P L D 1992 Peshawar 173 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑It is not necessary to go into detailed facts of this case and for the purpose of the present order it will be sufficient to mention that in a suit filed by the respondent No.1 the learned Senior Civil Judge on 17‑9‑1989 struck off the defence of the petitioner under Order VIII, rule 10, C.P.C. for its failure to file written statement despite two earlier adjournments for the purpose. The petitioner filed an appeal but the same was returned by the learned District Judge, Swat because the pecuniary limit of the appeal exceeded his jurisdiction. The petitioner has filed this revision petition to challenge the order of the learned trial Judge striking off its defence.

2. Mr. Iqbal Hussain Mian, learned counsel for the petitioner contended on the authorities of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 and Abdul Oadoos v. Abdur Rehman PLD 1970 Azad J&K 21 that the words `so required' employed in Order VIII, Rule 10, C.P.C. refer to subsequent written statement required to be filed under Rule 9 and not to that envisaged by Rule 1, Order VIII and, therefore, the impugned order of the learned Senior Civil Judge was without lawful authority. His next submission is that notwithstanding a clear direction by the trial Judge the respondent had failed to affix proper court‑fee till the impugned order was passed and, therefore, there was no properly constituted plaint before the Court and that in consequence the failure of the petitioner could not have resulted in striking off his defence. It was lastly urged that the learned counsel for the petitioner had drafted the written statement on 16‑9‑1989 but due to his professional engagement in this Court in Haji Khan Gul's case he could not personally appear in the trial Court whereas the petitioner Manager being away on tour could not put his signatures on the written statement and have it filed in the trial Court, which was a sufficient reason for giving another adjournment for filing the written statement.

3. Mr. Mazullah Barkandi, learned counsel for the respondents, on the other hand, urged that the learned trial Judge rightly struck off the defence of the petitioner after noticing exasperating bureaucratic indifference in litigation. According to the learned counsel, the respondents had already affixed the requisite court‑fee in compliance with the order of the learned trial Judge and that, in any case, this omission per se did not provide any justification for the petitioner not to rile the written statement on three consecutive hearings without any reasonable cause.

4. We have, however, not been pursuaded to accept the contention of the petitioner that mischief of Rule 10 could be legally attracted to the failure to file written statement only when required under Order VIII, Rule 9, C.P.C., as part of subsequent pleadings and not to that under Rule 1 as laid down in Abdul Qadoos's case. The case of Sakhawatuddin sited above does support this contention. We may, however, refer to the precedent case of Fazal Ellahi v. Alam Din PLD 1979 SC (AJ&K)

109. In this case after reviewing a number of authorities of Lahore High Court the law laid down in the case of Abdul Qadoos was overruled by the Full Bench of the Supreme Court of Azad Jammu and Kashmir and it was held on sound reasoning that Order VIII, Rule 10, C.P.C. will be equally applicable in both the cases if the defendant fails to file the written statement whether under rule 1 or rule 9 of Order VIII, C.P.C.

5. We find ourselves in respectful agreement with the view expressed by the Full Bench decision in the case of Fazal Ellahi noticed above and hold that mischief of Order VIII, rule 10, C.P.C. would be equally applicable in case the defendant is required to file written statement as envisaged by Order VIII, rule 1 or further written statement within the contemplation of rule 9 ibid.

6. The next point taken up by the learned counsel for the petitioner that despite a direction by the Court, the respondent had failed to affix court‑fee and thus the order striking off defence was unwarranted is equally fallacious. Firstly, the court‑fee had been affixed and secondly, it would not save the petitioners from' the legal consequence flowing out of their failure to file written statement.

7. Nonetheless, in the circumstances of this case, we find that sufficient cause has been put forth by the petitioner and which had been duly supported by an affidavit against which there is nothing in rebuttal. In circumstances of this case and in the interest of justice, therefore, we would accept this revision petition, set aside the impugned order striking off the defence of the petitioner and allow him to file written statement on payment of Rs.500 to be paid to the respondent personally and not to the counsel. The record should be sent back to the trial Court expeditiously to enable the trial Court to dispose of the case without any further delay. AA./1365/P Revision accepted.