of insolvent to manage property, or carry on trade
The Power of the Official Assignee to appoint the insolvent under the provisions of section 75(1) of the Act to superintend the management of his property or to carry on his trade shall be subject to the consent in writing of the Committee of inspection, if any or of the majority in number and three fourths in value of all the creditors whose debts are proved or to previous sanction of the Court being obtained to such appointment.

THE OFFICIAL ASSIGNEE

611. Security by Official Assignee- The Official Assignee
shall give security for the due and faithful execution of his duties to the amount of ten hundred thousand rupees in the form of a bond for that amount to the Governor of Sindh for the time being with two sureties to be approved by the Chief Justice. If, either surety dies or becomes insolvent, the Official Assignee shall, immediately after such event has become known to him, give notice thereof to the Chief Justice, and shall execute a fresh bond with two sureties forthwith.

612. Liability for loss- The Official Assignee and his sureties
shall be responsible under their bond for any and every loss of or deficiency in the funds of the Official Assignee as such which may be 179 occasioned by his negligence or default, or by the negligence or default of any person officiating for him during his tenure of the office.

613. Fees, commission and percentages chargeable by the Official Assignee
The Official Assignee shall be entitled to charge for the duties to be performed by him as Official Assignee or as interim receiver-

(a) such fees and percentages as may be chargeable by him under the Act and these rules;

(b) a commission at the rate of five per cent on the gross amount or value of assets realized or collected by him in each estate;

(c) a commission at the rate of five per cent on the amount realized by the Official Assignee on sale of mortgaged property under the provisions of the Second Schedule to the Act;

(d) a commission at the rate of five per cent on the amount paid or payable in pursuance of a composition or scheme of arrangement; and when an application is made under section 21 of the Act on the ground that the debts of the insolvent are paid in full, a commission at the rate of five per cent on the total of such debts (the same to be paid before an order is made under that section):

Provided that with reference to clauses (c) and (d) the Court may, in its discretion, fix a sum less than the sum payable at the rate of five per cent as Official Assignee’s commission:, provided further where the order of adjudication is annulled or petition is withdrawn and assets have not been realized either in whole or in part, it shall be competent for the Court to fix such remuneration for the duties performed by the Official, Assignee in respect of such part of the said assets as has not been realized by the Official Assignee before the date of the order of annulment or withdrawal of petition. 180

614. Payment of fees, percentages, etc., to High Court-
The fees, percentages and commission realized by the Official Assignee under the provisions of the Act and these rules shall be paid by him to the account and credit of the High Court in the first week of the month following the month in which the said fees, percentages and commission are realized or received by the Official Assignee or as soon thereafter as may be convenient.

615. Remuneration of the Official Assignee- The Official
Assignee shall be paid on the time-scale equivalent to the scale of District Judge.

616. Deposit in bank of moneys realized- Unless the Court
shall otherwise order, the proceeds of sale and other moneys received in respect of insolvent’s estates shall, after deducting his commission and such amount as may be required by him for immediate payment of costs, charges and expenses, be deposited by the Official Assignee in an approved bank to the credit of an account in the name of the Official Assignee, and the interest accruing on the amounts in the Saving account shall be credited, from time to time, to the unclaimed Dividend Revenue Account.

Such sums as may not be required for immediate use may: from time to time, with the sanction of the Judge, be deposited by him in any approved bank in fixed deposit or invested in any security of the Government of Pakistan in the name of the Official Assignee, and for such period as the Judge may deem fit. The Official Assignee shall however be entitled to retain in his hands for petty expense a sum not exceeding ten thousand.

617. Money how drawn- When money is required to be drawn
from such account the same shall be drawn by Cheque signed by the Official Assignee.

618. Account of dividends declared- Every dividend
declared in respect of a claim admitted or established in the Court shall be placed in the accounts of the Official Assignee to the credit of 181 the creditor to whom it is due and shall, subject to the provisions of section 122 of the Act, stand to his credit in such accounts until claimed by him or on his behalf by or on behalf of his representatives unless the Court shall otherwise direct.

619. Official Assignee to open Unclaimed Dividend Account
The Official Assignee shall open an account called “The Unclaimed Dividend Account” and shall from time to time transfer to the said account unclaimed dividends within one year from the date of the declaration of such dividends except such sum as may be required for payment of dividends together with all sums standing to the credit of the insolvents’ estates in which no further recovery is anticipated and in which no dividend can be declared, and all such other unclaimed balances whatsoever as may be in his hands by virtue of proceedings under the Provincial Insolvency Acts of 1907 and 1920 and, with the sanction of the Judge, invest in the name of the Official Assignee all moneys standing to the credit of the account in any security of the Government of Pakistan or in fixed deposit with any approved bank.

