1986 PLP 486 (MLD)

Hassan Ahmad Khan Kanwar and Ch.Hafiz Muhabbat Ali for Petitioners. Zafar Iqbal Khan for Respondents. Date of hearing: 25th October, 1983. This revision petition has been filed to assail the validity of the orders of a learned Civil Judge whereby on account of the failure of the petitioners to file written statement, right of defence of the petitioners was struck off by invoking the provisions of Order VIII, Rule 10, C . P. C . and pre‑emption suit of respondents‑plaintiffs was straightaway decreed, vide the impugned order, dated 16‑4‑1978. The petitioners went in appeal which was dismissed by a learned Additional District Judge, vide order, dated 22‑5‑1982.

2. The brief facts of the case are that respondents‑plaintiffs instituted a suit for pre‑emption for a parcel of land measuring 93 Kanals 9 Marlas located in district Lahore on 9th October, 1976. A copy of the plaint was delivered to the petitioners who were defendants to the suit under the order of learned Civil Judge Sardar Ali Gul Khan on 18‑2‑1978 with a direction to file the written statement on 27‑3‑1978. This assertion of the petitioners is supported by the interim order of learned Civil Judge of the same date. On this date, according to the petitioners' version, the ease was got adjourned to 16‑4‑1978 because they wanted to obtain a copy of the Khasra Girdawari. Then, on 6‑4‑1978, the learned Civil Judge by a brief seven lines order invoking the ,provisions of Order VIII, Rule 10, C.P.C. closed the right of defence of the petitioners and straightaway decreed the suit. The learned appellate Court took note of the fact that the appellants were granted two adjournments for the purpose of filing the written statement and that the petitioners who were appellants should have availed of the opportunity offered to them, if they were vigilant. In this view of the matter, the appellate Court held that the learned trial Court was justified in striking off the defence of the appellants particularly when they were asked to file the written statement. It was further observed that when they made a review application, they had a wood chance to file the written statement. He, therefore, found no substance in the appeal and dismissed the same, vide his impugned order, dated 22‑5‑1982.

3. I have heard the learned counsel for the parties at length. It is to be noticed that though the suit had been instituted in October, 1976, no material progress could be made except on 18‑2‑1978 when copy of the plaint was delivered to the defendants and an order was passed directing the defendants to file the written statement on 27‑3‑1978 when the case was again got adjourned for 16‑4‑1978. The time thus allowed to the petitioners from the date of delivery of copy of the plaint and closing the defence of defendants under Order VIII, Rule 10 was hardly two months. The suit of the respondents was also straightaway decreed without recording any evidence whatsoever or applying the Court's conscious mind to its merits or demerits.

4. This revision petition was inter alia, admitted to consider the effect of proviso to rule 1 of Order VIII, C.P.C. which was inserted through Ordinance XII of 1972. This question has, in the meantime, been examined by a Division Bench of this Court in R.F.A. No.169 of 1981. It has been held that in ordinary circumstances, the period allowed for filing the written statement shall not exceed 90 days. However, in exceptional circumstances, the Court would still retain the powers to extend time depending upon the facts and circumstances of each case. In the instant case, I find that the learned Civil Judge remained completely oblivious of the requirements of proviso to Order VIII, Rule 1, C.P.C. He should have kept this provision in view and then applied his independent mind in the facts and circumstances of the case. Nothing of this nature seems to have been done. I would, therefore, be justified in drawing the inference that the learned trial Court overlooked this relevant provision of law and this would constitute a patent illegality. The learned Civil Judge also failed to address himself to the question whether the case under consideration was of a nature where the period allowed for filing the written statement should or should not have ordinarily exceeded 90 days. If there were any exceptional circumstances to justify a departure from this rule, then those circumstances should have been duly listed and considered. This amount to failure to exercise jurisdiction vested in him by the aforesaid provision.

5. This does not conclude the matter because it is to be noticed that the learned Civil Judge straightaway after invoking the provisions of Order VIII, Rule 10, C.P.C. passed the decree against the petitioners who were defendants to the suit. In the precedent case of R. F. A . No.169 of 1981, the Division Bench of this Court after examining the provisions of Order VIII, Rule 10 held that it showed that unlike Order IX, Rule 6, there was no provision to be found enabling a civil Court to decree the suit without recording evidence. The spirit of rule 10 clearly appears to be that it vested a discretion in the civil Court on the failure of a party required to present the written statement within the time fixed by the Court to pronounce judgment against him or make such order in relation to the suit as it thinks fit. There was nothing contained in the judgment under appeal to show that the trial Court was conscious of the two requirements of Order VIII, Rule 10 either to pronouncement or make such order in relation to the suit as he thought fit. In the instant case, a perusal of the impugned order of learned Civil Judge also shows that he construed the failure of the defendants to file the written statement as a circumstance obliging him to accept the ipse dixit of plaintiffs and straightaway decreed the suit. The learned civil Judge, therefore, in my view completely misdirected himself in law by acting in ignorance of the provisions of Order VIII, Rules 1 and 10 of the C.P.C. The principle enunciated by the Supreme Court in the case of Shamroz Khan P L D 1978 S C 89 would also fully apply.

6. I must observe that a perusal of the proceedings held by the learned trial Court show that no visible effort was made to be satisfied about the genuineness of the case of plaintiffs approaching him for relief. Once again, adverting to the decision in R. F. A. No. 169 of 1981, the following observations may be quoted with advantage:‑‑ "After giving our anxious consideration to the matter in the above light, we are of the opinion that it is inherent in the very process of dispensation of justice that the judicial conscience of the Court must be satisfied about the genuineness of the case set up by the plaintiff approaching the civil Court for relief. The record must also reflect conscious participation of the trial court if, the proceedings for discovery of truth and in order to obviate chances of unscrupulous litigants getting away with ill‑merited judgments or decrees which amount to negation of justice and defeat the very purpose of law. It follows that a judgment that is based on no evidence whatsoever on the merits of the case would be illegal. It cannot also be overlooked that there are no words to be found in Order VIII, Rule 10 doing away with the absolute requirements of the Evidence Act". In the present case, the decree instead of a judgment was passed without recording evidence of the plaintiffs and thus it is a case of no evidence. The pleadings are not evidence is a well‑settled position.

7. Now coming to the merits of appellate order, I am constrained to observe that the Court failed to consciously apply his mind to the points raised before him in memorandum of appeal. He did not consciously advert to the provisions of Order VIII, Rule

1. He also failed to appreciate the true import of Order Vill, Rule 10, C.P.C. There was thus no lawful disposal of the appeal of petitioners as all the questions germane for a just decision were not duly attended to nor the provisions which governed the case consciously were taken note of, construed or applied.

8. A fair reading of the two impugned judgments and decrees of Courts below shows that they have failed to exercise jurisdiction vested in them by law and have acted in exercise of their jurisdiction illegally and with material irregularity. The revision petition is thus accepted, impugned judgments and decrees are set aside and case is sent back to the learned Civil Judge to proceed with the case in accordance with law after obtaining written statement of petitioners‑defendants which statedly was ready. There shall, however, be no order as to costs. A.A Revision accepted.