P L D 1986 Lahore 48 (PLP)

This civil revision is directed against the judgment and decree passed by the District Judge; Toba 'Tek Singh, by which he had dismissed an appeal filed by the petitioner, Jamal. In the appeal, the petitioner had challenged the judgment and decree of a Civil Judge of Toba Tek Singh by which he had decreed the suit of the respondent, Rai Naeem Ullah Khan, due to the petitioner's failure to file written statement despite having been allowed six adjournments to do so.

2. It was contended by learned counsel for the petitioner that the judgment and decree of the learned Civil Judge were not supported by any evidence and, therefore, the same were not sustainable.

3. The learned Civil Judge had pronounced judgment against the petitioner in terms of provisions of Order VIII, rule 10 of the Code of Civil Procedure, which read as follows :‑‑ "

10. Procedure when party fails to present written statement called for 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.

4. It is apparent from the language of rule 10 that if written statement is not filed when so required by the trial Court there are two courses open to the said Court. It can either straightaway pronounce judgment against the defendant or make such order as it thinks fit. In the instant case, however, the learned Civil Judge adopted the first course, and decided the suit against the petitioner forthwith. He could have ordered ex parse proceedings against the petitioner and called upon the respondent to produce evidence in support of his case but he did not like to do so. If the view taken is that the learned Civil Judge could not pronounce judgment in the absence of any evidence against the petitioner it would defeat the very purpose for which the trial Court was enabled to pronounce judgment on the failure of the defendant to file written statement. If intention of the Legislature had been not to allow the trial Court to decide the suit in the absence of any evidence. it would have simply empowered the said Court to strike out the defence of the defendant. Such a provision has been made in rule 12 of Order VIII of the Code of Civil Procedure which deals with the failure of the defendant to give his own address. I am, therefore, clear in my mind that the learned Civil Judge could decide the suit as done by him without requiring the respondent to produce evidence in support of his case.

5. It was conceded by learned counsel for the petitioner that the petitioner was allowed six adjournments for filing the written statement but despite that written statement was not put in by him. No explanation was offered by him for the petitioner's failure to comply with repeated directions of the learned trial Court regarding the submission of written statement. Having noted that the petitioner had not filed written statement in obedience to its order it w. s discretionary with the learned trial Court to pronounce judgment against him or pass such order as it thought fit. On five occasions the Court took a lenient view and, by exercising its discretion in favour of the petitioner, overlooked his default in the matter of filing the written statement and instead of pro?nouncing judgment against him passed orders allowing him further time to do the needful. It was, however, on the sixth occasion that the Court felt constrained to exercise its discretion to the contrary anal pronounced judgment against the petitioner because written statement was not filed on that occasion as well, and there was no explanation for this shortcoming. It cannot. therefore, be said that on the sixth occasion discretion was not judicially exercised by the learned Civil Judge. Too much latitude had already been shown to the petitioner and he did not deserve dry more indulgence especially due to his gross negligence and contumacy.

7. In this view of the matter, order of the learned trial Court is unexceptional. The instant revision, therefore, fails. It is dismissed in limine. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed. P L D 1986 Lahore 50 Before Muhammad Sharif, J MUHAMMAD NAWAZ AND OTHERS‑Petitioners versus SULTAN‑Respondent Civil Revision No. 701 of 1985, decided on 10th December, 1985. ‑‑‑ S. 115 & O. 7N1‑Punjab Pre‑emption Act (I of 1913). Ss. 4 & 15‑pre‑emption suit‑‑Decree‑Doctrine of set off Pre‑emption money‑Payment of adjustment of costs against vendee‑Suit of plaintiff decreed with costs and he was ordered to deposit sale price by a certain date or suit was to stand dismissed‑Official of Court framing decree sheet omitting to enter amount of costs awarded to plaintiff ‑ Plaintiff depositing within time amount of decree but short by Rs. 3,000 in view of costs awarded to him as be knew that he had paid court‑fee stamps worth Rs. 15,000 and amount of costs awarded to him could not be less than Rs. 3,000 ?Held : Plaintiff‑decree‑holder was entitled to adjust cost awarded to him while making payment under same decree‑Contention of petitioner that since in decree‑sheet amount of cost was not entered, same could not be adjusted towards pre‑emption money, held, was devoid of force‑pre‑emptor could not be made to suffer on account of omission of official of civil Court who framed decree and did not enter amount of costs‑Interference declined in revisional jurisdiction. Muhammad Afzal and 8 others v. Haji Fazal‑ul‑Haq and another P L D 1971 S C 162 ; Alam Din v. Muhammad Nawaz and others P L D 1970 Azad J & K 54 ; Mst. Rehmatey and 7 others v. Khanan 1980 C L, C 1765 and Kapuria Mal and another v. Wali Muhammad and others I L R 1921 Lah. 294 rel. Mirza Manzoor Ahmad for Appellant. The revisional jurisdiction of this Court has been invoked to set aside the order dated 27‑11‑1985 pronounced by Ch. Muhammad Ali, the learned Additional District Judge, Khanewal who had confirmed that of Ch. Riaz Mahmood, the learned Civil Judge, Khanewal, dated 5‑5‑1985.

