' This application is filed by defendant No, 2 under Order VII, rule 11 read with Order I, rule 10(2), C. P.
C. Seeking the rejection of the plaint so far as it relates to the said defendant or in the alternative to strike off her name from the suit.
2. The facts relevant for the purpose of this application are that the plaintiff, National Bank of Pakistan, has brought this suit for recovery of Rs, 4,19,197.00 against Fakir Muhammad Malik, defendant No, 1 and Mst. Maqsooda Malik defendant No, 2, who is the wife of the former. The case of the plaintiffs is that defendant No, 1 was the Manager of the plaintiff's Defence Housing Society Branch, Karachi, in which capacity he had full control of the matters, accounts, books of accounts, moneys etc. Of the plaintiffs pertaining to that branch. It is further alleged that while defendant No, 1 was the Manager of the said Branch, he "either himself or in collusion with various parties and in breach of his duties and in breach of trust, created various unauthorized debits and credits in a number of accounts maintained at the said Branch." It was further alleged that on an internal audit it was disclosed that books of accounts had been falsified by and at the instance of defendant No, 1, which necessitated the reconstruction thereof. As a result it was found that at least 23 accounts were debited with various amounts without authority from the accountholders which were duly credited with the same amounts by the bank. Accordingly, a total sum of Rs, 2,70,220.95 alongwith the interest amounting to Rs, 1,41,976.05 was claimed jointly from the defendants. It is also disclosed in the plaint that defendant No, 1 had also an account with the same Branch which was also unauthorisedly debited to the extent of Rs, 1,51,700. In the prayer clause the plaintiff has firstly claimed a decree against the defendants jointly and severally for the amount of the suit and secondly an order that the amount of Rs, 1,51,700 which had become due and payable to defendant No, 2 be adjusted against the decretal amount.
2. It appears that defendant No, 1 has filed his written statement wherein the allegations in the plaint are controverted and counter allegations have been made that false accounts were prepared by the Bank on account of enmity, after the said defendant was abruptly suspended from his -service.
3. Mr. Z. U. Ahmed for the applicant/defendant has contended that no cause of action has been shown in the plaint against the said defendant inasmuch as no facts have been pleaded showing liability of this descant in regard to the relevant claim. On the contrary, counsel contended, it was admitted that this defendant was a constituent of the bank and has suffered by the illegal acts of the Bank's employees if any whereby her account was unauthorized debited. It was, therefore, urged by the learned counsel that the plaint disclosed no cause of action against this defendant and as such was liable to be rejected. In the alternative Mr. Z. U. Ahmed, argued that in any case the applicant/defendant, in view of the case disclosed in the plaint, had been improperly joined and therefore her name was liable to be struck off. It was argued that the second defendant being the wife of the first defendant, who according to the case of the plaintiffs was liable for fraud and misappropriation of funds, had been joined mala fide in order to set up the wife against the husband or in order to force her to come to the witness-box so that she may be cross-examined.
4. During the arguments I had asked Mr. Ahmed whether it was competent for the Court to reject the plaint in part. He had sought time and on the next date of bearing conceded that there appears to be conflict of opinion between the various High Courts on the question, some holding that it was permissible to reject the plaint in part and others that it was so permissible. He, however, half-heartedly, pressed his prayer for rejection of the plaint so far as the defendant in question is concerned. The power of the Court to reject the plaint is contained in Order VII, rule 11, C. P. C. Which in terms does not specifically deal with rejection of the plaint partially but the very opening words speak of "plaint" to be rejected in four cases mentioned therein. The question, therefore, turns on the interpretation of the provisions of Order VII, rule 11.
5. Learned counsel for the applicant/defendant was not able to cite any direct authority on the plaint. However, it is correct that judicial opinion on the question is not uniform and there is a conflict of opinion among the various high Courts. Some Courts have held that where a plaint is to be rejected it must be rejected as a whole and not in part whereas according to the contrary visw a plaint could be rejected as against some of the defendants. Learned counsel was unable to cite any case of superior Courts in Pakistan on the point but relied upon an unreported case of this Court namely Suit No, 230 of 1973. I, however, find that in that suit the precise question of law whether a plaint can be rejected in part was not raised or considered and the operative part only stated that the plaint against the applicant/defendant be rejected and his name be struck off from the plaint. That decision, therefore, cannot be considered as an authority on the point. Mr. Ahmed then cited several Indian cases but except for 3 cases the rest are not relevant to the question under consideration and I do not wish to burden this order with the discussion of those cases. I would consider the cases which I find have some bearing on the point. The first case is Shankar Rao Baraji v. Shambihari and others (1). In this case, the plaintiff had based his suit on an allegation of assault by the defendants who are public officers and damage done by them to his property. After the institution of the suit an Indemnifying Act was passed and by virtue of the provisions of the Act the suit was discharged as against some of the defendants. The provision in question specifically dealt with pending proceedings and directed their discharge. The High Court upheld the discharge of the suit as regards those defendants whose case fell within the ambit of indemnifying provision.
Accordingly, this decision does not
(1) AIR 1951 Nag. 419 ' help the learned counsel. The second case cited is Mst. Chaeani v. Rajhistan State and others (1).
This case in my view correctly states the legal position and deals with the specific point under consideration. That was a suit against the Provincial Government and several officers. On an objection raised on behalf of the defendants that the suit against them was not maintainable as no notices had been given to them under section 80, C. P. C. Although such notice was served on the Provincial Government, the plaint as a whole was rejected. I. M. Modi, J., after noticing the conflict of opinion on the question of part rejection of plaint observed as follows :- "On a careful consideration of these rival views I am disposed to accept the latter as the sounder of the two. Order VII. Rule 11, C. P. C. Undoubtedly lays down, inter alia, that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. It seems to me, however, that this rule, would be attracted into its full application where the suit as a whole would be so barred, and different considerations may reasonably arise where such a suit happens to be barred against some of the defendants but may well be good against others.
