2001 PLP 748 (MLD)

2. The respondent filed four suits for recovery of Rs.24,900 each against the petitioners in these Civil Revisions. In the plaint it was alleged that the respondent is a highly learned person and had been holding important offices in his sect and is also editing and publishing a journal; that he was appointed as a Member of the Islamic Ideological Council wherefrom he resigned; that an appeal was published in the Daily Nawa‑i‑Waqt, Rawalpindi addressed to the President of the country and .the Chairman of the said Council making some derogatory remarks against the respondent. According to the plaint the said libel was published by the petitioners in these Civil Revisions. The suits were filed on 14‑3‑1982. The petitioners were summoned for 18‑4‑1982. On the said date the counsel for the parties were present and following order was passed:‑‑ On 13‑6‑1982 following order was passed:‑‑ On 12‑7‑1982 counsel for the parties were marked present. It was noted that the written statement is not ready. The learned trial Court proceeded to strike off the defence of the petitioners and to decree the suit as prayed for. 2‑A. An application under Order IX, Rule 13, C.P.C. was filed on 15‑7‑1982 stating that the next date of hearing was noted as 14‑7‑1982 by the learned counsel and that the suit had been decreed ex parse on 12‑7‑1982. Prayer for setting aside of the decree was made, This application was resisted by the respondent. Issues were framed. Evidence of the parties was recorded. Learned counsel for the petitioners himself entered the witness‑box as a P.W. to state that he was not present on 12‑7‑1982; that he had noted 14‑7‑1982 which he understood to be the next date of hearing whereas the suit was decreed on 12‑7‑1982. The learned trial Court proceeded to dismiss the application on the ground that since the decree was passed after striking off the defence of the petitioners, the application was not competent. The petitioners then filed appeals against the said order dated 19‑5‑1986 dismissing their application as also the original decree dated 12‑7‑1982. All these four appeals were heard by a learned Additional District Judge, Lahore who proceeded to dismiss the same on 15‑5‑1988.

3. No one has turned up tbr the petitioners. After examining the records appended with these Civil Revisions I am not at all inclined to dismiss them for non‑prosecution.

4. Learned counsel for the respondent contends with reference to the case of Mst: Hakumat Bibi v. Imam Din PLD 1987 SC 22 that the learned trial Court was justified in decreeing the suit in the manner it has been done.

5. I have already reproduced the material particulars of the contentions raised in the plaint and I have further reproduced above all daily orders passed by the learned trial Court before proceeding to decree that suit, Learned counsel for the respondent is not in a position to state that the summons issued to the petitioners required them to file a written statement or not. The said judgment relied upon by the learned counsel does go to support his contention to some extent. However, I find that in the said case there were four defendants and in the beginning all the four had admitted the case 'of the plaintiff. Later one of them resiled and the suit was being adjourned for filing of written statement by the said defendant when defence was struck off because of non‑filing of the written statement. I also find that it was a suit where the prayer made was that the plaintiff be declared to be in joint possession of the suit‑land. It was in the facts and circumstances of that particular case that their Lordships proceeded to hold that to the circumstances the learned trial Court was justified to strike off the defence and further proceeded to decree the suit without recording any evidence.

6. The present case, in my humble opinion, is distinguishable. In the present case the learned Court had to apply conscious mind at least to the contents of the plaint. It had to express satisfaction that the words stated to be libellous by the respondent were in fact published by the petitioners and that they were in fact libellous and if so what should be the quantum of damages. The learned trial Court had, however, proceeded to pronounce the judgment without even examining the plaint.

8. To my mind another judgment given by an equal number of Hon'ble Judges in a later judgment in the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 would be more akin to the point in hand. There is nothing on record to show that the learned trial Court had required the petitioners to file the written statement as held in the said case of Sardar Sakhawatuddin. Any routine order stating that the written statement be filed cannot be interpreted to mean and order requiring the defendant to file a written statement. It was further observed as follows in para. 9 of the report at page 802:‑‑ "The use of word 'required' is not without significance. It does not permit a routine order without application of mind to the 'requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal Rule ltd, there should be proof on record that the Court had 'required' it by application of mind to the treed and that too in a spealting order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications‑‑‑It is only the written statement which is 'required' and that too by 'the `Court' by a speaking order which would entail the peal consequences of Rule 10. " In the present case there is nothing on the file to suggest that an order in terms directed by the apex Court was passed requiring a written statement to be filed and the learned counsel present is also unable to controvert the said position apparent on the face of the record.

9. It was held in the case of Shamroz Khan and another v. Muhammad Arvin and others PLD 1978 SC 89 and in fact it is also a ratio of the decision being relied upon by the learned counsel himself that in every case it has to be judicially considered by the Court as to whether requirement of evidence is necessary or not. In the present case the learned trial Court had proceeded in a manner as if it was under the impression that the judgment had to be pronounced by way of penalty for non‑filing of the written statement.

10. For all that has been stated above I find that the learned Courts below have acted with material irregularity in the exercise of their respective jurisdiction while passing the impugned judgments acid decrees. Resultantly all these four Civil Revisions are allowed. The judgments and decrees of learned Courts below are set aside. The result would be that the suit filed by the respondent shall be deemed to be pending in the Court of learned Senior Civil Judge, Lahore who shall send for the records of the suits and after summoning the defendants therein pass a speaking order. If he requires a written statement to be filed and if such a written statement is filed then to frame the issues arising out of the pleadings in all the four suits and to proceed to decide the suits in accordance with law. No orders as to costs. H.B.T./M‑419/L Revision allowed.