' Mr. Nizam Ahmed, learned counsel, for defendant No,1 has filed application under Order XI Rule 21, C.P.C. With the prayer that this Court be pleased to order that suit filed by the plaintiff be dismissed for want of prosecution on the ground that on 15-2-1995, on the application filed by defendant No,1, the plaintiff was directed to file the affidavit of documents within one month. The time for filing the affidavit of documents had expired on 15-10-1995 and the plaintiff has failed to file the said affidavit of documents and has also failed to comply with the orders of the Court dated 15-2-1995. The learned counsel for defendant No,1 has contended that the power of attorney filed by the plaintiff is not duly authenticated. That on the power of attorney so executed, the requisite four rupees stamp is not affixed on the power of attorney executed to the Stamp Act showing stamp duty on instruments, which reads as follows:--- "S.No, Description of Instrument Proper Stamp Duty.
42. Notarial Act; that is to say, any instrument, endorsement, note, attestation, certificate or entry not being a Protest No,50 made or signed by Notary Public in the execution of the duties of his office, or by any other person lawfully acting as a Notary Public four Rupees.
' The learned counsel for defendant No,1 further contended that the plaintiff has failed to comply with the order of the Court; that the power of attorney is attested by Notary Public but no notarial stamp, as required under Article 42, hereinabove mentioned, is affixed on the power of attorney; that paragraph (2) of the affidavit of documents is not in conformity with sub-rule (2) of Article 42 of the Stamp Act; that the power of attorney is executed on 19-7-1975, while the order of the Court is dated 15-2-1995; that the power of attorney is executed by the plaintiff after five months of the order; that no personal affidavit of the plaintiff is filed to explain the delay and that the plaintiff has intentionally failed to comply with the orders of the Court.
' Mr. Khalid Athar, learned counsel for the defendants Nos.4 and 5 has adopted the arguments of Mr. Nizam Ahmed, learned counsel for defendant No,1: ' Mr. Muhammad Ali Mazhar, learned counsel for defendants Nos.2 and 3 stated at the Bar that he has nothing to say in the matter.
' On the other hand, Mr. Akhtar Hussain, learned counsel for the plaintiff has contended that the application under Order XI, Rule 21, C.P.C. Not in accordance with rule 74 of the Sindh Chief Court Rules (0.S), which reads as follows: "74.---(1) Except where otherwise provided by these rules or by are law for the time being in force, an interlocutory application--- (a)...................
(b)...................
(c) shall be supported by affidavits stating clearly the grounds and d facts on which the application is based; and...."
' The learned counsel for the plaintiff further contended that the matter of 1993 and even the issues are not settled between the parties; that in this matter defendants Nos.4 and 5 were barred from filing the written statement; that delay in "filing the affidavit of documents is not deliberate or intentional and n prejudice would be caused to the defendants if the affidavit of documents, file by the plaintiff, is taken on record; that the plaintiff does not presently have the documents mentioned in the Second Schedule as part of this affidavit but has applied to the relevant authorities for grant of certified copies and intend produce those documents wherever they are made available; that the general power of attorney is executed by the plaintiff in favour of Mr. Abu Bakr Zardai which is signed by the Notary Public bears the signature and stamp of Hussain Iran Dost, the learned Notary Public of Karachi. General power of attorney which is unstamped, and not properly stamped, is subject only to dirabilit specified in section 35 and the disability can be removed in the manner prescribed in sections 35-36 as such power of attorney itself is not invalid. TIN by now it is settled law that technicalities should not stand in the way c administration of justice and the cases are to be decided by the Courts after giving full opportunities to the parties to contest the matter and that litigation should not be short circuited on the basis of technicalities and procedural lacunas. In support of his contentions, Mr. Akhtar Hussain, the learned counsel for the plaintiff has cited the following case law:---
(1) PLD 1975 SC 678---Manager, Jammu & Kashmir, State Property I Pakistan v. Khuda Yar and another, Hamoodur Rehman, CJ as h Lordship then was, speaking on behalf of the Supreme Court in h observations has observed as under:- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest justice. In fact while considering the importance of legal technicalitily and rules of procedure in the administration of justice, it is inevitable I recall the various evolutionary stages in the transition from justice ' without law or primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and secure it against arbitrariness, errors of individual judgment and mala fide. Over a period of time this development of codes and rules led to the evolution of what is called "jurisprudence of Conception" a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra-formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, Rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters."
