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Petitioner: Syed Mansoor Ali Shah VS Respondent: Imran Ahmad Khan Niazi
Court Name: Supreme Court of Pakistan Judge(s): Amin-Ud-Din Khan, Ayesha A. Malik, Syed Mansoor Ali Shah Title: Syed Mansoor Ali Shah vs Imran Ahmad Khan Niazi Case No.: C. P. 3436-L/2022 and C. P. 3437-L/2022 Date of Judgment:2022-12-29 Reported As: 2023 SCMR 636 Result: Petitions dismissed
Judgment
ORDER SYED MANSOOR ALI SHAH, J. (For himself and Amin-ud-Din Khan, J.) Through the present petitions, the petitioner seeks leave to appeal against a consolidated order of the Lahore High Court, dated 07.12.2022 ("impugned order"), whereby his two revision petitions filed against the orders of the trial court, dated 20.10.2022 and 24.11.2022, have been dismissed. The trial court had, by its order dated 20.10.2022, dismissed the objections (application) of the petitioner for rejection of the interrogatories of the respondent and directed him to submit the answers to those interrogatories and by its order dated 24.11.2022, struck out the right of defence of the petitioner due to non-submission of the answers to the said interrogatories. 2. Briefly, the facts of the case are that the respondent instituted a suit for recovery of damages against the petitioner on 07.07.2017, alleging the commission of his defamation by the petitioner. The petitioner filed his written statement, on 27.07.2021. After the close of the pleadings, the trial court fixed the case for pre-trial proceedings of discovery and inspection under Order XI of the Code of Civil Procedure 1908 ("C.P.C."). Both the parties delivered their respective interrogatories: the respondent, on 02.02.2022 and the petitioner, on 03.02,2022. The respondent later withdrew some questions and delivered the amended interrogatories, with permission of the trial court, on 08.03.2022. The respondent filed the answers to the interrogatories of the petitioner, on 16.03.2022. The petitioner, however, filed objections (application) for rejection of the interrogatories of the respondent, on 09.05.2022, instead of filing the answers thereto. 3. The trial court observed that an application for rejection of the interrogatories could be filed under Rule 7 of Order XI, C.P.C. within seven days after service of the interrogatories, while the
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petitioner had first sought several adjournments for submitting the answers to the interrogatories and then filed such application (objections) after the lapse of about two months without any lawful justification and without seeking condonation of the delay. With these observations, the trial court overruled the objections of the petitioner and directed him to submit his answers to the interrogatories of the respondent, vide its order dated 20.10.2022. The petitioner was, thereafter, provided with several opportunities to file the answers to the interrogatories, but he failed to avail them. Consequently, the trial court struck out the right of defence of the petitioner under Rule 21 of Order XI, C.P.C., vide its order 24.11.2022, due to his non-submission of the answers to the said interrogatories. The petitioner challenged both the orders of the trial court by filing two revision petitions in the Lahore High Court. After examining the record of the proceedings of the trial court, the High Court observed that the petitioner had failed to point out any illegality or material irregularity, or any jurisdictional defect, calling for interference in the orders passed by the trial court, in the exercise of its revisional jurisdiction. With these findings, the High Court dismissed both the revision petitions by the impugned order and upheld the orders of the trial court. Hence, the petitioner has filed these petitions for leave to appeal. 4. The learned counsel for the petitioner has mainly contended that the trial court did not perform its duty, under Rule 1 of Order XI; C.P.C., to examine the interrogatories of the respondent for determining whether or not they were relevant to the case; that the time of seven days mentioned in Rule 7 of Order XI, C.P.C. for making an application for setting aside the interrogatories is not mandatory; that the trial court had itself been extending the time for submitting the answers to the interrogatories, therefore, it could not have penalised the petitioner for its own acts; that before taking any penal action under Rule 21 of Order XI, there must be an order of the court, under Rule 11 of Order XI, requiring answers to the interrogatories, but no such order had been passed by the trial court in the present case; that the penal action of striking out the right of defence for non- submission of the answers to the interrogatories can be taken by a court only on an application of a party, not suo motu, and no such application had been tiled by the respondent in the present case; that the penal provisions of Rule 21 of Order XI are not to be invoked lightly and before applying them an opportunity should be granted to do the needful, but no such opportunity was granted by the trial court to the petitioner in the present case; and that the technicalities should not be allowed to defeat justice, therefore, the petitioner may be provided with an opportunity to file the answers to the interrogatories of the respondent in the interest of justice. 