73. Proceedings by and against the Government.
ORDER 73
PROCEEDINGS BY AND AGAINST THE GOVERNMENT
1. Application and interpretation. (O. 73 r. 1)
(1) These rules apply to civil proceedings to which the Government is a party subject to the following rules of this Order.
(2) In this Order–
"civil proceedings by the Government"; "civil proceedings against the Government"; and "civil proceedings by or against the Government" have the same respective meanings as in Part III of the Government Proceedings Ordinance, 1956 (58/56);
"civil proceedings to which the Government is a party" has the same meaning as it has for the purposes of Part V of the Government Proceedings Ordinance, 1956 (58/56), by virtue of section 2(3) of that Ordinance;
"order against the Government" means any order (including an order for costs) made in any civil proceedings by or against the Government or in connection with any arbitration to which the Government is a party, in favour of any person against the Government or against a Government department or against an officer of the Government as such;
"order" includes a judgment, decree, rule, award or declaration.
2. Particulars to be included in indorsement of claim. (O. 73 r. 2)
(1) In the case of a writ which begins civil proceedings against the Government the indorsement of claim required by Order 6, rule 2, shall include a statement of the circumstances in which the Government’s liability is alleged to have arisen and as to the Government department and officers of the government concerned.
(2) If in civil proceedings against the Government a defendant considers that the writ does not contain a sufficient statement as required by this rule, he may before the expiration of the time limited for appearing, apply to the plaintiff by notice for a further and better statement containing such information as may be specified in the notice.
(3) Where a defendant gives a notice under this rule, the time limited for appearing shall not expire until 4 days after the defendant has notified the plaintiff in writing that the defendant is satisfied with the statement supplied in compliance with the notice or 4 days after the Court has, on the application of the plaintiff by summons served on the defendant not less than 7 days before the return day, decided that no further information as to the matters referred to in paragraph (1) is reasonably required.
3. Service on the Government. (O. 73 r. 3)
(1) Order 10, Order 11 and any other provision of these rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Government are begun.
(2) Personal service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Government service on the Government must be effected–
(a) in the case of proceedings by or against the Federal Government, on the Attorney General or such other officer as may be designated in that behalf, either generally or specially, by the Attorney General by notification in the Gazette, and
(b) in the case of proceedings by or against the Government of a State, on the State Secretary of such State.
(3) In relation to the service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government, Order 62, rules 6 and 10, shall not apply, and Order 62, rule 8, shall apply as if the reference therein to rules 3 and 6(1)(a) of that order were a reference to paragraph (2)(a) of this rule.
4. Counterclaim and set off. (O. 73 r. 4)
(1) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, a person may not in any proceedings by the Government make any counterclaim or plead a set-off if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.
(2) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, no counterclaim may be made or set-off pleaded, without the leave of the Court by the Government in proceedings against the Government or by any person in proceedings by the Government–
(a) if the Government is sued or sues in the name of a Government department and the subject-matter of the counterclaim or set-off does not relate to that department; or
(b) if the Government is sued or sues in the name of the Attorney General.
(3) Any application for leave under this rule must be made by summons.
5. Summary judgment. (O. 73 r. 5)
(1) No application against the Government shall be made under Order 14, rule 1, or Order 81, rule 1, in any proceedings against the Government nor under Order 14, rule 5, in any proceedings by the Government.
(2) Where an application is made by the Government under Order 14, rule 1, Order 14, rule 5, or Order 81, rule 1, the affidavit required in support of the application may be made by–
(a) the solicitor acting for the Government; or
(b) an officer duly authorized by the solicitor so acting or by the department concerned;
and the affidavit shall be sufficient if it sates that in the deponent’s belief the applicant is entitled to the relief claimed and there is no defence to the claim or part of a claim to which the application relates or no defence except as to the amount of any damages claimed.
6. Summary applications to the Court in certain revenue matters. (O. 73 r. 6)
(1) This rule applies to applications under section 19 of the Government Proceedings Ordinance, 1956.
(2) An application to which this rule applies must be made by originating summons.
(3) The person from whom any account or information or payment is claimed or by whom any books are required to be produced must be made defendant to the application,
(4) An originating summons under this rule
(a) must be entitled in the matter or matters out of which the need for the application arises and in the matter or the Government Proceedings Ordinance, 1956; and
(b) must refer to the written law under which the account or information or payment or the production of books is claimed and, where information is claimed, must show (by appropriate questions or otherwise) what information is required.
(5) Upon any application to which the rule applies an affidavit by a duly authorized officer of the Government department concerned setting out the state of facts upon which the application is based and stating that he has reason to think that those facts exist shall be evidence of those facts; and if evidence is filed disputing any of those facts further evidence may be filed, and the Court may either decide the matter upon the affidavits (after any cross-examination that may have been ordered) or may direct that it be decided by oral evidence in Court.