' With utmost respect I have not been able to pursuade myself to accept the view that even where such a suit may be good against some of the defendants in spite of its being bad against certain others the whole suit must necessarily be thrown out. This seems to me to be opposed to all considerations of commonsense and to the dictates of justice nor do I think that such a result should be held a necessary consequence to the rule as it is generally embodied in clause (d) of rule 11, and to my mand it is normally intended to be applicable to a case where there is a single plaintiff or a single defendant and suit by or against him is wholly barred by law.
' Thus where a plaint does not disclose a right of action against cne or some of the defendants but it does against the rest or where a suit would be barred by law against one or some of the defendants but not against the rest the just and proper course in my opinion, should, be, not to reject the plaint as a whole but to strike down the names of the defendants against whom there is no cause of action or suit is barred by law and allow to proceed against the rest."
6. Lastly, the learned counsel cited P. B. Shah & Co v. Chief Executive Officer and others (2). In this case the plaint was rejected by the First Court on the ground that the Chief Executive Officer of the Corporation of Calcutta who was one of the defendants being a public o iicer was not served with the statutory notice under section 80, C. P. C. In the High Court it was held, on the finding that the suit was not maintainable against defendant No, 1, that the suit should have been dismissed against him but the plaint as a whole could not have been rejected. On this view the High Court set aside the order of rejection of plaint but ordered that the name of the particular defendant to be struck off from the cause title of the suit. This case, therefore, instead of supporting the proposition of the learned counsel goes against it.
7. Mr. Arfin, learned counsel for the plaintiff opposing the application, contended that the plaint cannot be rejected piecemeal as the applicant
(1) AIR 1962 Raj. 36 (2) AIR 1962 Cal. 283 ' defendant is not seeking the rejection of plaint as a whole, nor indeed could she claim se. He has drawn my attention to Suit No, 302/74 (Khyber Insurance Co. Ltd. v. First National City Bank and others) of this Court where my learned broiler Fakhruddin Ebrahim, J , while considering the precise question of law held that partial rejection of tee plaint was contrary to the prima facie meaning of Order VII, rule 11, C. P. C. In that case the attention of his Lordship was invited to Suit No, 230/73, now being relied upon by Mr. Ahmed, but the decision was not treated as an authority on the point, as the maintainability of an application for partial rejection of a plaint was not challenged. With all respect I feel that Fakhruddin Ebrahim, 3 , in his discussion on the point very succinctly set at rest any possible controversy on the question. He observed :- ' What is more important, however, is that when the Code contemplates as a party defendant not only a person against whom there is a right to any relief, but also a defendant whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. In other words the law contemplates a defendant who may only be a pro forma defendant and against whom no relief is sought but his presence is necessary to effectively and completely adjudicate upon the questions involved in a suit. Such a pro forma defendant if allowed to have recourse to Order VII, rule 11 must necessarily succeed for the plaint will not disclose against him any cause of action, making it redundant the power of Court to implead as a defendant against whom no relief is sought but his presence is required to effectively adjudicate upon all questions involved between a plaintiff and other defendant in this suit. The result, however, can only be avoided if Order VII, rule 11, C. P. C. Is given its prima facie meaning namely that its application must result in the rejection of the plaint and not in rejection of part of the plaint against one of the defendants."
8. In the light of the above discussion, therefore, I have come to the conclusion that the prayer of the applicant/defendant for rejection of the . Plaint so far as she is concerned is not maintainable and cannot be entertained.
9. The next question that remains to be considered is whether the name of the applicant/defendant be struck off from the suit under Order I, rule 10(2), C. P. C. This relief is sought mainly on the ground that the plaint does not disclose a cause of action against the applicant/defendant inasmuch as her liability for relief claimed in suit has not been disclosed. As at this stage the only material to consider is the statements made in the plaint and in fact Mr. Ahmed has also relied on the case disclosed in the plaint, the name of this defendant can be struck off only when the Court comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct the plaintiffs will not be entitled to get relief.
10. Now perusal of the plaint would show that in para. 5, the plaintiffs have alleged that defendant No, 1 had withdrawn various amounts by making changes in the accounts of the constituents, "for his own personal use/or for the use of defendant No, 2". Further, in the same para. The total liability of the 'defendants' has been shown to be Rs, 4,19,197.00. In para. 6 of the plaint the plaintiffs have claimed that the amount of Rs, 1,51,700 unauthorized debited to the account of defendant No, 2 has to be appropriated against the liability of the defendants, and finally in the relief clause the plaintiffs claim a decree against the defendants jointly and severally with a further prayer for an order that an amount of Rs, 1,51,700.00 due and payable to defendant No, 2 be adjusted against decretal amount. Mr. Z. U. Ahmed argued that defendant No, 2 could not possibly be held liable for the amounts- due if any on account of acts alleged against defendant No,
1. But, in order to accept this contention it would be necessary to decide whether the plaintiffs have a right to claim the amount from the defendant, which would constitute adjudication of an issue between the parties. I am afraid, a trial within a trial cannot be held for the purpose of deciding an application for striking off the name of a defendant and since allegations have been made the proper course is to give the plaintiffs an opportunity to establish their case at the trial. The allegations contained in the plaint quite obviously disclose a cause of action against the applicant/ defendant inasmuch as it is stated that the amounts were withdrawn for the use of the applicant/defendant as well. In any case, since the plaintiffs claim the adjustment of amounts due to the defendants towards the liability of defendant No, 1, obviously the applicant/defendant is a necessary party to the suit As to how such a case can be supported with evidence, is no consideration at this stage.
10. In the result there is no merit in this application and therefore it is dismissed with 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.