[Karachi] (PLP)

Laiquc Ahmed Siddiqui v. The Federation of Pakistan PLD 1957 Kar. 54; Abdur Rehman v. Parwcz Ahmed Butt PLD 1982 Kar.458 and N.isar Ahmed and another v. Habib Bank Ltd. 1980 CLC 981 ref. (e) Specific Relief Act (I of 1877)‑‑ ‑‑‑S. 12‑‑Suit for specific performance of contract ordered to be decreed in plaintiff's favour on payment of outstanding balance price which was to be deposited in Court within specified time‑‑Defendants were directed to specifically perform the contract in suit initially on payment of balance amount by plaintiff within a period of two months failing which Nazir of Court was to take steps to transfer the property in suit in favour of plaintiff, on payment of balance consideration disclosed in the agreement of sale‑‑Suit decreed. Farooq H. Naik for Plaintiff. Nemo for Defendants. Date of hearing: 27th February, 1989. This suit involves a claim for specific performance made by the plaintiff against the defendants. The defendants have only contested the interlocutory proceedings for grant of interim injunction in the case, as reflected in C.M.A. 2445/88, submitted alongwith the suit. They have chosen not to file any written statement in the case and stand debarred under Rule 159 of the Original Side Rules of this Court, from filing one by the Additional Registrar (O.S.) and the case, pursuant thereto, has been put up for final disposal.

2. The question in this case is whether an ex parte decree, as prayed in the suit, in the absence of a written statement can be passed. However, such question is not free from difficulty inasmuch as in the separate Counter‑ Affidavits of the Defendants Nos.2 and 3, riled in relation to the above‑referred interlocutory application under Order 39, Rules 1 and 2, C.P.C., it is maintained that an additional sum of Rs.2,00,000 was payable by the plaintiff to the defendants as, due to default on the part of the plaintiff, the defendants Nos. 2 and 3 had made further improvements and alterations in, the property with a view to sell it to some body else. It was stated by the learned counsel of the defendants on 31‑5‑1988, in Court that the defendant No.3, did not agree to transfer in favour of the plaintiff as he demanded such additional amount of Rs.2,00,000.

3. Now, this, in my view, is a defence in the case which is advanced on the basis of a verified statement on oath made in the form of counter‑affidavits, though in another context. The only factor, lacking in these duly recorded affirmations which, apparently, does not qualify them to be termed as written statements, is that the same are not so stylcd.But, after all, what is a Written Statement? Written Statement is a reply made of and in relation to the pleas in the plaint. It is to take a recognised form and is subject to certain rules. It is to be made on oath or on solemn affirmation. But under Order 8 Rule 1, C.P.C., it is not obligatory to rile it unless required by the Court or prescribed by the Rules. A defendant who does not rile a Written Statement may yet participate in and defend the proceedings. Reference in this behalf may be made to the opinion of M.S.H. Oureshi, J. in the case of Mst. Bilquis Begum v. Syed Ali Turab etc., 1980 CLC

930. Unfortunately, the defendants have failed even to appear at this stage of final disposal incapacitating them from participation. The question, therefore, is whether the defence that they have raised in their above‑referred Counter Affidavits can be completely ignored because such Counter‑Affidavits are not styled, as Written Statements, though incorporating due defence. I am not inclined to subscribe to such notion. We are no longer in those time when technicalities were everything and substance could be ignored or bypassed. Courts are required to do substantial justice and one form of proceedings, in the interest of justice, may be treated as another. Thus Revisions, Appeals and Constitutional Petitions have been treated one or the other, interchangeably, to meet the ends of, justice. I can think of no reason as to why this cannot be done here.

