SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI

Mid-Term Examination Spring-2021

August 2021

Class: [LL.B-VIII (C)]

Course: [Civil Procedure Code-II] Duration: 03 hours

Instructor: [Muhammad Kamil Khan] Marks: 25

Timing: 12:00 to 03:00 PM Dated: 26/08/2021

Student Name Saifullah

Roll No. Bl.1064

INSTRUCTIONS:

• Read the question carefully before starting to write your answer.

• Maximum words limit 1000 words per question.
• The answer should be written in MS WORD and uploaded in the assignment
section. Do not send to me.
• DO NOT forget to click on the Hand In button after uploading the answer.
• DO NOT forget to review your answer before uploading it.
• Include as many references to the case law as possible.
• Apart from the above, you are NOT allowed to use any other source. You must
also NOT take help from the internet or any other person.

Note: ATTEMPT ALL QUESTION.

Q1: What is meant by ‘Set-Off’.

Q2: Highlights briefly the basic difference between Plaint and Written statement.

Q3: What are the essential elements of settlement of ‘Issues’ and power to amend, and
strikeout Issues.

Q4: Elaborate the importance of ‘Cost of Adjournments’.

Q5: Explain Concept of ‘Examination of parties by the court and Non-appearance of

Parties.

Best of Luck.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Q1: What is meant by ‘Set-Off’.

• Definition.
• Under order 8 of the code a defendant files a written statement in reply of the plaint
of the plaintiff, in this if any situation arises where the plaintiff files a suit of recovery
of money from the defendant, but at same time defendant also has some debt on
the plaintiff, in this case, the defendant may claim for the set off the amount against
the plaintiff recoverable by him. For the setting off the amount, the defendant has
to state the fact in the written statement filed by him. Provisions regarding the set-
off have defined under Order 8 Rule 6 of CPC.

• Meaning of set-off.
• Before starting further we should know about the set-off. Set-off means a claim by
the defendant against the plaintiff or a plea in defence available to the defendant.
It is a cross-claim between the parties to the suit regarding their recovery of money.
It is the destruction of the debts of which two persons are reciprocally debtors to
one other. As the case may be where there are mutual debts between the parties
(plaintiff and defendant), one debt may be settled against the other.

• When it may arise.

• Kk in a suit for recovery of money by the plaintiff the defendant finds that he has
also a claim of some amount against the plaintiff, then he can also file for set-off
the said amount. For example; Mahesh sues Rakesh on a bill of exchange for
Rs.1000. Rakesh holds a judgment against Mahesh for Rs. 3000. The two claims
being both definite and ascertain, pecuniary demands may be set-off.

• Essential conditions.
• A defendant may claim a set-off if he satisfied the conditions follow as under-
• 1.The suit must relate to recovery of money;
• 2.The sum of money must be ascertained or definite;
• 3.Above said sum must be recoverable legally;
• 4.The sum of money must be recoverable by the defendant or by all the
defendants, in case of more than one defendants;
• 5.It must be recoverable from the plaintiff by the defendant;
• 6.It must not exceed the pecuniary limits of the court in which the suit is brought;
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

• 7.Both the parties must fill, in the defendant’s claim to set-off, the same character
as they fill in the plaintiff’s suit;

• Effect of set-off.
• In the claim of set-off, there are two suits, one by the plaintiff, and the other by the
defendant against the plaintiff, they are tried together, no separate suit is
necessary. In such a case, when the defendant claims set-off, he will stand in the
position of the plaintiff in regard to the amount claimed by him. In such case, if the
plaintiff doesn’t appear and his suit is dismissed for default, or he withdraws his
suit, etc. it does not affect the claim of the defendant for set-off and a decree may
be passed by the court in favour of the defendant if he is able to prove his claim.

• Conclusion.
• At last, we can say about the set-off, that it is the extinction of debts of which two
persons are reciprocally debtor to one another. For example; if a person A sues B
for Rs. 2000, B claims for Rs. 1000 against the A, here two claims may be set-off,
it is an extinction of the debt of the one persons against the other (Rs.1000).
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Q2: Highlights briefly the basic difference between Plaint and

Written statement.

