P L D 2006 Lahore 18 (PLP)

MUHAMMAD SAYEED AKHTAR, J.

The plaintiff/ respondent filed a suit on 10-2-2003 against the defendants /petitioners for declaration that he was owner-in-possession of the suit-land and is entitled to raise construction on it. The defendants be restrained from causing any interference in the ownership and possessory rights of the plaintiff. The defendants /petitioner were served through citation in the newspaper, they entered appearance on 22-5-2003 and the case was adjourned to 7-6-2003 for filing the written statement of the defendants. On the said date the written statement was not ready and the adjournment was sought by the learned counsel for the defendants for filing the same. The learned trial Court acceded to the request of the learned counsel for the defendants and the case was adjourned to 23-6-2003 on which date too the written statement was not ready. Again on the request of the learned counsel for the defendants the case was adjourned to 30-6-2003 on which date again the written statement was not filed and the defence of the defendants /petitioners was struck off. They preferred an appeal before the District Judge, Faisalabad which carne up for hearing before the learned Additional District Judge, Faisalabad who vide his order dated 30-11-2004 dismissed the same.

2. Learned counsel for the petitioners contended that the learned trial Court did not provide sufficient opportunity and time to the petitioners to file the written statement. He further urged that the learned trail Court should have burdened the petitioners with costs. Conversely the learned counsel for the respondent submitted that three opportunities were granted to the defendants /petitioners, no latitude can be shown to them.

3. I have gone through the order sheet and the impugned orders and considered the arguments of the learned counsel for the parties. The order sheet displays that the defendants could not be served on 31-3-2003, the side note shows that they had shifted their residences. On 15-4-2003 instead of calling the fresh addresses from the plaintiff the learned trial Court proceeded to order for substituted service in haste. On 29-4-2003 and 22-5-2003, the publication in the newspaper was not received by the Court, however, the defendants entered appearance on 22-:5-2003. The order sheet shows that the copy of the plaint was not provided to the defendants to enable them to file the written statement. In my view without supplying the copy of the plaint, the defence of the defendants/petitioners could not be struck off. See Muhammad Akram through General Attorney v. Mst. Naeema Irshad and another (2003 CLC 385) and Westinghouse Electric Corporation, The Quadrangle, 4400 Alafaya Trail Orlando, Florida U.S.A. and 3 others v. Wak Orient Power and Light Limited, Gulberg-III Lahore (PLD 2001 Lahore 143). The Hon'ble Supreme Court in the case of Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another (PLD 2002 SC 630) observed as under:-- "It is manifest from the examination of the record and the orders passed by the trial Court in this case that though a number of opportunities were granted to the defendant on his request as of right to file written statement but the Court itself did not require the defendant to file the written statement, as such, rule 10 of Order VIII, C.P.C., was not attracted, as such, no power or jurisdiction was vested in the Court in these circumstances to proceed under the said rule and close defence of the respondent/defendant. From the perusal of the record of the trial Court of the suit copies of which have been appended with this petition by the learned counsel for the petitioner, it can safely be held that there was no application of judicial mind by the trial Court that it intended to exercise power of requiring the defendant to file written statement even if the said defendant had failed to exercise of his right to file the same. " In the instant case time was granted in routine for filing the written statement on the request of the defendants/petitioners but there was no order requiring the defendants/petitioners to file the written statement. The 'requirement of the Court and a speaking order in that behalf is lacking Order VIII, Rule 10, C.P.C. was penal in nature and had to be strictly construed and whenever a reasonable doubt arose regarding its interpretation/implementation it would be resolved in favour of the victim of the application. There should be a specific speaking order under Rule 9 Order VIII, C.P.C. before the defence of the defendants could be struck off. See Sardar Sakhawatuddin and 3 C others v. Muhammad Iqbal and 4 others (1987 SCMR 1365), Col.(Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another (supra). The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan (1991 SCMR 2527), Wak Orient Power and Light Limited v. Westinghouse Electric Corporation and others (2002 SCMR 1954). It is pertinent to mention here that in Order VIII, Rule 1, C.P.0 by an amendment of Lahore High Court the phrase "may and if so required by the Court" has been deleted. However, the same are intact in D Rules 9 and 10 of Order VIII, C.P.C. As stated above the 'requirement' of the Court and a speaking order in that behalf is lacking in this case. Rule 10 of Order VIII, C.P.C. has no applicability to the written statements to be filed under Order VIII, Rule 1, C.P.C.

4. For what has been stated above this petition is allowed, the impugned orders are aside, the petitioners are granted one opportunity to file the written statement. The parties shall appear before the learned trial Court on 19-11-2005, who shall fix the date for filing the written statement. If the petitioners fail to do so their defence shall be struck off. M.A.W./S-482/L Petition allowed.