4. It is, no doubt, true that the Original Side Rules of this Court prescribe that when summons arc issued for settlement of Issues, the Registrar shall direct the defendant to rile his Written Statement within time to be specified and such time may be extended. On failure, the matter, after debarring the defendant, is to be put up for Final Disposal before the Court, which, on sufficient cause being shown, may grant leave to defend either conditionally or unconditionally. In the case reported as Laique Ahmed Siddiqui v. The Federation of Pakistan PLD 1957 Kar. 54; lnamullah, J., as he then was, even after the dismissal of an application for leave, after the defendant stood debarred, allowed him to participate in the proceedings and cross‑examine the witnesses of the other side. This dictum was followed by Ajmal Mian, J., as he then was, in the case of Abdur Rehman v. Parwez Ahmed Butt PLD 1982 Kar. 458 and, apart from cross‑examination,the defendant was also allowed to argue the case. 5 Reverting to the facts of this case, it seems to me that if there is a reply on oath on the part of the defendant, which appears on the record of a case, such duly verified reply on oath, even though it is not formally termed as a Written Statement, may yet be considered in the way of defence or even, if ends of justice so require, as a Written Statement and, at any event, cannot be ignored by a Court of Law, for the object of such Courts is always to administer justice between the parties and in fairness to all concerned. The basis on which issues are struck under rule 3 of Order 14, C.P.C. fortifies me in arriving at these conclusions. It may further be observed that even when no Written Statement is filed, in spite of a direction to such effect, such default does not lead to decreeing the suit ipsi dixit without any proof whatsoever. A.S. Salam, J., as he then was, also, evidently subscribed to this view in the case of Nisar Ahmed and another v. Habib Bank Ltd. 1980 CLC

981. The Counter‑Affidavits in question, therefore, qualify for being considered in defence, even though the defendants are absent. I would, however, in the context of this case, refrain from treating them as due Written Statements. For according consideration to these counter‑affidavits, in the way of defence in the case, recourse is made to Section 151, C.P.C" as supplementing the rules of pleadings in Orders 6 to 8 of the Code read with the Original Side Rules of this Court. However, in laying down these principles, it must never be understood that in cases of flagrant defaults, a defendant be, with impunity, permitted to delay or defeat justice.

6. Mr. Farooq H. Naik, on being apprised of this view of law, which seems to serve the ends of justice, has attempted to meet these observations by stating that his client would be prepared to pay the above‑said additional sum of Rs.2,00,000 provided that if the defendants do not deliver to his client the furniture, fittings and fixtures, which are said to be part of the property, sought to be demised, such additional amount of Rs.2,00,000 be not directed to be paid to the defendants. To such effect there are some averments made in the affidavit of ex parte proof, submitted by the plaintiff in this case, which has been brought on record, as the defendants in the circumstances narrated above, subsequent to the interlocutory stage of the proceedings, have chosen not to appear.

7. I am afraid a hypothetical decree cannot be passed but, on the same principles which have been invoked for the relief of the defendants, the plaintiff is entitled to even handed dispensation, and, for the reason of that, proper safeguards can be worked out in favour of the plaintiff, as would be reflected below.

8. In view of the foregoing, a decree for specific performance, as prayed, is passed in favour of the plaintiff but the additional sum of Rs.2,00,000 would not be paid directly by the plaintiff to the defendant and would be deposited, in the first instance, in this Court within fifteen days from today and may be released, under further orders of this Court, to the defendants, if satisfaction is reached that the furniture, fittings and fixtures under reference have been delivered to the plaintiff or her assigns, as part of the property sought to be demised in suit. The defendants are directed to specifically perform the contract in suit, initially, on payment of the balance amount of Rs.28,35,000 within a period of two months, for which proper notice will be addressed by the plaintiff to the defendants within fifteen days, attached with which will be a copy of this order. Such specific performance would be in favour of the plaintiff or her assigns. In case specific performance is not made, as directed within the period stipulated and in spite of service of the required notice, the Nazir of this Court shall take steps to transfer the property in suit in favour of plaintiff or her assigns can payment of the balance consideration disclosed in the Agreement of Sale through deposit in Court. The amount of Rs.2,00,000 aforesaid or, if that happen the amount in the Agreement of Sale, if and when deposited in Court, would be invested by the Nazir in Khas Deposit Certificates and would be released to the party concerned on further orders of this Court. Decree accordingly. AA./S‑420/K Suit decreed.