2005 PLP 1430 (CLC)

This application (C.M.A. No.5306 of 2003) under Order XI, rule 21, C.P.C. filed by the defendant No.1 who seeks dismissal of the instant suit of the plaintiff for want of prosecution due to non-compliance of the order of the defendant's application under Order XI, rule 12, C.P.C. It is contended by the learned counsel that the suit was filed without any documents and this Court on 13-9-2001 directed the plaintiff to disclose the documents which was not done till today. Listed application was filed on 19-9-2003 seeking dismissal of the suit. On service, the plaintiff moved an Application (C.M.A. No.6140 of 2003) under section 148 read with section 151, C.P.C. on 25-10-2003 seeking condonation of delay in filing the affidavit of the plaintiff in terms of Order XI, rule 13, C.P.C. Along with the said application, an affidavit regarding discovery of the documents under Order XI, rule 13, C.P.C. was also filed. It was vehemently contended by the senior counsel Mr. Muhammad Ali Sayeed that such non-compliance is visited by penal of consequences of dismissal of the suit. In support of his contention, he has relied upon the case-laws reported in PLD 2005 SC 1 and PLD 1988 SC

109. In the last mentioned case, the application for permission to produce the audio-cassette in evidence was declined by the Court to circumvent, such refusal by the Court. It appears that under section 164 of Qanun-e-Shahadat to produce the evidence on the premise that such audio-cassette is permissible under the law. The application was dismissed on the ground that when similar application was dismissed on merits it matter little particular evidence is admissible or not therefore, subsequent attempt to bring such evidence on record was declined by the apex Court. Contention of Mr. Muhammad Ali Sayeed, learned counsel for defendant No.1 is that in terms of Order XI, rule 13, C.P.C. the consequences. are provided which are mandatory in nature and there is no cavil to such proposition. But in large number of cases, even from the apex Court where the party who has complied with the requirement with some delay is allowed to file the documents which were sought to be produced at the insistence of opposing party by imposing the cost and penalty as may be deemed expedient (one may see and refer the cases i.e. 1988 SCMR 82 and 1997 MLD 1852). Since the Application (C.M.A. No.6140 of 2003) under section 148, C.P.C. seeking condonation of delay was filed on 25-10-2003 almost 17 months have passed, the documents have been placed on record. No prejudice will be caused to the defendant No.1. Since the evidence has yet not commenced. At the best, cost may be imposed on the plaintiff for filing the same belatedly. Accordingly, C.M.A. No.5306 of 2003 is dismissed and consequently C.M.A. No.6140 of 2003 is allowed; however, subject to cost of Rs.2,

000. Affidavit regarding discovery of the documents under Order XI, rule 13 is taken on record. Both the Applications being C.M.A. Nos.5306 of 2003 and 6140 of 2003 stand disposed of in above terms. M.B.A./A-205/K Order accordingly.