1993 PLP 767 (MLD)

Briefly stated facts of the case out of which this F.A.O. has arisen are that the respondents have filed a suit seeking performance of an agreement for sale dated 9-5-1988 relating to land measuring 23 Kanals 14.5 Marlas situated in Mauza Taraf Mubarik, Awal, Tehsil. and District Multan against the appellant. The appellant did not file a written statement and instead thereof, filed an application on 30-4-1992 under Order 11, Rule 15 of the C.P.C., for production of the original receipts of payment of the balance sale price of Rs.59,

500. This application was contested and was allowed by the Civil Court vide order dated 6-6-1992 and the respondents were directed to produce the original receipts. Order passed by the learned Civil Judge was challenged by the respondents in revision which was ultimately initially filed and withdrawn from the Court of learned District Judge and was subsequently filed in this Court as Civil Revision No.346 of 1992 which was dismissed vide order dated 5-7-1992. On the date fixed for production of the receipts, the respondent N0.1made a statement that the receipts were misplaced and therefore, cannot be produced in Court. The appellant filed an application on 27-7-1999, under order 11, Rule 21 of the C.P.C. seeking dismissal of the suit filed by the respondents on account of wilful default of the .respondents for non-compliance of the order passed by the Court, directing the production of the original receipts. This application has been contested and dismissed by the learned Civil Judge vide order dated 29-7-1992 and the appellant has been directed to file a written statement. This order has been challenged by the defendant of the suit in this first appeal.

2. Ch. Muhammad Shafi, Advocate, has appeared on behalf of the appellant whereas Mr. Abdur Rchman Khan, Advocate, has appeared on behalf of the respondents.

3. In support of this appeal, learned counsel for the appellant has argued that the provisions of Order 11 Rule 21 of the C.P.C. are mandatory and as the respondents have failed to produce the original receipts in the Court, therefore, the suit is liable to be dismissed and hence the learned lower Court has committed a serious error of law by dismissing the application filed by the appellant and by passing an order to file a written statement. Learned counsel for the respondents has opposed this appeal and has argued that the order passed by the learned trial Court is valid in law.

4. I have considered the arguments addressed by both the learned counsel for the parties and have also perused the record. In order to appreciate the contentions of the learned counsel for the parties and to decide the matter in issue, it will be necessary to reproduce the relevant provision of the statute on the subject which have been referred to by the learned counsel for the appellant. Order 11, Rule 15 and Rule 21 of the C.P.C. are reproduced as under:-- "O. 11, R.

15. Inspection of documents referred to in pleadings or affidavits.

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. O. 11, R.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." A bare perusal of the provisions of Order 11, establishes beyond doubt that only object of this Order is that the defendant showed him on the documentary basis of the suit filed against him, 'so that he may not be taken by surprise if subsequently a document is produced in evidence. In case where an order to produce the original receipt had been passed, and it is not complied with due to the fact that the document is lost, by no stretch of imagination, it can be said that failure to produce such a document will amount to a wilful default. The word `failed' means something more than a mere non-compliance and if non compliance is the result of a factor, which is not within the control of the defaulter, it cannot be said that it is a case of failure to comply with. The requisite documents which were stated to have been lost cannot be produced in Court for no fault of the respondent, hence it cannot be said that the respondent has `failed' to comply with the order to produce the receipts. Learned trial Court has rightly held that it is not a case of wilful default. In this case, the only penalty which respondent party will suffer is that subsequently the documents if traced cannot be produced in evidence unless and until there is sufficient evidence to the effect that the documents had really been lost. In view of the above it is not always necessary to dismiss the suit in case of non-production of documents, particularly, when it is not a case of wilful default. Even otherwise, technicalities should not stand in way of administration of justice and the causes should be decided after giving the parties full opportunities to contest. The litigation should not be short circuited on the basis of technicalities and procedural lapse. Hence, the impugned order which is not illegal, is also quite fair and just and no prejudice has been caused to the appellant due to non-compliance of the order to produce the receipts which are at the most a piece of evidence in favour of respondent. It has been held in case of Allah Ditta v. Bakrat Ali and 3 others 1992 S C M R 1974 as under:-- "As long as 1963 it was laid down by this Court in the classic statement of law in Imtiaz Ahmad v. Ghulam Ali etc. P L D 1963 SC 382 at 340 as follows:-- .... the proper place of procedure in any system -of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system, which by giving effect to the form and not to the substance defeats subsantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his." It has been held in case of Mirza Ali Khan v. Mst. Shahida Parveen and others 1992 S C M R 2112 as under:-- "We have considered the respective contentions of the learned counsel. Order 8, Rule 11, C.P.C. prescribes that `Every party who appears in any suit or other proceedings, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service'. The object of this provision is to avoid unnecessary delay in disposal of the suit so that for the purpose of service an address shall be filed in Court. Rules 20, 23, 24 and 35 of Order 7 have been applied -by subsection (3) of Rule

11. Where a party fails to file an address for service as provided in the preceding rule (Order 8, Rule 11), he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. (Order 8, rule 12). The cumulative effect of rules il and 12 is that they create a liability but it is not mandatory on the Court to strike off the defence. The Court has not to close the defence in a mechanical manner. It has to examine whether any prejudice has been caused for the non-compliance of Order 8, Rule

11. It is not the requirement of this rule that in each and every default of a party the consequences as provided in Order 8, rule 12 must follow. If no prejudice has been caused to the opposite-party then too strict a technical view for striking out the defence in each case should be avoided. Where the law has provided a penalty it has specifically stated so. Order 9, Rule 6 contemplates that `where the plaintiff appears and the defendant does not appear when the suit is called for hearing then if it is proved that summons was duly served'. We are, therefore, of the view that Order 8, Rule 12 is directory and not mandatory. Another aspect of the case is that striking out the defence does not necessarily mean that a decree must be passed in favour of the opposite-party. The Court has to apply its mind to the facts of the case. The striking out the defence does not absolve a plaintiff to prove his case. Where a suit on the face of it is barred by any statute how can a decree in favour of the plaintiff be passed for the non-compliance of Order 8, Rule 11, C.P.C. Justice should not be denied at the altar of the technicalities. In Manager, Jammu and Kashmir State Property v. Khuda Yar P L D 1975 SC 678, it has been observed that `the principal object behind the legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transaction from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness. In Ghulam Bibi v. Sarsa Khan P L D 1985 SC 345, it has been observed that `the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice'. It has been further observed that `the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy."

5. Resultantly, I see no force in this appeal the same is dismissed. Parties are left to bear their own costs. A.A./P-49/L Appeal dismissed.