2001 PLP 746 (MLD)

‑‑‑‑S.115‑‑‑Revision‑‑‑No case for interference with order of Appellate Court having been made out within meaning of S. 115, C.P.C., revision was dismissed with costs. Masood Ahmad Ghuman for Petitioner. No.

1. Muhammad Aslam Hayat for Respondent No.

1. Nemo for the Remaining Respondents. Date of hearing: 27th November, 2000. The petitioners filed a suit seeking a declaration and a permanent injunction against the respondents on 17‑9‑1986. In this suit on 16‑3‑1987 respondent No.3 put in appearance who was asked to file a written statement on 9‑4‑1987 while the remaining respondents were ordered to be served through proclamation. It appears that the petitioners had not deposited the expenses and the matter was adjourned to 2‑6‑1987. On this date the other respondents were marked absent while respondent No.3 was asked to file a written statement on 4‑7‑1987. On this date the other respondents put in appearance and an order `was received for transfer of the case which was taken up by the transferee Court on 5‑7‑1987, who set aside the ex parte proceedings and directed that the suit be put up alongwith the connected suit. On order was passed that written statement be filed on this date an application for stay of proceedings was filed ultimately decided on 20‑12‑1987. On this date the case was 12‑1‑1988 for written statement. It was on 12‑1‑1988 that an adjournment was specifically sought for filing of a written statement and the learned Court gave one last opportunity with Rs.30 as costs and adjourned the case to 27‑1‑1988. The learned trial Court also recorded an objection of the learned counsel for the petitioners that respondent No.3 cannot file a written statement after 90 days. The written statement was filed on 27‑1‑1988. On 17‑2‑1988 an application was filed for striking off the written statement. This application was ultimately allowed on 19‑3‑1988 and while striking off the written statement the suit of the petitioners was decreed. Feeling aggrieved the respondents filed an appeal which was heard by a learned Additional District Judge who allowed the same on 10‑1‑1989 and remanded back the case for trial on merits.

2. Learned counsel for the petitioners contends that the learned trial Court had no jurisdiction to extend time for filing of written statement beyond 90 days and as such the learned Additional District Judge has acted with, material irregularity while setting aside the judgment pronounced by the learned trial Court: Learned counsel for the respondents, on the other hand, argues that the learned trial Court had no jurisdiction to strike off the written statement which had been duly filed in compliance with the order of the Court.

3. I have gone through the copies of the record appended with this Civil Revision. It is true that Order VIII, Rule 1, C.P.C. prescribes that ordinarily the time given for filing of written statement shall riot exceed 90 days (now 30 days) but it is equally true that no penalty has been prescribed in the matter. On the other hand, a bare reading of the provisions would show that the learned trial Court is vested with the discretion as well as Jurisdiction to extend the time.

4. The only provision under which defence of a defendant can be l struck off for non‑filing of written statement is Rule 10 of Order VIII, C.P.C: The said provision of law provides that where a Court requires a defendant to file a written statement but he does not comply the defence may be struck off and the judgment may be pronounced. I have not been able to find any provision in the C.P.C. where a first written statement duly filed in Court can be struck off by the trial Court and a judgment can be pronounced against the defendant. It is also apparent on the face of the record that the order passed by filing of written statement on the record cannot be said to be an order requiring the written statement by a Court as per criteria laid down in the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365. As such it is doubtful as to whether the defence can be struck off even if written statement had not been filed.

5. No case for interference with the impugned order of the learned Additional District Judge has been made out within the meaning of section 115, C.P.C. This civil revision is accordingly dismissed with costs. H.B.T. A‑151/L ????????????????????????????????????????????????????????????????????? Revision dismissed.