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Petitioner: UNITED BANK LTD. KARACHI VS Respondent: SHABBIR AHMAD ABBASI AND Another
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title: UNITED BANK LTD. KARACHI vs SHABBIR AHMAD ABBASI AND Another Case No.: Suits Nos. 141 and 142 of 1976 Date of Judgment:1980-10-28 Reported As: PLD 1981 Karachi 255 Result: leave granted
Judgment ORDER This order will dispose of the following seven applications all moved on behalf of United Bank Limited, plaintiff in both the suits Suit No. 141 of 1976 (i) C. M. A. 4804/78.-Application dated 26-11-78 under section 148, C. P. C. For allowing the filing of ten additional documents which were filed alongwith the said application. (ii) C. M. A. 1084/79.-Application under sections 148 and 151, C. P. C. Filed as a matter of abundant caution for extension of time for filing documents which had been filed on 22-3-78 and for extension of time till 26-11-78 when additional documents were filed. (iii) C. M. A. 1085/79.-Application under Order XLVII, rule 1, sections 114 and 151, C. P. C. Seeking a review of the order dated 28-2-79 whereby it was ordered that the plaintiff should pay costs of Rs. 200 to each Advocate of the two defendants. (iv) C. M. A. 2390/80.-Application under Order XIII, rule 2, sec--tions 148 and 151, C. P. C. Filed as a matter of abundant caution, to permit the plaintiff to produce the documents which had not been admitted by the defendants out of the documents filed by the plain--tiff in Court on 22-3-78, as well as the documents filed with C: M. A. 4804/79. Suit No. 142 of 1976 (i) C. M. A. 1258/78.-Application under section 148, C. P. C. Dated 22-3-1978 praying for condonation of delay in filing documents which were filed alongwith this application in Court. (if) C. M. A. 874/79.-Application under sections 148 and 151, C. P. C. Filed in Court on 24-2-1979 for allowing the filing of additional documents which were filed alongwith the said application with a list.
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(iii) C. M. A. 2388/80.-Application under Order XIII, rule 2, sec--tions 148 and 151, C. P. C., filed as a matter of abundant caution pray--ing that the plaintiff be permitted to produce the documents not admitted by the defendants out of the documents filed on 22-3-1978, as well as the documents filed alongwith C. M. A. 874/79. 2. 1 have heard at length Mf. Mansoorul Arfin, Advocate for the plaintiff, Mr. Badrudduja, Advocate for Defendant No. 1 and Mr. Aziz Qureshi, Advocate for defendant No. 2 in both the suits. In order to appreciate the respective contentions raised and arguments advanced by learned counsel, it is necessary to give a short history of the two cases which includes the different stages through which these cases had travelled and which led to the moving of the aforesaid seven applications by the plaintiff. 3. In Suit No. 141/76 the plaintiff is United Bank Ltd. With Shabbir Ahmad Abbasi as defendant No. 1 and James Pinto as defendant No. 2. This suit has been filed for the recovery of Rs. 8,60,235.89. According to the plaint the Defendant No. 1 opened an account with a branch of the plaintiff-Bank and at the relevant time defendant No. 2 was the Manager of the said branch. The plaintiff has alleged that the defendants conspired among themselves whereby the defendant No. 2 allowed huge advances to defendant No. 1 beyond his powers as well as against the rules and regulations of the State Bank of Pakistan and without obtaining any security whatsoever. The methods employed by the defendant, according to the allegations of the plaintiff, are mentioned in pares. 3 and 4 of the plaint and the same are reproduced here :- "(3) That the modes employed by the defendants were :- (i) that the defendant No. 1 would draw a cheque for a particular amount on his account maintained at Banks Bohri Bazar Branch generally in favour of the plaintiff which he will deliver to the defendant No. 2 who would issue and deliver to the defendant No. 1 a Pay Order for the amount of the cheque. The defendant No. 2 would not debit the cheque so drawn in the ledger of the Defendant No. 1 at the time of issuing the pay orders. However, he would debit the account of the defendant No. 1 only when the pay orders were presented for payment to the Branch by the beneficiary thereof; (ii) that the defendant No. 2 unauthorisedly debited the account of various parties by various amounts and gave unauthorised credits to the defendant No. l with these amounts. (4) That in order to conceal the advances mentioned above, the defendant No. 2 also falsified or caused to be falsified the books of account of the plaintiff/Bank amongst other acts by nothing the wrong balances in the ledger of the defendant No. 1." 4. It is then averred in the plaint that in September, 1975 during normal inspection carried out of the said branch, the aforesaid acts of omission and commission came to the knowledge of the plaintiff-Bank and in spite of the plaintiff's specific instructions to defendant No. 2 not to allow any advances without prior authority of the plaintiff's Head Office, defendant No. 2 continued to cause losses to the plaintiff by granting advances in huge amounts to Defendant No. 1. According to the plaint on account of defendant No. 2 having allowed advances to defendant No. 1 a sum of Rs. 8,71,017.73 was standing to the debit of defendant No. 1 and out of this amount after great efforts on the part of the plaintiff, defendant No. I paid only a sum of Rs. 35,500 and on the date of the filing of the suit a sum of Rs. 8,60,234.89 including interest was due for which plaintiff has claimed a decree jointly and severally against the defendants. 5. The facts in Suit No. 142/76 are somewhat similar: Plaintiff and defendant No. 2 are the same but Defendant No. 1 is one Taj Muhammad Abbasi. In the plaint in this suit more or less similar allegations have been made and an amount of Rs. 6,92,44,77.04 has been claimed jointly and severally against the defendant No. 2. 6. Both the suits were filed in this Court on 24-2-1976 without any documents. After the verification on solemn affirmation of the plaint by the principal officers and attorneys of the plaintiff, reference
