' SALAHUDDIN PANHWAR, J.--Through instant application (C.M.A. No,2586/2015) applicant seeks direction to the Deputy Registrar for compliance of order dated 20.01.2015 whereby words "and his family members" were expunged.
2. Learned counsel for applicant inter alia contends that defendants in written statement and counter affidavit used word "all family members are habitual offenders" thereby C.M.A. No,108/2013 was moved and remarks with regard to conduct of family members were directed to be expunged; inspite of such direction Deputy Registrar has failed to expunge such remarks in pleadings in red ink as provided under Rules 126 and 127 of the Chief Court Rules. In support of his contention learned counsel has relied upon PLD 1991 Supreme Court 371, AIR 1966 Madras 161,
3. Conversely, learned counsel for defendant contends that instant application is time barred; plaintiff failed to assail the order dated 20.01.2015, wherein such direction was issued; since there is no direction with regard to expungement of the remarks in red ink so it could not be sought at this stage; such order was passed in presence of parties, at that time such request was not made; plaintiff intends to delay the matter by moving such type of applications; no direction can be altered except by filing of Review Application hence instant application under section 151, C.P.C. Is not maintainable. In support of his contention he has relied upon PLD 1981 Supreme Court 371.
4. Heard learned counsel, perused the record.
5. For the sake of convenience, paragraphs Nos.2 and 4 of application are reproduced herewith:- '2. That this Hon'ble Court was pleased to pass an order by allowing the application of the plaintiff and passing an order dated 20.01.2015 in which separate part highlighted below: "I have heard the learned counsel of the parties and perused the material available on the record on the form of pleadings and appreciated the case law and have come to the conclusion that the defendant No,1 has wrongly implicated the family members of the plaintiff for the pleadings and the remarks with regard to the conduct of the family members wherever appearing in the pleading of the defendants is liable to be expunged."
"4. That Court can direct the registrat,to amend the pleadings by omitting any words by making variations through red ink or even Court can direct the parties to file new amended pleadings which should be clean from all the scandalous words used before."
6. Before going into the merits of the case, I would like to make it clear that the word 'expunge' is not used in the two provisions of the Civil Procedure Code which vest the Courts with jurisdiction to allow amendment, addition or deletion in the pleading, however, the word 'strike out' is used which is synonym to that of 'expunge' as the word 'expunge' has been defined as :- :to strike out, obliterate, or mark for deletion :to efface completely : destroy :to eliminate (as a memory) from one's consciousness ' It would be conducive to refer the provisions viz. Order VI Rule 16 and Order VI, Rule 17, C.P.C. Which are relevant in the instant case, same are as under:-
16. Striking out pleadings. -- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading:-
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.
This provision deals with the amendment or striking but of the pleadings, which a party desires to be made in his opponent's pleadings. In other words, the plaintiff or the defendant may ask the court for striking out pleadings of his opponent on the ground that the pleadings are shown to be unnecessary, scandalous, frivolous or vexatious. This Rule is based on the principle of ex debito justitia (as a matter of right). The court is empowered under this Rule to strike out any matter in the pleadings that appears to be unnecessary, scandalous, frivolous or vexatious or which tends to prejudice, embarrass or delay the fair trial of the suit.
7. In case of Amalgamated Commercial Traders (supra) it is observed as under:- "It is clear from Mullah's Civil Procedure Code 12th Edn., Volume I at page 593, that every Court has an inherent power, quite independently of Order VI, Rule 16, C.P.C. To strike out scandalous matter in any record or proceeding. In Christie v. Christie, (1863) 8 Ch A 499 it is stated that the court has a duty to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter. In re Clive Durant, ILR 15, Bom. 488 the High Court of Bombay refused to allow an application for bail containing defamatory allegations against the trying magistrate to be filed and ordered it to be returned. In Zamindar of Tuni v. Benayya 22 Mad 155, the High Court of Madras ordered the objectionable passages in a Memorandum of appeal alleging partiality against the Judge who decreed the suit to be expunged. Thus under S.151 C.P.C. It is open to the court to expunge scandalous allegations which are irrelevant to the proceedings, even if they are contained in an affidavit. But as pointed out in the passage in Mulla referred to above it must be noted that nothing can be scandalous which is relevant."
8. On the other hand, the provision of Order VI, Rule 17, C.P.C. Reads as:
17. Amendment of pleadings-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
' This empowers the court to allow either party to alter or amend his own pleading and on such application the court may allow the parties to amend their pleadings subject to certain conditions enumerated in the said Rule. Main difference between these two is that through former can ask the court to strike out any thing from pleading of other side subject to certain conditions enumerated in the said Rule while from other one can seek amendment from his own pleading.
9. In view of above legal position, I can safely say that contention of the learned counsel for the defendant that these Rules are not applicable as same relate to joining or striking of parties is not correct hence cannot be endorsed so.
10. At this juncture, it would be conducive to refer the operative part of the order dated 20.01.2015, which is being sought to be implemented which reads as:- "I have heard the learned counsel for the parties and perused the material available on the record on the form of pleadings and appreciated the case law and have come to the conclusion that the defendant No,1 has wrongly implicated the family members of the plaintiff for the pleadings and the remarks with regard to the conduct of the family members wherever appearing in the pleadings of the defendants are liable to be expunged. Words "and his family members" wherever appearing in the Counter-Affidavit and pleadings are hereby expunged. The applications stand disposed of in terms of above order. Office is directed to fix the stay application at Sr. No,1 on the next date of hearing for deciding first. Adjourned. Interim order passed earlier to continue till next date of hearing.
11. From bare perusal of the above order, it is evident that words "and his family members", wherever appearing in the Counter- affidavit and pleadings, were expunged which order, being not challenged, is still holding the field, therefore, a failure of the office or party to follow the subsequent procedure shall, in no way, cause any prejudice or affect upon the legality of the order of this court.
12. Now, it would be germane to reproduce Rules 126 and 127 of the Sindh Chief Court Rules (0.S.), which are as under:- "126. Amendment how to be made.--Subject to the provisions of 0.1, rule 10(4) of the Code, if in any amendment the new matter can conveniently be entered on the original proceeding, such proceeding shall be amended by an interlineating or if the amendment be by omitting some original matter, the same shall be struck out of the record. Such amendment or variation shall be made in red-ink and shall be initialed by the Registrar (0.S.) in' all other cases an amendment proceeding shall be filed and annexed to the original."
The above makes it clear that if new matter is to be entered the same shall be amended by an 'interlineating' but if the amendment is to be through 'omitting' the same shall be by 'striking it out of the record'. The said Rule further explains that:
(i) amendment or variation shall be made in 'red-ink; while
(ii) in all other cases an amendment proceeding shall be filed and annexed to original; The Rule 127 further explains as:- "127. Attestation of amendment.--The attestation of any amendment under 0.11, rules 6 and 7, 0.VI rules 16 and 17, 0.VII rule 11 and 0.XXI rule 17 of the Code shall, unless otherwise ordered by Court, be done by the Deputy Registrar."
Candidly remarks were expunged, but record reflects that in pleadings i.e, written statement and counter affidavit there is no such endorsement by the office in any manner which were to be followed by filing amended written statement and counter affidavit to be annexed with original.
Office was required to comply with the order but patently has not complied with it and none has challenged this order therefore in case if no endorsement is made in the pleadings, order whereby such remarks were expunged would be of no use. Consequently, instant application is allowed. The Deputy Registrar (0.S) is directed to make endorsement in red ink in original which shall follow filing of the amended written statement and counter affidavit wherein the words "and his family members", shall be omitted/struck out, which be annexed with original.