620. Income from investments- (1) The Official Assignee
shall transfer the interest accruing from such investments to an account called ‘The Unclaimed Dividend Revenue Account”. The amount in such account shall be devoted to payment of the cost of advertising and administering small estates in which funds are not sufficient and the cost of civil proceedings, etc., mentioned in rules 641 and 642 and interest as mentioned in rule 615 and the remuneration of any clerk, or other person employed temporarily with the sanction of the Chief Justice.

(2) At the end of every year the sums and securities standing to credit of the Unclaimed Dividend Revenue Account less than sum of five thousand rupees shall be transferred to the account and credit of the High Court after the completion of the audit of the Official Assignee’s account for the year:

Provided that if at any time the amount standing to the credit of the Unclaimed Dividend Revenue 182 Account is less than five thousand rupees, the deficit shall be paid by the High Court to the credit of the said account in order to make up the sum of five thousand.

621. Disposal of the balance of Unclaimed Dividend Account
At the end of every year all sums and securities standing to the credit of the Unclaimed Dividend Account less the sum of ten thousand rupees shall be transferred to the account and credit of the High Court after the completion of the audit of the Official Assignee’s accounts for the year:

Provided that if at any time the amount standing to the credit of the said account is less than one thousand rupees the deficit shall be paid by the High Court to make up the said sum of ten thousand rupees in the said account.

622. List of dividends- The Official Assignee shall keep
suspended in a conspicuous position in his office, a list of all dividends due to creditors which have been unclaimed for six months which list shall be opened to the inspection of all persons claiming to be interested in the estate of any insolvent.

623. Notice of unclaimed dividends- The Official Assignee
shall, after the expiration of one year from date of declaration of every dividend, publish in the Officials Gazette, in two consecutive issues thereof, a list of all dividends remaining unclaimed in respect of every estate which has come into his possession.

624. Half yearly statement of estates- The Official
Assignee shall publish half-yearly in the Official Gazette, namely, in the Gazette first published after 31st day of March and the 30th day of September in each year for the half-year ending on the 31st December or 30th June preceding, a statement of each estate not then wound up and fully distributed, that is to say, of the whole receipts, of the whole disbursements (distinguishing dividends from other payments), of the balance remaining of the mode in and securities on which such balance is actually invested, and of the probable out-turn of dependencies and, at the foot thereof; shall specify the amount of commission received by him during the half year.

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625. Audit of accounts- (1) The accounts of the Official
Assignee shall be audited once in every year, that is to say up to 31st December in every year, by the Controller, Sindh, or any auditor deputed by him for that purpose. The auditor shall be directed to ascertain that the accounts have been properly and accurately kept and that all moneys received and disbursed have been accounted for.

(2) The auditor shall examine the accounts of the Official Assignee including the statement of the half year ending 31st December preceding and report thereon to the Chief Justice, and if during such audit any questions or matter of difference shall arise between the auditor and the Official Assignee in respect, of any payment, receipt voucher or otherwise, such questions or matter of difference shall be referred to the Chief Justice or to such Judge as he may appoint to decide the same.

(3) For defraying the costs of the audit, the Official Assignee shall deduct from the assets in each estate a percentage of 25% on the amount realized by him and credit the same to the Unclaimed Dividend Revenue Account.

626. Fees for copy of lists- The Official Assignee shall levy
the following fees in addition to such other fees as are prescribed by these rules:- Rs. For each copy of the list of creditors and the debts due to each of them required to be furnished RS.100/-plus such copying charges as are payable to copyists under the Sindh High Court Rules (A.S.) 100 For every certificate 100 For each copy of vesting order plus such copying charges as are payable to copyists under the Sindh High Court Rules (AS.). 100 For each search in his office in answer to inquiry. 100 For every attendance before the High Court with books or papers from his Office by order of the Court or at the request of any party. 300

184 For every attendance at any Court other than the High Court with papers from his Office by order of such Court or at the request of any party. 1000 At a Criminal Court no fee but only such reasonable expenses as may be actually incurred shall be charged. For every transmission by post or by messenger to any Court other than the High Court of papers from his office by order of such Court or at the request of any party. 1000 For the execution by the Official Assignee of any conveyance of immovable property when no portion of the purchase money is received by him for the benefit of the creditors at large, a fee at the rate of 75% per cent, upon the amount of the purchase money payable by the party requiring such execution,

Provided that such fee in the whole shall never exceed. 10000 For affixing the seal of creditors, except in respect of certified copy of the list creditors. 100 Certified copies issued by the Official Assignee shall be signed by him or by his Head Clerk and shall be served with the seal of his office.