(6) An order in favour of the Government on an application to which this rule applies shall, unless the Court otherwise determines, name a time within which each of its terms is to be complied with.
(7) Nothing in this rule shall, in relation to any case in which the only relief claimed by the Government is the payment of money, be construed as requiring the Government to proceed by way of an application to which this rule applies or as preventing the Government from availing itself of any other procedure which is open to it under these rules.
7. Judgment in default. (O. 73 r. 7)
(1) Except with the leave of the Court, no judgment in default of appearance or of pleading shall be entered against the Government in civil proceedings against the Government or in third party proceedings against the Government.
(2) Except with the leave of the Court, Order 16 rules 5(1)(a), shall not apply in the case of third party proceedings against the Government,
(3) An application for leave under this rule must be made by summons and the summons must be served not less than 7 days before the return day.
8. Third party notice. (O. 73 r. 8)
(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, rule 9) for service on the Government shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the Government.
(2) Leave to issue such a notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned,
9. Interpleader Application for order against Government. (O. 73 r. 9)
No order shall be made against the Government under Order 17, rule 5(3), except upon an application by summons served not less than 7 days before the return day.
9A. Interim orders against the Government. (O. 73 r. 9A) [Ins. P.U. (A) 192/93]
No application against the Government shall be made under Order 22A, rule 2 in any proceedings against the Government not under Order 22A, rule 10 in any proceedings by the Government.
10. Discovery and interrogatories. (O. 73 r. 10)
(1) Order 24, rules 1 and 2, shall not apply in civil proceedings to which the Government is party,
(2) In any civil proceedings to which the Government is a party any order of the Court made under the powers conferred by section 36(1) of the Government Proceedings Ordinance 1956*, shall be construed as not requiring the disclosure of the existence of any document the existence of which it would, in the opinion of a Minister be injurious to the public interest to disclose.
(3) Where in any such proceedings an order or the Court directs that a list of documents made in answer to an order for discovery against the Government shall be verified by affidavit, the affidavit shall be made by such officer of the Government as the Court may direct.
(4) Where in any such proceedings an order is made under the said section 36 for interrogatories to be answered by the Government the Court shall direct by what officer of the Government the interrogatories are to be answered.
(5) In any proceedings by the Government for the enforcement of any right for the enforcement of which proceedings by way of information might have been taken if the Government Proceedings Ordinance 1956 (58/56) had not passed, the Government may serve interrogatories or further interrogatories (except any third or subsequent set of interrogatories) under Order 27 without the leave of the Court.
11. Evidence. (O. 73 r. 11)
For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Government as they are exercisable in proceedings between subjects.
12. Execution and satisfaction of orders. (O. 73 r. 12)
(1) Nothing in Order 45 to 52 shall apply in respect of any order against the Government.
(2) An application under the proviso to subsection (1) of section 33 of the Government Proceedings Ordinance 1956, for a direction that a separate certificate shall be issued under that subsection with respect to the costs (if any ) ordered to be paid to the applicant may be made to the Court ex parte by summons.
(3) Any such certificate must be in Form 177.
13. Attachment of debts, etc. (O. 73 r. 13)
(1) No order–
(a) for the attachment of debts under Order 49; or
(b) for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Government.
(2) Every application to the Court for an order under section 35(1) of the Government Proceedings Ordinance 1956, restraining any person from receiving money payable to him by the Government and directing payment of the money to the applicant or some other person must be made by summons served at least 4 days before the return day on the Government and, unless the Court otherwise orders, on the person to be retained or his solicitor; and the application must be supported by an affidavit setting out the facts giving rise to it, and particular identifying affidavit setting out the facts giving rise to it, and in particular identifying the particular debt from the Government in respect of which it is made.
(3) Order 49, rules 5 and 6, shall apply in relation to such an application as is mentioned in paragraph (2) for an order restraining a person from receiving money payable to him by the Government as those rules apply to an application under Order 49, rule 1, an order for their attachment of debt owing to any person from a garnishee, except that the Court shall not have power to order execution to issue against the Government.
14. Applications under sections 21, 22, 27 and 37 of Government Proceedings Ordinance 1956. (O. 73 r. 14)
(1) Every application to the Court under sections 21(2), 22(2) and 27 of the Government Proceedings Ordinance 1956 (58/56), may be made by summons.
(2) An application such as is referred to in section 37(2) of the Government Proceedings Ordinance 1956, may be made to the Court at any time before trial by summons, or may be made at the trial of their proceedings.
ORDER 73
PROCEEDINGS BY AND AGAINST THE GOVERNMENT
1. Application and interpretation. (O. 73 r. 1)
(1) These rules apply to civil proceedings to which the Government is a party subject to the following rules of this Order.
