(a) Civil Procedure Code (V of 1908)--
---O.XI, Rr.14 & 16--Documents, production of---Documents not in possession of appellant but in possession of some other party- Provisions of O.XI, R.14, held, could not be extended to application for production of documents--Notice to produce such document to be given in Form 7, Appendix 'C' with such variations as circumstances may require as envisaged under O.XI, R.16--Bare application not competent.
(b) Civil Procedure Code (V of 1908)--
---O.XI, Rr.14, 21 and O.VII, R.11--Documents, non-production of- Defendant not complying with directions of Court for production of document--Provisions of O.XI, R.21, applicable could be resorted to--Penal provisions of O.VII, R.11, held, not applicable.
(c) Civil Procedure Code (V of 1408)--
---O.XX, R.4--Judgment, recording of --Guidance for. Before recording an appealable judgment, the provisions of Order XX, Rule 4, C.P.C.should be borne in mind. The judgment should contain a concise statement of the case, the points for determi nation, the decision thereon and the reasons for such decision.
M.A. Farani for Appellant.
M.M. Bhatti for Respondents.
Date of hearing: 12th March, 1984.
UNITED BANK Ltd., KARACHI VS Malik RASHID AHMAD1987 M L D 2399[Lahore]Before Khizar Hayat and Muhammad Sharif, JJUNITED BANK Ltd., KARACHI--AppellantversusMalik RASHID AHMAD and another--RespondentsRegular First Appeal No.59 of 1983/BWP, decided on 12/03/1984.
JUDGMENT
MUHAMMAD SHARIF, J.--The legality of the judgment and decree dated 26-5-1983 pronounced by the learned Civil Judge I-Class, Ahmadpur East has been questioned in this appeal who had rejected the plaint of the plaintiff-appellant against respondents Nos.1 and 6 only.
2. The relevant facts of this case in substance are that respondents Nos. l to 3 and 6 maintained their respective accounts with the appellant bank whereas respondents Nos.4 and 5 had opened their respective accounts with the United Bank Ltd., Beadon Road, Lahore and Sargodha Rood, Faisalabad respectively. Mr. Manzoor Ahmed Sahir; respondent No.7 was the Branch Manager of the appellant bank. Respondent No.7 on or about 24-5-1979 on the request of defendant No.1 issued two telegraphic transfer orders called the T.Ts. each for Rs.2, 77, 268/- in favour of respondents Nos. 4 and 5 without actually receiving the value thereof. Respondents No3.2 and 3 had issued the cheques mentioned in pare (6) of the plaint but they had not deposited the necessary amount in the bank. Qazi Abaidullah Advocate, respon dent No.6 had assured the payment by the execution of the necessary documents. It has been stated in the plaint that the said T.Ts. amounting to Rs.5,54,536/- were credited to the accounts of defendants No.4 and 5 their Manager, respondent No.7 had colluded with the other respondents in issuing the T. Ts. The appellant bank sought the assistance of the learned trial Court against the respondents for the recovery of Rs.5,54,536/-. Respondents Nos.2, 3 and 4 through separate applications applied that they may be supplied the copies of the T.Ts. and the questioned cheques so that they may be able to file a written statement. Respondent No. 6 also made a similar application calling upon the plaintiff-appellant to produce those documents in Court. Those documents were not produced and the learned trial Court by means of the impugned judgment and decree, rejected the plaint of the appellant bank in part against respondents Nos.1 and 6 only.
3. Order XI, Rule 14 may be reproduced for the facility of reference:-
It shall be lawful for the Court, at any time during the pendency of any suit, to order the' production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. .
It has been provided in the aforementioned provision of law that a Court, at any time during-the pendency of any suit, can order the production by any party of the documents in his possession or power relating to any matter in question in a suit and it can deal with such documents when produced in a just manner. The production of the documents like T.Ts. and the cheques was sought which according to the appellant bank, were in possession of the Federal Investigation Agency in connection with a criminal case against Mr. Manzoor Ahmed Sahir, respondent No.7 who was a Branch Manager and was relieved of his duties as a sequel to a departmental action. These documents were not in possession or power of the appellant bank and the representation of the appellant bank that they were with the F.I. A., should have been considered by the learned trial Court. The provisions of Order XI, Rule 14, CPC cannot be extended to the application made by respondent No.6. It may also be noted that notice to produce document should be given in form No.7 Appendix 'C' with such variations as the circumstances may require as envisaged under Order XI, Rule 16, CPC. The bare application in this regard is not competent and it should have been on a prescribed form.