Such fees shall be credited to the Provincial Government.

627. Record book- The Official Assignee shall keep a book
to be called the “Record Book” in which he shall record the minutes of all proceedings had and all resolutions passed at any meeting of creditors or of the committee of Inspection, but he shall not be bound to insert in the record any document of a confidential nature (such as the opinion of counsel on any matter affecting the interest of the creditors), nor need to exhibit such document to any person other than a member of the Committee of inspection.

628. Duties as to debtor’s schedule- (1) As soon as the
Official Assignee receives a copy of an order of adjudication, he shall, on the debtor’s application, furnish him with a copy of instructions for

185 the preparation of his schedule. The instructions shall be in Form No. 82 in appendix A.

(2) The Official Assignee shall also forthwith hold a personal interview with the debtor for the purpose of investigating his affairs and determining whether the estate should be administered under section 106 of Act.

629. Joint and separate estate accounts- When an order of
adjudication has been made against debtors in partnership, distinct accounts shall be kept of the joint estate and of the separate estate or estates and no transfer of a surplus from a separate estate to a joint estate on the ground that there are creditors under such separate estate shall be made until after notice of the intention to make such transfer has been published once in a local newspaper or advertiser in Form No. 146 in Appendix A.

630. Mode of application to Court- Application by the
Official Assignee to the Court may be made personally and without notice or other formality; but the Court may in any case order that an application be renewed in a formal manner and that such notice thereof be given to any person likely to be an affected thereby as the Court may direct.

631. Evidence on application by Official Assignee- Where
for the purpose of an application to the Court by the Official Assignee for directions, or to adjudge a debtor insolvent, or for leave to disclaim a lease or for an extension of time to apply for leave to disclaim a lease, or for an order to take criminal proceedings against an insolvent, or to commit an insolvent it is necessary that evidence be given by him in support of such application, such evidence may be given by a report of the Official Assignee to the Court and need not be given by affidavit, and any such report of the Official Assignee to the Court shall be received by the Court as prima facie evidence of the matters reported upon.

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632. Application for direction- In any case of doubt or
difficulty or in any matter and provided for by the Act or these rules relating to any proceeding in Court the Official Assignee may apply to the Court for direction.

633. Accounting by Official Assignee- (1) Where a
composition or scheme is sanctioned by the Court, the Official Assignee shall account to the debtor, or, as the case may be, to the trustee under the composition or scheme.

(2) If the debtor, or, as the case may be, the trustee is dissatisfied with the account or any part thereof, he may report the matter to the Court which shall take such action, if any, thereon as it may deem expedient.

634. Disposal of debtor’s books of account & etc- The
Court may on the application of the Official Assignee direct that the debtor’s books of account and other documents given up by him may be sold, destroyed or otherwise disposed of.

Costs of Civil Proceedings

635. Costs of Civil proceedings- Where the Official
Assignee has been directed by the Court in the matter of an insolvency to institute legal proceedings of any kind whatsoever, he shall be entitled, so far as the assets in his hands relating to such insolvency are insufficient to meet the costs and expenses of such proceedings, to pay such deficiency out of the Unclaimed Dividend Revenue account.

636. Civil liability of Official Assignee how met- Where the
Official Assignee while acting under the order and direction of the Court or otherwise acting in his official capacity in the matter of any insolvency shall incur any civil liability and the assets in his hands relating to such insolvency are insufficient to meet such liability, he shall be entitled to apply to the Court for leave to pay any deficiency out of the Unclaimed Dividend Revenue Account, and such leave shall

187 be granted.

Provided that the Official Assignee, while so acting, shall have complied with the order and direction of the Court and in the absence of any order and direction of the Court, he shall have acted bona fide in the discharge of his duties.

637. Costs when assets not available- Where an insolvent
has no available assets, the Official Assignee shall not be required to incur any costs, charges or expenses in relation to his estate without the express direction of the Court:

Provided that he shall be at liberty to apply money not exceeding five thousand in, a matter out of the moneys standing to the credit of the Unclaimed Dividend Revenue Account in defraying necessary court fees, costs, charges and expenses in administering estates in which he has no funds in his hands and shall repay, in priority to all other claims or charges, the amount so applied, out of the recoveries, if any, made by him.

