1989 PLP 625 (CLC)

This revision under section 115 of the Code of Civil Procedure has arisen in the following circumstances. The respondent, who is a landlord had supplied cotton to the petitioner during 1985‑86 season. According to the respondent, the price of cotton so supplied had to be fixed by the parties subsequently by mutual agreement. Thereafter, according to the respondent, he approached the petitioner several times for fixation of the price of the cotton and settlement of account, but without any success. Or. 1‑12‑1986, the r6spondent approached the petitioner far the last time in this regard but he again avoided to settle the account. Consequently, the respondent filed a suit against the petitioner for the settlement of accounts. The petitioner was served with summons from the Court on 25‑1‑1977. and on the next date which was the date fixed for hearing of the case, one Bhawandass appeared on behalf of the petitioner and requested for adjournment of the case and the case was adjourned to 19‑2‑1987 for filing of a written statement. On this date again Bhawandass appeared on behalf of the petitioner, but neither any written statement was filed by him nor any application was made, seeking extension of time for the same purpose. Consequently, the defence of the petitioner was stuck off under 'Order VIII, rule 10 of the Code of Civil Procedure and the matter was adjourned to 26‑2‑1987 for further orders. The order of the learned trial Court passed in this respect reads as follows:‑ "Plaintiffs next friend present one Bhawandass present partner of defendant Factory present. Order on order sheet. The defence is struck off. Put off to 26‑2‑1987 for further order." Thereafter on 26‑2‑1987, which was the next date of hearing fixed by the Court, the petitioner did appear before the Court with written statement, but as no application had been filed by him for setting aside the order, dated 19‑2‑1987, the learned trial Court announced the judgment against the petitioner. The petitioner, being aggrieved by such judgment, filed an appeal before the learned District Court at Sukkur, which was heard by the learned District Judge, and dismissed vide judgment dated 31‑1‑1988 as he found the failure on the part of the petitioner to first get the order, dated 19‑2‑1987, set aside as fatal to his case and hence this revision. I have heard Mr. Lachmandas, learned counsel for the petitioner and Mr. Saindad, who represents the respondent and has appeared on pre‑admission notice. Mr. Lachmandas has raised the following contentions before me. Firstly, he has argued that, according to Order VIII, rule 1, C.P.C., a period of 90 days can ordinarily be allowed to the defendant to file a written statement and since admittedly, in the instant case, the time allowed to the petitioner for filing the written statement fell short of 90 days, the learned trial Court by proceeding ex parte against the petitioner failed to exercise its discretion properly in the matter. The second contention of Mr. Lachmandas is that, even if the learned trial Court could not consider the written statement filed by the petitioner, still it could not have proceeded mechanically and passed a judgment against the petitioner without applying its mind and considering all the material aspects of this case. Both these contentions appear to be without merits. As far as the first contention is concerned, rule 1 of Order VIII, to which the counsel has referred, may be reproduced as follows:‑ "

1. Written statement.‑‑The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time. as the Court may permit, present a written statement of his defence: Provided that the period allowed for filing the written statement shall not ordinarily exceed ninety days." A plain reading of the above rule shows in the first instance that, the defendant may voluntarily file written statement at the first hearing of the case. However, if he is required by the Court to do the same, then the law allows no flexibility in this respect and he shall have to file a written statement within such time as the Court may permit. It is, therefore, clear that the rule vest3 the Court with complete discretion to fix or extend the time for filing of the written statement by the defendant. Even the proviso to the rule by providing that such period ordinarily shall not exceed ninety days, p fails to restrict the Court's discretion in this respect. However, the argument that the proviso ordinarily allows a period of ninety days to the defendant to file a written statement is completely misconceived as no such intention can be gathered there from. The intention on the contrary appears to be to vest the Court with complete discretion in this regard, as pointed out above. Consequently, the time which may be allowed by the Court to file a written statement tray even. exceed ninety days or it may be well within such period, depending upon the circumstances of each case. The argument, therefore, cannot be accepted. The second contention of the learned counsel, revolves around rule 10 of Order VIII of the Code of Civil Procedure, which provides as follows:‑ "