5. On the other hand, in addition to refuting the contentions of the petitioner, the learned counsel for the respondent has taken us through the record of the proceedings of the trial court, to submit that the conduct of the petitioner had remained contumacious throughout every stage of the proceedings, as much as he filed the written statement on 27.07.2021, after a period of about four years since his appearance in the suit on 09.09.2017, which was otherwise to be filed within thirty days from such appearance under Rule I of Order VIII, C.P.C.; that in the proceedings, so far conducted in the trial court, the petitioner has sought eighty (80) adjournments; that the trial court had committed no illegality or material irregularity in making the orders dated 20.10.2022 and 24.11.2022, as has been observed by. the High Court in the impugned order, and the revision petitions of the petitioner have rightly been dismissed by the High Court 6. We have considered the contentions of the learned counsel for the parties, read the cases cited by them and examined the record of the case. 7. As the jurisdiction of this Court under Article 185(3) of the Constitution of the Islamic Republic of Pakistan 1973 to grant the leave to appeal is discretionary,[1] the conduct of a petitioner has a substantial bearing on the question of granting or declining such leave to him.[2] The conduct of a party is also material for the purpose of exercising the court's discretion under Rule 21 of Order XI, C.P.C. the court takes the penal action of dismissing the suit of the plaintiff or striking out the
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defence of the defendant when the party concerned is guilty of contumacious conduct by disregarding the specific order of the court, for compliance of which the court has granted a reasonable time and a sufficient opportunity.[3] However, it is not only a deliberate failure to comply with a specific order of the court by a party that is regarded as his contumacious conduct but a series of separate inordinate delays caused by him at different stages of the proceedings of the case is also a convincing proof of such conduct.[4] 8. In light of the above principles, we have gone through the copies of the complete order sheet of the trial court submitted on behalf of the respondent in support of the contention that the conduct of the petitioner has remained willfully contumacious and disobedient throughout the proceedings of the case in the trial, court. We have noted that the suit was instituted by the respondent, on 07.07.2017. The petitioner appeared in the suit through his counsel, on 09.09.2017 and was provided with two opportunities, on his request, to submit the written statement within a period of thirty days as per Rule 1 of Order VIII, C.P.C. On 09.10.2017, when the case was fixed for filing of written statement as a second opportunity within the permissible time limit of thirty days, the petitioner instead of presenting his written statement filed an application under Rule 10 of Order VII, C.P.C. for returning the plaint to the respondent on the ground of lack of territorial jurisdiction of the trial court. The respondent filed his written reply to that application on the very next date, i.e., on 19.10.2017. Thereafter, several opportunities were given to the petitioner for arguments on the said application till 29.09.2018 during the period of about one year; many of them were with warnings of "last and final" and "absolute last and final" opportunities. On 29.09.2018, instead of advancing arguments on his application under Rule 10 of Order VII, the petitioner made another miscellaneous application under Rule 16 of Order XI, C.P.C. for the production of certain documents by the respondent. In the next seven months, the petitioner was provided with several opportunities to advance arguments on the said applications, again with warnings of "last and final" and "absolute last and final" opportunities; which were not advanced and after protracting the proceedings of the case for about seven months, the application under Rule 10 of Order VII was withdrawn by the petitioner on 04.05.2019. Thereafter, the hearing of the case was adjourned on several dates for arguments on the application or the petitioner under Rule 16 of Order XI, C.P.C., for a period of about six months. On 30.10.2019, the respondent filed two applications: the one under Rule 10 of Order VIII, C.P.C. for closing the right of the petitioner to file his written statement and the second under section 151, C.P.C. read with section 14 of the Defamation Ordinance, 2002 for the early decision of the suit. Again, the petitioner was provided with several opportunities to file written replies to the said two applications of the respondent, with warnings of "last and final" and "absolute last and final" opportunities, which were filed on 18.02.2020 after delaying the proceedings of the case on this matter for a period of about four months. After this, the petitioner was provided with several opportunities to advance arguments on the said. applications of the respondent as well as on his own application tinder Rule 16 of Order XI, C.P.C. till 24.04.2021, again with warnings of "last and final" and "absolute last and final" opportunities The arguments on the application of the petitioner under Rule 16 of Order XI, C.P.C. were heard on 24.04.2021 and the said application vas dismissed by the trial court on 26.04.2021. In the next about three months, the petitioner was provided with nine opportunities to file his written statement, again with warnings of "last and final" and "absolute last and final" opportunities. At last, the petitioner filed his written statement On 27.07.2021 after a period of about four (4) years since his appearance in the suit on 09.09.2017, which should have been filed by high till 09.10.2017 within a period of thirty days from the day of his appearance in the suit as per Rule 1 of Order VIII, C.P.C.. After filing the written statement, the petitioner first pressed before the trial court to decide upon his objection taken in the written statement as to the territorial jurisdiction on three dates of hearing, and then on the fourth date, i.e., 22.09.2021, his counsel made the statement that the said objection may be decided after recording evidence. The trial court, on the said date,
