1. This application is filed by the learned counsel for the defendants Nos. 1 and 2 under Order XI, Rule 21, C.P.C. Seeking dismissal of suit for non-compliance with order dated 17-8-1998, passed in the present matter.
2. The facts relevant for the present application and that the plaintiff has filed present suit with the following prayer:
(a) Declaration that the sale, alienation, assignment, transfer and grant of possession of the immovable property bearing J.M. 3/564, Dadabhoy Naoroji Road, Catholic Cooperative Housing Society, Karachi and the agreement, of sale and the registered irrevocable general power of attorney and registered irrevocable sub-General power of attorney and the sale-deed be declared illegal and void and of no legal effect and a further declaration that the sub-lease so granted defendant No. 1 be treated as cancelled entitling the plaintiff to resume the said immovable property.
(b) Mandatory injunction cancelling the agreement of sale and the registered general power or attorney and the registered irrevocable general sub-power of attorney and the sale-deed.
(c) Mandatory injunction calling upon the defendant No.2 to hand over the possession of the land.
(d) Permanent injunction restraining, defendant No.2 from carrying on with any addition, construction alteration, breaking, of the said property.
(e) Permanent injunction restraining defendant No.2 from transferring, alienating, encumbering and/or creating third party interest.
(f) Permanent injunction restraining defendant No.3 from granting any approvals to defendant No.2 for their proposed plan and/or sanctioning any plans that may be passed in favour of defendant No.2 in respect of the property in dispute.
(g) Damages and compensation to be recovered from defendants Nos. 1 and 2, jointly and/or severally for violating the Bye-laws of the Society and the convenants of the sub-lease and taking under advantage of the plaintiff Society.
(h) Cancellation of the Registrated sale-deed, if any so executed and registered by defendant No.1 in favour of defendant No.2, and directing the concerned Sub-Registrar to comply thereto.
(i) Cost of the suit.
(j) Any other relief that this Honourable Court may in the interest of justice deem fit and proper.
3. After service of summons, the defendants Nos. 1 and 2 filed application under Order VI, Rules 4 arid 5, C.P.C. (C.M.A. No.3011 of 1998) to direct the plaintiff to supply further and better particulars enabling them to file their written statement. The particulars required by the defendants, were specified in paragraph 5 of the affidavit in the following terms: "5. That, the relief, sought in terms of the prayer (a)`in the plaint is wholly ambiguous, as it does not disclose the following particulars:
(i) the names of the parties and the date of agreement of sale between them.
(ii) the name of the principal and that of his Attorney and the date of execution of the registered irrevocable general power of attorney, as mentioned therein.
(iii) the name of the principal and that of the holder of sub-general power of attorney and the date of -execution in respect thereof, as mentioned therein.
(iv) the names of the vendor and the vendee, as appearing in the sale-- deed, as mentioned therein. The said application came up for hearing in Court on 17-8-1998 when the following order was passed.
1. By this application Advocate for defendants Nos.1 and 2 seeks the supply of further and better particulars by the plaintiff to enable them to file their written statement. Learned counsel for the plaintiff Mr. R.F. Virjee had no objection for supplying these particulars and the undertakes to do so within one week. This disposes of C.M.A. No. 3011 of 1998.
4. According to Mr. Virjee, he had sought time on the said date for filing counter-affidavit but his request was declined, Mr. S. Samie Ahmed, however, disputes such position. Be that as it may, the plaintiff, instead of furnishing the further and better particulars, as above, filed two applications being C.M.As. Nos.7779 and 7780, both of 1998. The first application contained prayer for striking off the defence of defendants Nos. 1 and 2 whereas the second application was, itself, fit d under Order VI, Rules 4 and 5, C.P.C. For requiring the defendants Nos. 1 and 2 to furnish particulars of transactions in relation whereto decree was sought by the plaintiff. The -two applications came up for orders on 23-9-1998 when they were dismissed as withdrawn and the plaintiff was granted further time of one week to furnish further and better particulars in terms of order dated 17-8-1998 (wrongly mentioned as 17-9-1998). The matter then came up on 19-10-1998 when Mr. Virjee made a statement that he had supplied further and better particulars to the defendants in terms of the above-referred orders dated 17-8-1998. And 23-9-1998 as were available with the plaintiff. The learned counsel for defendants Nos. 1 and 2, however, expressed dissatisfaction about the particulars provided by the plaintiff and sought time to file appropriate application for further action. The defendants Nos. 1 and thereafter, filed the application which has been heard by me and is proposed to be disposed of through this order.
