1990 PLP 1362 (CLC)

Dates of hearing: 19th February 13th and 22nd March 1990. The applicant assaulting the judgment of the two Courts below has filed this revision. Briefly the facts are that the present respondents had filed a suit bearing No. 41/1981 for specific performance of the contract and permanent injunction which was presented in the Court of Joint Civil Judge, Shikarpur on 20‑5‑1981. The present respondents/plaintiffs had contended that the house bearing C.S. No. 294/1‑2 Ward 10 of Shaikh Mohalla, Shikarpur was owned by the present applicant who had entered into an agreement to sell the same to one Abdullah Shaikh the ancestor of the present respondents for valuable consideration of Rs. 12,000 of which Rs. 6,000 was paid at the time of execution of agreement to sell while from the remaining amount Rs.500 and Rs.750 were paid subsequently. It is further submitted that the said Shaikh Abdullah expired on 22‑3‑1975 and subsequently one of his L.Rs. Haji Nazar Mohammad had also died in June, 1979. It is further the case of the present respondents in their plaint that on 21‑3‑1981 the present applicant had issued .a notice to the present respondents and therefore, the cause of action having accrued, the said suit was filed. It is pertinent to note that the present respondents have not mentioned any dates about the sale agreement or the dates on which the different payments were made. However, the agreement of sale and the receipts are appended with the plaint which shows that agreement was executed on 2‑10‑1972' wherein it was provided that the present applicant would execute registered sale‑deed within one month after complying with the formalities as required under law. The two receipts are also attached with the plaint. One receipt of Rs.500 does not bear any date while the other receipt of Rs. 750 is dated 29‑9‑1974. After filing of the above suit the notice for appearance and filing of the written statement was being issued to the present applicant from time to time. Firstly the notice was issued to the present applicant on 18th July,. 1983 requiring him to appear in person or through an advocate duly authorised for filing of the written statement as the matter was fixed for written statement on that date. On this date the present applicant appeared in the Court and applied for adjournment and suit was adjourned to 7‑9‑1983. On this date again application was moved by the present applicant seeking time to file the written statement which was allowed and the suit was adjourned to 20‑9‑1983. On this date the diary of the suit shows that the learned presiding Judge was doing election work and, therefore, the suit was put off to 10‑10‑1983. On 10‑10‑1983 the defendant and his advocate were absent and, therefore, suit was decreed under the provisions of Order VIII, Rule 10 C.P.C. Appeal was filed before the District Judge which was also dismissed and, therefore, the present revision application was filed by the present applicant. I have heard Mr. M. Sadik Khan, the learned counsel for the applicant. He has submitted that the suit could not have been decreed under Order VIII, Rule 10 C.P.C. as the same did not apply to the present case. His submission is that there is no order passed by the learned trial Court "requiring" the present applicant to file his written statement and, therefore, the learned trial Judge could at the most pass an order under second part of Rule 10 of Order VIII C.P.C. He has placed reliance on the case of Sardar Sakhawatuddin v. Muhammad lqbal (1987 S C M R 1365). Mr. Ahsanuhah Shaikh, the learned counsel for the respondents has submitted that the summons which were issued to the present applicant in the suit shows that the suit was fixed on 10‑3‑1983 for written statement and that he was required to file the written statement on the said date and that subsequently on two occasions suit was adjourned for the same purpose which would impliedly mean that he was required to file the written statement and having failed to do so the learned trial Judge has rightly decreed the suit under the provisions of Order VIII rule 10 C.P.C. He has placed reliance on the case of Mst. Hakumat Bibi v. Imamdin,and others (P L D 1987 SC 22). lie has further relied on the case of Lahore Municipal Corporation v. Messrs Awan Contractors 1989 S C M R 107). I have carefully considered the arguments of the learned counsel for the parties and the case‑law cited by them. From the record of the suit it appears that the summons were issued to the present applicant whereby he was required to file the written statement and, therefore, it cannot be said that he was not so required. It may also be observed here that the provisions of Order VIII Rule 10 A C.P.C. provide "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". This shows that the provisions of this Rule provide that the defendant either may file his written statement of his own or may file the same if so required by the Court. In the case of Mst. Hakumat Bibi Hon'ble Supreme Court in somewhat similar case has held as under:‑ "It was also explained that if in the judgment so pronounced the reason given by the Court is that the defendant had failed to file the written statement then it becomes a judgment contemplated by Rule