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also disposed of the above-mentioned two applications of the respondent, with the observations that as the petitioner had filed his written statement, the application for closing his right to file the written statement became infructuous and that from then onward, short dates would be tilted in the case to decide it expeditiously. 9. The above summary of the proceedings of the case in the trial court made during a period of four years, from the date of appearance of the petitioner on 09.09.2017 till 22.09.2021, gives credence to the contention of the respondent that the conduct of the petitioner has remained contumacious throughout the proceedings of the case in the trial court. The way the proceeding was prolonged by the petitioner at every stage of the case in the trial court, to delay the decision of the case, is more than evident. 10. Before proceeding further to examine the conduct of the petitioner during the proceeding of delivering and answering the interrogatories under Order. XI, C.P.C., we think it appropriate to observe here that although we are cognizant of the fact that the judges of the trial courts perform the onerous task of dispensing justice at the grassroots in the stressful and challenging conditions and in a difficult and demanding environment,[5] the leniency shown on their part in the matter of accommodating unjustified requests for adjournment, even at the cost of disregarding the timelines provided in the relevant laws, is unwarranted. No doubt, all judges including the trial court judges should be courteous and polite while interacting with the members of the bar and the litigant public appearing before them but at, the same time, they must be firm in conducting the proceedings of the cases in accordance with law. A "peremptory order"[6] of the court, which specifies a time to do a certain act in the proceedings of the case with a warning of last opportunity, must be followed by the legal consequences prescribed by the relevant law for its non-compliance. Orders -granting repetitive adjournments with warnings of "last and final" and "absolute last and final" opportunity become meaningless and shatter the confidence of the litigant public in the court orders and consequentially weaken the authority and fiat of the court. Toothless court is the worst form of injustice. A court, no matter how high or low in the pyramidical court system, is still a court of law and must not shy away from exercising its authority under the law. Effective and efficient court house is the basic foundation of rule of law in any constitutional democracy. In this regard, we fully agree and endorse the following observations of a two-member bench of this Court made in the Moon Enterpriser case[7] in regard to an order for producing evidence and are of the view that these observations apply not only to the orders of producing evidence but also to all types of the court orders: In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then, (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices mutt be discontinued, forthwith. The inordinate delay in the conclusion of cases is the main challenge faced by the judiciary, which has a devastating effect on the credibility of the justice system and the public confidence reposed
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in it. A radical approach is required, as said by Lord Griffiths,[8] to tackle the problem of delay in the litigation process by enforcing a court-controlled case management system, which should ensure that once a litigant has entered the litigation process, his case proceeds in accordance with a timetable as prescribed by rules of court. Litigants and their legal advisors must recognise that any delay, which occurs due to noncompliance with the prescribed timetables, is assessed not only from the point of view of the prejudice caused to a particular litigant in whose case it occurs but also in relation to the negative effect it has on the overall administration of justice. It is in the interests of litigants as a whole that the court's time is not unnecessarily absorbed in dealing with "satellite litigation" which failure to comply with the prescribed timetables creates.[9]The rules containing time limits for doing the specified acts necessary for the progress of a case are intended to accomplish the constitutional goal of fair trial and expeditious dispensation of justice by concluding the litigation process within a reasonable timeframe.[10] These rules should, therefore, be observed. 11. To tackle the problem of delay in the process of civil litigation, the Lahore High Court, in the exercise of its rule-making power under section 122 of the C.P.C., has made substantial changes in the rules of civil procedure contained in the First Schedule to the C.P.C. in 2018, on several matters including the process of interrogatories. "Interrogatories", i.e., the written questions, are delivered by one party to his opponent party for answering them on oath in the form of an affidavit. The interrogatories differ from the pleadings: the object of the pleadings is to ascertain what the issues are, while the main object of the interrogatories is to save time and expense by enabling a party to obtain an admission of certain facts from his opponent, which narrows down the issues for trial and thus reduces the burden of proof.[11] However, as a party need not mention in his pleading the evidence by which he is to prove the facts asserted by him for making his claim or defence, a party cannot ask through an interrogatory his opponent party as to what evidence the latter would produce in support of his claim or defence.