2013 PLP 836 (YLR)

MUHAMMAD QASIM KHAN, J.

This writ petition is an old matter lingering on since, 2006. With the concurrence of both the parties this will be decided as "PAKKA" case. Briefly stated facts of the suit are that Mst. Farzana respondent No.1/plaintiff had filed a suit performance of the contract against the petitioner/defendant Shabbir Ahmad and during the pendency of suit the right of filing written statement of petitioner/defendant was closed by the trial Court vide order dated 3-10-2005, against which an application for setting aside proceedings dated 3-10-2005 was filed but was dismissed. Aggrieved thereby, the petitioner/defendant filed a revision petition, which has also been dismissed by the learned Additional District Judge, Khanpur, vide order dated 3-2-2006; hence, this writ petition.

2. Learned counsel for the petitioner argued that the learned trial Court was not justified in striking out the defence of the petitioner and similarly his revision was also illegally dismissed and the Appellate Court has not exercised the jurisdiction vested in it. Relied upon the judgments reported in PLD 2006 (Lahore) 18, PLD 2002 SC 630 and PLD 2002 SC 491.

3. On the other hand, learned counsel for the respondent/plaintiff contends that both the courts below have passed the orders in accordance with law. No illegality irregularity has been committed. The petitioner was granted opportunities to file written statement but he did not bother to file the same, hence, the trial Court had no alternate except to strike of the defence of petitioner and it cannot be interfered with in writ jurisdiction.

4. Heard. Record perused.

5. The use of word "required" in Order VIII, Rule 1, C.P.C. is of most significance. It does not permit a routine order without application of mind to the "requirement" and all the need. Therefore, it is essential that whenever a written statement is to be made subject to penal Order VIII Rule 10, there should be proof on record that the court had "required" it by application of mind to the need and that too in a speaking order. Without the same many innocent parties would be trapped in a technicality without fully realizing the implication. Where adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under Rule 9 that could not satisfy the law regarding the "requirement" of the court. It is the only written statement which is required and that too by the court by a speaking order, which would entail the penal consequences of Order VIII Rule

10. In the cases before the Court it is admitted position that these "requirements" had not been fulfilled. When "required" written statement had not been filed, two alternatives were before the trial Court namely the pronouncing of judgment forthwith or making of such other orders though it was discretionary with the court to apply penal provisions Rule 10 of Order VIII and pronounce the judgment even without recording the evidence but such judgment should be on the basis of facts before it. Punitive action should only be taken in severe circumstances. Court in the alternative award costs and grant an adjournment or proceed to record evidence ex parte and then pronounce the judgment. Rationale behind all discussion is that the defendant should not be deprived of putting forward his summary of defence. In this case, as earlier discussed, punitive action for non-filing of written statement should only be taken in very extreme circumstances. Case in hand does not show that last opportunity was given to the defendant to file written statement and written reply; hence, this court has the supervisory jurisdiction under the Constitu-tion of Islamic Republic of Pakistan, 1973. Moreover, as the trial Court and the Revisional Court did not exercise the jurisdiction vested on them, is allow the writ petition and both the orders impugned passed by the courts below are declared void, illegal, ab initio having no legal effect on the rights of the petitioner. Trial Court is directed to award one opportunity of 15 days subject to payment of costs of Rs.6,000 to the petitioner to file his written statement and this will be last and final opportunity for filing of written statement.

6. The notice issued to the Civil Judge vide order dated 13-3-2006, considering his explanation, is withdrawn. However, he shall remain more careful in future. MWA/S-11/L Petition allowed.