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is made about documents filed and documents relied upon in each of the two cases in the following words :- "Documents Filed:-Nil Documents relied upon.-Cheques, vouchers, pay orders, books of accounts and correspondence." 7. After summons had been served notices under Order XI, rule 16, C. P. C. Were addressed on behalf of defendant No: 1 in each of the suits by his advocate to the Advocate of the plaintiff to give inspection of the documents in order to ascertain the correct position. This inspection was refused by the plaintiff through their advocate's letter dated 28-5-1976. One of .The main objections raised on behalf of defendant No. 1 against the various applications moved on behalf of the plaintiff, is based on Order XI, rules 15 and 16, C. P. C. Which are reproduced here :- "(15) Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his Pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at "liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit." (16) Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require." 8. Written statements were filed by defendant No. 1 in both suits on 11-8-1976 and in para. 13 of the Written Statements a specific plea was taken with reference to notice under Order XI, rule 16, C. P. C. Dated 9-3-1976 to the effect that the plaintiff was debarred from producing the docu--ments of which inspection was asked for. Para. 13 of the Written State--ments on behalf of defendant No. I in both the suits are identical and the same is reproduced here :-- "13. Plaintiff has not filed the statement of accounts or any other - documents with the plaint. Notice under Order XI, rule 16, C. P. C. Dated 9-3-1976 was served upon the learned Advocate for the plaintiff bank to give inspection of the documents in order to ascertain the correct position. This inspection was refused by the learned Advocate for the plaintiff by their Letter No. HC-S-141-76-381 dated 28-5-1976. The "plaintiff is debarred from producing the documents of which the inspection was asked for." 9. Applications were moved before the Additional Registrar by the parties under Order XI, rule 12, C. P. C. And the Additional Registrar passed orders for filing of affidavits of documents by the parties. On several dates before the Additional Registrar time was sought by both parties for filing of affidavit of documents. The reason given on behalf of the plaintiff on one occasion for not being able to file the affidavit of documents in time was that the documents were being traced and on another occasion the ground given was that the list of documents had not been received by the Advocate from the Plaintiff. Neither the plaintiff nor the defendants filed any affidavit of documents and in the circumstances the Additional Registrar by his order dated 12-12-1977 closed the directions. The two suits then came up for settlement of issues and by order dated 14-1-1978 this Court settled the issues in both the suits. It was further ordered on 14-1-1978 that documents and applications for commission, if any, be filed within one month and both the cases were fixed for final hearing on 23-2-1978. The order sheet of 19-3-1978 shows that the cases were fixed for evidence but request was made for an adjourament on behalf of the plaintiff on the ground that the plaintiff could not file the documents. Advocates appearing on behalf of defendant No. 1 as well as defendant No. 2 stated that they had no objection and the case then was adjourned to a date in office. I may observe here that, on 23-2-1978 certain documents were filed in each of the two suits
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by the plaintiff. In Suit No. 141 /76 there is on record a list of documents filed by the plaintiff but the application under section 148, C. P. C. Was not traceable on record. However, in Suit No. 142/76 C. M. A. 1258/79 was filed with the list of documents as well as documents on 22-3-1978 under section 148, C. P. C. Then there is an order dated 3-5-1978 on which date the case was fixed for evidence but was adjourned to a date in office in the month of August, 1978 as requested by both the learned counsel on the ground that counsel for defendant No. I was examining the accounts and he needed some more time to point out errors, if any, in the accounts. 10. On 27-9-1978 the case was fixed again for evidence but was adjourned at the request of the counsel for the plaintiff to a date in office. It was also mentioned in the order dated 27-9-1978 that in the meantime it had been agreed between. The parties that in order to curtail evidence, defendant's counsel would examine the statement of account and point out the items to which defendant objects but this would be without prejudice to the objections raised by the defendant's counsel. 