638. Deficit how met- In the cases in which the Official
Assignee is entitled to discharge any civil liability from, or to pay any costs, charges or, expenses out of, the Unclaimed Dividend Revenue Account and there is a deficit in the said account, the said deficit shall be made good out of the revenues of the Provincial Government.

639. Liability for costs, damages and expenses- The
following provisions shall apply to every case in which proceedings are taken either by action, motion or in any other manner against the Official Assignee in respect of anything done or default made by him when acting or in the bona fide and reasonable belief that he is acting in pursuance of the Act, or in execution of the powers given to the Official Assignee by the Act:

(1) subject to the provisions of the next following sub-section, the costs, damages and expenses which the Official Assignee may have to pay or to which he may be put under such proceedings, shall be paid out of the estate of the insolvent. If such estate is insufficient, the

188 deficit shall be paid from the Unclaimed Dividend Revenue Account;

(2) as soon as any such proceedings are commenced, it shall be the duty of the Official Assignee to report the same to the Court, which shall determine whether or not such proceedings shall be resisted or defended, and unless the Court shall otherwise determine, no such costs, damages or expenses shall be paid out of the estate unless the Court has determined that such proceedings shall be resisted or defended.

640. Books of account to be maintained by the Official Assignee
The Official Assignee shall maintain the books of account mentioned in Form No.155 in Appendix A, of which the first column contains the names of the several books and the second column specifies the entries to be made therein, respectively.

Special Manager

641. Special Manager’s accounts- Special manager shall
account to the Official Assignee and such special manager’s accounts shall be verified by affidavit in Form No. 147 in Appendix A, and when approved by the Official Assignee, the total of the receipts and payments shall be added to the Official Assignee’s accounts.

COMMITTEE OF INSPECTION

642. Control of Committee of Inspection over Official Assignee
(1) The Official Assignee shall submit the Record Book prescribed by rule 633, his books of account together with other requisite books and vouchers to the Committee of Inspection, if any, as and when required.

(2) The Committee of inspection, if any, shall be consulted by the Official Assignee on all matters of importance affecting the general body of creditors, and in particular on questions relating to the valuation, redemption and realization of securities, and disclaimer of

189 leases or property burdened with onerous covenants; and the proceedings had on such consultations, together with any resolutions of the Committee passed there at, shall, subject to the restrictions mentioned in Rule 633, be duly recorded in the record book.

SMALL INSOLVENCIES

643. Report of Official Assignee as to value of property-
(1) A report of the Official Assignee and an order for summary administration of an insolvent’s estate under section 106(1) of the Act shall be in Forms Nos. 148 and 149 in Appendix A, respectively.

(2) When an order of summary administration of an insolvent’s estate is made by the Court, the provisions of the Act and these rules shall, subject to any special directions of the Court be further modified as follows:

(i) there shall be no advertisement of any proceedings in a local paper unless the Court otherwise directs;

(ii) the title of every document in the proceedings subsequent to the making of the order for summary administration shall have inserted thereon “Summary Case”;

(iii) there shall be no Committee of Inspection;

(iv) on an application by an insolvent for his discharge, the list certified by the Official Assignee shall not include nor shall notices be sent to creditors whose debts do not exceed three thousand.

(v) notices of meetings or of sittings of the Court shall only be sent to creditors whose debts or claims exceed three thousand

(vi) such sheets from A to H in Form No. 85 in Appendix A, will have to be returned blank shall be omitted from the

190 schedule, the insolvent enumerating such sheets in the deficiency statement.

SPECIAL PROCEEDINGS

Administration of the estates of persons dying insolvent

644. Application for administration order- (1) A creditor’s
petition under section 108 of the Act shall, be in Form No. 150 in Appendix A, and shall be verified by affidavit, which shall state the source or sources of the deponent’s knowledge or belief as to the statement or statements verified or deposed to by him.

(2) Notice of the petition to the legal representative of the deceased debtor shall be in Form No. 151 in Appendix A.

645. Order for administration- (1) An order for the
administration in insolvency of deceased debtor’s estate under section 108(2) of the Act shall be in Form No. 152 or 153 in Appendix A.

(2) Notice of the order shall be published in Form No. 154 in Appendix A.

646. Duties of legal representative- When an
administration order under section 108 of the Act has been made, it shall be the duty of the legal representative of the deceased debtor to file with the Official Assignee forthwith an account of the dealings with and administration, if any, of the deceased’s estate by such legal representatives and such legal representative shall also furnish forthwith a list of the creditors, and a statement of the assets and liabilities and such other particulars of the affairs of the deceased debtor as may be required by the Official Assignee. Every account, list and statement to be made under the rule shall be made and verified as nearly as may be in accordance with the practice for the time being of the Court in its original civil jurisdiction.