5. Mr. S. Samie Ahmed, in support of his application, has urged the plaintiff has wilfully failed to supply further and better particulars in terms of the orders dated 17-8-1998 and 23-9-1998. According to the learned counsel, the failure to supply better particulars, despite order of Court, renders the plaint liable to rejection. The learned counsel has relied upon the judgments in Sarada Charan Seal and another v. Jagabandhu Mahahan and others (PLD 1953 Dacca 42), Abdul Razik v. M/s. Pfizer Laboratories Limited (1988 CLC 778), M/s. United Bank Limited v. Yousuf Haji Noor Muhammad Dhadi (1988 SCMR 82) and M/s. Dewan Metheram Dharmdas Trust v. Shiri Mahant Ban Balpuri and others (1992 CLC 975). The learned counsel, during his reply to the arguments of Mr. R.F. Virjee has further relied upon the judgments in H.C. Bevan Petman and another v. Province of Punjab and others (PLD 1954 Lah. 516) and M/s. Pan Century Edible Oils SDN BHD v. M/s. Fatima Enterprises Limited (1999 MLD 3193). Except for the last cited two judgments, the remaining cases, referred by the learned counsel for defendants Nos. l and 2, primarily arise out of non-compliance with order passed by the Court for answering interrogatories, discovery of documents and inspection of documents. The last cited two judgments, however, pertain to the effect of non-compliance with direction of the Court for furnishing better and further particulars. The ratio of the last two judgments is that failure to furnish further and better particulars may be visited with penalty of rejection of plaint or striking off defence.
6. Mr. R.F. Virjee, Advocate for plaintiff, has referred to a large number of judgments including the case of Abdur Razzak v. M/s. Pfizer Laboratories and M/s. United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi, (supra), already cited by Mr. S. Samie Ahmed. The learned counsel for the plaintiff has argued with emphasis that provision of Order XI, Rule 21, C.P.C. Is penal in nature and has to be construed strictly with the result that its scope: cannot be expanded beyond the categories mentioned therein. It is pointed out by Mr. Virjee that the provisions of Order XI, Rule 21, C.P.C. Is attracted only when a party fails to answer interrogatories or comply with order for discovery or inspection of documents. The learned counsel relies for his above arguments on the above---referred provision, itself, and the cases of M/s. United Bank Limited v. Yousuf Haji Noor Muhammad Dhadhi (Supra) and Hussain A.I Merchant v. Ismailia Garden Cooperative Housing Society (1999 CLC 356). Having considered the provisions, contained, in Order XI, Rule 21, C.P.C. It is clear that the penalty postulated, thereby, is attracted upon non-compliance with specified categories of orders. Such categories cannot be expanded and the p penal consequences postulated under Order XI, Rule 21, C.P.C. Cannot be applied to the categories which do not find mention therein. In the present case, the direction, contained in orders dated 17-8-1998 and 23-9- 1998, was for providing further and better particulars which is not covered by the provisions of Order XI, Rule 21, C.P.C. I find myself, to that extent, in agreement with the stand, taken by Mr. R.F.
7. Virjee. As regards the compliance with above-referred orders, passed by this Court, a party default, cannot be allowed to get away unnoticed. When an order is passed to have better and further particulars, it implies a situation where the matter cannot proceed further without compliance therewith. The obvious result of such situation is that the Court is to enforce compliance with the order and the failure must carry some penalty. The inherent powers of the Court are meant to be invoked and exercised in such situation. When a party wilfully fails to comply with order passed by this Court, it loses the right of hearing and indulgence of the Court. Consequently, where a plaintiff fails to furnish further and better particulars the plaint can be rejected whereas in the event of defendant failing to provide further and better particulars, the right of defence can be forfeited. In the present case, I am not inclined to accept that B Mr. R.F. Virjee did not consent to the orders dated 17-8-1998 and 23-9-1998. The orders are quite clear in terms and the conduct of Mr. Virjee, particularly by withdrawing the two applications, C.M.As. Nos.7779 and 7780, both of 1998 on 23-9- 1998 is indicative of his being alive to the situation and the plaintiff cannot wriggle out of the effect of orders dated 17-8-1998 d 23-9-1998.
8. It was next contended by Mr. R.F. Virjee that whatever particulars were required to be furnished had already been provided by him in the form of reply affidavit, dated 5th October, 1998 (page 73 of Part-II of the file) and in the form of documents which are available on the record. I am afraid, the reply statement dated, 5th October, 1998 and the filing of certain documents can hardly be treated as sufficient compliance with the orders dated 17-8-1998 and 23-9-1998. The plaintiff was required to provide the particulars, to the extent as are available, in the form of clear and unambiguous statement pursuant to the said orders. After such statement is filed, the necessity for directing the amendment of the pleading may be considered by the Court.
9. What is to be considered next is whether the plaint be rejected outright for non-compliance with orders dated 17-8-1998 and 23-9-1998, In my view, the interest of justice requires that one more opportunity be granted to the plaintiff to file statement in clear and unambiguous terms With regard to the particulars sought by defendants Nos. 1 and 2 specified in para.5 of affidavit dated 12-3-1998 as may be available with the plaintiff. In the circumstances, this application is disposed of in the terms that the C plaintiff is directed to furnish further and better particulars, as above Within one month from today with advance copy to the other side failing which the plaint shall stand rejected without any further orders.
10. 2 & 3. These two applications are preferred by the plaintiff in the same terms as were contained in applications C.M.As. Nos. 7779 and 7780, both of 1998. The two applications were dismissed as withdrawn. The doctrine of G constructive res judicata applies to these applications which are dismissed to the circumstances.