1. ' C.M.A. 8286 of 1999 under Order 7, rule 18, Order 13, rule 2 and section 151 of the Civil Procedure Code is moved with the prayer that plaintiffs may be allowed to file documents relied upon by them. C.M.A. No,1883 of 2000 under Order 11, rule 21 of the Civil Procedure Code is moved on behalf of the defendant- with the prayer, that this suit be dismissed as on failure of the plaintiffs to file their affidavit of documents as ordered by the Additional Registrar on 27-8-1990 under Order 11, rule 12, C.P.C.
2. ' Mr. Muhammad All Sayeed learned Advocate for the plaintiffs has argued that the plaintiffs are all heirs of deceased Ahmed Habib who, during his lifetime, was one of the Directors of Habib Bank Ltd., defendant in this suit. On nationalization of the Bank it was agreed that the property situated on Plot No,92 Clifton Karachi where the deceased Ahmed Habib resided with his family may be sold him in recognition to his Services rendered to the defendants. However, the proposal could not be finalized during the lifetime of the deceased Ahmed Habib. Thereafter, the defendants agreed to sell the property to the legal representative of late Ahmed Habib. While this transaction was being materialized a rent case for eviction of the plaintiff was instituted by the defendant. The application for eviction was rejected by the Rent Controller. Defendant preferred an appeal against the order of Rent Controller before the High Court. On rejection of their appeal defendants filed petition for leave to appeal before the Hon'ble Supreme Court which, was also rejected. Present suit for specific performance was being conducted by late. Mr. Shamsul Arfin, Advocate who mostly appeared in this suit on behalf of the plaintiffs though the Vakalat Nama was also signed by Mr. Muhammad Ali Sayeed, Advocate the Senior partner. Learned counsel states that from the record available on his file the carbon copy of the application submitting the documents in Court in 1991 is available and this led him to believe that the original documents were filed in Court. The present defendants themselves relied upon and filed the documents in the ejectment application that was filed against the present plaintiffs before the learned Rent Controller. Photo copies of these documents were earlier submitted alongwith the affidavit of Mr. Qamar Hussain son of Musharraf Hussain who is also one of the plaintiffs Attorney. In view of his office record learned counsel was under the belief that the documents are filed duly in the present case. It was only 19-8-1999 when the case was taken up before this Court the controversy and when the matter came up for admission and denial of documents to narrow down the fact to be proved in evidence that it was found that neither documents nor the application for taking them on record was available on the tile. An affidavit to this effect is filed alongwith the application by the plaintiffs.
3. ' Learned counsel further argued that all the documents that he now proposed to file are the certified copies of record of the rent case between the parties, a certified copy of the succession certificate granted by this Court and a General Power of Attorney in favour of the deceased Mohsin Habib. These documents were also placed on the record of this Court as Annexures P-1 to P-7 to the rejoinder of one S.M. Askari son of late S.M. Abid filed in Court on 22-2-1990 and are mentioned amongst the documents relied upon by the plaintiffs as shown at the foot of the plaint at the time of institution of this suit. The documents are such that they cannot be manipulated and form part of public documents under the provisions of section 85(3) of Qanun-e-Shahadat Order (10 of 1984). Under these circumstances the delay was neither wilful nor deliberate and the plaintiff may be afforded an opportunity to bring documents in support of their case on record. On these facts the application for dismissal of suit under Order 11, rule 2-A may be dismissed. In support of his contentions Mr. Muhammad Ali Sayeed, Advocate for the plaintiffs has placed reliance on the cases of United Bank Limited v. Shabbir Ahmed Abbasi PLD 1981 Kar. 255, Hamidullah v. The State, 1988 SCMR 1818, Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823, Salima Begum and 4 others v. Mst. Sardaran Bibi and 4 others PLD 1995 SC 406, Jameel Ahmed v. Saifuddin 1997 SCM R 260, Zahoor Ahmed v. Mehra through Legal Heirs and others 1999 SCM R 105.
4. ' Mr. Salman Hamid, Advocate for the defendants has argued that the Vakalat Nama was signed by late Mr. Shamsul Arfin as well as Mr. Muhammad Ali Sayeed, Advocate that the plaint revealed the documents filed as Nill in violation to the provisions of Order 7, rule 14. That in spite of the orders of this Court on the application under Order 11, rule 12, C.P.C. The plaintiffs failed to disclose the documents by filing their affidavit of documents. The third opportunity was available when the issues were framed in this suit but was not availed and no documents were filed and it was at the time of production of witnesses when the suit was fixed for evidence before the Court that plaintiffs moved this application. Learned counsel has opposed the application moved by the plaintiffs and stressed that the application under Order 11, rule 21 be allowed and the suit be dismissed. In support of his contention learned counsel placed reliance on the case of Abdul Razzaq v. Messrs Pfizer Laboratories Ltd., 1988 CLC 778 and Asif Ali Zardari v. Mian Muhammad Nawaz Sharif and 4 others 1997 M LD 1852.
5. ' It is not denied that the documents are already on the record of this suit as Annexures to the rejoinder in addition to the fact that these documents in addition to the Succession Certificate granted by this Court and fall within the definition of public Documents under section 85 (3) of the Qanun-e-Shahadat Order. The case is to be considered on the merits and delay by itself is not a ground for refusal particularly when convincing material is available on record to justify this bona fide error. Mere technicalities may not be made basis for debarring the plaintiff as law always favours decision of case on merits and in appropriate cases the provisions of Order 7, rule 18, C.P.C.
6. To be liberally constitute to meet the ends of justice. In view of the above C.M.A. No,8286 of 1999 is allowed and plaintiff is allowed four weeks time for filing the documents in Court C.M.A. 1883 of 2000 is dismissed but with no order as to costs.