1999 PLP 3193 (MLD)

Mazhar Imtiaz Lari for Plaintiff. M. A. M. Nimazi for Defendant. Office has placed this case for further order as plaintiff has failed to submit further and better particulars. In this suit, which is for recovery of U.S.$: 2,67,187.00, the defendant filed an application under Order VI, rule 5, C.P.C. (C.M.A. 1379 of 1998) seeking directions, in respect of Paras. Nos. 1, 2, 6, 7, 9 and 10 of the plaint. On 10th August, 1998, Mr. Mazhar Lari, learned counsel for the plaintiff requested for two weeks' time to supply further and- better particulars, but the same has not been filed till this date, despite passing of two and a half months. On 24-8-1998 and 14-9-1998, further opportunities were extended to the plaintiff for supplying further and better particulars. Again on 12th October, 1998, none appeared for the parties before the Additional Registrar (O.S.-I) who directed to fix this matter before the Court. I have heard Mr. M.A.M. Nimazi for the defendants, who had pleaded for dismissal of the suit for non-compliance of this Court order and has relied upon a reported judgment of Nagpur High Court in the case Firm Baxiram Rudmal and another v. Seth Gokuldas Kisanlal Mahazan, (AIR 1940 Nagpur " 261). In that case, defendants went in appeal against the order of first appellate Court/District Judge, who set aside the Order of Trial Judge, dismissing the suit of the plaintiff on the grounds that further and better particulars were not supplied by the plaintiff, despite extension of time on two occasions. Subsequently, time was extended by the Trial Court upon payment of costs of Rs. 20, but plaintiff again failed to supply further and better particulars; as a result, the suit was dismissed. It was held by the Division Bench of Nagpur in the case Baxiram Rudmal (supra) that the Civil Court is competent to dismiss the suit for non-compliance of an order passed under Order VI, rule 5, C.P.C. It was further observed that "it is not advisable on the other hand to allow litigants to take up a contumacious attitude, holding their facts back until they have had an opportunity of fishing about in their opponent's evidence. That, we think, is this case; and that being so, and bearing in mind the fact that the plaintiff is a businessman, and not an illiterate, acquainted with law Courts, that he was given so many chances; we do not think that there was any ground for interfering with the learned Trial Judge's discretion". I would also like to refer here the cases of H.C. Bevann-Petman and another v. Province of Punjab and others PLD 1954 Lah. 516 where the plaintiff had failed to give the details of property for which they sought joint possession from the defendants in the plaint. After reference to the cases Davey v. Bentinck (1893) I. Q. B. 185) and the case of Firm Baxiram Rudmal (supra), it was held by the then Chief Justice of Lahore High Court, Muhammad Munir (Former Chief Justice of Pakistan) that the 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 a necessary consequence of the striking out of that part of the pleading which relates to that matter. It was further held that rule 5 to Order VI, C.P.C. empowers the Court, when it orders party to furnish particulars, to impose on him any condition and one of the terms may be that if the order is not complied with by the specified date, the pleading of the party concerned shall be struck off. Further reliance was placed by the Lahore High Court on the case Nedungadi Bank Ltd. v. Official Assignee of Madras (AIR 1930 Mad. 473). It was held by the England Court of Appeal in Davey v. Bentinck (supra) that a Court is competent to impose a condition on plaintiff or defendant that the action or the defence (in case of defendant) shall be dismissed unless the particulars are delivered within a certain period. This view was followed by a Division Bench of Madras High Court in Nadungadi Bank (supra) In Gauri Shankar and others v. Manki Kunwar (1924 All. 17) it was held by a Division Bench of Allahabad High Court that if the Court would make the parties comply with reasonable strictness with the provision of Order VI, C. P. C., cases would be more satisfactory decided and a very large amount of public time would be saved. Mr. Nimazi is right when he says that case is liable to be dismissed when plaintiff fails to furnish the further and better particulars within time specified by the Court. Rule (3) to Order XVII, C. P. C; provides, inter alia, that where any party fails to perform any act necessary to further progress of the suit, for which time has been allowed, the Court, may, notwithstanding such default, proceed to decide that suit forthwith. However, I am not inclined to press into service such harsh action as Mr. Ghulzar has undertaken to file today the required particulars. In case, he fails to supply the same during the course of the day, such action tray be made applicable. It is stated by Mr. Mazhar Lari that his client is a foreign company established in Malaysia and that he has filed instant suit through their agent/attorney and thereby he requires sufficient time for addressing communications to his client and in obtaining instructions from the plaintiff's office at Malaysia. He stated that he is filing such further and better particulars today during the course of the day. He has supplied copy of the same to Mr. M. A. M. Nimazi, who still opposes such practice of learned advocate for, the plaintiff. Keeping in view the recent trends of the superior Courts in Pakistan that a lis is to be adjudicated upon merits of the case and no party should be non -suited merely on technical grounds unless such default or negligence is contumacious and gross in nature, I grant oral request of Mr. Mazhar Lari, for supplying further and better particulars today, during course of the day, subject to payment of cost of Rs. 10,000 which shall be paid by the plaintiff within two weeks directly to Mr. M. A. M. Nimazi. Application granted. Mr. Nimazi, requests for two weeks time to file objections against the better particulars and the documents supplied to him today in the Courts by the counsel for the plaintiff. Let both these materials i.e. better particulars and its objections be kept on record as part of their respective pleadings. Q.M.H./M.A.K./P-57/K Order accordingly.