Plaint is defined in Order 7 of CPC. Plaint is a statement of claim filed by the plaintiff wherein
it states the material facts upon which he relies in support of his case and claims and relief he
desires.

The object of the plaint is to acquaint the court and the opposite party (i.e the defendant) with
the case of the plaintiff “Plaint is the backbone of the suit”. The real nature of the suit has to
be gathered from the plaint as a whole upon the facts on the basis of which the claim
founded.

Essential Part of Plaint.

Heading and Title b) Body the Plaint

Substantial Portion:

Matters of inducement.

Ii) Facts constituting case of action (Order VII Rule 1)

( iii) Facts showing defendants interest and liability (Order VII Rule 5)

Formal Portion.

1) of cause of action
2) Statements of facts pertaining to jurisdiction.
3) Statement as to valuation of suit.
4) Statement as to minority or insanity of a parsuit
5) Statement as to plaintiff representative .
6) Statement as to grounds of exemption from limitation law. 3) Relief claimed. 4) Signature
and verification.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Case laws

State Bank of India Vs Ram Das (1998) Del 49

In a suit seeking recovery of loan advanced by a bank, the plaint was signed and verified by a
person notified under gazette and competent under bank regulations.

It was held that that the plaint was duly and properly signed and verified. It is signed at two
places, at the close of relief portion and at the end of verification. The pleader (if any) puts his
signature at the foot of the plaint.

WRITTEN STATEMENT

Written Statement is defined in Order 8 of CPC.

Written statement is the statement or defence of the defendant by which he either admits the
claims of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.

Case law

Rachappa Vs Gurusidappa (1989) SC 635

The SC categorically stated that the term “written statement” in term of specific connotation
signifying a reply to plaint filed by the defendant.

According to Sub Rule 1 of Order VIII Rule 1 the defendant must file his written statement
within 30 days from the date of service of summons on him. But where the defendant fails to
file the written statement within the said period of 30 days, the court for reasons to be
recorded in writing may extend the period upto 90 days. The court in his discretion would
have power to allow the defendant to file written statement even after expiry of 90 days.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Essentials of written statement:-

1) Heading and Title.

2) Body of the written statement.
3) Signature and verification
4) a) Constructive admission caused by defective denials (Order VIII Rule 5)
b) Constructive admission caused by non- filing of written statement. (Order VIII
Rule 5)

Who may file written statement.

A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendants, the common written statements filed by them must be signed by
all of them. But it is sufficient if it is verified by one of them who is aware of the facts of the
case and is in a position to file an affidavit. But a written statement filed by one defendant
does not bind other defendants.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Q3: What are the essential elements of settlement of ‘Issues’ and

power to amend, and strikeout Issues.

What is settlement?

Settlement means that the parties to a dispute have decided to put an end to that dispute. The
parties can agree to settle their dispute at any time, including before proceedings are
commenced and even after trial before the judgment is handed down. Negotiating a
settlement Settlement negotiations, if pursued by the parties in good faith, are usually
considered to be on a ‘without prejudice’ basis. This means that the detail of the negotiations
cannot usually be used in court as evidence of any admissions by either party, unless it
becomes necessary to ascertain whether a settlement has been reached. If the parties
choose to mediate, discussions in the course of that mediation are also treated as being
without prejudice.

While negotiations are taking place, it is important to ensure that you do not inadvertently
enter into a binding agreement before the terms of the deal have been finalised. Ensure that
all correspondence is not only headed ‘without prejudice’, but is also headed ‘subject to
contract’ until you have approved the final terms of the settlement. The ‘subject to contract’
wording is used to indicate that the parties do not intend any terms agreed to become binding
until a formal written document is signed.

The settlement agreement

In order to have as much certainty as possible, document your deal in a settlement

agreement. A settlement agreement is a contract just like any other, so the usual
requirements for a valid agreement apply. In the context of settlement, the key requirements
are that there must be:
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Consideration

Often in the form of a monetary settlement, but can be in the form of an exchange of promises
(consider making the settlement by deed, rather than by a simple contract, if there is no clear
consideration passing between the parties to the settlement. where a parent company is
contracting on behalf of a subsidiary which is not a party).

