Lahore University of Management Sciences. LAW 481B Legal Practice II. Spring 2018

Transcription

1 Lahore University of Management Sciences LAW 481B Legal Practice II Spring 2018 Instructor Zaki Rahman Room No. - Office Hours TBD Zaki.rahman@lums.edu.pk, zakirahman25@yahoo.com Telephone Secretary/TA TBD TA Office Hours TBD Course URL (if any) - Course Basics Credit Hours 3 Lecture(s) Nbr of Lectures per week 2 Duration 75 minutes Recitation/Lab (per Nbr of Lectures per week None Duration N/A week) Tutorial (per week) Nbr of Lectures per week None Duration N/A Course Distribution Core Elective Open for Student Category BA/LLB No Open to All 1

2 Closed for Student Category None Course Description The course includes a study of five statutes commonly encountered by lawyers (Court Fees Act 1870, Suits Valuation Act 1887, Stamp Act 1899, The Punjab Rented Premises Act 2009 and Family Courts Act 1964). The course also involves drafting of pleadings, opinion writing and a detailed study of the central principles pertaining to interpretation of statutes. During practice, a legal practitioner is often faced with the aforementioned areas. The emphasis provided in the course on the above topics varies. The better part of the course deals with the principles of interpretation of statutes and drafting of pleadings. Course Prerequisite(s) Law 101 Introduction to Legal Reasoning and Law 102 Introduction to Pakistan Legal System. Course Objectives There is often a significant gap between the demands of legal practice and the knowledge base and skill set of students when they enter practice. This course will seek to bridge that gap by equipping students with skills they will find useful when they start to work as lawyers. The course aims at instructing students in the basic principles and important case law stemming from the Court Fees Act 1870, Suits Valuation Act 1887, Stamp Act 1899, The Punjab Rented Premises Act 2009 and Family Courts Act In addition, the crucial area of statutory interpretation will be covered in some detail so as to enable students to obtain a grasp of the central principles involved. The course also seeks to acquaint students with legal writing, particularly pleadings and opinions. Learning Outcomes To be able to understand and apply the principles contained in the Minor Acts mentioned above, i.e Court Fees 1870, Suits Valuation Act 1887, Stamp Act 1899, The Punjab Rented Premises Act 2009 and Family Courts Act 1964; To be familiar with and able to apply principles pertaining to interpretation of statutes. This is a basic skill required by lawyers and is useful for a variety of matters including providing legal opinions and drafting pleadings; To understand the principles governing pleadings, particularly those contained in the Civil Procedure Code 1908, and to acquire skills for drafting 2

3 of pleadings; To be able to apply legal skills with a view to providing sound advice to clients in the form of written legal opinions. Grading Breakup and Policy Assignment (s): Home Work: Quiz (s): Class Participation: 5% Attendance: 10% Midterm 35% Examination: Project: Final Examination: 50% Examination Detail Midterm Exam Final Exam Yes/No: Yes Duration: 2 hours Exam Specifications: Questions on the specific statutes studied as well as on the principles of statutory interpretation. Yes/No: Yes Duration: 3 hours Exam Specifications: Drafting Pleadings and/or Writing Legal Opinions Course Overview Lecture Topics Recommended Readings Objectives/Application 1. Selected Sections of Court Fees Act 1870 Court Fees Act, 1870 (Sections 7,12,13,14,26, 28 and the Schedule) To enable students to learn about the concept of Court Fees and the basis of calculation thereof in 3

4 Section 7 provides the basis for calculation of Court Fees to be levied in various suits. The following are some of the types of suits mentioned in Section 7: various types of suits. TYPE OF SUIT-COURT FEE PAYABLE 1.Money suit - According to the amount claimed 2.Suit for maintenance - According to the subject matter 3.Suit for movable property - According to the market value of the movable property 4.Suit for movable property where no market value - According to the value made by the plaintiff 5.Suit to enforce right in the joint family - According to the value made by the plaintiff 4

5 6.Suit for declaration and consequential relief 7.Suit for injunction 8.Suit for accounts 9.Suit for possession - According to the value of the subject matter 10.Suit for pre-emption - According to the value of the land 11.Suit for redemption or foreclosure - According to the principal money 2. Section 12 The decision regarding the valuation made by the litigant for the purpose of computation of Court Fees in a suit or appeal is to be decided by the court in which the proceedings are initiated. Section 13 & 14 PLD 1967 Lah 154 To enable students to learn about mode of payment of Court Fees, refund of Court Fees in certain cases and implications of non-payment and under-payment of Court Fees. 5

6 Refund of Court Fee paid in appeal or review in certain cases Section 25 & 26 All fees charged under the Court Fees Act are to be collected by stamps which could be impressed or adhesive or partly impressed or partly adhesive Section 28 No document which ought to bear a stamp under the Court Fees Act shall be of any validity unless and until it is properly stamped The implication of wrong valuation or non or underpayment of Court Fee-Order 7 Rule 11 CPC 3. Selected Provisions of the Suits Valuation Act 1887 The purpose of the Act is to lay down the rules for determining the jurisdiction of Suits Valuation Act 1887 (Sections 8,9 11) PLD 1985 SC (AJ&K) 1 PLD 2016 Lah 97 To learn about the purpose of the Suits Valuation Act, specifically how suits are valued for jurisdictional purposes and consequences of wrong valuation for jurisdiction in certain cases. 6

