1. ' KHALID ALI Z. QAZI, J--- This is an application, filed by the defendant, under Order VII, Rule 11 read with section 151, C.P.C., seeking rejection of plaint on the ground that the suit is incompetent and not maintainable, as the plaint was not supported by a statement of account which is the mandatory requirement of section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001. The application is supported by affidavit of principal officer of defendant No,1 wherein it has been stated that the plaint in the instant suit does not disclose any cause of action against the defendant bank and the suit is an abuse of the process of law.
2. ' In reply to this application, plaintiff has filed counter-affidavit of Abdul Mateen, Managing Director of plaintiff and denied all the averments and allegations made in the application and its supporting affidavit. It is stated that the application filed by the defendant is misconceived, untenable. Without substance and liable to be dismissed in limine. It is also denied that the suit as framed and filed is incompetent and not maintainable. It is also denied that there is non- compliance of Section 9(2) of Financial Institutions (Recovery of Finances) Ordinance, 2001. It is further stated that the application is hit and barred by the principles of res judicator, as the defendant has filed Special High Court Appeal No,175 of 2004 against the order dated 12-5-2004 passed in this suit on the same pleas/contentions as raised in this application, therefore, the defendant is estopped to raise its same pleas in this application. It is further stated that the allegation that the plaint does not disclose the cause of action is without any substance. It is further stated that the plaint cannot be rejected in piece meal even if one prayer contained in the plaint is found entertain-able, the proceedings are liable to be continued. The plaintiff, therefore, prayed for dismissal of the application with compensatory cost.
3. ' I have heard Mr. Mansoor-ul-Arfin learned counsel for the plaintiff and Mr. Badar Alam learned counsel for the defendant and have also perused the case record.
4. ' Mr. Badar Alam learned counsel for the defendant has reiterated the same facts, which have been stated in the application and its supporting affidavit. He has further argued that the provisions of subsection (2) of section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 are mandatory in character is made manifest by the use of the expressions "(2) the plaint shall be supported by a statement of account" in the said subsection (2) of section 9 of Ordinance 2001, thus, according to him use of the word "shall"; prima facie the expression "shall" when it appears in a statute is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to it whether it is reasonably practicable to do it or to do something like it instead.
5. ' In support of his arguments learned counsel has placed reliance upon the cases of Muhammad Yousuf v. A.D.B.P. 2002 CLD 1270; Bela Automotives Limited v. Habib Bank Limited 2005 CLD 893; Messer C.M Textile Mills (Pvt.) Limited and 5 others v. Investment Corporation of Pakistan 2004 CLD 587; Baba Farid Ghee Industries v. National Bank of Pakistan 2002 CLD 669; Bankers Equity Ltd. And 5 others v. Messer Bentonite Pakistan Ltd. And 7 others 2003 CLD 9341 and Muhammad Mushtaq and others v. Bashir Ahmed Chudhary and others PLD 1991 Lahore 400.
6. ' In rebuttal, Mr. Mansoor-ul-Arfin learned counsel for the plaintiff has vigorously argued that the application is misconceived not maintainable under the law and liable to be dismissed with cost.
7. He further argued that the cases law cited in the application are distinguishable and cannot be made basis for rejection of the plaint under Order VII, Rule 11 C.P.C, as the same have already been considered by this Court in its order dated 12-5-2004. He urged that the cause of action has been reasonably disclosed in Para-21 of the plaint and as such the allegation that the plaint does not disclose the cause of action is without any substance. In support of his contention, learned counsel has placed reliance upon the cases of Atta Muhammad Qureshi v. The Settlement Commissioner Lahore and 2 others PLD 1971 SC 61; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134 and Bela Automotives Limited v. Habib Bank Limited 2005 CLD 893.
8. ' I have given due consideration to the arguments advanced by the learned advocates for the parties, gone through the material available on the record, relevant laws, case law cited at the bar.