Certainty of terms

If an issue in the dispute is not dealt with, or if the terms are not sufficiently clear, then the
contract may be difficult to enforce; the court will attempt to give effect to the parties’
agreement, but it will not go so far as to re-write it for them.

Intention to create legal relations

In other words, it must be clear that the parties intended to achieve a final and binding
settlement of their dispute.

Elements.

Parties

Only those who are party to the agreement will be obliged to comply with its terms. Provide a
clear description of the parties involved and think about who should be bound by it.

Indemnities and undertakings

If there is a risk that the claimant will bring proceedings against a third party in relation to the
same loss, and that third party may in turn seek a contribution from the defendant, the
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

defendant should seek an undertaking from the claimant that it will not bring such
proceedings, and an indemnity against any liability to which it might become subject as a
result of the claimant bringing such a claim.

Payment.

A statement will usually be on the basis that one of the parties makes a payment. It is
important to specify to whom and by whom the payment is to be made (particularly where
there are numerous parties), by what method and to which account, in which currency and by
when. Consider whether you want to make a provision for interest on late payments and
ensure you have checked the tax position on any payment.

Confidentiality.

The most parties would prefer the settlement agreement to be confidential. Ensure you
include an express confidentiality provision in the settlement agreement, whilst permitting
certain necessary exceptions (for example, pursuant to an order o the court or limited to the
parties’ respective auditors, insurers and lawyers). If proceedings have commenced and you
would like to ensure that confidentiality is maintained, the agreement will need to be referred
to in the schedule to a Tomlin order rather than a consent order.

Consents.

if consent from a third party (such as an insurer) is needed, make sure you obtain it in good
time.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Execution.

Ensure that the person who will be signing the settlement agreement has authority to bind the
party he or she represents, and if the settlement is by way of deed, that any formalities for
execution of deeds are complied with.

10. Logistics.

if there are any practicalities to be dealt with prior to signing of the agreement (for example,
documents being served, counterparts being executed), ensure they are done promptly. Do
not forget any follow-up, such as filing a consent order with the court and/or informing the
court that any trial date can be vacated.

Power of amend the issue:

Power to amend, and strike out, issues.

The Court may at any time before passing … amend the issues or frame additional issues on
such terms as it thinks fit, and all such amendments or additional
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Q4: Elaborate the importance of ‘Cost of Adjournments’.

What happens if a case is adjourned

If a case is adjourned generally, it means that it still exists in the court records but isn’t active
anymore. This will usually happen if a problem has been sorted out or mostly resolved by the time
of the hearing. If the problem occurs again the case can be brought back to court.

The purpose of an adjournment.

The primary object of an adjournment motion is to draw the attention of the House to a recent
matter of urgent public importance having serious consequences and with regard to which a
motion or a resolution with proper notice will be too late.

Can a judge deny an adjournment.

Granting an adjournment is at the magistrate or judge’s discretion, and the court

may refuse an adjournment request even if the prosecution consents to one.

Why do judges adjourn cases.

The magistrates agree, the case can be adjourned for a short time to allow the additional
information to be prepared and given to the defendant there and then. The court will proceed to
try the informations afresh, subject to any adjournment if the defendant has been unfairly
prejudiced.

How do I get an adjournment

must apply for an adjournment at the court where your matter is being heard and outline the
reasons why. This should be done at the earliest opportunity. If the court adjourns your matter,
you will receive a new hearing date. To contact a court, visit the find a court page.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

Why would a lawyer ask for an adjournment.

However, most stated reasons for adjournment or postponement requests generally fall into
these areas: personal reasons such as illness of a party, family member or witness.
Unavailability of a key witness. Disclosure issues.

Can Family court be adjourned.

You can ask the court to adjourn the hearing. This means it will be delayed until it is possible to
have a hearing in the court building. The decision about whether a hearing should be adjourned,
or should take place in person, or via a remote or hybrid hearing is always a decision for the
judge

What happens if a case is adjourned.

If a case is adjourned generally, it means that it still exists in the court records but isn’t
active anymore. This will usually happen if a problem has been sorted out or mostly
resolved by the time of the hearing. If the problem occurs again the case can be brought
back to court.

