2009 PLP 1423 (YLR)

ALI AKBAR QURESHI, J.

This Constitutional petition calls in question the orders dated 25-3-2008 and 12-5-2007, passed by the learned Courts below, whereby the right to file the written statement of the petitioner was struck off.

2. Respondent No.1 filed a suit for declaration along with perpetual injunction, challenging the mutation No. 33 dated 4-2-1966; mutation No. 133 dated 30-12-1970 and mutation No. 169 dated 7-3-1976. The petitioner was impleaded in the array of defendants. The case was adjourned on many dates for the service of the other defendants. The learned trial Court on 12-5-2007 struck off the right of the petitioners to file the written statement. The petitioners assailed the aforesaid order by way of a revision petition before the learned Additional District Judge, Depalpur and the learned Additional District Judge, Depalpur after hearing the arguments of the parties dismissed the same. Hence this constitutional petition.

3. The notices were issued for the service of the respondents but inspite of the service no one turned up, hence proceeded against ex parte.

4. Learned counsel for the petitioners contended that the order of the learned trial Court as well as the revisional Court is perverse and result of the jurisdictional defect as both the learned Courts below have totally ignored the record available on the file as well as the law applicable thereto. Next contended that the learned trial Court without providing sufficient opportunity and particularly the last opportunity by specifying the date as ruled by the Honourable Supreme Court of Pakistan, have non-suited the petitioners. Also contended that the petitioner has been deprived of his valueable rights because of technicalities and the learned revisional Court has also failed to exercise his jurisdiction and has passed an arbitrary and fanciful order. Reliance is placed on Sardar Sakhawatuddin and 3 other v. Muhammad Iqbal and 4 others (1987 SCMR 1365), Col. (Retd.) Ayub Ali Rana v. Dr. Carlites Pune and another (PLD 2002 SC 630) and Ghulam Hussain and others v. Nadir Ali and others (2008 SCMR 88).

5. I have heard the learned counsel and perused the record.

6. The proceedings recorded by the learned trial Court transpire that mostly before the crucial date i.e. 12-5-2007 case had been adjourned for the service of the defendants. Even on the last date i.e. 26-4-2007, the case was fixed for arguments on an application but on the next date i.e. 12-5-2007, the learned trial Court without providing specific last opportunity as observed in the judgments supra, closed the right of the petitioners to file written statement.

7. The learned revisional Court while passing the order impugned herein has not carefully perused the record and applied the law interpreted by the Honourable Supreme Court of Pakistan. The right of filing the written statement is the substantial right given by law and cannot be taken away lightly. Even otherwise it has not been established that the learned trial Court before applying the penal consequences will provide a specific last opportunity to file the written statement. In this case no such exercise was initiated neither the petitioner was asked to file the written statement till a specific date. Both the Courts below have committed serious jurisdictional Terror, material irregularity and legal infirmity while passing the order impugned herein.

8. Resultantly, this petition is allowed, the orders dated 25-3-2008 and 12-5-2007 are set aside and the petitioner is granted another opportunity to file the written statement. The opportunity will be given by the learned trial Court by specifying the date. No order as to cost. H.B.T./F-10/L????????????????????????????????????????????????????????????????????????????????????? Petition allowed.