7 the court, according to the value of the matter. Sections 8 and 9 The value of the suit for the purpose of Court Fees and jurisdiction is the same in cases other than falling under Sections 7 v, vi, ix and x(d) of the Court Fees Act. Where High Court is of the view that valuation of the case other than Section 7 v, vi, ix and x(d) is not proper it can fix the value. Section 11 Section 11 lays down the procedure where objection is taken in appeal or revision that a suit or appeal was not properly valued for jurisdictional purpose. 4. The Stamp Act 1899 Selected provisions of the Stamp Act The Stamp Act 1899 (Sections 10 to 14, 17, 18, & 62-72) 1994 CLC 1465 PLJ 1978 SC 7 To learn about the concept of stamp duty and selected provisions of the Stamp Act including provisions as to impressed, adhesive and e- stamps and consequences of failure to pay requisite stamp duty. 7

8 SECTIONS The duty charged shall be paid in money and would be reflected in the form of stamps which could be adhesive or impressed. The adhesive stamps should be cancelled and if it is impressed it would be written in such manner that it cannot be used again for any other purpose. If the instrument is contrary to the provisions of Sections 13 and 14 it would be deemed to be un stamped. Concept of e-stamps in Punjab will also be introduced CLC 603 PLD 1988 Lah 225 SECTIONS 17 AND 18 For instruments made and executed in Pakistan, the stamp duty is paid before or at the time of execution of the instrument. In case of instrument executed outside Pakistan, the stamp duty is paid within three months of receiving the instrument in Pakistan 8

9 SECTIONS 33 TO 48 The above provisions of law provide for impounding of the instruments which are required by the law to be stamped and are not stamped or under stamped. The effect of the non or under stamped instruments is that they are inadmissible in evidence and the Collector can levy penalty for non or short payment of the stamp duty. SECTIONS The above sections provide for levy of penalty and initiation of criminal proceedings in case of nonpayment of stamp duty. SCHEDULE TO THE ACT AND STAMP RULES The Rented Premises Act, 2009 Sections 2, 3, 7, 13, 15 and 17 of the Punjab Rented Premises PLD 1977 SC 109 PLD 1984 Lah. 407 PLD 1989 Kar SCMR 575 PLD 1978 SC 279 PLD 1971 SC 516 Selected Provisions of The Rented Premises Act 2009 Overview of The Rented Premises Act to obtain a basic understanding of rent laws in Punjab. 9

10 Act Family Courts Act, 1964 Selected Sections of Family Courts Act 1964 regarding the establishment of Family Courts, the procedure in the same and the types of cases which can be filed in the Family Courts. 7. An Introduction to the Concept of Statutory Interpretation An introduction to interpretation by giving a broad overview of the subject. In essence the rationalization and explanation for the need for interpretation. A comparative study of approach towards interpretation in various jurisdictions Subject matter of Interpretation Legislation- Selected Provisions of the Family Courts Act 1964 Zafar, Understanding Statutes, Chapter 1 Benion, Statutory Interpretation, Part II Pages Articles 70-73, 89, 106 and 128 of the Constitution of Islamic Republic of Pakistan, 1973 Craies on Statutes, Chapter 2 and 3 Benion, Statutory Interpretation, Part III Pages , Part VIII Zafar, Understanding Statutes, Chapter 16 Zafar Ali Shah versus Pervaiz Musharraf-PLD Overview of the Family Courts Act 1964 to obtain a basic understanding of family courts in Pakistan. To learn about the need for statutory interpretation and various types of laws which need to be interpreted. 10

11 Kinds of Constitution, Federal Laws, Provincial Laws, Acts, Ordinances, Rules, Regulations, Martial Law Orders, Orders by Chief Executive and Governor, Notifications, Bye Laws etc SC 869 PLD 1961 Lahore 612 The process of drafting of statutes, their authentication and enforcement. 8. Parts of a Statute Preamble Title Section Heading Marginal Note Schedule Definition Clause Deeming Clause Proviso Explanation Saving Clause Repealing Clause Extent Clause Bindra, Interpretation of Statutes, Chapter 2 Zafar, Understanding Statutes, Chapter 3 To learn about the internal division of a statute into various parts. 9. Basic Rules of Bindra, Interpretation of Statutes, Chapters 3, To be familiar with some basic rules of statutory 11

