Plaint

Customers filed appeal as the Banking Court, after dismissing their application to leave to defend, decreed suit against them, relying on submitted documents

Validity

Pertinently, S. 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001') provides that the plaint shall be "supported" by a "Statement of Account" which shall be duly certified under S. 2(8) of Bankers' Books Evidence Act 1891 ('the Act 1891')

The "Statement of Account" is a continuous daily posted record showing in detail all debits , credits and balance as on the close of the period , giving dates and description, permitting customer to verify the Bank's record with his own

Therefore, the "statement of account" is a basic document that is filed by a financial institution before the Court in discharge of its mandatory duty under S. 9(2) of Ordinance, 2001

If such "statement of account" is not filed along with the plaint, a customer will obviously remain totally unaware of the record

In the present case, the Statement of Account filed by the Respondent-Bank with plaint in the suit, being incomplete and unsubscribed by the principal accountant or manager, did not fulfill the mandatory requirement of the provisions of S. 9(2) of the Ordinance 2001 and Ss. 2(8) & 4 of Bankers' Books Evidence Act 1891 ('the Act 1891'), therefore, the same did not qualify as a "Statement of Account" duly certified under the Act 1891, as it did not contain the details of entire transactions between the respondent /Bank and appellants/customers during finance limit period

Besides, Statement of Account was undated and had been subscribed allegedly by an attorney of the Respondent-Bank instead of being subscribed by its principal accountant or the manager, as required under S. 2(8) of the Act 1891

It was only the principal accountant or the manager of the financial institution who alone could certify the statement

Hence, a Statement of Account signed/subscribed by the Attorney of the bank cannot be treated as a duly certified copy within the meaning of S. 2(8) of the Act 1891

It appeared that the Trial/Banking Court had ignored the mandatory provisions of S. 9(2) of the Ordinance, 2001 and Ss. 2(8) and 4 of the Act, 1891 while decreeing the suit of the Respondent and had wrongly treated the Break-up of Account as Statement of Account which did not contain the requisite information and detail as required under proper statement of account; hence, the impugned judgment/decree passed by the Trial Court was not sustainable in law

Appellate / High Court set-aside the judgment and decree as well as dismissal order of application for leave to defend the suit and remanded the case to the Banking Court to decide the application of the appellants for leave to defend as well as the suit afresh, while the respondent-Bank would be at liberty to file proper Statement of Account in terms of S. 9(2) of the Ordinance, 2001 and Ss. 2(8) & 4 of the Act 1891, and in such case, the appellants may raise/file such objections thereon as they may deem fit

Appeal, filed by customer, was allowed accordingly.

Weaknesses of the evidence of the plaintiff does not entitle respondents for out-right decretal of their suit.

Plaintiff cannot deserve any benefit from lapses or weaknesses of defendant's case.

Plaintiff must prove his case on the strength of his own evidence; he cannot take benefit from weaknesses of defendant's case.

Courts were to look at the substance of the plaint not its form, and in appropriate cases the courts could mould the relief within the scope of the provisions of O.VII, R.7, of Civil Procedure Code, 1908 ("C.P.C.")

Courts were empowered to grant such relief as the justice of the case may demand, and for purposes of determining the relief asked for or the relief to which the plaintiff was entitled, the whole of the plaint was to be looked

Provisions of O.VII, R.7 of the C.P.C. empowered the courts to grant an effective or ancillary relief even if it had not been specifically prayed for.

View taken by the Supreme Court in Mian Pir Muhammad and another v. Faqir Muhammad and others (PLD 2007 SC 302) approved.

Mandatory for the pre-emptor to mention in the plaint the place, date, time and name of the witnesses before whom the Talb-i-Muwathibat was made; as non-compliance thereof was fatal (to the suit).

When a party alleged a specific fact it was bound to prove the same.

Pre-emptor in his plaint inadvertently mentioned the sale consideration paid by vendee to vendor as Rs. 14,00,000, instead of the actual figure of Rs.14,40,000 mentioned in the mutation

Trial Court ordered pre-emptor to deposit one-third of the sale consideration of the property in court

Pre-emptor deposited in court 1/3rd of the amount shown in the plaint i.e. one-third of Rs. 14,00,000

Vendee took the objection that pre-emptor made a short deposit in the court, as the amount to be deposited should have been 1/3rd of Rs. 14,40,000 mentioned in the mutation

Trial Court dismissed the pre-emption suit for non-compliance with order of the court to deposit 1/3rd of the actual sale consideration in court

Appellate Court allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court and remanded the case to Trial Court

Validity

Where a court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the pre-emptor who deliberately committed the default and it was not a bona fide mistake

In the present case, due to mistake of fact the draftsman/lawyer (for pre-emptor) inadvertently without any mala fide intent mentioned the sale consideration as Rs.14,00,000 , instead of Rs.14,40,000

For the correction of the same, the, pre-emptor promptly applied to the Trial Court for amendment of the plaint, which fact showed his bona fide intention

Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670 thus by not depositing the additional amount of Rs.13,330, he could not be held to be in deliberate non-compliance with the court order

Trial Court had not specifically directed pre-emptor to deposit 1/3rd of the sale consideration mentioned in the mutation

Court was duty bound to clearly tell the plaintiff/pre-emptor that he was required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc.