9. I find no force in the submissions of the learned counsel for the defendant. The cases referred by learned counsel are distinguishable from the case in hand. Mr. Badar Alam learned counsel for the defendant places implicit reliance on the case of Muhammad Yousuf v. Agricultural Development.
10. Bank of Pakistan 2002 CLD 1270, whereby the learned Lahore High Court upheld the rejection of plaint in similar circumstances. Most humbly I find myself in disagreement with the said observations of the learned Lahore High Court. I deem it appropriate to reproduce section. 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001:-- "9(2). The plaint shall be supported by a statement of account which in the case of a financial institution shall be duly certified under the Bankers Books Evidence Act, 1891 (XVII of 1891), and all other relevant documents relating to the grant of finance. Copies of the plaint, statement of account and other relevant documents shall be filed with the Banking Court in sufficient numbers so that there is one set of copies for each defendant and one extra copy."
11. ' I am in agreement with the observation of My Lord Mr. Justice Mushir Alam (as he then was), in this case which has been reported in 2005 CLD 893 which may be read as under:-- "Mr. Mamnoon Hassan, learned counsel for the plaintiff states that statement of account for whatever worth was filed along with the Replication to the leave to defend application (Annexure .E.). He further submits that the purpose of filing the statement of account as would appear from the section 9(2) of ibid relied upon by Mr. Badar, is to bring to knowledge of the defendant as to nature of financial claim as claimed by the borrower, customers or the Financial Institution, as the case may be. From para-20 of the plaint, it appears that plaintiff has already given the break-up of the statements of his claim quantifying the mark-up which were allegedly illegally charged. Prima facie and tentatively, I am of the view that a statement even embodied in the body of the plaint filed by the Borrower or Customer would meet the requirement of section 9(2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 as the purpose of section 9(2) ibid in my opinion would be substantially served where the plaintiff with sufficient detail gives such break-up in the body of the plaint. The purpose is to inform the defendant either by way of incorporating the statement of account in the body of plaint or in a conventional manner by filing along with the plaint the statement of the Borrower/customer is not to be authenticated in terms of Bankers' Book of Evidence as in the case of Financial Institution."
12. ' As regards case of Muhammad Mushtaq (Supra) it was a case of registration of a document in respect of transfer of property under Registration Act (XVI of 1908) and it cannot be made applicable in present case. The word "shall" having not been defined in the Ordinance 2001 is to be construed in its ordinary sense and not as a term of art. According to the Oxford Dictionary,'
13. Thesaurus and Word Power Guide, at Page 1185 right side the word "shall" mean "expressing the future tense" (2) expressing a strong assertion or intention (3) A expressing on instruction or command (4) used in questions indicating offer or suggestion. In case of Government of Pakistan v. Ghulam Moinul Ahmed DLR 1965 Dacca 377 it was held that phrase "shall be" in section 79 Cr.P.C.
14. Is not mandatory. It is well-settled that the use of the word "shall" does not always mean that the enactment is obligatory or mandatory. It depends upon the context in which the word B "shall" occurs and the other circumstances. Reliance may be placed on case of State of M.P. v. Azad Bharat Finance Co. (1996) 2 SCA 336.
15. ' In case of Abdul Rahim and 2 others v. United Bank Limited PLD 1997 Karachi 62, a Division Bench of this Court has held at Page 80 Placitum B that words "shall" and "may" when used in a provision are interchangeable.
16. ' In the case of Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others PLD 1972 SC 326, the full Bench of Honourable Supreme Court of Pakistan at Page 330 Placitum A has been pleaded to hold that the words "may" and "shall" are interchangeable, depending on context in which they are used and not to be interpreted with the rigidity which is attributed to them in ordinary parlance.
17. ' In the case of S. Hukam Singh Sham Singh and another v. S. Sardul Singh Kirpal Singh and others AIR 1953 Pepsu 133, the Division Bench of Pepsu Indian High Court had held that the word "shall" in section 82 of the Representation of the People Act, 1951, casts on the petitioner, a duty to implead all the duly nominated candidates as respondents. However, the prescription provided by the word "shall" has to be considered as mere directory the neglect of which does not affect the validity of the petition or involve any other consequence than a liability to a penalty, if any, were to be imposed by the Tribunal for breach of the prescription.