11. In the order dated 30-10-1978 in Suit No. 141/76 it is observed that the Advocate for defendant No. 1 had admitted 25 cheques, 14 pay orders and 14 vouchers out of the documents filed on 22-3-1978 and by consent these admitted documents were brought on record as Exhs. 6 to 58. It is then observed that on court's question as to which entries in the statement of account the defen--dant had objection, counsel for defendant No. 1 stated that his client was checking the accounts and he be granted 'two weeks tune for this purpose. Advocate for the plaintiff objected on the ground that already the defendant No. I had six months time to check the accounts but as the Court had no time to record the evidence the hearing was adjourned but it was ordered that counsel for defendant No. 1 would inform counsel for the plaintiff at least one week before the next date of hearing about the entries in the statement of accounts his client was disputing so that on the next date of hearing the plaintiff may bring the evidence to prove the entries in question. In Suit No. 142/76, fifty documents were admitted by defendant No. 1 out of the list of documents filed by the plaintiff on 22-3-1978 and the same were taken on record as Exhs. 6 to 55. 12. Suit No. 141/76 was fixed then on 28-11-1978 when it was adjourned and there was an application under section 148, C. P. C. Praying for extension of time for filing list of witnesses on behalf of the plaintiff to which no objection was endorsed by the counsel for the defendants. Suit No. 142/76 was also adjourned with Suit No. 141/76. However, in the orders dated 28-11-1978 in both suits it was observed that Advocate for defendant No. L requested two weeks more time to point out what entries, if any, in the statement of accounts the defendant was questioning. The cases then came up on 22-1-1979 when office had pointed out that Advocate for defendant No. L had not complied with the order dated 28-I1-1978 passed in Suit No. 141/76 in so far as it required pointing out of any disputed entries in the statement of accounts. It was observed by the Court that the learned counsel for defendant No. 1 stated that he did not want to point out any such entries. Both the suits were fixed for evidence on 5-2-1979 when the hearing was adjourned by consent of ail the learned counsel. 13. On 28-2-1979 the cases were fixed for evidence and in Suit No. 141/76 the evidence started with the examination-in-chief of P. W. 1. During his examination-in-chief counsel for the plaintiff wanted to produce certain documents and the statement of accounts. At this stage an objection was raised in Suit No. 141/76 that no documents were filed with the plaint as required under Order VII, rule 14(2), C. P. C. Filed with the plaint. Learned counsel for defendant No. 1 relied upon para. 13 of the written statement. It was further pointed out that no affidavit of documents had been filed by the plaintiff. Counsel for plaintiff argued that issues had been framed on 14-1-1978 when one month's time for filing of documents was granted and, therefore, procedural defect if any regarding non- filing of documents which may have occurred earlier stood cured. The court further observed that documents were filed beyond one month's time granted by this Court on 14-1-1978 and there was
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no application for extension of time moved by the plaintiff in Suit No. 141,176. The Court, therefore, observed that the objection was well taken and in the circumstances the documents could not be accepted without a proper application giving sufficient reason for non-production of the docu-- ments as required under Order XIII, rule 2, C. P. C. The remaining portion of the order dated 28-2- 1979 in Suit No. 141/76 is as follows :- . "Mr. Mansoorul Arfin requested for time for making an application. It would not be fair to shut out the evidence on the ground of techni--calities and, therefore, I would grant time to the plaintiff for making a proper application which will be considered on its own merits. The request for adjournment is opposed by the learned counsel for defendants and in the circumstances, I would adjourn the hearing on payment of costs of Rs. 200 to each of the defendants." 14. In Suit No. 142/76 when the case came up for evidence on 28-2-1979 there was C. M. A. 874/79 already fixed for hearing which was opposed by the counsel for the defendant who requested for time for filing affidavits as sufficient time had not been given to them for the purpose. The case was, therefore, adjourned. Thereafter other applications mentioned in para. (1) of this order were moved on behalf of the plaintiff: 15. Before I consider the other applications, I would refer here to some of the provisions of the Civil Procedure Code to which reference has been made or on which reliance has been placed by one or the other counsel appearing in this case. I have already reproduced Order XI. Rules 15 and 16, C. P. C. I may further here reproduce Order XI, rules 18 and 21, C. P. C. "18.-(1) Where the party served with notice under rule 15 omits to give such notice of time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his Pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit: Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. (2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents shall be founded upon an affidavit showing of what documents inspec-- petition is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. 21. Where any party fails to comply with any order to answer inter--rogatories, or for discovery or inspection of documents. He shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for anorder to that effect, and an order maybe made accordingly." 16. Other provisions to which reference has been made are Order X111, rules 1 and 2 and Order VII, rule 14, rule 17 and rule 18, C. P. C. Which are reproduced here :- Order XIII "1.--(1) The parties or their Pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to reply, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. (2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
