P L D 1954 Lahore 516 (PLP)

MUHAMMAD MUNIR, C. J.‑Rai Bahadur Isher Das and the trustee of Bevan‑Petman Trust obtained from the Punjab Government in 1916 a mining lease which they began to operate under the name of Makerwal Colliery. The two lessees entered into a mutual agreement to share the profits in the ratio of ten to six annas, the difference of two annas in‑ the rupee representing compensation for the active management of the colliery, which was assigned to R. B. Isher Das. On partition, R. B. Isher Das left Pakistan, and in September 1947 the Government allotted the colliery 'to K. B. Habibullah and Mian Amirud Din as evacuee pro perty. As there had been default by the original lessees in payment of the rent and royalty, the Government in July 1948 also terminated the lease. Later in May 1950, however, the declaration that the colliery was evacuee property was withdrawn, though the Government continued in posses sion. In November 1950, B. H. Bevan‑Petman and E. D. Dignasse, trustees of Bevan‑Petman Trust, brought a suit in the Court of the Senior Civil Judge, Lahore, against the Province of the Punjab defendant No. 1, the Federation of Pakistan defendant No. 2, K. B. Habibullah defendant No. 3 and Mian Amirud Din defendant No.

4. The plaint in the suit was the longest I have ever seen, comprising 117 lengthy paragraphs extending over 63 typed pages. The relief clause itself contained 24 paragraphs. No. 17 of the relief‑clause prayed: "That a decree be passed against defendant Nos. 1 and 2 after due enquiry for joint possession of the entire immovable property which came into their hands; and joint possession of the property be ordered to be given to the plaintiffs. The plaintiffs are not in a position to specify the details of the immovable properties without the books and documents of title in possession of the defendants. Tentatively the half share of the immovable property is valued at Rs. 2,00,000 including the plaintiffs' property situated at Mari Indus which is not included in the lease deed." The defendants objected to this clause on the ground that it gave no details of the immovable property and that the value of the property involved being considerably more than two lacs, the Court‑fee paid was insufficient. The trial Court by its order, dated the 28th July 1951; directed the plaintiffs to give details of each property covered by No. 17 of the relief‑clause, to value each property separately and to amend the plaint accordingly by 25th August 1951. The order was not complied with and on 3rd November 1951, Mr. Kaikaus, learned counsel for the plaintiffs, made a statement admitting that it was necessary to file particulars of the property and praying for the Court's assistance to ascertain such particulars. Consequently, the Court, by its order, dated 19th November 1951, Appointed Mian Badar Din, Municipal Engineer, Lahore, as Commissioner to assist the plaintiffs in the demarcation and preparation of the plan of the property. The Court also directed the Commissioner to give his own valuation of each item of the property. A sum of Rs. 400 was fixed, as the Commissioner's fee which the plaintiff's were required to deposit by a certain date. The plaintiffs, however, completely ignored that order and did not deposit the fee. Several subsequent hearings were taken in settling some other matters, including the filing of some revenue papers and plans without any amendment of the plaint having been made. An amended plaint was put in on 7th June 1952, but it is not the plaintiffs' case that it com plied with the order of the Court requiring the amendment of the plaint in the manner directed by the order .of 28th July 1951. The amended plaint merely referred to certain khasra numbers without stating whether the property was land or building. It is admitted by the (learned counsel for the plaintiffs that most of the property covered by No. 17 of the relief‑clause is in fact under buildings, and it has not been contended by him before me that this amendment com plied with the Court's order in respect of any particular item of the property involved. On 7th December 1951, the plaintiffs made another application which professed to be under O. XI, r. 13 of the Code of Civil Procedure stating that the details of the property could only be given on inspection of the documents which were in the defendants' possession. When the suit came up for heaving on 13th December 1952, the plaintiffs again applied for the appoint ment of a Commissioner to ascertain the particulars and value of the property, The counsel for the defendants, however, urged that as the order directing the amendment of the plaint had not been complied with, the suit should be dismissed by reason,of the provisions, of rule 2 of Order IX, rule 4 of Order X, and rule 21 of Order VII. Rule 11. of Order VII, clause (b) was also belied on in this connection. On this the lower Court framed the following issues:‑ (1) what is the effect of the various orders, passed from time to time, allowing the plaintiffs to amend the plaint and give particulars necessary to the further progress of the suit? (2) Are the provisions of rule 11 of Order VII and rule 3 of Order XVII applicable to the facts of this case? (3) If issue No. (2) is proved what should be its effect on the case? After hearing arguments, the Court on 17th January ‑1953, dismissed No. 17 of the relief‑clause on the ground that the plaintiffs had failed to comply with the order requiring them to give further particulars of the property and to amend the plaint. It is against this order that the plaintiffs have come up in revision to this Court. It is riot contended that I can look at the order com plained of as an appellate Court, and it is admitted that unless some such ground, as is mentioned in