10. Procedure when art fails to resent written statement called or by Court.‑ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit. The above rule came up for interpretation before Sardar Muhammad Iqbal, J, '(as he then was) in Sh. Abdul Saboor and Brother v. Ganesh Flour Mills Co. Ltd.. Lyallpur P L D 1967 Lah. 779 and it was observed by him as follows:‑ "If the defendant is served but he does not appear or if he appears and does not file the written statement, the Court cannot pass an order against the defendant under rule 10 of Order VIII and pronounce judgment against him because the condition precedent for passing the order under the said rule is that the defendant should have been required to file the written statement. The Court in such a case can only order ex parte proceedings against the defendant, and pronounce judgment against him on proof of the case by ex parte evidence. When the defendant was not asked to file the written statement, his failure to file the written statement in his discretion does not mean that he admits the claim made against him in the plaint. On the other hand, if 'the defendant is required by the Court to appear on a particular date and‑ also file the written statement, and the defendant in spite of the service does not appear, the Court if it is satisfied that the defendant has been served may not proceed ex parte against him but instead proceed under rule 10 and pronounce judgment against him, because the failure of the defendant to file the written statement in such circumstances means that he admits the allegations in the plaint, and the order passed by him will be exceptionable. The basis of the provisions of rule 10 of Order VIII are that if the defendant is required to file the written statement and he fails to do so, it can be reasonably implied that he has nothing to controvert what is stated in the plaint. The precise question was. considered in Vinayak Shreendhar Kulkarni. v. Chintaman Vaman Kulkarani, A I R 1948 Bom. 470, and it was held that the failure of the defendant to file a written statement as required by the Court means only that he admits the allegations in the plaint. In this view of the matter, it is not necessary for the Court to record any evidence before it may pronounce judgment under rule 10 of Order VIII." The above judgment was approved by the Honourable Supreme Court in Mst. Hakumat Bibi v. Imam Din and others P L D 1987 S C

22. However, in another case decided by another learned Single Judge of the Lahore High Court reported as Mst. Bilqees Begum v: Syed Ali, Turab and another 1980 C L C 930, it was held that Order VIII, rule 10 does not contemplate the pronouncement of judgment as the only measure for it leaves the Court a wide margin of discretion to make any other order it thinks fit. It was further held in this case that the pronouncement of judgment in the absence of evidence to support the plaintiffs case was thus improper. As far as the above cases are concerned, no doubt, the case reported in 1980 C L C 930 supports the argument of the learned counsel for the petitioner to s great extent, but the language used by the legislature in rule 10 of Order VIII shows that in case of failure on the .part of the defendant, who has been required to file a written statement, the Court may either . immediately pronounce judgment against him or make such order in relation to the suit as it thinks fit. The words "the Court may pronounce judgment against him" used by the legislature in rule 10 cannot be without special significance. If the intention was that the Court should pronounce judgment against the defendant only if the case was proved against him, then the words "against him" appearing in the rule would become redundant, and it hardly needs to be emphasised that redundancy cannot be attributed to the legislature. I am fully fortified in this view by the judgment of the Lahore High Court reported in P L DIB 1967 Lah. 779 to which I have already referred. It is, however, pertinent to point out that, the use of the word "may" in rule 10~ does denote flexibility and judgment against the defendant may not be pronounced even if he has made himself liable for the consequences VIII, if for, example, a legal flaw in referred to in rule 10 of Order the case is discovered by the Court ‑or the Court lacks jurisdiction. However,. such is not the case in the present case. Consequently, 11 am not. impressed by the argument. However, this argument has been raised before this Court for the first time by the learned counsel for the petitioner as the question had not been raised by the petitioner before the learned Appellate Court. Under such circumstances, the petitioner, in any case, cannot be allowed to raise a ground for the first time in this revision, which had not been taken by him before the learned Appellate Court. Lastly, it was urged by Mr. Lachmandas that the petitioner had made an oral request before the learned trial Court for further adjournment of the case, but the request was declined and the judgment was pronounced by the learned trial Court. Even if such request was made on behalf of the petitioner before the learned trial Court, the learned Court had discretion either. to accept or decline such request. In absence of the circumstances to suggest that such discretion had been arbitrarily or capriciously exercised, this Court D would not interfere with the discretion exercised by the learned trial Court. No other argument has been raised. In the result, I find no force in this revision and it is, therefore, dismissed in limine. A. A . IJ‑61/ K Revision dismissed