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2. No documentary evidence in the possession or power of any party which should have been but has not been produced in accordance with the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of the Court for the non-production thereof ; and the Court receiving any such evidence shall record the reasons for so doing." Order VII "14.--(1) Where a plaintiff' sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. (2) Where he relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint." 17.-(1) Save in so far as is otherwise provided by the Banker's Books Evidence Act, 1891, where the document on which the plaintiff sues is an entry in a shop book or other account in his possession or power, the plaintiff shall produce the book or account at the time of filing the plaint, together with a copy of the entry on which he relies. (2) The Court, or such Officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification ; and after examining and comparing the copy with the original, shall if it is found correct. Certify it to be so and return the book to the plaintiff and cause the copy to be filed. 18.-(1) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint; and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. (2) Nothing in this rule applies to documents produced for cross-examina--petition of the defendant's witnesses or in answer to any case set up by the defendant or handed to a witness merely to refresh his memory." 17. Mr. Badrudduja, learned counsel for defendant No. I has strongly opposed all the applications moved in the two suits by the plaintiffs. Mr. Aziz Qureshi, learned counsel who appeared on behalf of defendant No. 2 in both the suits has adopted the arguments of Mr. Badrudduja. According to the learned counsel for defendant No. I provisions of Order VII, rule 14, C. P. C. Are mandatory and their compliance is necessary and the documents which ought to have been produced in Court by the plaintiff with the plaint when it is presented or documents which are required to be entered in the list to be added or annexed to the plaint, and which are not produced or entered accordingly, cannot be received in evidence later on without the leave of the Court. According to learned counsel such leave of the Court has to be obtained through an application under Order VII, rule 18, C. P. C. And as no such application has been filed by the plaintiff all applications moved by the plaintiff are liable to b-. Dismissed. According to him neither any documents were filed with the plaint nor any list was filed therewith and, therefore, the documents in respect whereof various applications have been moved are liable to be dismissed. It was further argued that uptill now no cause had been shown by the plaintiff why documents had not been filed and/ or listed as required by sub-rules (1) and (2) of rule 14 of Order VII of the Code of 'Civil Procedure. Mr. Badrudduja had stated that if the plaintiff had moved an application that they had not filed the documents and/or list of the documents as required by the rules aforecited through oversight or forgetfulness and the application had been a bona fide application, he may have raised no objection to such an application. However, according to him, in this case the non-filing of the documents along with the plaint and not listing the documents relied upon in the plaint was not on account of oversight or forgetfulness but it was an intentional and deliberate act on the part of the
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plaintiff to keep the defendants guessing about the case they were required to meet at the trial and to be seriously handicapped in filing proper written statements. According to learned counsel this male fide intention on the part of the plaintiff is apparent from the following circumstances :- (a) A notice had been given on behalf of defendant No. 1 under Order X1, rules 15 and 16, C. P. C. For inspection but inspection was specifically refused by the plaintiff. (b) No affidavit of documents was filed in pursuance of the orders passed by the Additional Registrar on the application moved by defendant No. 1 under Order XI, rule 12, C. P. C. In spite of several dates taken by the plaintiff - for this purpose. Mr. Badrudduja had stated that the failure on the part of the plaintiff to grant inspection of documents as required on notice given to the plaintiffs under Order XI, rules 15 and 16, C. P. C. Might have been condoned and he may not have pressed into service his objections if the affidavit of document had been filed as the same would have given the defendant notice of the documents on which the plaintiffs were relying basing their claim. (c) In any event the documents in respect of which applications have been made on the . Part of the plaintiff seeking permission to file them are doubtful documents and in view of the doubtful nature of the documents the court ought not to allow the applications. 18. In support of his various contentions learned counsel for defendant No. 1 has referred to various judgments of the superior courts of this country as well as from the Indian jurisdiction and I now propose to consider these authorities. 19. In the case of Jiwan v. Nawab AIR 1926 Lab. 527 a point was raised in a Second Appeal before the High Court of Lahore that the plaintiffs/appellants had tendered certain documents before the trial Court at a late stage which had been improperly rejected and this point was raised…
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