(2) In this Order–
"civil proceedings by the Government"; "civil proceedings against the Government"; and "civil proceedings by or against the Government" have the same respective meanings as in Part III of the Government Proceedings Ordinance, 1956 (58/56);
"civil proceedings to which the Government is a party" has the same meaning as it has for the purposes of Part V of the Government Proceedings Ordinance, 1956 (58/56), by virtue of section 2(3) of that Ordinance;
"order against the Government" means any order (including an order for costs) made in any civil proceedings by or against the Government or in connection with any arbitration to which the Government is a party, in favour of any person against the Government or against a Government department or against an officer of the Government as such;
"order" includes a judgment, decree, rule, award or declaration.
2. Particulars to be included in indorsement of claim. (O. 73 r. 2)
(1) In the case of a writ which begins civil proceedings against the Government the indorsement of claim required by Order 6, rule 2, shall include a statement of the circumstances in which the Government’s liability is alleged to have arisen and as to the Government department and officers of the government concerned.
(2) If in civil proceedings against the Government a defendant considers that the writ does not contain a sufficient statement as required by this rule, he may before the expiration of the time limited for appearing, apply to the plaintiff by notice for a further and better statement containing such information as may be specified in the notice.
(3) Where a defendant gives a notice under this rule, the time limited for appearing shall not expire until 4 days after the defendant has notified the plaintiff in writing that the defendant is satisfied with the statement supplied in compliance with the notice or 4 days after the Court has, on the application of the plaintiff by summons served on the defendant not less than 7 days before the return day, decided that no further information as to the matters referred to in paragraph (1) is reasonably required.
3. Service on the Government. (O. 73 r. 3)
(1) Order 10, Order 11 and any other provision of these rules relating to service out of the jurisdiction shall not apply in relation to the service of any process by which civil proceedings against the Government are begun.
(2) Personal service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings is not requisite; but where the proceedings are by or against the Government service on the Government must be effected–
(a) in the case of proceedings by or against the Federal Government, on the Attorney General or such other officer as may be designated in that behalf, either generally or specially, by the Attorney General by notification in the Gazette, and
(b) in the case of proceedings by or against the Government of a State, on the State Secretary of such State.
(3) In relation to the service of any document required to be served on the Government for the purpose of or in connection with any civil proceedings by or against the Government, Order 62, rules 6 and 10, shall not apply, and Order 62, rule 8, shall apply as if the reference therein to rules 3 and 6(1)(a) of that order were a reference to paragraph (2)(a) of this rule.
4. Counterclaim and set off. (O. 73 r. 4)
(1) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, a person may not in any proceedings by the Government make any counterclaim or plead a set-off if the proceedings are for the recovery of, or the counterclaim or set-off arises out of a right or claim to repayment in respect of, any taxes, duties or penalties.
(2) Notwithstanding Order 15, rule 2, and Order 18 rules 17 and 18, no counterclaim may be made or set-off pleaded, without the leave of the Court by the Government in proceedings against the Government or by any person in proceedings by the Government–
(a) if the Government is sued or sues in the name of a Government department and the subject-matter of the counterclaim or set-off does not relate to that department; or
(b) if the Government is sued or sues in the name of the Attorney General.
(3) Any application for leave under this rule must be made by summons.
5. Summary judgment. (O. 73 r. 5)
(1) No application against the Government shall be made under Order 14, rule 1, or Order 81, rule 1, in any proceedings against the Government nor under Order 14, rule 5, in any proceedings by the Government.
(2) Where an application is made by the Government under Order 14, rule 1, Order 14, rule 5, or Order 81, rule 1, the affidavit required in support of the application may be made by–
(a) the solicitor acting for the Government; or
(b) an officer duly authorized by the solicitor so acting or by the department concerned;
and the affidavit shall be sufficient if it sates that in the deponent’s belief the applicant is entitled to the relief claimed and there is no defence to the claim or part of a claim to which the application relates or no defence except as to the amount of any damages claimed.
6. Summary applications to the Court in certain revenue matters. (O. 73 r. 6)
(1) This rule applies to applications under section 19 of the Government Proceedings Ordinance, 1956.
(2) An application to which this rule applies must be made by originating summons.
(3) The person from whom any account or information or payment is claimed or by whom any books are required to be produced must be made defendant to the application,
(4) An originating summons under this rule
(a) must be entitled in the matter or matters out of which the need for the application arises and in the matter or the Government Proceedings Ordinance, 1956; and
(b) must refer to the written law under which the account or information or payment or the production of books is claimed and, where information is claimed, must show (by appropriate questions or otherwise) what information is required.
(5) Upon any application to which the rule applies an affidavit by a duly authorized officer of the Government department concerned setting out the state of facts upon which the application is based and stating that he has reason to think that those facts exist shall be evidence of those facts; and if evidence is filed disputing any of those facts further evidence may be filed, and the Court may either decide the matter upon the affidavits (after any cross-examination that may have been ordered) or may direct that it be decided by oral evidence in Court.
