1. ' By this Civil Revision Application, the applicant has challenged the order dated 21-12-1985 passed by the learned VIII Senior Civil Judge (South) Karachi dismissing the suit of the plaintiff/applicant under Order 11, Rule 21, C.P.C. For non-compliance of orders passed under Order 11, Rule 12, C.P.C., and judgment dated 7-9-1987 passed by the learned IInd Additional District Judge, Karachi (South) in C.MA. No,05/1986 dismissing the Civil' Miscellaneous Appeal filed by the present applicant.
2. ' The brief facts giving rise to the present revision application are that the applicant filed a suit being First Class Suit No,1711/1979 before the learned Vth Senior Civil Judge, Karachi, in which the following relief was claimed.
3. "That, therefore, it is prayed that this Honourable Court may be, pleased to pass judgment and decree as under:
(1) Declare that the Lease Deed dated 1-11-1970 executed by defendant No,2 acting as attorney of defendant No,1 in favour of Defendants Nos.3 and 4 in the office of Sub-Registrar, T. Division, Karachi, under Registration No, 2556 at pages 193 to 200 Volume 192 of Book No, I Addl. On 2-11-1970 is void and of no legal consequences and the defendants have acquired no interest in suit property by virtue of the aforesaid documents.
(2) Restrain the defendants Nos.3 and 4 from doing anything or acting in any manner in pursuance of and under the powers given to them, under the Lease Deed dated 1/2-11-70 executed by defendants Nos.2 acting as attorney of defendant Not in favour of defendant Nos.3 and 4 and registered in the Office of Sub-Registrar, T-Division, at Ka...Achi, under Registration No,2556 at pages 193 to 200 Volume 192 of Book No,I Addl. On 2-11-1970.
(3) Order the defendants to deliver up the above Lease-Deed No,2556 at pages 193 to 200 Volume 192 of Book No,I Addl. In the office of the Sub-Registrar, T-Division, at Karachi, to the plaintiff.
(4) Direct the Sub-Registrar, T-Division, at Karachi, to deliver up the lease-deed dated 1-11-1970 registered with him under No,2556 dated 2-11-1970 at pages 193 to 200 Volume 192 of Book No,I Addl. And cancel the execution and registration thereof.
(5) On adjudicating the instruments to be cancelled the plaintiff be granted rs20,000 compensation or such amount as the Court may determine guided by well-settled principles.
(6) Award costs of the suit to the plaintiff.
(7) Grant such other relief or reliefs as this Hon'ble Court may deem fit and proper under the circumstances of the case."
4. ' That during the pendency of the above suit an application under Order 13, Rule 1 read with Order 7, Rule 14, C.P.C. Was moved for directing the plaintiff to produce the Trust Deed in Court on the basis of which the plaint was filed in the trial Court, on which notice was issued to the plaintiff but it appears that no further order was passed by the trial Court. Thereafter on 5-3-1981 another application was filed by the respondents Nos.1, 3, 4 and legal heirs of respondents No,2 requesting therein for directing the plaintiff/applicant to make discovery on oath regarding the documents which are or have been in their possession or power relating to any matter in dispute in the suit.
5. The copy of which was supplied to the learned counsel for the plaintiff who while accepting the copy noted the following objection on the application: "Received copy with the objection that this is not the proper stage for this application as the matter is to be fixed now for objections and hearing of number of applications."
6. ' It may be stated here that when the above application was moved, an application for passing decree on admission and some other applications were pending disposal before the learned Civil Judge. That the respondents also filed written statement and the matter was adjourned for hearing of the above application as well as several other applications. On 20-4-1981 the plaintiff/applicant filed objections to the application under Order 11, Rule 12, C.P.C. Declining to file affidavit regarding discovery of documents as according to the plaintiff several applications filed by the parties were yet to be decided, and the case had not yet reached the stage of settlement of issues. Thereafter the matter was adjourned from time to time and ultimately the above application was heard on 21-2-1985, and the Court directed the plaintiff/applicant to make discovery on oath regarding the documents in their possession. It appears that the above order was not complied with and therefore, the respondents No,3 and 4 filed an application under Order 11 Rule 21 for dismissal of the suit. The counsel for the plaintiff filed objections on 3-11-1985 stating therein that he had no knowledge of the order passed by the Court earlier directing discovery of documents on oath That it was for the first time on 17-10-1985 when he came to know about the passing of earlier order through the application under Order 11, Rule 21, C.P.C. Had he been aware of the order, he would have filed the affidavit of discovery of documents in time. It was further stated that due to serious illness of his son in those days the learned counsel was mentally upset and therefore, he could not have made the compliance. On 3-11-1985 an application under Section 148, C.P.C. Was filed on behalf of the plaintiff for seeking extension of time to file affidavit regarding discovery of documents. However, this application was dismissed as the plaintiff had failed to comply with the order. Later on the application under Order 11, Rule 21, C.P.C. Came up for hearing before the learned Civil Judge, who was pleased to pass impugned order. The plaintiff/applicant filed Civil Miscellaneous Appeal No,5/1986 which came up before the learned IInd Additional District Judge, Karachi (South) who after hearing the parties has been pleased to dismiss the same vide judgment dated 7-9-1987.
