ORDER
In both the above suits applications under Order 11, Rule 21, C.P.C. were filed by plaintiffs whereby they had sought non‑suiting of defendants since they allegedly failed to comply with orders of the Court for discovery of documents on oath. In Suit No.432 of 1994 (hereinafter referred to as the first suit) C.M.A. 1614 of 1995 was heard on 15‑6‑1998, while in Suit No.759 of 1997 (hereinafter referred to as the second suit) C.M.A. 4559 of 1998 was heard on 14‑9‑1998. Since both the C.M.As involve similar question of law the reasons for dismissal are being given herein by a common order.
In the first Suit (Suit No.432 of 1994), which was a suit for declaration filed on 26‑6‑1994, the defendants Nos. l and 2 filed their written statement on 14‑12‑1994. The plaintiff then filed an application under Order 11, Rule 12, C.P.C. for discover of documents on oath by defendants. This application came up before the Additional Registrar of this Court on 13‑2‑1995 when the Registrar passed order for filing of affidavit of documents within two weeks. The defendants filed their affidavits on 1‑3‑1995, but the Additional Registrar noted that in his affidavit the defendant No.2, had not disclosed the documents. The Additional Registrar, however, did not reject the affidavit nor did he pass orders for filing a fresh affidavit in accordance with rule. He merely noted that the affidavit of defendant No.2 were taken on record at the risk of defendant No. 2. The plaintiff then filed application under Order 11, Rule 21 seeking to non‑suit the defendants on the grounds that the defendants affidavits were not in accordance with rules and also that defendant No. l had not disclosed all the documents. Both the defendants on their part deny the allegations of plaintiff and maintain that they had filed their affidavits in accordance with rules.
In so far as the second suit (Suit No.759 of 1997) is concerned, it is a suit for recovery of Rs.4,10,8,200 filed on 31‑5‑1997. The defendants filed their written statements on 13‑11‑1997. Subsequently plaintiff filed an application under Order 11, Rule 12, C.P.C. which came up before Additional Registrar of this Court on 3‑3‑1998 when defendants filed an application under section 148, C.P.C. seeking time to file objections to plaintiff's application under Order 11, Rule 21. The Additional Registrar allowed time to the defendants. When the application came up before Additional Registrar again on 14‑4‑1998, the defendants filed another application under section 148, C.P.C. seeking time but the Additional Registrar dismissed this application and fixed the matter for issues. It must be however, noted that they alongwith this application the defendants also filed a statement, dated 14‑4‑1998, in which he stated that he relied on documents filed by the plaintiffs alongwith his plaint and also on documents filed by them with their written statement. It is significant to note that the Additional Registrar at no stage passed a specific order for filing of an affidavit of documents. The plaintiff then filed an application under Order 11, Rule 12 seeking to non‑suit the defendants on the grounds that the defendants had failed to file affidavit of documents. The defendants on the other hand. maintain that since they relied on documents filed by them with their written statement and had filed a statement to this effect, upon rejection of their applications under section 148, C.P.C. seeking time to file objections to plaintiff's application for discovery of documents on oath, they were not bound to file any affidavit of documents. The fact, therefore, remains that the defendants had indeed indicated the documents that they relied upon through a statement but it was not done in accordance with rules.
Before embarking on merits of the applications it may be advantageous to reproduce Order 11, Rule 21, C.P.C.
"Non‑compliance with order of discovery.‑‑ Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly."
By now it is settled that provisions of Order XI, Rule 21, C.P.C. being I penal in nature, these are to be strictly construed. What then are the ingredients of this provision? It is clear that for this provision to be applicable, it is necessary that‑‑
There should be a specific order of the Court for filing of affidavit of documents.
(2 The defaulting party wilfully fails to comply with the order.
The purpose of the provision with regard to discovery of documents on oath is to compel the opposing party to disclose all documents that he relies on so that the other side is not surprised later. It also serves to nip the evil in bud, as it were, inasmuch as frivolous proceedings can be summarily disposed of at an early stage. But since the penalty for non‑compliance with this provision is so stringent, it is necessary that the penal provision must be strictly construed and the party concerned must be non‑suited only if the abovementioned ingredients are fully met. The tenor of law is such that it contemplates, purposeful avoidance or refusal by the party concerned to file the affidavit of documents with mala fide motives. If, thus, mere technicality regarding the discovery, not being in accordance with a certain format, is allowed to non‑suit a party, it will be travesty of justice. Somewhat similar views are expressed in the case of Mrs. Bilqees Rehman v. Anjum Hameed reported in 1988 SCMR 80, by which I am greatly fortified.
Viewing the applications in the two suits in the light of above observations of mine, it is clear that in the first suit the only objection of the plaintiff is that the affidavits were not in accord with the rules. All that was required was that the Additional Registrar should have directed the parties to file fresh affidavits. In the absence of such orders, the affidavits would be deemed to have been accepted by the Additional Registrar alleit at the risk of party concerned and the Court may draw adverse inference because of it at the time of trial. This would by no means constitute wilful failure of the defendants to comply with the orders of the Court.
In so far as the second suit is, concerned even the first ingredient was missing, that is to say that there was no specific order by the Additional Registrar to file affidavit of documents and hence there was no question of failure to comply with the orders let alone wilful failure. In any case the defendants had filed a statement showing the documents they relied on. It may not have been incorrect format but it fulfilled the purpose of the provision of law inasmuch as the plaintiff became aware of the documents relied upon by the defendants for their defence. If, therefore, subsequently, at the time of trial the defendants rely on other documents besides the ones mentioned in their statement; as I have held earlier, adverse inference can be drawn by the Court.
I, therefore, find no merit in the aforesaid applications being C.M.A. No. 1614 of 1995 in Suit No.432 of 1994 and C.M.A. No.4559 of 1998 in Suit No.759 of 1997, and these are accordingly dismissed.
Q.M.H./M.A.K.//H‑67/KApplication dismissed
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