(6) An order in favour of the Government on an application to which this rule applies shall, unless the Court otherwise determines, name a time within which each of its terms is to be complied with.
(7) Nothing in this rule shall, in relation to any case in which the only relief claimed by the Government is the payment of money, be construed as requiring the Government to proceed by way of an application to which this rule applies or as preventing the Government from availing itself of any other procedure which is open to it under these rules.
7. Judgment in default. (O. 73 r. 7)
(1) Except with the leave of the Court, no judgment in default of appearance or of pleading shall be entered against the Government in civil proceedings against the Government or in third party proceedings against the Government.
(2) Except with the leave of the Court, Order 16 rules 5(1)(a), shall not apply in the case of third party proceedings against the Government,
(3) An application for leave under this rule must be made by summons and the summons must be served not less than 7 days before the return day.
8. Third party notice. (O. 73 r. 8)
(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, rule 9) for service on the Government shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the Government.
(2) Leave to issue such a notice for service on the Government shall not be granted unless the Court is satisfied that the Government is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the departments and officers of the Government concerned,
9. Interpleader Application for order against Government. (O. 73 r. 9)
No order shall be made against the Government under Order 17, rule 5(3), except upon an application by summons served not less than 7 days before the return day.
9A. Interim orders against the Government. (O. 73 r. 9A) [Ins. P.U. (A) 192/93]
No application against the Government shall be made under Order 22A, rule 2 in any proceedings against the Government not under Order 22A, rule 10 in any proceedings by the Government.
10. Discovery and interrogatories. (O. 73 r. 10)
(1) Order 24, rules 1 and 2, shall not apply in civil proceedings to which the Government is party,
(2) In any civil proceedings to which the Government is a party any order of the Court made under the powers conferred by section 36(1) of the Government Proceedings Ordinance 1956*, shall be construed as not requiring the disclosure of the existence of any document the existence of which it would, in the opinion of a Minister be injurious to the public interest to disclose.
(3) Where in any such proceedings an order or the Court directs that a list of documents made in answer to an order for discovery against the Government shall be verified by affidavit, the affidavit shall be made by such officer of the Government as the Court may direct.
(4) Where in any such proceedings an order is made under the said section 36 for interrogatories to be answered by the Government the Court shall direct by what officer of the Government the interrogatories are to be answered.
(5) In any proceedings by the Government for the enforcement of any right for the enforcement of which proceedings by way of information might have been taken if the Government Proceedings Ordinance 1956 (58/56) had not passed, the Government may serve interrogatories or further interrogatories (except any third or subsequent set of interrogatories) under Order 27 without the leave of the Court.
11. Evidence. (O. 73 r. 11)
For the avoidance of doubt it is hereby declared that any powers exercisable by the Court in regard to the taking of evidence are exercisable in proceedings by or against the Government as they are exercisable in proceedings between subjects.
12. Execution and satisfaction of orders. (O. 73 r. 12)
(1) Nothing in Order 45 to 52 shall apply in respect of any order against the Government.
(2) An application under the proviso to subsection (1) of section 33 of the Government Proceedings Ordinance 1956, for a direction that a separate certificate shall be issued under that subsection with respect to the costs (if any ) ordered to be paid to the applicant may be made to the Court ex parte by summons.
(3) Any such certificate must be in Form 177.
13. Attachment of debts, etc. (O. 73 r. 13)
(1) No order–
(a) for the attachment of debts under Order 49; or
(b) for the appointment of a receiver under Order 30 or 51,
shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Government.
(2) Every application to the Court for an order under section 35(1) of the Government Proceedings Ordinance 1956, restraining any person from receiving money payable to him by the Government and directing payment of the money to the applicant or some other person must be made by summons served at least 4 days before the return day on the Government and, unless the Court otherwise orders, on the person to be retained or his solicitor; and the application must be supported by an affidavit setting out the facts giving rise to it, and particular identifying affidavit setting out the facts giving rise to it, and in particular identifying the particular debt from the Government in respect of which it is made.
(3) Order 49, rules 5 and 6, shall apply in relation to such an application as is mentioned in paragraph (2) for an order restraining a person from receiving money payable to him by the Government as those rules apply to an application under Order 49, rule 1, an order for their attachment of debt owing to any person from a garnishee, except that the Court shall not have power to order execution to issue against the Government.
14. Applications under sections 21, 22, 27 and 37 of Government Proceedings Ordinance 1956. (O. 73 r. 14)
(1) Every application to the Court under sections 21(2), 22(2) and 27 of the Government Proceedings Ordinance 1956 (58/56), may be made by summons.
(2) An application such as is referred to in section 37(2) of the Government Proceedings Ordinance 1956, may be made to the Court at any time before trial by summons, or may be made at the trial of their proceedings.
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