2000 PLP 33 (YLR)

‑‑‑‑O. VIII, R.5‑‑‑Specific denial‑‑ Applicability‑‑‑Defendant was required to specifically deny the contents of the plaint‑‑ Where defendant failed to make such denial Court was justified in assuming that such contents of the plaint were admitted. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 115‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Revision petition ‑‑‑Condonation of delay‑‑‑Delay caused due to wrong forum‑‑ Plea raised by petitioner was that value of the suit fur purpose of court fee was not mentioned in the plaint and due to that fact earlier revision petition was filed before the Lower Appellate Court, hence the revision in question was delayed‑‑‑Validity‑‑‑Right on the face of the plaint, the amount to be recovered was mentioned‑‑‑Case was such that the plaint was to bear the fixed amount of court fee and there was no need to mention the value of the suit for the purpose of court‑fee ‑‑‑Such being a case of extreme negligence there was no ground for condonation of delay‑‑‑Revision was dismissed in limine. Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Raja Karamatullah v: Sardar Muhammad Aslam Sukhera 1999 SCMR 1892 rel. Dost Muhammad Bhatti for Petitioner. Respondents Nos. l to 3 filed a suit for recovery of Rs. 10,80,000 against the petitioner and respondent No.4. In para. 3 of the plaint, it was stated in detail that a vehicle owned by the petitioner and being driven by respondent No.4 met with an accident attributable to the rash and negligent act of respondent No.4, as a result of which accident Nisar Ahmad, the predecessor‑in- interest of the said respondents, died. The petitioner filed a written statement incidentally through the same learned counsel, who has argued the present civil revision. In reply to the said para. 3, answer of the petitioner was that he is ignorant of the facts mentioned therein. After filing the said written statement, the petitioner absented himself while the proceedings in the suit continued. Evidence of the said respondents was recorded and the witnesses produced by them were subjected to cross‑examination by respondent No.4. On 12‑10‑1995 the petitioner filed an application that ex pane proceedings against him be set aside. This application was resisted by the plaintiffs/respondents Nos. l to 3 and was rejected by the learned trial Court on 25‑1‑1996. This order was not challenged any further and instead on 16‑11‑1996 an application was filed again repeating the prayer that the ex parte proceedings be set aside a>>d the petitioner be allowed to lead evidence. This application was dismissed by the learned trial Court on 12‑12‑1996. Against this order the petitioner filed a civil revision in the Court of learned District Judge, Sargodha on 31‑12‑1996. The civil revision was returned to the petitioner on 14‑9‑1999, as the learned District Judge was not competent to entertain the same. The said civil revision has now been presented in this Court on 27‑9‑1999.

2. Learned counsel submits that the order under revision is against the facts and very harsh, as his client has not been allowed opportunity to lead evidence. The learned counsel was called upon to demonstrate as to which is that plea in support of which his client could have led evidence. He was confronted with the narrations in said para. 3 of the plaint which contains material allegations forming the foundations of the suit of respondents Nos. l to 3 and its reply drafted by the learned counsel himself, obviously on the instructions of his client, does not contain denial or acceptance but only expresses ignorance about the said allegations. Needless to state here that the matter is governed by the time honoured principle of secondum allegata et probata that no party is allowed to lead evidence in respect of a plea not taken in the pleadings or to put it in another manner a party has first to plead and then to prove the said plea. In the present case, there is no plea in the written statement, which could be allowed to be proved by the petitioner. Under Order 8, Rule 5, C.P.C. a defendant is required to specifically deny the contents of the plaint and in case he fails to do so then a Court is justified in assuming that the contents are admitted. In the present case the petitioner has rested content with expressing ignorance and then walking out of the Court. The learned trial Court has very rightly pointed out that no body stopped the petitioner from joining the proceedings and lie has to blame himself if he has opted to remain absent.

3. Besides I find that the civil revision is barred by time. In C.M. 2‑C/99 a prayer has been made for condonation of delay. It has been argued by the learned counsel that since respondents Nos.1 to 3 have not mentioned in the body of the plaint the value of the suit for the purpose of court‑fee and jurisdiction, the petitioner was misled into filing the civil revision in the Court of learned District Judge instead of this Court. I have confronted the learned counsel with the copy of the plaint where right on the face of it, it claim:; that a suit for recovery of the aforementioned amount is being filed against the petitioner and respondent No.4. This was a case where the plaint was to bear the fixed amount of court‑fee and there was no need to mention the value of the suit for the purpose of court‑fee. Regarding the jurisdiction, the declaration made in the heading of the plaint that it was a suit for the recovery of Rs.10,80,000, was enough. This is a case of extreme negligence and squarely covered by the case of Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102) later approved in the case of Raja Karamatullah v. Sardar Muhammad Aslam Sukhera 1999 SCMR 1892. In this view of the matter no ground for condonation of delay has been made out. The C.M.‑2/C‑99 is accordingly dismissed.

4. As a result of the above discussion, this civil revision is dismissed in limine both on merits as well as being barred by time. Q.M.H./M.A.K./R‑1I1/L Revision dismissed.