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647. Executor de son tort- In a case in which an
administration order under section 108 of the Act has been made and it appears to the Court, on the report of the Official Assignee, that no legal representative of the debtor exists, the account, list and statement mentioned in rule 652 shall be made, verified and filed by such person as in the opinion of the Court, upon such report, may have taken upon himself the administration of or may otherwise have intermeddled with the property of the deceased, or any part thereof.

SUPPLEMENTAL

Access to insolvent’s books

648. Fee for inspection- Not-withstanding anything
contained in rule 167 of the Sindh High Court Rules, Appellate Side, the fee payable to the Official Assignee for inspection of an insolvent‘s books under section 124 (2) of the Act shall be two thousand rupees, if the inspection lasts for a day or part of a day; and if the inspection lasts for more than a day; two thousand rupees for the first day and one thousand for every subsequent day or part thereof. Such fees shall be credited to the Provincial Government. Registers

649. Insolvency Register- The Additional Registrar shall
keep a register of insolvency petitions cases and proceedings in Forms Nos. 6, 7 and 8 in Appendix B. He shall submit half-yearly returns in Form No.9 in Appendix B to the Chief Justice.

650. Power of Court to extend time- The Court may, under
special circumstances and for good cause shown, extend or abridge the time appointed by these rules or fixed by any order of the Court for doing any act or taking any proceeding.

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CHAPTER XXX
RULES RELATING TO REFERENCES UNDER THE LAND
ACQUISITION ACT, 1894

651. Registers of Land Acquisition references- A register of
Land Acquisition References shall be kept in which shall be entered all references filed under the Land Acquisition Act, 1894 (hereinafter in this chapter referred “the Act”)

652. Collector to furnish the addresses of the parties- The
Collector as defined in Section 3 (c) of the Act shall along with every reference under Section 18 of the Act supply to the additional registrar (O.S.) the postal addresses of all person on whom notices are required to be served under Section 20 of the Act and in case of reference under Section 30 of the Act the postal addresses of all persons interested in the apportionment.

653. Collector to file notices etc- Along with every reference
the Collector shall file notices in the appropriate form dully filled in and shall pay the Court-fees and postal charges payable for service of such notices.

654. Additional Registrar to issue notices- Upon a reference
being filed, the Additional Registrar (O.S.) shall forthwith issue notices in Form No.156 of Appendix A, if the reference is under section 18 of the Act and in Form No. 157 of Appendix A, if the reference is under section 30 of the Act.

655. Notices to be sent by registered post- Such notices
shall be sent by registered post in case the reference under section 18 of the Act to the persons to whom notices are required to be sent under the provision of section 20 of the Act, and in case of reference under section 30 of the Act to the persons interested, at the addresses supplied by Collector.

656. Returnable date of notices under section 18 and 30-
The returnable date of a notice in a reference under Section 18 of the Act for compensation with or without apportionment shall be three months from the date of the issue of notice; and a returnable date of 193 notice in case of reference relating to apportionment only shall be one month from the date of issue of the notice.

657. Application for order under Section 32 of the Act- An
application under Section 32 of the Act shall ordinarily be made in chambers to the Judge who shall have been nominated to hear Land Acquisition references, but the Judge may adjourn the application in to Court if he thinks fit.

CHAPTER XXXI
RULES UNDER THE ADMIRALTY JURISDICTION OF HIGH
COURTS ORDINANCE of 1980

658. Interpretation- In the construction of the rules in this
chapter the following terms shall (if not inconsistent with the context or subject matter) have the respective meaning hereinafter assigned to them; that is to say:-

(a) “Affidavit” shall, in addition to its ordinary meaning, include a statement in writing on solemn affirmation, wherever by law a person may make a solemn affirmation instead of an oath.;

(b) “Code” shall mean the Code of Civil Procedure or other law in force for the time being, regulating the procedure of the Court;

(c) “the Admiralty Court” means the High Court of Sindh, Karachi;;

(d) “Admiralty Judge” means the Judge nominated to hear the Admiralty causes;

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(e) “Admiralty Jurisdiction” means the jurisdiction as defined in clauses (a) to (r) of sub- section 2 of section 3 of the Ordinance;

(f) “the Nazir of the Court” means the Nazir of the High Court and all processes of the Admiralty Court shall be executed by him or by one of the officers subordinate to him;

(g) “party” shall include for purposes of Court procedure not only the party himself but his legal representative (Barrister, Solicitor or Advocate) duly admitted to practice before the Court under the rules in force for the time being as to the admission of advocates to practice in the Court;

(h) “Admiralty Registrar” means the Registrar Sindh High Court.