7. ' I have heard Mr. P.K. Shahani and have gone through the R & P of the case. The respondents though served have chosen to remain absent.
8. ' It was contended by Mr. P.K. Shahani that in view of the fact that several interlocutory applications were pending before the learned Senior Civil Judge, the application under Order 11, Rule 12, C.P.C.
9. Was mala fide, and the learned Judge had erred in directing the plaintiff to make discovery on oath. He has further contended that an application for extension of time was moved before the learned Senior Civil Judge but the same was rejected without any cogent reasons. That the matter pertains to the immovable property and the law favours adjudication on merits, and the learned Senior Civil Judge has erred in dismissing the suit on a technical ground specially when the plaintiff had moved an application for extension of time and had not refused to file affidavit regarding discovery of documents.
10. ' I have considered the contentions and have gone through the R & P of the case. While hearing the arguments I inquired from Mr. Shahani whether he is prepared to produce the alleged Trust Deed on which reliance was placed in the plaint, and Mr. P.K. Shahani agreed to produce the same before this Court.. He has actually produced photo-copy of the same along with English translation on 20-8-1991. From the record it appears that sufficient time was allowed to the plaintiff to make discovery on oath regarding documents which were in possession of the plaintiff concerning the dispute in suit. However, looking to the fact that a valuable property was involved in the suit and plaintiff had requested for extension of time, the learned trial Judge could at least give one chance to the plaintiff to make discovery or to produce documents in Court to enable the Court to decide the matter in issue, as penalty by way of dismissal of suit could be imposed only as a last resort.
11. ' In the case of Allahabad Bank, Ltd., Lahore v. Ganpat Rai and others AIR 1929 Lahore 750, it was observed that: "It is settled law, that the stringent provisions of Order 11, Rule 21, C.P.C. Should be applied only in extreme cases, where obstinacy or contumacy on the part of the party or a wilful attempt to disregard the order of the Court is established."
12. ' In the above decision the case of Jaisukh v. Dinanath was relied upon wherein it was observed that:- "The Rule requires to be worked with caution and should be made use of only as a last resort. The practice of the English Court is, and it is always proper, to make the order a conditional one and to grant a little further time for compliance."
13. ' In the case of Central Bank of India Ltd. v. Badey and others AIR 1953 Hyderabad 32, wherein the plaintiff had sought extension of time on the ground that it was not in a position to give inspection, it was observed that: "Unless there was a deliberate or wilful neglect, the Court ought to have granted time to afford an opportunity to the plaintiff to get the books."
14. ' In the present case the diary indicates that the Court itself did not pass orders on the application for a long time and went on adjourning the case from one date to another. However, when the order under Order 11, Rule 12, C.P.C. Was passed, the case of the advocate for the plaintiff was that it was not passed in his presence and therefore, he did not know about it. Certain other applications including one for passing decree on admission were pending before the Court. The plaintiff had also applied for extension of time under Section 148, C.P.C. And therefore, looking to the circumstances of the case it would have been in the interest of justice that the plaintiff should have been granted little more time to afford him a last chance to make discovery, on oath.
15. ' In view of the above circumstances, the impugned order is set aside and the matter is remanded back to the learned VIIIth Senior Civil Judge (South) Karachi, subject to the condition that the Plaintiff shall deposit rs1,000 before the learned Judge as costs to be paid to the respondents. The applicant is further directed to file affidavit regarding discovery of documents as ordered and to produce the Trust Deed before the learned Senior Civil Judge, within three weeks from today.
16. Thereafter the learned Senior Civil. Judge shall fix the matter for hearing of the interlocutory applications which were pending before him before the dismissal of the suit. The learned Judge shall provide opportunity of being heard to the parties and thereafter, to decide the matter in accordance with law.
17. ' Since the suit is of 1979, the learned Judge is further directed to dispose of the same within six months from the date of receipt of R & P and report compliance.
18. ' The office is directed to send R & P to the learned Senior Civil Judge immediately.