section 115 of the Code of Civil Procedure, is made out, I have no juris diction to interfere with the order of the lower Court. The only point which Mr. Fazlur Rahman, learned counsel for the plaintiffs, has sought to make out is that the property was in the possession of the defendants, that his clients had no access to it, that particulars of the property could only be given from the documents which were in the possession of the defendants and that no orders were passed by the lower Court on the application for discovery and production of the documents which had been made by the plaintiffs in the earlier stages of the suit and were subsequently brought to the notice of the Court. It is not alleged that the plaintiffs or any one on their behalf ever went to the place where the property is situate to obtain its particulars but was prevented by the defendants from inspecting the property, and no expla nation has been given why, when the Court on 19th November 19551 gave to the plaintiffs requisite facilities to ascertain the particulars of the property and to prepare its plan with the assistance of a local commissioner, those facilities were not availed of and the commissioner's fee not paid in. If there had been proof or even an allegation on affidavit that the plaintiffs made an attempt to obtain particulars of` the property but that such attempt was resisted by the defend ants, I should have been willing to take a more indulgent view of the plaintiffs' continued inaction and indifference over this long period, but there is no such allegation before me, nor any reason given why the services of the local commis sioner were not utilised. All that is complained of is that the. Court should have passed orders on two applications, one under Order XI rule 12 and the other under Order XI rule 14 of the Code of Civil Procedure, before dismissing this part of the relief. In the lower Court there seems to have been some confusion as to the provision under which more detailed description of the property was required and the plaint directed to be amended. Before me, however, it is agreed that the order requiring particulars of the property arid directing amendment of the plaint must be taken to have been passed under Order VI rule 5 and the order dismissing the relief as having been made under section 151, or Order VI, rule 16 of the Code of Civil Procedure. Rule 5 states that a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered upon such terms as to costs and otherwise as may be just. Now the property of which joint possession was asked for was a matter stated in the plaint and further and better particulars of it could undoubtedly be asked and treated as a part of the plaint without requiring a formal amendment of the plaint. This order was not complied with, with the result that ultimately the Court had to enforce the natural consequence of the omission by directing the relief to be deemed to have been dismissed. It is not contended by Mr: Fazlur Rahman that the Court had no jurisdiction to dismiss the relief and no arguments on this point were addressed to me by him, beyond alleging that section 151 should have been used only after the applications under Order XI mentioned above had been disposed of. I shall presently deal with these applications' and I have referred them here merely to show that it is not counsel's contention that the Court had no jurisdiction to strike out the relief in question if further particulars of the property were not given. But even if any such point had been raised, I would have had no hesitation in repelling it because the law is settled that an omission to furnish further or better particulars of a matter, which have been ordered by the Court to be given within a certain time, entails as a necessary consequence the striking out of that part of the pleading which relates to that matter. It has been held in England in Davey v. Bentinck ((1893) 1 Q B 185.), that Order XIX, rules 6 and 7 of the Supreme Court Rules, give to the Court power in certain cases to order particulars and to impose terms, and that this includes the power to add as a consequence that if the order is not complied with in a certain time the action shall be dismissed. The same view was taken by Stone C. J. and Vivian Bose J. in Firm Baxiram Rudmal v. Seth Gokuldas Kisanlal Mahajan (A I R 1940 Nag. 261.), where, after comparing the two Supreme Court Rules mentioned above with Order VI rule 5 of our Code of Civil Procedure, it was pointed out that, the law in England and here on this point is the same, and it was held that where a plaintiff is ordered to give particulars, one of the terms of the order may be that the action shall be dismissed unless the particulars are delivered within a certain time. This decision is also relevant on another point which arises in the case, namely, in what cases should the appellate Court interfere with the discretion exercised by the lower Court in dismissing the action for non‑compliance of an order relating to particulars. The learned judges observed that where the plaintiff has after several chances failed to produce necessary particulars within the time granted, the Court can dismiss the suit and that where the trial judge makes an order of this kind and makes it fairly giving every kind of chance, an appellate Court, if indeed it has any power at all to interfere with the discretion so judicially exercised, should be, exceedingly slow to do so. It is true that there is distinction between the two cases just cited and the present case, distinction which I noticed myself and was not relied on by the learned counsel for the plaintiffs. Rule 5 empowers the Court when it orders a party to furnish particulars to impose terms on him, and one of the terms may be that, if the order‑is not