P L D 1982 Lahore 576 (PLP)

Mirza Hafeez‑ur‑Rehman for Petitioner. . ORDR The facts giving rise to this civil revision are that one Muhammad Bashir and four others instituted a suit against the petitioner, Muhammad Shafi, for administration of certain property left by their parents. In response to the summons issued to the petitioner, who was defendant in the suit, he filed written statement in which it was inter alia pointed out by him that some of the property left by their parents bad not been shown in the plaint and that all of their legal heirs had been impleaded in the suit. Thereupon the plaintiffs made an application for amendment of the plaint which was allowed. Accordingly, the plaintiffs submitted an amended plaint by impleading thirteen defendants and adding more property to the property involved in the original plaint. Then, the defendants were directed to file amended written statement on 26th November, 197'3, but as they had failed to do so, the Civil Judge, who was seized of the suit, passed a preliminary decree in favour of the plaintiffs and against the defendants on .the basis of the provisions of Order VIII, rule 10 of the Code of Civil Procedure. The decree was challenged by the petitioner, who was cute of the defendants, by taking an appeal to an Additional District Judge, but in vain. He has, therefore, come up in revision to this Court.

2. It was contended by learned counsel for the petitioner that the trial Court .could only pass a decree against the petitioner in regard to the additional property shown in the amended plaint but it could not decree the suit against him even in regard to the property specified in the original plaint because the petitioner had submitted written statement in regard to the original plaint. He did not cite any authority in support of his' contention.

3. It is evident from the provisions of rule 9 of Order VIII of the Code of Civil Procedure, which relate to subsequent pleadings, that the Court can, at any time, require a written statement or additional written statement from the defendant and fix a time for presenting the same. Thus, the written statement referred to in rule 9 is the written statement other than the original one. In this view of the matter, the learned Civil Judge could direct the petitioner to file amended written statement qua the amended plaint put in by the plaintiffs in consequence of the objections raised by the petitioner himself. It has been laid down in rule 10 of Order VIII of the Code of Civil Procedure that where any party from whom a written statement is required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him or make such order as it deems fit. It is not denied that in the instant case the petitioner had failed to file written statement on the date fixed by the learned trial Court. So, in terms of rule 10, the Court could pronounce judgment against the petitioner; '

4. Now, the question which requires determination is whether in the circumstances of the present case the learned trial Court could decree the suit against the petitioner, in toto or it could simply decree the suit to the extent of the property which was added in the amended plaint. According to the language of rule 10, two courses were open to the learned trial Court when it was found that the petitioner had not filed the amended written statement. It could either pronounce the judgment against him or make such other order in relation to the suit as it thought fit. The learned Civil Judge, however, decided to adopt the first course and pronounced judgment against the petitioner. The judgment contemplated by rule 10 has got to be against the defendant. If the learned Civil Judge had proceeded in the manner suggested by the learned counsel and decreed the suit in respect of the property not mentioned in the original plaint and dismissed the same in regard to the property giving therein, his judgment in relation to the partial dismissal of the suit would not have been against the defendant. Also having adopted the first course of pronouncing the judgment, he could not possibly decree the suit in part and proceed to hear the rest of it because the pronouncement of judgment is synonymous with the disposal of suit. Undoubtedly, by making the impugned order the learned trial Court had decided not to follow the alternative course of making any other order as it thought fit. The learned Civil Judge could not, therefore, help decreeing the whole of the suit as reflected in the amended plaint. In this view of the matter his decision does not merit any inter ference.

5. Resultantly,‑ this civil revision fails. It is dismissed in limine. s. Q. Petition dismissed.