' In the similar context, Cornelius, CJ (as his Lordship then was) in Province of East Pakistan v. Sirajul Haq Patwari PLD 1966 SC 854 has observed as-follows:--- "It was, as I have already remarked, a res of the highest order and when it was placed in jeopardy by the petitions moved in these cases, it was the duty of the High Court in interpreting and applying the relevant instruments including the Constitution to bear in mind the great maxim ut res mages valet quam per eat, that is to say, that the affair should prosper rather than be brought to destruction. It may be that the maxim that was borne in mind was rather fiat justitio rual coelum, that is to say let justice prevail though the heavens should fall."
(2) PLD 1978 SC 279 (Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique), Dorab Patel, J. As his Lordship then was for the Full Bench of the Supreme Court has held as under:- 'Again, if an instrument is invalid, it should not be admissible in evidence, and it is so stated in section 35. But the next section prescribes that if an instrument has been admitted in evidence, however erroneously: its admissibility cannot be questioned at any stage thereafter, and even the Appellate Court's powers to entertain an objection about the admissibility of documents have been removed by section 61, which instead empowers the Appellate Court to collect the duty payable on the unstamped instrument together with a penalty. These provisions as well as other provisions in Chapter IV of the said Act, such as sections 33, 38, 39 and 40, can only lead to the conclusion that the object of the Legislature in enacting the said Act was to protect public revenues and not to interfere with commercial life by invalidating instruments vital to the smooth flow of trade and commerce. An arbitration' agreement, which is unstamped or is not properly stamped, is subject only to the disabilities specified in section 35, and these disabilities can be removed in the manner prescribed in sections 35 and 36. But such an agreement is not invalid."
(3) 1988 SCM R 82 Messrs United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi, Zaffar Hussain Mirza, J. (as his Lordship then was) in a Division Bench decision has held as under:--- ' . This Court had emphasised the proposition that the principal object behind all legal formalities is to safeguard the paramount interest of justice. Mere formality or technicality cannot, therefore, be allowed to prevail to the detriment of the interest of justice."
(4) 1992 SCM R 1974 (Allah Ditta v. Barkat Ali and 3 others), A.S. Salam, J. (as his Lordship then was) has observed as under:--- " the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats substantive right is defective to that extent. The ideal must always be a system that gives to every person what is his."
(5) 1993 M LD 767 (Perveen Akhtar v. Daniel Gulzar and another), Ch. Mushtaq Ahmad Khan, J. Has held as under:--- "Even otherwise, technicalities should not stand in way of administration of justice and the causes should be decided after giving the parties full opportunities to contest. The litigation should not be short circuited on the basis of technicalities and procedural lapses."
' I have heard the learned counsel for the parties at length and have also penised the file of the suit.
It would be pertinent to reproduce order of the Court dated 15-1-1995, which reads as under:--- "15-1-1995 ' Mr. Farooq H. Naek, Advocate for the plaintiff.
' Mr. Nizam Ahmad, Advocate for defendant No,1 .
' Mr. Khalid Athar, Advocate for defendants. Nos.4 and 5. Mr. Muhammad Ali Mazhar, Advocate for defendant No,3.
' Mr. Naek requests that the hearing of this application be adjourned because he wants to make some other application which may have bearing on this application Adjourned.
2. This is an application by the defendants Nos.4 and 5 under Rule 159 of the Sindh Chief Court Rules praying that the orders passed on 11-4-1994 and 27-4-1994 by the Additional Registrar debarring them from filing W/S be recalled on the grounds mentioned in the affidavit in support of the application, Mr. Naek says that the grounds disclosed in the affidavit are not sufficient grounds for recalling the orders passed by the Additional Registrar. However, I feel that no prejudice would be caused to the plaintiff if the defendants Nos.4 and 5 are allowed to file their W/S; and that such prejudice as may have been caused to them can be remedied by costs. This application is, therefore, granted and the W/S said to have been filed by the defendants Nos.4 and 5 are taken on record subject to the defendants Nos.4 and 5 paying the plaintiff Rs,2,000 each for costs.