18. It is well-settled proposition of law that the intention o legislature has to be gathered from the whole statute. Reliance C may be placed on the case of Rani Drigraj Kuer v. Raja Sri Amar Krishna Narain Singh AIR 1960 SC 444 at pages 448-449.
19. ' In section 6(2) Land Acquisition Act, the word "shall" used in subsection (2) of section 6 should be construed to be only directory but not mandatory. Reliance may be placed on (1955) ISCJ 332 at 336 in case of State of Haryana v. Raghobir Dayal.
20. ' In Crawford's Statutory Construction, 1940 Edition, Paragraph 262 at Page 519, 1989 reprint, the author has expressed his opinion as under :-- "262. Mandatory and Directory or permissive words.--Ordinarily the words "shall" and "must" are mandatory, ,and the word "may" is directory, although they are often used interchangeably in legislation. This use without regard to their literal meaning generally makes it necessary for the courts to resort to construction in order to discover the real intention of the legislature.
21. Nevertheless, it will always be presumed by the Court that the legislature intended to use the words in their usual and natural meaning. If such a meaning, however, leads to absurdity, or great inconvenience, or for some other reasons is clearly contrary to the obvious intention of the legislature, then words which ordinarily are mandatory in their nature will be construed as directory, or vice versa. In other words, if the language of the statute, considered as a whole and with due regard to its nature and objection, reveals that the legislature intended the words "shall" and "must" to be directory, they should be given that meaning. Similarly, under the same circumstances, the word "may" should be given a mandatory meaning, and especially where the statute concerns the rights and interests of the public, or where third persons have a claim de jure that a power shall be exercised, or whenever something is directed to be done for the sake of justice or the public good, or is necessary to sustain the statute's constitutionality."
22. ' Yet the construction of mandatory words as directory and directory words as mandatory should not be lightly adopted. The opposite meaning should be unequivocally evidenced before it is accepted as the true meaning; otherwise, there is considerable danger that the legislative intent will be wholly or partially defeated.
23. ' While the words "shall", "must" and "may" are the ones generally involved in determining whether a statute is mandatory or merely permissive, there are other words and expressions which create the same problem, and to which the same principles are equally applicable. For instance, chief among these less widely used words or expressions,' are "shall have the power", "shall be lawful", "shall be the duty". "may and shall" or "shall and may" and the words "authorized" and "ought".
24. It depends on the language employed in particular statute as to whether the word "shall" is to be treated as mandatory or directory. In the present case, the legislature, itself has made a distinction between the provision of section 9 and section 10 of Financial Institutions (Recovery of Finances)
25. Ordinance, 2001. Under section 9, no consequences have been provided in case of non-filing of statement of account along with the memo. Of plaint but in section 10 consequences have been provided in case of failure the strict compliances thereof. There E is no clear indication as to the manner in which such a statement of account is to be filed. The manner or mode of filing of statement of account is a matter of procedural formality as no consequences have been provided for failure of strict compliance of section 9(2) of Financial Institutions (Recovery o Finances)
26. Ordinance, 2001. Moreover, the plea taken by the defendant for rejection of plaint that the plaint is not accompanied with the statement of account was fully considered and examined by this Court in its order dated 12-5-2004 and issues have been framed which includes the contention raised by the learned counsel for the defendant.
27. ' As regards the contention of learned counsel for the defendant for non-disclosing cause of action in plaint has no force as the cause of action has been reasonably discussed in para-21 of the plaint.
28. Under the circumstances, I am of the view that law always favour adjudication on merits and it is cardinal principle F of law that technicalities should not be allowed to prevail to defeat the ends of justice. Therefore, application is not maintainable and liable to be dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.