Once a wrong was committed by the Trial Court causing prejudice to the pre-emptor, then, the pre-emptor could not be visited with penalty of dismissal of his suit

Appellate Court had rightly set-aside judgment of Trial Court and allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court

Supreme Court directed that if the pre-emptor had not deposited so far the remaining amount of Rs.13,330 as worked out on the basis of 1/3rd of the total sale consideration of Rs.14,40,000, then he should deposit the same in Trial Court within twenty days

Appeal was dismissed accordingly.

Nobody can be allowed to lead evidence in departure of his pleadings.

Right of pre-emption could not succeed on account of such lapse.

Scope of the suit was to be determined with reference to averments made in the plaint only and not with reference to written statement.

Attorney was verbally authorized to file suit and later on that authority was re-affirmed by executing power of attorney in his favour, on the basis of which amended plaint was later on filed by the same attorney, when his power of attorney was already in field

If there was any irregularity, that was rectified by principal later on.

Plaintiff bank was to state his claim in plaint by specifying amount of finance availed by defendant from financial institution; amounts paid by defendant to financial institution and debits of payments; and amount of finance and other amounts relating to finance payable by defendant to financial institution upto the date of institution of the suit and supporting evidence.

Such relief could not be granted.

Plaintiff filed suit for recovery of an amount of US $101,908.02 etc. 'claiming therein that the defendants being seller of "Crude Degummed Soya Bean Oil" were bound to provide the same with the agreed quantity of weight 15749.344 metric tons at C&F at "K" as per contract rather than short quantity of 15,554.264 metric tons causing loss to the plaintiffs by short receipt of 195.080 metric tons

Suit was contested by defendants on the ground that claimed quantity of "Crude Degummed Soya Bean Oil" had been handed over to carrier who in receipt thereof issued their clearance on board tankers and denied liability on behalf of defendants and the liability, if any, was of shipping company

Trial Court dismissed suit do the ground that carrier company was a necessary party

Appellate Court on appeal allowed the same and found that carrier was not necessary party as they were made -party through local agent who executed customs bond-Contentions of the defendants were that the plaint of the suit had been signed by a person who did not have authority or resolution of Board of Directors authorizing him to sign the same

Validity

Resolution of Board had to be passed before institution of proceedings and not after proceedings had been instituted

Plaint was incompetently filed and in law it had to be presumed that the same was never filed

High Court allowed the second appeal by setting aside the order of Appellate Court and restored the order of Trial Court with costs.

Duty of plaintiff was to state clearly material facts into pleadings showing how alleged fraud was committed or how such document was fake or fraudulent

Vague, ambiguous and generalized pleas could not fulfil requirements of O.V, Rr.2 & 10, C.P.C.

Both the Courts below concurrently rejected the plaint on the ground that the same had not disclosed any cause of action against the defendants-Validity-Plaint did show that the plaintiffs were owners of the property in the scheme and as owners the plaintiffs had a right to all the amenities provided for in the scheme as sanctioned, as such the same followed that if the contents of the plaint were proved by the plaintiffs through evidence, they would be able to establish their right to have the amenity plots maintained for the use provided for in the scheme

Such test had to be applied for the purpose of determining if the plaint disclosed a cause of action

Both the Courts below were not justified in holding that the plaint had not disclosed any right vested in the plaintiffs in respect of the suit land

Order passed by both the Courts below was set aside and the case was remanded to Trial Court for decision afresh.

Contents of one paragraph of the plaint shall be deemed embodying in the subsequent para of the plaint.

Averments made in the plaint were to be presumed to be correct for the purpose of giving cause of action to a Court of law and it was to be decided ultimately after the conclusion of the trial as to whether plaintiff had any cause of action to file the suit against the defendants.

Court can take notice of subsequent events for removal of defects in the plaint.

Plaint Relief clause-Not happily worded-May be read with other clauses of plaint to make meaning clear.

Plaint -Signed by only one of two attorneys appointed by plaintiff-Objection raised 10 years after institution of suit disallowed-Civil Procedure Code (V-of 1908), O. VI, r. 14.

Plaint -Amendment of-May be allowed at any stage in certain circumstances-Allowed at stage of second appeal-Suit for khas possession changed into one for joint possession.

Civil Procedure Code (V of 1908), O. VI, r. 17. In their Lordships' view the Court of Appeal in India was right to refuse leave to amend, since at the time when leave to amend was sought any claim under the alleged implied agreement would have been barred by limitation.