complied with by a certain date, the pleading of the party concerned shall be struck out. In the present case, the order requiring particulars did not expressly say that the result of non‑compliance of the order would be a dismissal of that portion of the relief of which particulars were ordered. But the omission to mention the penalty, if eventually the pleading has been struck out for non‑compliance, cannot make the order objected to as an order without jurisdiction It has been expressly so ruled by a Division Bench of the Madras High Court in Nedungadi Bank Ltd. v. Official Assignee of Madras (A I R 1930 Mad. 473.), where it has been held that where a defendant after being ordered to give particulars by a certain date does not give the particulars within that time or within the extended time, the Court has jurisdiction to strike out his defence, even though such penalty was not explicitly added to the order directing particulars. This decision 'further points out that the authority for the penalty to strike out an insufficient pleading is to be found in rule 16 of Order VI, which says that the Court may, at any stage of the proceedings, order to be struck out any matter in any pleadings which may tend to prejudice, embarrass or delay the fair trial of the suit. I have, there fore, no doubt that the lower Court had the jurisdiction to make the order in question and the only point which I have to consider is whether in making the order it acted with any material irregularity. As already pointed out, the irregularity alleged is that the application under Order XI, rule 12 and that under Order XI, rule 14 should have been disposed of before the relief was struck out. Now the history of these applications is as follows. The application under Order XI, rule 12, which was presented by the plaintiffs on 18th April 1951, prayed that the Court should direct the defendants to disclose on affidavit the documents "on which they rely with regard to the claim in the suit". The Court's order on this application was that a copy of it be given to the defendants, who would put in their reply on a date to be fixed later. No such date was given to the defendants before the order under revision was passed. The application under Order XI, rule 14 requested the Court to make an order directing the defendants to produce on oath all documents in their possession together with all account books etc. This application was made on 20th April 1951 and by an order of the. Court of the same date a copy of it was given to the defendants who were required to put in their objections on a date to be fixed later. No date for this purpose was given till the date of the order under revision. Another application purporting to be under Order XI, rule 13 was presented by the plaintiffs on 7th December 1951. It referred to defendants 3's and 4's having taken possession of the property under an allotment, .to the preparation of an inventory of assets on that occasion, and to the 'handing over of records by the Punjab Government to the Pakistan Government and praying that the defendant‑Governments be directed to produce those documents. Notice of the applica tion was issued on the same date requiring the defendants to put in their reply on 5th January 1952. On 1st March 1952 the Punjab Government produced an affidavit of Sayyed Shafqat Ali, Assistant Planning Officer, Department of Industries, to the effect that the record which had been handed over by the Punjab Government to the Pakistan Government had been previously inspected by the plaintiffs and that no record had been transferred between the two Governments which had not been inspected by the plaintiffs. Three more applications by the plaintiffs must be mention ed in connection with their grievance that the relevant documents were in the possession of the defendants. One was the application, dated 8th May 1951, made under section 151 of the Code of Civil Procedure, in which the plaintiffs requested the Court to dispose of the applications under Order XI. On 7th December 1951, 'the plaintiffs made, as already stated, another application praying for an order requiring the second defendant to produce the documents which, had been taken over by the allottee of the colliery under' an inventory. The application of 15th January 1953 requested the Court to pass proper orders on two applications, one under rule 12 and, the other under rule 14 of Order XI of the Code of Civil Procedure. None of the applications mentioned above, which related to the discovery or production of documents, was in order and none of these could help the plaintiffs in discovering particulars of the property which they .had been required to put in. It is clear from the arrangement and terms of rules 12, 13 14, 15 and 16 of Order XI that the procedure to be observed in obtaining an inspection of the documents which are in possession of the opposite party is first to obtain an order under rule 12, directing the other party to make discovery on oath of documents relating to any matter in question, which are or have been in his possession or power. In compliance with this order the party against whom the order is made has to put in an affidavit of documents under Order XI, rule 13, indicating which 1iocumentsare in his possession or power together with any objection he may have in producing. Any of those documents, and which documents he has no longer in his possession or power and when he parted with them After such affidavit has been filed under rule, 13, the party wishing to inspect the documents has to obtain n order from the Court under rule 14, directing the party in possession of, the documents to produce them. The party wishing to inspect any documents referred to in the pleading of another party or in his affidavit of documents, has