Legal Practice LAW 481-B Spring 2014

Transcription

1 Legal Practice LAW 481-B Spring 2014 Instructor Room No. Office Hours Khawaja Aamer Farooq Telephone TA Shams-ul-aaqib Minhas ( ) TA Office Hours Course URL (if any) Course Basics Credit Hours Lecture(s) 28 Recitation/Lab (per week) Tutorial (per week) No. of Lec(s) Per Week No. of Lec(s) Per Week No. of Lec(s) Per Week 2 Durati on Durati on Durati on Course Distribution Core Elective Open for Student Category Close for Student Category COURSE DESCRIPTION The course includes four practical and commonly employed areas of law, which include Minor Acts (Court Fees Act and Suits Valuation Act, Stamp Act, The Punjab Rented Premises Act, 2009 and Family Courts Act, 1964), Pleadings, Opinion Writing and Interpretation of Statutes. A law practitioner is bound to face the above areas while dealing with a matter involving civil law. The emphasis provided in the course on the above topics varies. The better part of the course would encompass grasping the principles of the pleadings and opinion writing. COURSE PREREQUISITE(S) No particular course or module is required as a prerequisite. COURSE OBJECTIVES The course keeping in view the practical importance of the areas involved aims at equipping the students with the principles and important case law applicable. Moreover acquaints them with legal writing particularly pleadings and opinions.

2 Learning Outcomes To be able to understand and apply the Minor Acts particularly Court Fees and Suits Valuation Act, Stamp Act, The Punjab Rented Premises Act, 2009 and Family Courts Act, 1964 and also the skill of drafting pleadings and opinion writing To be able to use techniques and principles pertaining to Interpretation Of statutes. To be able to draft Legal Opinions and Pleadings. Grading Breakup and Policy Assignment(s): No. of Assignments 4 Total 20 % Attendance: 10% Quiz(s): 10 % Class Participation: 15 % Attendance: 10 % Midterm Examination: Nil 0 % Project: Nil 0 % Final Examination: 50 % Class Participation: 10% Final Exam: 50% Examination Detail Midterm Exam No: Combine Separate: Duration: Preferred Date: Exam Specifications: Final Exam Yes: Combine Separate: Duration: Exam Specifications: Combine 3 Hrs. Part One- Short structured questions on Minor Acts and Interpretation Of Statutes Part Two- Legal Drafting: One opinion and One Plaint COURSE OVERVIEW

3 Lecture Topics Recommended Readings Objectives/ Application Selected Sections of Court Fees Act 1870 Section 7 provides the calculation of Court to be levied in various suits. The following are some of the types of suits provided in section 7 Court Fees Act, 1870 (Sections 7,12,13, 14,26 &28 and the Schedule) Suits Valuation Act 1887 (Sections 8,9 11) TYPE OF SUITCOURT 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 1 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 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 PLD 1967 LAH 154

4 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. -Do- Section 13 & 14 Refund of Court Fee paid in Appeal or review in certain cases 2 Section 25 & 26 All fees referred 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 this Act shall be of any validity unless and until it is properly stamped The implication of wrong valuation or non or under payment of Court Fee-Order 7 Rule 11 CPC 3 Suits Valuation Act 1887 The purpose of the Act is to lay down the rules for determining the jurisdiction of the court, according to the value of the matter. SECTIONS 8 AND 9 The Value of the suit for the purpose of Court Fee and jurisdiction is the same in cases other than falling under Sections 7 v, vi and ix 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 ibid is not proper it can fix the value. PLD 1985 SC (AJ & K) 1 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. -Do-

5 The Stamp Act CLC 1465 PLJ 1978 SC 7 Selected sections of the Stamp Act 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 CLC 603 PLD 1988 Lah 225 PLD 1964 Kar. 162 Stamp Act (Sections 10 to 14, 16, 17, & 62-72) 4 SECTIONS 16 AND 17 The 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 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 un admissible in evidence and the Collector can even levy penalty for non or short payment of the Stamp duty. PLD 1977 SC 109 PLD 1984 Lah. 407 PLD 1989 Kar SCMR 575 PLD 1978 SC 279 PLD 1971 SC 516 PLD 1984 Lah 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 1925 The Rented Premises Act,2009 Sections 2, 3, 7, 13, 15 and 17 of the Punjab Rented Premises Act 2009 Selected Sections of The Rented Premises Act, 2009