(i) “Registry” means the office of the Admiralty Registrar;

(j) “Suit” means any suit, action or other proceeding instituted in the Court in its jurisdiction under the Admiralty Jurisdiction of High Courts Ordinance, 1980.

659. Institution of suits- A suit shall be commenced by a
plaint drawn up, subscribed and verified according to the provisions of the Code and the practice throughout shall, as far as is compatible with these rules, be that laid down in the Code.

660. Warrants- When a suit is instituted in rem, any party
may, on filing an affidavit, obtain from the Court a warrant for the arrest of the ship or property proceeded against.

661. Warrant with Court’s leave through particular wanting
When it seems advisable, the Court may allow the warrant to issue through the affidavit or plaint may not contain all the required particulars and in a suit of wages may also waive the service of the notice.

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662. Service of warrant, filling thereof- Every warrant shall
be served by the Nazir or his bailiff. The Nazir or his bailiff shall, within six days from the service thereof, file his affidavit or other evidence necessary to prove the service thereof in the registry.

663. Service of summons or warrant, how effected on vessel
In suits in rem service of summons or warrant against ship, freight or cargo on board is to be effected by pasting the original summon or warrant on the hull or control room of the vessel and on taking off the process, by leaving, the copy of it issued under the provisions of the Code pasted in its place. The concerned Port and Customs Authorities to be notified not to issue Port clearance till further orders of the Court.

664. Service how effected on cargo landed- If the cargo
has been landed or transshipped, service of the summons or warrant to arrest the cargo and freight shall be affected by placing the summons or warrant for a short time on the cargo and on taking off the process, by leaving the true copy aforesaid upon it.

665. Service on cargo in custody of third person- If the
cargo be in the custody of a person who will not permit access to it, service of the summons or warrant may be made upon the custodian under the usual rules as to the service of a summons or corresponding order in execution proceedings contained in the Code.

666. Suits in rem by default- If on the date fixed for hearing
no appearance is made for the defendant in the suit, the Court may proceed ex parte and if appearance is made, the Court will proceed in the usual manner under the Code.

667. Judgment for the claim, if well founded- If the suit
proceed ex parte and the Judge is satisfied that the plaintiffs claim is well founded, he may pronounce for the claim and may order the property to be sold with or without previous notice and the proceeds paid to the Nazir or may make such order as he shall think just.

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668. Entry of appearance- A party desiring to enter an
appearance in any suit shall file a written statement before the day set down for the first hearing or settlement of issues.

669. Contents of written statement- The written statement
shall contain, besides the name of the party, an address in Karachi at which it shall be sufficient to leave all instruments and documents in the suit, in addition to the details required in written statements by the Code.

670. Security- If security is to be given in the registry, it shall
be given according to the rules and practice of the Court as to security in the case of an attachment before judgment in an ordinary civil suit.

671. Releases- Property arrested, by warrant shall only be
released in the authority of an order in writing issued by the Court to be called a release.

672. Release before appearance entered on application-
A party at whose instance any property has been arrested the release thereof by filing an application to withdraw the warrant.

673. On payment into Registry, release of property- A party
may obtain the release of any property by paying to the Nazir the sum in which the suit has been instituted.

674. Release of cargo arrested for freight, on payment-
Cargo arrested for the freight only may be released by an order of the Judge in Chambers upon proof by affidavit of the value of the freight and on payment of the amount of the freight to the Nazir.

675. Value of property under arrest in salvage suit- In a
suit of salvage the value of the property under arrest shall be agreed to or proved by affidavit to the satisfaction of the Judge in Chambers before the property is released.

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676. On security or payment into Registry, property arrested released
Where security shall have been given in the sum in which the suit has been instituted or such sums shall have been paid into Court and, if the suit be one to salvage, when the value of the property arrested shall have been proved to the satisfaction of the Judge in Chambers, he shall grant release for the property arrested, unless there be a caveat against the release thereof outstanding in the Caveat Release Book.

677. Release by Nazir- The order of release shall be sent to
the Nazir to whom the party on whose application the order of release was made shall pay all costs charges and expenses attending the care and custody of the property while so under arrest and the Nazir shall thereupon release the property.

678. Caveat Release Book- A party in a suit, desiring to
prevent the release of any property under arrest, shall file an application to that effect duly supported by affidavit and thereupon a caveat against the release of the property shall be entered in a book to be kept in the registry called the ‘Caveat Release Book’.