then to obtain an order for inspection under rule 16 of Order XI. The application of 18th April 1951 under rule 12 of Order IX required defendants to disclose the documents "on which they relied in regard to the claim in the suit". Now under rule 1 of Order XIII the parties are required to produce at the first hearing of the suit all documents they have in their respective possessions and the defendant Governments had complied with this rule filing with their written statements a list of all the documents on which they intended to rely and which were in their possession. If the object of the plaintiffs in asking for discovery of documents by the defendants was to ascertain the parti culars of the property from those documents, the plaintiffs could easily have referred to the list filed by the defendants with their written statement. The plaintiffs did not require the defendants to make discovery on oath of the documents which are or had been in their possession or power relating to any matter in question in the suit, but the application was limited, as already pointed out, to discovery of documents which the defendants relied on in support of their claim. How documents on which the defendants relied in support of their claim could help the plaintiffs to specify the property for which they were suing is difficult to understand and even if such documents would have helped the plaintiffs in ascertaining the particulars of the property, they could have asked for their inspection or required their production, if only copies had been filed, after referring to the list filed by the defendants with their written statement. If this be correct, then subsequent applications for production and inspection of unspecified documents must be held to be incompetent, because an application for production of documents under Order XI rule 14 can only relate to a document which is known, i.e., which is mentioned in the pleadings or which is referred to in the affidavit of documents (vide Order XI, rule 16). It is, therefore, quite obvious that the documents the discovery and production of which the plaintiffs were insisting upon were not required to ascertain the particulars of the property mentioned in No. 17 of the relief‑clause, and that the request for their discovery and production was in the nature of an attempt to fish out evidence in support of the plaintiffs' claim in the suit. The documents which the defendants were being required to make discovery of were already known to the plaintiffs, their particulars having been filed with the written statement, and the plaintiffs could easily inspect them or require their production by giving their particulars in the application under rule

14. In fact subsequent proceedings in the case show (vide order dated 29th April 1954) that the plaintiffs themselves had their application dated 18th April 1954 under Order XI, rule 12 dismissed. The conduct of the plaintiffs' counsel in the proceedings of 29th' April 1954 clearly shows that he was conscious of the legal position that production and inspection is, always subsequent to the discovery of documents. Thus no material irregularity by the lower Court in dismissing No. 17 of the relief‑clause has been made out. Learned counsel's last argument was in the nature of an appeal for mercy, namely, that the plaintiffs lose property worth two lacs of rupees by way of penalty, that they have already spent on this litigation enormous money and that they would be ruined if the dismissal is not set aside. The defendant‑Governments; on the other hand, complain that the suit, owing to the plaintiffs' negligence, has made no progress so far, that even issues on the merits have not yet beers framed, that these defendants have expended so far more than Rs. 60,000 in defending the claim and that a plaintiff, who requires 135 paragraphs of plaint to disclose his cause of action but cannot give particulars of the property of which he seeks joint possession, has no business to continue to be arrayed against the defendants in respect of property of which he cannot give the particulars. Though clause 17 of the relief‑paragraph of the plaint uses the words after due enquiry", it is not contended before me that the suit is in the nature of a suit for account, in which, on establishing the defendants' liability to account, a prelimi nary decree for an account of immovable property could be passed and details of the property joint possession of which is asked given later. If the suit had been of that character, the obvious reply of the plaintiffs to an order for particulars would have been that such particulars were not necessary at the present stage and that no order strik ing out the relief could be made. This, however, is not the plaintiffs' case, not one word to this effect having been addressed to me in the course of arguments or during the proceedings before the lower Court. So far as this part of the relief is, therefore, concerned, it is no more than a relief for joint possession of immovable property and the law in such cases is that the plaintiffs must give sufficient particulars of the property to enable it to be identified so that a proper decree capable of execution may be passed in respect of it. If a plaintiff comes to Court with a long plaint, without being cognisant of the details of the property of which he seeks joint possession and he does not know the proper means of ascertaining the particulars of that pro perty even during the pendency of the suit, he is himself to blame for his misfortune and not the defendants, even though the latter may be in possession, I cannot, therefore; say that any ground for revising the order of the lower Court has been made out. The revision petition is, therefore, dismissed with costs. , A. H. Petition dismissed