6 6 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. The Selected Provisions of the Family Courts Act, The introduction to the Concept of Interpretation An introduction on Interpretation by giving a broad over view 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-Kinds of Constitution, Federal Laws, Provincial Laws, Acts, Ordinances, Rules, Regulations, Martial Law Orders, Orders by Chief Executive and Governor, Notifications, Bye Laws etc. Drafting of Statutes, authentication and promulgation The process of drafting of statutes, their authentication and enforcement Zafar Understanding Statutes Chapter 3 Benion Statutory Interpretation Part II Pages Articles 70-73, 89, 106 & 128 of the Constitution of Islamic Republic of Pakistan, 1973 Craies on Statutes Chapter 2& 3 Benion Statutory Interpretation Part III Pages , Part VIII SM Zafar Understanding Statutes Chapter 16 Zafar Ali Shah versus Pervaiz Musharraf-PLD 2000 SC 869 PLD 1961 Lahore 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 S M Zafar Understanding Statutes Chapter 3

7 Basic Rules of Interpretation I)Literal Rule Bindra Interpretation of Statutes Chapters 3, 10,11,12 & II)Golden Rule III)Mischief Rule Internal & 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 sufficient the true meaning of the statute is gathered from external aids, the most common of which is Parliamentary proceedings Bindra-Chapters 15 & 16 SM Zafar Chapters 8 and 9 PLD 1988 SC 416 PLD 1959 Dacca 131 PLD 151 FC 118 PLD 1956 LAH.528 SM Zafar Understanding Statutes Chapter 3 Benion Statutory Interpretation Parts IV and V Bindra Parts of Chapter 4 and 5 SM Zafar Understanding Statutes Chapter 7 and SCMR SCMR Delegated/ Sub Ordinate Legislation The nature and scope of delegated/ subordinated legislation Delegation of legislative power Excess Inconsistency The Common types of Delegated Legislated Notification Rules made under a statute/ Byelaws Bindra Chapter 29 Benion Statutory Interpretation Part II Pages SM Zafar Understanding Statutes Chapter 11 Bindra Chapters 26, 581, 31 Zafar Understanding Statutes Excerpts from Chapters 4,5 and 6

8 12 The different types of Statutes I Fiscal Substantive Procedural Amending Repealing SM Zafar Understanding Statutes Chapter 11 Bindra Chapters 26, 581, 31 Zafar Understanding Statutes Excerpts from Chapters 4,5 and 6 13 The different types of Statutes II Temporary Validating Consolidating Mandatory & Directory Declaratory Legislation by reference Legislation by incorporation Penal Statute Conflicting General and Special General Clause Act, 1897 (Sections 5, 6, 7, 9-14, 20-24) West Pakistan General Clauses Act, 1956 (3,19,22 & 27) General Clause Act, 1897 & West Pakistan General Clauses Act, 1956 Some of the important sections of the above mentioned Act as guide to interpretation of Statutes

9 14 Pleadings A brief introduction to the Law of Pleadings (Order 6, 7 and 8 of Civil Procedure Code) The Pleadings as defined in Order 6 Rule 1 CPC. The general Rules of pleadings deductible 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 (PLD 1985 SC 345) Pleadings to be signed and to contain verification which is to be signed as well. 2.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, 3.Written Statement (Order 8 CPC) The Form of Written Statementnew 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) 4.Appeals (O 41 CPC) The appeal to be in the form of Memorandum and contain the grounds of appeal (Order 41 Rr 1 and 2 CPC) Revision Section 115 CPC Review Section 114 CPC and Order 47 CPC Suits for Recovery of Money including Banking Suits Suit for damages/ Defamation or Malicious Prosecution Suit for Recovery of Money based on Negotiable Instruments

10 18 Declaratory Suits Suits for Specific Performance of Agreement Suit for Permanent or Mandatory Injunction Suit pertaining to Family Matters (Dissolution of Marriage) Suit for Recovery of Dowry Items Suit for Maintenance Eviction Application under Rent Restriction Laws Writ Petition under Article 199 of the Constitution Written Statement Drafting of Bail Application under Sections 495, 496 and 497 of the Criminal Procedure Code 25 Appeal in Criminal Cases (Grounds of Appeal) 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 26 Revision 27 Revision 28 Revision Textbook(s)/Supplementary Readings Extracts from Following Statutes 1.Court Fees and Suits Valuation Acts 2. Family Courts Act General Clauses Act 4.Punjab Rented Premises Act, Stamp Act 3.Punjab Rented Premises Act, Family Courts Act, 1964 Text Books 5.Interpretation of Laws -Earl T Crawford 6.Interpretation of Statutes-Benion 7.Interpretation of Statutes-NS Bindra 8.Understanding Statutes-SM Zafar 9.Craies on Statute Law