1980 PLP 981 (CLC)

ABDUL SHAKURUL SALAM, J.-Habib Bank Limited, plaintiff respondent, filed a suit for recovery of a sum of Rs. 1,02,426.97 with interest against (1) M/s. Nisar Ahmad through its Partners, (2) Mr. Nisar Ahmad, (3) Haji Ghulzar Muhammad and (4) Mr. Riaz Ahmad on 18th November, 1975. On behalf of Nisar Ahmad and Riaz Ahmad, defendants No. 2 and 4, Syed Sajjad, Advocate, filed a memorandum of appearance on 5th June, 1974 and a regular power of attorney in his favour on 3rd July, 1974. On 9th October, 1974, the plaintiff Bank filed an application saying that the defendants having not filed memorandum of address for their service, the defence should be struck off in accordance with the provisions of Order Vill, rules 12 and 1.3 of C. P. C. On 9th April, 1975, a reply was filed on behalf of Nisar Ahmad and Riaz Ahmad and also was filed the memorandum of address in Court, vide endorsement of the same date. The learned trial Court took up the application of the respondent Bank on 10th November, 1.976 and came to the conclusion that the provisions of Order Vill, rule 11, C. P. C. requiring filing of address by the defendants for service being mandatory and the defendants having not filed the memorandum of address even by that date, their defence was liable to be struck off and ordering accordingly decreed the suit on 10th November, 1976. Nisar Ahmad and Riaz Ahmad defendants have come up in Regular First Appeal.

2. Learned counsel for the appellants has contended that the provisions of Order Vill, rule 11, C. P. C. are by no means mandatory. It is discretionary with Courts to strike off defence or require defendants to file memorandum of address. He has placed reliance on Shamroz Khan and another v. Muhammad Amin and others (P L D 1978 S C 89). He has, next, submitted forcefully that the learned trial Court was in error in resuming that the defendant-appellants had not filed the memorandum of address even by the date the judgment was passed on 10th November, 1976, whereas, in fact, the memorandum of address had already been filed in Court more than a year and half earlier on 9th April, 1975 and had been received by the Court when it was endorsed the same day. Learned counsel has contended that because of this factual error the judgment under appeal is liable to be set aside.

3. Learned counsel for the plaintiff Bank has submitted that the appellants have been negligent in not filing the memorandum of address on their first appearance and that their defence has rightly been struck off. He has placed reliance on Mst. Nazir Begum and another v. Sheikh Abdul Rashid and another (P L D 1979 Lah, 546).

4. This appeal is determinable on the factual aspect of the case and that is that the learned trial Court struck off the defence of the appellants on the ground that they had not filed memorandum of address by the date 10th October, 1976 the order was being passed by the learned Civil Judge as he observed that "Admittedly the respondents in the present case have not so far filed their address for service notwithstanding the fact that they put their appearance in this Court on 5th June, 1974". The observation is factually incorrect. The memorandum of address had been filed in the Court on 9th April, 1975. It was received and endorsed by the Court the same day. It is attached at page 19 of the lower Court's file. After his attention was drawn to this, the learned counsel for the Bank was helpless. It appears that when the learned trial Court took up the application of the Bank which was at page 81 of the lower Court's file its attention was not drawn to the earlier pages of the file. Judgment based on non-perusal of the record is obviously' unsustainable. The provision of striking off defence requires greater care on the part of a Court, as it shuts out one party to defend itself and point out defects in the case of the other party, leaving the Court virtually at the mercy of the latter to do justice between the two parties. In the present case, after striking out the defence of the defendant-appellants. the learned trial Court purported to act under Order Vill, rule 10 and decreed the suit of the plaintiff-Bank. No doubt, the later provision allows that when one party fails to file written statement after having been required to do so, the Court may pronounce judgment against him but the important point to note is that the Court may pronounce "judgment", and judgment does not mean decreeing the suit ipsi dixit without any proof whatsoever. This is what the learned trial Court bas done vide the, impugned judgment. It is thorougly illegal and unjust. The contentions of the learned counsel for the Bank that the appellants were negligent or the defence had rightly been struck off have no force. There is no basis on record for holding that the appellants were negligent nor on that score their defence bad been struck off by the learned trial Court. Of course, the learned trial Court had not rightly struck off the defence as found above.

5. In view of what has been said above, the judgment of the learned trial Court appealed against is totally erroneous on fact and law. Therefore, the impugned judgment and consequential decree are set aside. The appeal is allowed. As the error is of Court, the parties shall bear their own costs. M. A. K. Appeal accepted.