679. Penalty for delaying release- A party delaying the
release of any property by the entry of a caveat shall be liable to be condemned in costs and damages, unless he shall show, to the satisfaction of the Court, good and sufficient reason for having so done.

680. Caveat Warrant Book- A person desiring to prevent the
arrest of any property may cause a caveat against the issue of a warrant for the arrest thereof to be entered in the registry.

681. Entry of appearance in Caveat Warrant Books- For
this purpose he shall cause to be filed in the registry a notice, duly signed by himself or his legal representative, undertaking to enter an appearance in any suit that may be instituted against the said property, and to give security in such suit in a sum not exceeding an amount to be stated in the notice or to pay such sum into the registry, and a caveat against the issue of a warrant for the arrest of the

198 property shall thereupon be entered in a book to be kept in the registry called the “Caveat Warrant Book”.

682. Service of plaint on party entering Caveat Warrant-
A party instituting a suit against any property in respect of which a caveat has been entered in the Caveat Warrant Book shall, before filing the plaint, serve a copy thereof upon the person on whose behalf the caveat has been entered and shall annex to the plaint an affidavit of such service.

683. Party entering caveat to give security of filing of plaint
Before departure of the vessel and not later than three days from the filing of the plaint the person on whose behalf the caveat has been entered shall give security in the sum in which the suit has been instituted or pay the same to the Nazir.

684. On default, suit may proceed ex parte- After the
expiration of three days from filing of the plaint, if the party on whose behalf the caveat has been entered shall not have given security in such sum or paid the same to the Nazir, the plaintiff may ask the Court to proceed with the suit by default and to pass judgment:

Provided that the Court may, on good cause shown and on such terms as to payment of costs as it may impose, extend the time for giving security or payment of the money to the Nazir.

685. Judgment to claim enforcement of payment- When
the suit comes before the Court it is satisfied that the claim is well founded, it shall pronounce for the amount which appears to be due and may enforce the payment thereof by order and attachment against the party, on whose behalf the caveat has been entered, and by the arrest of the property, if it then be, or thereafter come, within the jurisdiction of the Court.

686. Notwithstanding caveat property may be arrested-
The preceding rules shall not prevent a party from taking out a warrant for the arrest of any property notwithstanding the entry of a caveat in the Caveat Warrant Book but the party, at whose instance any property in respect of which a caveat is entered shall be arrested, shall be liable to be condemned in costs and damages, unless he shall 199 show, to the satisfaction of the Court, goods and sufficient reason for having so done.

687. Sale by order of the Court- Every sale under the
decree of the Court shall, unless the Judge shall otherwise order, be made by the Nazir in like manner as a sale of movable property in execution of a decree in an ordinary civil suit subject to the rules as to Court-fees and other fees in force at the time.

688. Procedure by Nazir on sale of property- The Nazir
shall pay into Court the gross proceeds of sale of any property sold by him and shall at the same time bring into the registry the amount of sale with vouchers in support thereof for taxation by the taxing officer of the Court, to whom the same shall be transmitted for the purpose.

689. Audience before Taxing Officer- Any person
interested in the proceeds may be heard before the taxing officer on the taxation of the account of expenses and an objection to the taxation shall be decided by the Judge of the Court.

690. Payment of moneys- Money paid into Court shall be
paid to the Nazir.

691. Payment out of money- Money paid into Court shall
not be paid out of Court, except in pursuance of an order of the Court.

692. Security for latent demands- Security for latent
demands shall not, unless the Judge shall otherwise order, be required on the payment of money out of Court.

693. Notice against payment Caveat Payment Book- A
party desiring to prevent the payment of money out of Court shall file a notice; duly supported by affidavit, and thereupon a caveat shall be entered in a book to be kept in the registry called the “Caveat Payment Book.”

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694. Applications- Forms of application to be filed in the,
registry or the Nazir’s office may be obtained on application in the registry. They may be varied or altered by the Judge at his discretion.

695. Signature to application- Each application shall be
signed by the party.

696. Improperly filled up application- If an application be
not properly filled up, the registry or the Nazir may refuse to receive the same or to act thereon without an order of the Judge to whom he shall refer the matter if, the party desires this to be done.

697. Caveat to be in force for six months- A caveat,
whether against the issue of a warrant, the release of property or the payment of money out of Court, shall not remain in force for more than six months from the date thereof.

698. Withdrawal of caveat- A caveat may be withdrawn by
the party on whose behalf it has been entered.

699. Application to overrule a caveat- Application may be
made to the Court or to the Judge in Chambers to overrule a caveat.