4. Furthermore, the penal clause under Order XI, Rule 21, if applicable, should have been resorted to and the provisions of Order VII, Rule 11, CPC have erroneously been exacted by the learned trial Court against the appellant bank. It has been stated in the impugned judgment that there was no cause of action against respon dents Nos.1 and 6 and on account of the non-compliance of the order of the Court, the plaint was rejected. Order VII, Rule -11, CPC reads as under:-----
The plaint shall be rejected in the following cases:----
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
It has not been stated in the impugned judgment as to how the plaint does not disclose a cause of action against respondents Nos.1 and 6. Furthermore, there is no question of under-valuation or the insufficiency of stamp as regards the suit and the plaint and the plaint has been rejected against law. Furthermore, the respondents could not refer to any provision in the C.P.C., requiring a plaintiff to supply copies of documents for filing a written statement.
5. For the guidance of the learned trial Court, it may be added that before recording an appealable judgment, the provisions of Order XX, Rule 4, CPC should be borne in mind. The judgment should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The learned trial Court has rejected the plaint against respondents Nos.1 and 6 against law and ,the judgment does not contain a concise statement of the case and the reasons of its decision.
6. It has been contended by the learned counsel for the respondents that the suit was not triable by the learned Civil Judge; as it was for the recovery of loan, it should have been instituted in the Court of the Special Judge, Banking who is having the exclusive jurisdiction to try the same. This point is left open for the parties to be adjudicated by the learned trial Court.
7. We, therefore, accept this appeal and set aside the impugned judgment and decree dated 26-5-1983. Due to the legal intricacies involved in this appeal, we make no order as to costs. The file may be sent to the learned Civil Judge for further proceedings according to law. The parties should appear before the learned trial Court on 10-4-1984.
M. A. K. /M-682/LAppeal accepted:
x
(a) Civil Procedure Code (V of 1908)--
---O.XI, Rr.14 & 16--Documents, production of---Documents not in possession of appellant but in possession of some other party- Provisions of O.XI, R.14, held, could not be extended to application for production of documents--Notice to produce such document to be given in Form 7, Appendix 'C' with such variations as circumstances may require as envisaged under O.XI, R.16--Bare application not competent.
(b) Civil Procedure Code (V of 1908)--
---O.XI, Rr.14, 21 and O.VII, R.11--Documents, non-production of- Defendant not complying with directions of Court for production of document--Provisions of O.XI, R.21, applicable could be resorted to--Penal provisions of O.VII, R.11, held, not applicable.
(c) Civil Procedure Code (V of 1408)--
---O.XX, R.4--Judgment, recording of --Guidance for. Before recording an appealable judgment, the provisions of Order XX, Rule 4, C.P.C.should be borne in mind. The judgment should contain a concise statement of the case, the points for determi nation, the decision thereon and the reasons for such decision.
M.A. Farani for Appellant.
M.M. Bhatti for Respondents.
Date of hearing: 12th March, 1984.
JUDGMENT
MUHAMMAD SHARIF, J.--The legality of the judgment and decree dated 26-5-1983 pronounced by the learned Civil Judge I-Class, Ahmadpur East has been questioned in this appeal who had rejected the plaint of the plaintiff-appellant against respondents Nos.1 and 6 only.