12 Interpretation I)Literal Rule II)Golden Rule III)Mischief Rule Canons and Maxims of Interpretation 10. Internal and External Aids to Interpretation Guidance is to be taken from different parts of the statute before resorting to other aids. Some of the common internal aids are as follows: Preamble Heading of the Section Punctuation Explanations Examples/ Illustration Schedule Definition Clause When internal aids are not 10,11,12 and 13 SM Zafar, Understanding Statutes, Chapter 2 Benion, Statutory Interpretation, Parts IV and V Bindra, Interpretation of Statutes, Parts of Chapter 4 and 5 Zafar, Understanding Statutes, Chapters 4 and SCMR SCMR 563 Bindra-Chapters 15 and 16 Zafar, Chapters 8 and 9 interpretation including the Literal Rule, the Golden Rule and the Mischief Rule as well as certain canons and maxims of interpretation. To learn about internal and external aids of statutory interpretation. 12

13 sufficient the true meaning of the statute is gathered from external aids, the most common of which is Parliamentary proceedings PLD 1988 SC 416 PLD 1959 Dacca 131 PLD 151 FC 118 PLD 1956 LAH Delegated/ Sub Ordinate Legislation The nature and scope of delegated/ subordinated legislation Delegation of legislative power Excess Inconsistency The common types of Delegated Legislation Notification Rules made under a statute/ byelaws Bindra, Chapter 29 Benion, Statutory Interpretation Part II Pages Zafar, Understanding Statutes, Chapter 11 Bindra, Chapters 26, 31 Zafar, Understanding Statutes, Excerpts from Chapters 4, 5 and 6 To learn about types of delegated legislation and some grounds for challenging the same. 12. The Different Types of Statutes I Fiscal Zafar, Understanding Statutes, Chapter 11 Bindra Chapters 26 and 31 To learn about the different types of statutes and the general principles regarding the manner in which each type of statute is to be interpreted. 13

14 Substantive Procedural Amending Repealing 13. The Different Types of Statutes II Temporary Validating Consolidating Mandatory and Directory Declaratory Legislation by reference Legislation by incorporation Penal Statute Conflicting General and Special General Clauses Act 1897 & West Pakistan General Clauses Act 1956 Some of the important sections of the above mentioned Act as guide to interpretation of statutes 14. Pleadings A brief introduction to the Zafar Understanding Statutes Excerpts from Chapters 4,5 and 6 General Clauses Act, 1897 (Sections 5, 6, 7, 9-14, 20-24) West Pakistan General Clauses Act, 1956 (3,19,22 and 27) Continuation of our study of different types of statutes. Introduction to pleadings in light of the principles contained in the Civil Procedure Code 14

15 Law of Pleadings (Order 6, 7 and 8 of Civil Procedure Code 1908). Pleadings as defined in Order 6 Rule 1 CPC. The general rules of pleadings deducible from Order 6 Only facts should be stated and not the law Only facts should be stated and not the evidence on which the party proposes to rely It is not necessary to allege performance of any condition precedent, as this is implied It is not necessary to set out the whole or part of any document It is necessary to allege facts which the law presumes in favour of a person Malice, knowledge and fraud to be pleaded as a fact without setting out the circumstances Striking out pleadings in certain circumstances Amendment of pleadings- Order 6 R 17 CPC Pleadings to be signed and to contain verification which is PLD 1985 SC

16 to be signed as well. Plaint (Order 7 CPC) Particulars to be mentioned in the Plaint (Order 7 Rule 1) Information to be provided in different suits-money Suits, Suits pertaining to immovable property Written Statement (Order 8 CPC) The form of written statement-new facts to be specifically pleaded, denial to be specific, where denial is evasive, particulars of set off to be given in written statement (O 8 R 2-8) Appeals (O 41 CPC) The appeal to be in the form of Memorandum and contain the grounds of appeal (Order 41 Rules 1 and 2 CPC) Revision Section 115 CPC Review Section 114 CPC and Order 47 CPC 16

17 15. Suits for Recovery of Money including Banking Suits 16. Suit for Recovery of Money based on Negotiable Instruments Learning to draft pleadings ibid Written Statement 17. Suit for Damages - ibid Defamation or Malicious Prosecution 18. Declaratory Suits ibid 19. Suits for Specific Performance of Agreement 20. Suit for Permanent or Mandatory Injunction ibid ibid 21. Suits pertaining to Family Matters Suit for Recovery of Dowry Items Suit for Maintenance - Dissolution of Marriage ibid 17

18 22. Writ Petition under Article 199 of the Constitution 23. Eviction Application under Rent Laws 24. Drafting of Bail Application under Sections 495, 496 and 497 of the Criminal Procedure Code Appeal in Criminal Cases (Grounds of Appeal) ibid ibid ibid 25. Execution Petition ibid 26. Winding up Petition ibid 27. Opinion Writing Why learn to write opinions? What is opinion writing? The format of opinion Use of law in opinion Use of sources in opinion Conclusion Acquiring opinion writing skills 28. Revision Textbook(s)/Supplementary Readings 18

19 Statutes 1.Court Fees Act Suits Valuation Acts Family Courts Act General Clauses Act Punjab Rented Premises Act Stamp Act 1899 Text Books 1.Interpretation of Laws -Earl T Crawford 2.Interpretation of Statutes-Benion 3.Interpretation of Statutes-NS Bindra 4.Understanding Statutes-SM Zafar 5.Craies on Statute Law 19