700. Fees by Officers and Nazir- The fees to be paid in the
proceedings, whether in Court fees or in money shall be regulated by the table of fees and rules prescribed for proceedings under the original civil jurisdiction of the Court.

701. Forms- The forms for the use in the Admiralty causes
are Form No 158 to 161 in appendix A that may be used with modifications as and where necessary.

702. Where not provided for, rules and practice of original side, to apply
The other proceedings in suits brought in the Court in the exercise of its jurisdiction under the Admiralty Jurisdiction of High Courts Ordinance, 1980, not provided for by these rules, shall

201 be regulated by the rules and practice of the Court in suits brought in it in the exercise of its original civil jurisdiction.

703. Fees to nautical assessors- Nautical assessors shall
be entitled to fees according to the scale prescribed in Chapter II in Appendix C.

CHAPTER XXXII
RULES RELATING TO REFERENCE APPLICATIONS UNDER
SECTION 133 OF THE INCOME TAX ORDINANCE 2001

(Ordinance No. XLIX of 2001)

704. References to be presented to the Additional Registrar (O.S.)
References under Section 133 of Income Tax Ordinance 2001 (hereinafter in this chapter referred to “as the Ordinance”) shall be presented to the Additional Registrar (O.S.) and shall be dealt with on Original side of the High Court.

Provided further that the Chief Justice may, in his discretion, order that, any case arising in the jurisdiction of the benches, be heard at Main seat at Karachi.

705. Filing of Statement of case, issuing of notices and fixing the date for hearing
The Party who has filed a reference shall file statement of the case and the question(s) of law arising therein, in Form No. 162 of Appendix A in the office of Additional Registrar (O.S.) simultaneously and shall take steps to bring the reference to final conclusion. If the party fails to file the statement of the case, the office shall return the petition to the party.

Such party shall apply to the Assistant Registrar (I.T.R.) to issue notice and to fix a date for hearing of the reference and shall serve the notice on the opposite party. If such party fails to take such steps for two months from the date of presentation of the reference in the High Court, the Additional Registrar (O.S.) may fix the reference in Court for orders. The Court may pass such orders on reference as it may deem fit.

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706. The reference and its annexures- The reference shall be
by petition. There shall be annexed to such petition copies of the order and judgment of the tribunal, and also of the relevant documents on which the applicant want to rely in support of his reference.

Explanation- The term tribunal means “Appellate Tribunal Inland Revenues”

707. Service of notice of reference- The notice together with a
copy of the reference and annexes shall be served on opposite party i.e. on the Commissioner of Income- Tax, or the assesse, as the case may be, at least fourteen days before the returnable date of notice.

708. References to be heard by a bench- References shall
be heard by a bench on Original Side of not less than two Judges nominated by the Chief Justice under rule 8 of the Original Side Rules.

709. Copy of order/Judgment to be sent to the Appellate Tribunal
The Additional Registrar (O.S.) shall send a copy of Order/Judgment, if any, to the Registrar Appellate Tribunal.

710. Applications for stay orders to be by interlocutory applications
Applications under Sub Section 7 of Section 133 of the Ordinance shall be by interlocutory applications, which shall as may be and subject to the provisions of Sub Section 7 of Section 133 of the Ordinance, be regulated by rules 76 and 77.

711. Service of notice of stay application on opposite party-
(1) A copy of the application made and affidavit filed in support of it shall be served on the opposite party with copy of interim order, if any,

(2) It the opposite party to whom notice has been issued whished to show cause, the provision of rule 78 shall, o or as may be followed.

712. Rules and the practice of Original Side to apply- Other
proceedings in references brought in the Court in exercise of its jurisdiction under the Income Tax Ordinance 2001, shall be regulated by the rules and practice of Original side.

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713. Applicability of the rules of this chapter to other references
The references under Section 47 of the Sales Tax Act, 1990 shall be governed by these rules subject to modification, as and where necessary.

CHAPTER XXXIII

Rule made under Section 20(f) of the Trusts Act, 1882

714. Investment of trust money in government securities-
Trust property consisting of money may, until further order, be invested in Government Securities or as ordered by the Court.

Note:-This is in addition to the securities already recognized under section 20 of the Trust Act, 1882.

715. Repeal and saving- The Sindh Chief Court Rules (O.S.)
and other existing rules dealing with matter by these rules are hereby repealed.

Nothing in this rule shall affect any things done or to be done under repealed rules or under decree or order made in accordance them prior to the date of commencement of these rules.

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