[12] The interrogatories when delivered by the parties to each other at a pretrial stage of the case, on the facts which are directly in issue or on such facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue, can obviate the expensive and time-consuming process of proving certain facts, dispose of some issues even before trial and lessen the number of witnesses to be recorded in the case.[13] The fair use of the process of interrogatories, therefore, ultimately results in an overall shortening of the trial and thus helps achieve the constitutional goal of the inexpensive and expeditious dispensation of justice. Interrogatories therefore play a vital role in making the civil trial court system more effective and efficient. 12. Turning to the examination of the conduct of the petitioner during the proceeding of delivering and answering the interrogatories under Order XI, C,P.C. in the present case, we find it appropriate to first cite here the relevant Rules of Order XI, C,P.C.: Rule 1. Discoveries by interrogatories. The Court shall direct the parties to deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties stating clearly which of such interrogatories each of such person is required to answer, provided that the Court may reject an interrogatory or part thereof which, in its opinion, is not relevant to the case. (as amended by the Lahore High Court in 2018) Rule 2. Communication of interrogatories. On receipt of the interrogatories under rule 1, the Court shall deliver the interrogatories to the concerned person for submitting the answer within such time as the Court may specify. (as amended by the Lahore High Court in 2018) Rule 6. Objections to interrogatories by answer.
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Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer. Rule 7. Setting aside and striking out interrogatories. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories. Rule 8. Affidavit. The interrogatories shall be answered by an affidavit to be filed within the time specified by the Court. (as amended by the Lahore High Court in 2018) Rule 11. Order to answer or answer further. Where any person interrogated submits an insufficient or an evasive answer, the Court may require him to submit the proper answer within the time specified by the Court. (as amended by the Lahore High Court in 2018) Rule 21. Non-compliance with order for discovery. Where any party fails to comply with Any order to answer interrogatories, 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 an order to that effect, and an order may be made accordingly. The perusal of the order sheet of the trial court shows that on 05.01.2022, the trial court directed the parties to deliver their interrogatories, in accordance with Rule 1 of Order XI, C.P.C. Both the parties delivered their respective interrogatories: the respondent, on 02.02.202 and the petitioner, on 03.02.2022. The respondent later withdrew some questions and delivered the amended interrogatories, with permission of the trial court, on 08.03.2022 and the hearing was adjourned to 16.03.2016 for filing answers by the parties to the interrogatories of each other. The respondent filed the answers to the interrogatories of the petitioner, on 16.03.2022, while the petitioner requested another opportunity, which was granted and the hearing of the case was adjourned to 26.03.2022. The petitioner did not file his answers to the interrogatories till that date and the hearing was adjourned to 09.04.2022. On 09.04.2022, 20.04.2022 and 26.04.2022, the petitioner requested further opportunities for filing the .answers to the interrogatories, which were accordingly granted to him and in the order dated 26.04.2022, the trial court also made a warning of last opportunity to file the answers to the interrogatories and adjourned the hearing to 09.05.2022. On 09.05.2022, instead of filing the answers for which the petitioner had earlier been requesting opportunities, the petitioner filed the objections (application) for rejection of the interrogatories of the respondent. The respondent filed his written reply to the said objections (application) of the petitioner, on 14.05.2022. On 21.05.2022, 30.05.2022, 08.06.2022, 05.07.2022, 27.07.2022 and 05.10.2022, the hearing of the case was adjourned on request of the petitioner for arguments on the said objections (application). The arguments' were heard on 19.10.2022 and vide its order dated 20.10.2022, the trial court overruled the objections of the petitioner and directed him to submit his answers to the interrogatories of the respondent, with the observations that an application for rejection of the interrogatories could be filed under Rule 7 of Order XI, C.P.C. within seven days after service of the interrogatories, while the petitioner had first sought several adjournments for submitting the answers to the interrogatories and then filed such application (objections) after the lapse of about two months without any lawful justification and without seeking condonation of the delay.
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13. The above survey of the proceedings of the trial court as to delivering and answering the interrogatories by the parties under Order XI, C.P.C., from 05.01.2022 to 20.10.2022, shows the same delaying tactics of the petitioner by which he had been hindering the progress of the suit earlier. The learned counsel for the petitioner has contended that the time of seven days mentioned in Rule 7 of Order XI, C.P.C. is not mandatory rather it is directory, and that strict compliance is required only of a mandatory provision while substantial compliance with a directory provision is sufficient. 14. It…
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