How do you ask for adjournment in court.

Counsel needs to pick and choose the court and the time in which to make the request
for an adjournment to file additional documents. To seek an adjournment first-up for this
request invites the obvious and devastating question “Which documents?”, followed by
the crushing, “How’s it relevant to the case at hand?”

How do you write adjournment in minutes

Adjournment (Name)

moved that the meeting be adjourned.

The meeting adjourned at (time) OR if adjourned by unanimous (general) consent. …. .

. There being no further business, the meeting was adjourned by general consent at
(time). ….----- OR The meeting adjourned at (time).
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

What is adjourned admission.

Adjourned means that is legally a aspiring proof in the court. It also means that it is
being postponed and will be resumed shortly. It surely means that the case will be
having another hearing as per the dates if the admission. The admission dates are to be
taken through a proper notice.

What does adjourned without a date mean.

Adjournment sine die

Adjournment sine die (from the Latin “without day”) means “without assigning a day for
a further meeting or hearing”. … A court may also adjourn a matter sine die, which
means the matter is stayed until further notice

How do you use adjournment in a sentence.

1. The judge granted us a short adjournment.

2. The defence attorney requested an adjournment.

3. The court ordered a four month adjournment.

4. We sought an adjournment of the proceedings.

5. The adjournment of the case lasted for two weeks.

6. The solicitor moved for an adjournment of the case.

7. Your honour, I move for an adjournment.

8. The court's adjournment means that a decision will not be reached until December at
the earliest.

9. Adjournment debates are hard won and precious to Back-Bench Members.

10. It is unlikely that an adjournment will be granted in these circumstances unless there
are particularly compelling reasons.

11. Another criticism of the Leeds adjournment system was that it added further stress
to socially disadvantaged people already living under stressful conditions.

12. There have even been short extracts from late-night adjournment debates.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

13. After a short adjournment, Fearnley Whittingstall advised the court that his client
wished to give evidence.

14. Simon Lawler, prosecuting asked for a 14 day adjournment so that the charges
against the two officers could be finalised.

15. Your opponent requests an adjournment.

16. We moved for an adjournment of half an hour.

17. He proposed the adjournment of the meeting.

18. The opposing side demanded an adjournment.

19. Third, the use of the adjournment of the strategy.

20. Provided that notice of any such adjournment shall be given the defendant and to
any complainant.

21. The court met again after an adjournment of two weeks.

22. Due to the unsatisfactory reply from the Minister, I shall apply for an Adjournment
debate.

22. Sentencedict.com try its best to collect and create good sentences.

23. Ironically, in the light of later events, defending counsel then sought an adjournment
in order to call character witnesses in mitigation.

24. In view of the Government’s unsatisfactory reply, I intend to raise that matter again
on the Adjournment.

25. Where there are concurrent criminal proceedings a parent may seek an
adjournment of the care proceedings until the criminal process is completed.

26. It was the voice he used to bring committee meetings to an early adjournment.

27. Save as aforesaid it shall not be necessary to give any notice of an adjournment or
of the business to be transacted at an adjourned meeting.

28. He applied for judicial review or for compensation or for an adjournment.

29. The counsel for the plaintiff opposed the defendant’s application for an adjournment.

30. Counsel for the plaintiff opposed the defendant’s application for an adjournment.
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

5: Explain Concept of ‘Examination of parties by the court and Non

appearance of Parties.

Examination of parties by the court and Non appearance of Parties.

• On the day fixed in the summons for the defendant to appear and answer, the
parties shall be in attendance at the Court house in person or by their respective
pleaders, and the suit shall then be heard unless the hearing is adjourned to a
future dy fixed by the Court.

• Where on the day so fixed it is found that the summons has not been served upon
the defendant in consequence of the failure of the plaintiff to pay the court-fee or
postal charges (if any) chargeable for such service, the Court may make an order
that the suit be dismissed:

• Where neither party appears when the suit is called on for hearing, the Court may
make an order that the suit be dismissed.

• Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the
law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal
aside, and if he satisfies the Court that there was sufficient cause for his not paying
the court-fee and postal charges (if any) required within the time fixed before the
issue of the summons, or for his non-appearance, as the case may be, the Court
shall make an order setting aside the dismissal and shall appoint a day for
proceeding with the suit.

• Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved, the plaintiff fails, for a period of three months
from the date of the return made to the Court by the officer ordinarily certifying to
the Court returns made by the serving officers, to apply for the issue of a fresh
summons the Court shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the Court that –

• failed after using his best endeavours to discover the residence of the defendant
who has not been served, or b) such defendant is avoiding service of process, or
c) there is any other sufficient cause for extending the time, in which case the Court
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

may extend the time for making such application for such period as it thinks fit. (2)
In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

• 6 Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then

• it is proved that the summons was duly served, the Court may proceed ex parte
[and pass decree without recording evidence]. (b) If it is not proved that the
summons was duly served the Court shall direct a second summons to be issued
and served on the defendant; (c) If it is proved that the summons was served on
the defendant, but not in sufficient time to enable him to appear and answer on the
day fixed in the summons, the Court shall postpone the hearing of the suit to a
future day to be fixed by the Court and shall direct notice of such day to be given
to the defendant. (2) Where it is owing to the plaintiff’s default that the summons
was not duly served or was not served in sufficient time, the Court shall order the
plaintiff to pay the costs occasioned by the postponement.

• Where the Court has adjourned the hearing of the suit ex parte and the defendant
at or before such hearing, appears and assigns good cause for his previous non-
appearance, he may upon such terms as the Court directs as to costs or otherwise
be heard in answer to the suit as if he had appeared on the day fixed for his
appearance.

• Where the defendant appears and the plaintiff does not appear when the suit is
called on for hearing, the Court shall make an order that the suit be dismissed,
unless the defendant admits the claim, or part thereof in which case the Court shall
pass a decree against the defendant upon such admission, and, where part only
of the claim has been admitted, shall dismiss the suit so far as it relates to the
remainder.

• Where a suit is wholly or partly dismissed under rule 8. The plaintiff shall be
pecluded from bringing a fresh suit in respect of the same cause of action. But he
may apply for an order to set the dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance when the suit was called on for
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

hearing, the Court shall make an order setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with
the suit. (2) No order shall be made under this rule unless notice of the application
has been served on the opposite party. [(3) The provisions of section 5 of the
Limitation Act 1908 (IX of 1908), shall apply to applications under sub-rule (1).]

• Where there are more plaintiffs than one and, one or more of them appear, and
the others do not appear, the Court may, at the instance of the plaintiff or plaintiffs
appearing, permit the suit to proceed in the same way as if all the plaintiffs had
appeared, or make such order as it thinks fit.

• Where there are more defendants than one and one or more of them appear and
the others do not appear the suit shall proceed, and the Court shall a the time of
pronouncing judgment make such order as it thinks fit with respect to the
defendants who do not appear.

• Where a plaintiff or defendant who has been ordered to appear in person does not
appear in person or show sufficient cause to the satisfaction of the Court for failing
so to appear he shall be subject to all the provisions of the foregoing rules
applicable to plaintiffs and defendants, respectively, who do not appear.

• Setting aside Decree Es parte

• In any case in which a decree is passed ex parte against a defendant he may apply
to the Court by which the decree was passed for an order to set it aside; and if he
satisfies the Court that the summons was not duly served, or that he was prevented
by any sufficient cause from appearing when the suit was called on for hearing,
the Court shall make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint
a day for proceeding with the suit: Provided that where the decree is of such a
nature that it cannot be set aside as against such defendant only it may be set
aside as against all or any of the other defendants also: [Provided further that no
decree passed ex parte shall be set aside merely on the ground of any irregularity
 SHAHEED ZULFIQAR ALI BHUTTO UNIVERSITY OF LAW, KARACHI
Mid-Term Examination Spring-2021
August 2021

in the service of summons, if the Court is satisfied for reason to be accorded, that
the defendant had knowledge of the date of hearing in sufficient time to appear on
that date and answer the claim]. [(2) The provisions of section 5 of the Limitation
Act 1908 (X of 1908), shall apply to applications under sub-rule

• No decree shall be set aside on any such application as aforesaid unless notice
thereof has been served on the opposite party.