2. The relevant facts of this case in substance are that respondents Nos. l to 3 and 6 maintained their respective accounts with the appellant bank whereas respondents Nos.4 and 5 had opened their respective accounts with the United Bank Ltd., Beadon Road, Lahore and Sargodha Rood, Faisalabad respectively. Mr. Manzoor Ahmed Sahir; respondent No.7 was the Branch Manager of the appellant bank. Respondent No.7 on or about 24-5-1979 on the request of defendant No.1 issued two telegraphic transfer orders called the T.Ts. each for Rs.2, 77, 268/- in favour of respondents Nos. 4 and 5 without actually receiving the value thereof. Respondents No3.2 and 3 had issued the cheques mentioned in pare (6) of the plaint but they had not deposited the necessary amount in the bank. Qazi Abaidullah Advocate, respon dent No.6 had assured the payment by the execution of the necessary documents. It has been stated in the plaint that the said T.Ts. amounting to Rs.5,54,536/- were credited to the accounts of defendants No.4 and 5 their Manager, respondent No.7 had colluded with the other respondents in issuing the T. Ts. The appellant bank sought the assistance of the learned trial Court against the respondents for the recovery of Rs.5,54,536/-. Respondents Nos.2, 3 and 4 through separate applications applied that they may be supplied the copies of the T.Ts. and the questioned cheques so that they may be able to file a written statement. Respondent No. 6 also made a similar application calling upon the plaintiff-appellant to produce those documents in Court. Those documents were not produced and the learned trial Court by means of the impugned judgment and decree, rejected the plaint of the appellant bank in part against respondents Nos.1 and 6 only.
3. Order XI, Rule 14 may be reproduced for the facility of reference:-
It shall be lawful for the Court, at any time during the pendency of any suit, to order the' production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. .
It has been provided in the aforementioned provision of law that a Court, at any time during-the pendency of any suit, can order the production by any party of the documents in his possession or power relating to any matter in question in a suit and it can deal with such documents when produced in a just manner. The production of the documents like T.Ts. and the cheques was sought which according to the appellant bank, were in possession of the Federal Investigation Agency in connection with a criminal case against Mr. Manzoor Ahmed Sahir, respondent No.7 who was a Branch Manager and was relieved of his duties as a sequel to a departmental action. These documents were not in possession or power of the appellant bank and the representation of the appellant bank that they were with the F.I. A., should have been considered by the learned trial Court. The provisions of Order XI, Rule 14, CPC cannot be extended to the application made by respondent No.6. It may also be noted that notice to produce document should be given in form No.7 Appendix 'C' with such variations as the circumstances may require as envisaged under Order XI, Rule 16, CPC. The bare application in this regard is not competent and it should have been on a prescribed form.
4. Furthermore, the penal clause under Order XI, Rule 21, if applicable, should have been resorted to and the provisions of Order VII, Rule 11, CPC have erroneously been exacted by the learned trial Court against the appellant bank. It has been stated in the impugned judgment that there was no cause of action against respon dents Nos.1 and 6 and on account of the non-compliance of the order of the Court, the plaint was rejected. Order VII, Rule -11, CPC reads as under:-----
The plaint shall be rejected in the following cases:----
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
It has not been stated in the impugned judgment as to how the plaint does not disclose a cause of action against respondents Nos.1 and 6. Furthermore, there is no question of under-valuation or the insufficiency of stamp as regards the suit and the plaint and the plaint has been rejected against law. Furthermore, the respondents could not refer to any provision in the C.P.C., requiring a plaintiff to supply copies of documents for filing a written statement.
5. For the guidance of the learned trial Court, it may be added that before recording an appealable judgment, the provisions of Order XX, Rule 4, CPC should be borne in mind. The judgment should contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The learned trial Court has rejected the plaint against respondents Nos.1 and 6 against law and ,the judgment does not contain a concise statement of the case and the reasons of its decision.
6. It has been contended by the learned counsel for the respondents that the suit was not triable by the learned Civil Judge; as it was for the recovery of loan, it should have been instituted in the Court of the Special Judge, Banking who is having the exclusive jurisdiction to try the same. This point is left open for the parties to be adjudicated by the learned trial Court.
7. We, therefore, accept this appeal and set aside the impugned judgment and decree dated 26-5-1983. Due to the legal intricacies involved in this appeal, we make no order as to costs. The file may be sent to the learned Civil Judge for further proceedings according to law. The parties should appear before the learned trial Court on 10-4-1984.
M. A. K. /M-682/LAppeal accepted:
0 comments:
Post a Comment