UNITED BANK LIMITED Versus YOUSUF HAJI NOOR MUHAMMADDHADHI

ZAFFAR HUSSAIN MIRZA, J.- - Leave to appeal was granted in this case to consider the contention of the appellants that this was predominantly a fit case for the exercise of suo motu revisional jurisdiction by the High Court itself and that the learned Senior Civil Judge, who passed the impugned order before the High Court, should have granted to the appellants (plaintiffs) opportunity to rectify the mistake instead of dismissing the suit for non-prosecution.

2. The material facts leading to this appeal are that M/s. United Bank Limited the appellants herein filed a suit for recovery of Rs.29,890 against Yousuf Haji Noor' Muhammad respondent herein. The respondent filed a written statement and denied the claim of the appellants. On 19th March, 1978, the respondent filed an application before the trial Court under Order XI, Rule 12 read with section 151, C.P.C. and at the same time served the applicants with a notice under Order XI, Rule 15 for inspection of documents referred to in the pleadings. However, until 22nd November, 1979, the appellants neither filed an affidavit of documents nor offered inspection of the same. Thereupon the respondent moved the Court under Order XI, Rule 21, C . P. C . , for dismissal of the suit for non-compliance with order for recovery. When notice of this application for the dismissal of the suit was given to the appellants, the latter filed an affidavit of documents on 20th December, 1979. Learned VI Senior Civil Judge, Karachi, in whose Court the suit was pending when called up the case for hearing of the application for dismissal of suit, the appellants' advocate was absent. It was urged before him that the affidavit of documents was not in accordance with form No. 5 Appendix C to the C . P. C . and therefore, the suit was liable to be dismissed for non-compliance with order for discovery of documents. Accepting this objection the learned Civil Judge by his order, dated 2nd November, 1980, dismissed the suit under Order XI, Rule 21, C.P.C.

3. The appellants, being aggrieved by the aforesaid order whereby its suit was dismissed preferred a revision application in the High Court. The office of the High Court, inter alia, raised the objection as to the competency of the revision application without filing an appeal against the impugned order passed by trial Court before the District Court. To this objection it was submitted on behalf of the appellants that a revision application under section 115, C.P.C. was competent notwithstanding the fact that no appeal was filed against such order. The learned Judge who heard the revision application, however, took the view that the grounds urged against the impugned order could have been raised in an appeal from the impugned order and in absence of such appeal having been filed were not sufficient for invoking the revisional jurisdiction of the High Court when another remedy by way of appeal was not availed. Accordingly by order dated 8th March, 1981, the learned Single Judge of the Sind High Court dismissed the appellants' revision application in limine. Hence this appeal.

4. On perusal of the aforesaid facts we are of the view that the order passed by the learned Civil Judge dismissing the suit of the appellants under Order XI, Rule 21, C.P.C., proceeding as it does purely on a technical objection is not sustainable. Admittedly before the dismissal of its suit, the appellants had filed the affidavit of the documents which has been placed on the record of this appeal (page 22 of the printed record). The perusal of this affidavit shows that a list of documents has been given on which the plaintiffs are stated to rely. This is a fairly exhaustive list of documents in the possession of the plaintiffs concerning the subject-matter of the suit. When asked how this affidavit is not in accordance with law learned counsel for the respondent stated that it is not strictly in conformity with form No. 5 in Appendix C, in that, the affidavit does not specify documents listed to be in possession or power of the plaintiffs. Thus, the objection is patently technical in nature. It may be pointed out that this is not a case of outright denial or disobedience on the part of the plaintiffs to file affidavit of documents for purposes of discovery. It is well-settled that the provisions of Order XI, Rule 21 being penal in nature are to be strictly construed. We feel that if the Court thought that the affidavit was not strictly in accordance with the form prescribed in the statute and the party objecting will be prejudiced, at the most the Court should have directed the plaintiffs to file the affidavit strictly in accordance with the prescribed form. But proceeding straightaway to non-suit the plaintiffs just for defective form of the affidavit without giving the plaintiffs opportunity to rectify the formal defect was wholly unjustified.

5. Another important aspect of the case is that the provisions of Order XI, Rule 21 can be invoked on penalty imposed on a party only if such party has failed to file an affidavit in spite of an order passed by the Court to that effect. Order XI, Rule 12, C.P.C contemplates the passing of an order on application for discovery of documents. Therefore, the penal provisions are not attracted in a case where no order by the Court to discover the documents has been passed. On the record before us there does not appear to have been passed any order by the Court directing the plaintiffs to file affidavit of documents. Mere making of application for discovery of documents ispo facto does not amount to an order for such discovery to be made by affidavit. Therefore, the application for dismissal of the suit under Order XI, Rule 21 seems to us to be wholly incompetent. An order dismissing the suit on such application would be patently without jurisdiction.

6. It has, however, been urged by the learned counsel for the respondent that the appellants had in fact filed an appeal against the order, dated 2nd November, 1980, which was dismissed by the Additional District Judge in limine as time-barred. Learned counsel submitted that this fact was suppressed by the appellants from the High, Court and consequently his revision petition was liable to be dismissed on that ground. However, we find no such order passed in appeal on the record. There is an implied reference in the impugned order of the High Court that the appeal was time-barred. Our attention was also invited to the memo. of petition in this Court wherein it was stated by the appellant that an appeal was filed but the learned Additional District Judge rejected the same in limine. We are unable to entertain the objection raised by the learned counsel for the respondent in absence of the order said to have been passed on an appeal from the order of tine trial Court, which should have been placed on record by the respondent if he wished to raise any legal objection on the basis thereof. Learned counsel also contended, on the basis of Municipal Committee v. Sh. Aziz Elahi P L D 1970 SCI 506 and S. Azizul Hassan and another v. Malik Ghulam Muhammad 1971 SCMR 123, that no revision under section 115 was competent if no appeal was preferred from the order which was appealable. This D point, however, is concluded and determined by a judgment of this Court in Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 SC 678, in which it was held that although ordinarily, Courts have declined to exercise revisional jurisdiction where an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed and a departure could be justifiably made if required from circumstances of the case. Having regard to all the circumstances of this case we feel that in this case the High Court ought to have entertained the revision application and set aside the order impugned before it whereby the plaintiffs were non-suited for a trivial formality. In the last mentioned case this Court had emphasised the proposition that the principal object behind all legal formalities is to safeguard the paramount interest of justice. Mere formality or technicality cannot, therefore, be allowed to prevail to the detriment of the interest of justice.

7. For the foregoing reasons we allow this appeal, set aside the order of the High Court and the order passed by the trial Court, dated 2nd November, 1980. The result is that the suit will be proceeded with and decided according to law from the stage of the aforesaid order. It will be open to the Court to call upon the plaintiffs to file a proper affidavit of documents if the Court deems it necessary and according to law. The appeal is allowed with costs.

S.Q./U/11/S Appeal allowed.