10. It is true that the power given to the Court by this rule to pronounce the judgment against the defendant is discretionary and it may or may not pronounce the judgment against the defendant where the written statement has not been filed. Undoubtedly while exercising its discretion the Court will take into consideration all the facts and circumstances of each case. But where the discretion has been exercised and judgment pronounced the same is not normally to be interfered with. But where it is exercised arbitrarily the appellate Court can always intervene. However, where the discretion has been exercised judiciously and judgment pronounced the same will be valid and legal judgment even though it has been passed without recording any evidence whatsoever." This has also been held in the case of Lahore Municipal Corporation v. Messrs Awan Contractors wherein their Lordships have held: "The matter was decided in favour of the respondents/plaintiffs by the application of a rule of penalty‑‑Order VIII rule 10 C.P.C. on the failure on the petitioner to file written statement when required by the Court to do so. When these petitions were filed, there was no authoritative pronouncement of this Court regarding interpretation of the said penal provision. A recent judgment of this Court in the case of Mst. Hakumat Bibi v. Imamdin (P L D 1987 SC 22), has dealt with its import." The learned counsel for the applicant has laid much emphasis on the proposition laid down in the case of Sardar Sakhawatuddin v. Muhammad Iqbal. In this case their Lordships in the Supreme Court have observed that there are three types of written statements that can be filed under the provisions of Order VIII of the Civil Procedure Code which are as under:‑ (1) As of right without any formal permission of the Court (Rule 1) (2) When it is so required by the Court to file a written statement (Rule 1 and Rule 9) (3) When under some circumstances it is by the leave of the Court (Rule 9). Dealing with this position their Lordships have further observed as under: "It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos. 1 and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required"‑‑as is indicated in item No.2 above would follow. As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule 3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi P L D 1909 Kar. 418." From the above discussion it may be seen that no penalty is to be imposed for not filing the written statement as required under item Nos.l and 3 above but the penal consequences can be imposed where the written statement is ‑not submitted as provided under item No.2 above which means that when the defendant is so required to file the written statement and he does not do so, then the penal clause under Order VIII Rule 10 C.P.C. is to be imposed and the trial Judge has the discretion either to pass the judgment straightaway or to pass any other order in relation to the suit as he thinks fit. In this case their Lordships t were further pleased to observe that the first part of the Rule 10 being a penal t' provision the same should be strictly construed and the matter being in discretion of the Court the penalty should not be imposed if the judgment could not be pronounced being prohibited by law expressly or impliedly but in such circumstances recourse should be had to the second part of the provision of Rule 10 of Order VIII C.P.C. In view of the above discussion I am clear in my mind that the Court exercising jurisdiction under penal clause of Order VIII Rule 10, C.P.C. has not simply to pronounce the judgment decreeing the suit but has to exercise the caution and care to see as to whether on the showing of the plaintiff such decree could be passed in law and that there is no express or implied legal bar against passing such decree. The question now to be examined is whether in the present case the original Court should have resorted to passing order under the first part of Order VIII rule 10 C P C as discussed above by passing a judgment against the defendants or it should have resorted to the course as provided in second part of the Rule. The plain reading of the plaint will show that the said agreement of sale was entered into by the parties on 2‑10‑1972 while the suit was filed in the year 1981. This being a suit for specific performance, it will be governed by the provisions of Article 113 of the Limitation Act which provides for a limitation of three years to be counted from the date as provided for the performance of the contract or in case where no such date is mentioned then three years from the date the performance is refused. 1n the present case the copy of the agreement of sale has also been filed with the plaint which makes a provision for date of execution of sale‑deed but Mr. Haji Ahsanullah Shaikh, the learned counsel for the respondents has submitted that subsequent to this agreement some payments were made to the vendor whereby the period of limitation is deemed to have been extended and also that in such circumstances the date of refusal of performance would be the date from which the period of limitation is to be computed. These points require consideration and in my view it would be proper that the said legal points be taken into consideration by the original Court. From the above discussion I am of the view that in the present case the learned Court on the original side should have taken into consideration the above legal aspect of the case before passing the judgment and for that matter it would have been proper that the Court should have followed the course as provided in second part of Rule 10, Order VIII C.P.C. I accordingly accept this revision application, set aside the judgments of two Courts below and remand the suit to the original Court of Civil Judge, Shikarpur who should pass the appropriate order in view of the above observations. However, there will be no order as to costs. A.A./H‑218/K Revision accepted.