2003 PLP 385 (CLC)

The present appeal proceeds against order dated 7‑6‑2002, whereby the learned trial Court, in purported exercise of power wider Order VIII rule 10, Civil Procedure Code, closed the right of the appellant to file the written Statement.

2. Briefly stated the facts of the case are that respondent No.l filed a suit for specific performance of an agreement against respondent No.2 and the appellant, who pursuant to the issuance of summons, entered appearance, on 23‑1‑2002, but according to the appellant, he could not file the written statement, as the copy of the plaint was not provided to him. On 20‑5‑2002, the learned Civil Judge adjourned the hearing of the case to 7‑6‑2002, for filing the written statement as a last opportunity. It appears from the record that on the last‑mentioned date, the appellant filed an application with the prayer that the respondent/plaintiff may be directed to deliver the copy of the plaint and thereafter he would be in a position to file the written statement. However, the learned Civil Judge, after finding that the written statement has not been filed despite giving four opportunities, rejected the said application and the right of the appellant to file the written statement was closed in exercise of his powers under Order VIII, rule 10, Civil Procedure Code, hence the present appeal.

3. The learned counsel for the appellant has contended that the order‑sheet manifests that at no stage the copy of the plaint was given to the appellant, as such the appellant could not file the written statement. He has further Contended that sufficient opportunity was not granted to the appellant for filing the written statement; that on most of the dates, the learned Presiding Officer was on leave and no specific order, except order dated 20‑5‑2002, was passed by the learned trial Court calling upon the appellant to file the written statement. Conversely, the learned counsel for respondent No.l has supported the impugned order and asserted that although sufficient opportunity for filing the written statement was afforded to the appellant, yet he failed to file the written statement, therefore, the impugned order is not liable to be interfered with. Learned counsel for respondent No.2 has, however, supported the case of the appellant.

4. I have examined the record and find that .the appellant appeared before the trial Court on 23‑1‑2002, but the learned trial Court did not call upon the appellant to file the written statement and the case was adjourned to 10‑2‑2002, on which date the learned Presiding Officer was on leave and it appears that the reader passed the routine order. On 11‑3‑2002, there was no request on the part of the appellant fur the adjournment of the case anti the case was adjourned for filing the written statement. On two subsequent date the learned Presiding Officer did not hold the Court and the case was adjourned in routine. However, on 20‑5‑2002, the case was adjourned to 7‑6‑2002, on the specific request of the learned counsel of the appellant, for filing the written statement, on which elate the impugned order was passed. It flows there from that there was no specific order for filing the written statement, except the one passed I on 20‑5‑2002 and the previous orders, to my mind were passed in routine. On three dates of hearing the learned Presiding Officer was either on leave or was on some duty. The order‑sheet also does not show that at any point of time, the copy of the plaint was handed over to the learned counsel of the appellant, which although is not always B sufficient ground for iron‑filing of the written statement, yet the plaintiff is, to some extent, under obligation to deliver the copy of the plaint. I am not persuaded to accept the version of the learned counsel of the appellant that non‑supplying of the copy of the plaint is a ground for non‑filing the written statement, yet I am inclined to accept this appeal on the ground that the appellant was not provided a sufficient opportunity for filing the written statement. Under the law, the copies of the plaint are normally sent alongwith the summons and even if the said provision of law has not been complied with even then the defendant can always get a copy of the plaint from the Court record after observing the legal formalities. In a case reported as Westinghouse Electric Corporation, The Quardangle, 4400 Alafaya Trial Orlando Florida, U.S.A. and 3 others v. Wak Orient Power and Light Limited, Gulberg‑III, Lahore PLD 2001 Lah. 143, it has been held as under:‑‑ (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O. VIII, R.10‑‑‑Written statement called by the Court‑‑ Failure to file such statement‑‑‑Provision of O.VIII, R.10, Civil Procedure Code are penal in nature and have to be strictly construed and whenever a reasonable doubt arises regarding their interpretation/implementation the same have to be resolved in favour of the victim. (e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O. VIII, Rr. 1 & . 10‑‑‑Written statement‑‑‑Defence, striking off‑‑‑Where written statement is to be filed under O. VIII, R. 1, Civil Procedure Code the provision of O. VIII, R. 10, Civil Procedure Code has no applicability."

5. In view of the above, I am of the considered view that the impugned order is not sustainable to law, which deserves to be set aside specially in view of the law laid down in the aforenoted case. I am inclined to provide one opportunity to the appellant to file his written statement.

6. Upshot of the above discussion is that the present appeal stands accepted and the impugned order dated 7‑6‑2002, is hereby set aside with no order as to costs. The result would be that the appellant is allowed one opportunity to file his written statement, subject to payment of costs of Rs.2,

000. The parties are directed to appear before the learned Civil Judge, on 2‑9‑2002, on which date the appellant shall file the written statement and also pay the costs to respondent No.

1. Needless to observe that in case the appellant does not comply with the said requirements, of course, the learned Civil Judge would be empowered to pass an appropriate order under the law. H.B.T./M‑1409/L Appeal accepted.