3. Adjourned."
The learned counsel informed the Court that a cheque of Rs,2,000 is deposited by defendants Nos.4 and 5 pursuant to the order, referred hereinabove, with the Nazir of-the Court I have considered the material placed on record and also gone through the case-law cited by Mr. Akhtar Hussain, the learned counsel for the plaintiff which fully supports his contention that the Court at very initial stage should not look into the mere formalities, procedural lapses and technicalities but should decide the matter on merits after giving full opportunities to the parties to submit their requisite documents: Here in this case also in view of facts, circumstances that application is not supported by an affidavit as required under section 74(1)(c), Original Civil Side Rules and in pursuant to rule laid down by the authorities referred hereinabove, it would be entirely in the interest of justice if the parties are allowed to contest their matter on merits. I, being respectfully in agreement with the above observations, dismiss this application with no order as to costs.
2. Mr. Akhtar Hussain has filed this application with the prayer to extend time for condoning the delay in filing the documents and place the attached affidavit of documents on record. In support of this application Mr. Akhtar Hussain has filed his personal affidavit, the relevant paragraphs of which are reproduced as under:--- "2. That the defendants Nos.4 and 5 did not file written statement in time and were debarred. No application for direction was submitted as such the directions were closed and the matter was adjourned for issues on 15-5-1994.
3. That subsequently the said defendants were allowed to file written statement and thereafter an application under Order XI, Rule 12, C.P.C. Was made by the defendants.
4. That I was unable to establish contact with the plaintiff expeditiously on account of his frequent official engagements outside Karachi and visit abroad.", ' The learned counsel for the plaintiff has also filed affidavit of one Mr. Abu Bakr Zardari, the attorney of the plaintiff, the relevant paragraphs whereof are reproduced as under: "2. That I have been informed by the plaintiff that he has in his power and possession the documents listed in the 1st Schedule being part of this affidavit..
3. That the plaintiff does not presently have the documents mentioned in the 2 Schedule as part of this affidavit but has applied to the relevant authorities for grant of certified copies and intend to produce those documents whenever they are made available.
4. That neither I, nor the plaintiff nor any other person acted on his behalf possess or control over any other documents that may be relevant to the question involved in the above suit."
' Mr. Akhtar Hussain, the learned counsel for the plaintiff has submitted that it will be entirely in the interest of justice if the time is extended and the delay is condoned for filing the affidavit of documents.
' Mr. Nizam Ahmed, the learned counsel for defendant No,1 has opposed this application and has referred to the counter-affidavit filed by defendant No,
1. The contents of the relevant paragraphs of the affidavit of defendants are as follows:--- "2. I say that 1 has read the application filed by the plaintiff under section 148, C.P.C. And his Advocate's affidavit in support thereof and objections to my application under Order 11, rule 21, C.P.C. And I deny various adverse allegations made in the application, affidavit and objections. I further say that the said application is not maintainable,
3. I say that on 15-2-1995, on the application filed on my behalf, the plaintiff was directed to file the affidavit of documents within one month.
4. 1 say that accordingly the time for filing the said affidavit of documents expired on 15-3.1995, but the plaintiff failed to file the said affidavit of documents. The plaintiff also failed to file any application for extension of time. Thereafter on 5-4-1995, an application under Order 11, rule 21, C.P.C. For dismissal of the suit was filed on my behalf. I say that what is stated in the said application is correct and the same may be treated as part of this affidavit.
5. I say that on 3-8-1993 the plaintiff's attorney filed an affidavit of documents after a delay of about 5 months. I say that it is only after service of notice of my application under Order 11, rule 21 that the present application under section 148, C.P.C. Has been filed, by the advocate for the plaintiff and no application for extension of time was filed on behalf of plaintiff earlier."
' Mr. Nizam Ahmed, the learned counsel for defendant No,1 has contended that the plaintiff has been negligent and has failed to comply with the order dated 15-2-1995 and that the plaintiff has failed to give any sufficient ground for not filing the affidavit of documents in time and for condonation of delay in filing the said affidavit of documents after about five months and it will be just and proper if this application of the learned counsel for the plaintiff is dismissed. As pointed out earlier, this Court vide its order dated 15-1-1995 has allowed defendants Nos.4 and 5 to file their written statement and the Court has allowed the application of the defendants on payments of cost of Rs,2,000 each. Here also, as discussed hereinabove, it will be entirely in the interest of justice if the parties are allowed to pursue their matter and the Court after overlooking the technicalities, if any, should decide the matter purely on merits. The interest of the defendants will not be prejudiced if this application is granted. Keeping in view the personal affidavit of the learned counsel for the plaintiff, I allow this application and condone the delay in filing the affidavit of documents and extend the time as prayed subject to payment of Rs,10,000, (ten thousand) as cost to be paid by the plaintiff.
3. Adjourned.