P L D 1991 Supreme Court 1104 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This appeal through leave of the Court arises out of an ex parte decree. Leave to appeal was granted as follows:‑‑ "Leave to appeal has been sought by the defendant in a suit for declaration; against the dismissal of his Civil Revision by the High Court. It had arisen out of the dismissal of his application for setting aside an ex parte decree which, as contended by the learned counsel, was passed on a date when the suit was fixed for filing of the written statement only. Learned counsel contends that the legal question now stands settled that the date of filing of written statement is not a date of 'hearing Therefore, the suit could not have been decreed against the petitioner ex parte for non‑appearance on the date when only a written statement was A to be filed. The question needs examination. Leave to appeal accordingly, is granted." Learned counsel for the respondents as a preliminary submission stated that the assumption made in the leave grant order that the date of filing of the written statement is not a date of hearing and that the law stands now settled, needed to be verified with reference to the precedent law. The learned counsel for the appellant reiterating the position taken by him and recorded in the leave grant order in that behalf; stated that in this case it would not be necessary to go into the said question regarding the submission of the written statement. As according to him, the relevant date was not even fixed for the submission of the written statement. It was in fact for the submission of the reply to an application made by the respondents' side for grant of temporary injunction. He has produced the copy of the order‑sheet, the examination of which has confirmed, what the learned counsel for the appellant has stated. The learned counsel for the respondents after having seen the copy of the order‑sheet did not dispute that if the case was fixed for the submission of the reply to the said miscellaneous application then it was not a date of hearing of the case. He, however, tried to show that according to the provisions contained in the Civil Procedure Code regarding the submission of a written statement, the relevant date could also be treated as the one for the filing of the written statement. Firstly, we have not yet agreed with the learned counsel that a date for filing of the written statement has to be treated as a date for hearing of the suit. And secondly, the order‑sheet does not at all support the learned counsel for the respondents. Regarding the presumption that according to C.P.C. the defendant was required and could rile a written statement on any of the dates fixed for the riling of the reply to a miscellaneous application. Suffice it to observe that there was no order by the Court requiring the defendant under Order VIII of the C.P.C. to file a written statement. Regarding the other categories of written statements, the argument of the learned counsel also has no force as it has to be established from the order‑sheet that a particular date was fixed for the filing of any written statement as a reply to the plaint. See also Sakhawatuddin v. Muhammad Iqbal (1987 SCMR 1365). In the light of what has been stated above, there is no force in the arguments of the learned counsel for the respondents. This appeal is allowed, the impugned judgment is set aside and the case is remanded to the trial Court for decision on merits. There shall be no order as to costs. M.B.A./M‑.1553/S Appeal allowed.