2. The brief facts of this case are that Sultan, the respondent, who is the pre‑emptor/decree‑holder, obtained a decree for possession by pre?emption of the land in dispute measuring 124 Kanals and 2 Marlas situate in Chak No. 92/10‑R, Tehsil Khanewal on payment of Rs. 2,83,00 with costs on 24‑11‑1984. It was ordered by the learned trial Court that the sale price of Rs. 2.83.500 including one‑fifth of the pre‑emption money should be deposited by 31‑1‑1985, failing which his suit shall stand dismissed. The respondent had deposited Rs. 54,000 by way of one ?fifth of the pre‑emption money on 9‑3-1985.? He deposited a further sum of Rs. 2.26,500 by the due date, In a way,? he deposited Rs. 3,000 less than the amount ordered to be deposited within time. The respondent filed an execution application and the petitioners objected that the suit of the respondent should have been dismissed as the entire amount had not been deposited in accordance with the direction of the learned trial Court.

3. The respondent took the plea that he had deducted a sum of Rs. 3,000 towards the costs awarded in his favour. It may be noted that the costs awarded in his favour were about Rs. 18,

000. The question arose whether he could adjust the amount of costs towards the payment of the pre‑emption money. Both the learned lower Courts found that the amount of cots was adjustable and they dismissed the objection petition filed by the petitioners.

4. In Muhammad Afzal and 8 others v. Haji Fazal‑ul‑Haq and another (PLD1971SC162) a similar question arose wherein it has been held that there was a unanimous view of the Courts that where a pre‑emptor is directed to pay into a Court a specific sum of money and is awarded costs, he is entitled to deduct the amount so awarded from the sum he is directed to pay in Court and there is nothing in the C. P. C. nor is there any equitable consideration which would prohibit a pre‑emptor/decree‑holder from availing himself of the doctrine of set off by deducting the costs allowed to him from the purchase money which he is to deposit. under the very decree which awards him costs. The same principle was enunciated in Alam Din v. Muhammad Nawaz and others (PLD1970AzadJ&K54). His Lordship Mr. Justice Muhammad Ilyas in Mst. Rehmatey and 7 others v. Khanan'(1980 C L C 1765) adjudicated that the costs could be adjusted towards the pre‑emption money and the permission of the Court fop the said purpose was not necessary. The said authority has been based on a Division Bench judgment known as Kapuria mal and another v. Wali Muhammad and others (I L R 1921 Lah. 204).

5. It has been contended on behalf of the petitioner that in the decree‑sheet framed by the learned trial Court, the amount of costs was, not entered and in this manner the costs could not be adjusted towards the pre‑emption money. This argument is devoid of any force because the pre‑emptor knew that he had paid the court‑fee stamps worth Rs. 15,000 and the amount of costs could not be less than Rs. 3,

000. The pre‑emptor cannot be made to suffer on account of the omission of the official of the civil Court who framed the decree‑sheet and did not enter the amount of costs therein.

6. In view of the above‑quoted authorities, the learned lower Courts have not committed any illegality or material irregularity in the exercise of their jurisdiction as envisaged under section 115, C. P. C. I, therefore, dismiss this revision petition in limine. M. Y. H.????????????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.