1992 PLP 2112 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑This appeal by leave of the Court is directed against the judgment of the Peshawar High Court. dated 25‑11‑1988.

2. The facts of the case are that the respondent No.1 brought a suit for possession of the suit property and for the recovery of 42,250 as mesne profits alongwith interest at the rate of Rs.10 per. annum. It was averred in the plaint that the plaintiff purchased the land and constructed two shops and a Baithak on it. The defendant obtained the possession of the Baithak as a licensee and that the defendant in absence of the plaintiff took unlawful possession of the property. The defendants Nos.1 and 2 appeared on the first day of hearing and the case was adjourned to 24‑7‑1983. The defendants Nos.2 and 3 filed a written statement on this date. The defendant No.1 did not file the written statement and the case was adjourned to 26‑9‑1983 for filing the written statement. The written statement was filed and the case was adjourned to 24‑10‑1983 for framing the issues. On 24‑10‑1983; the plaintiff‑respondent No.1 filed an application for striking off the defence of the defendants/appellants for not filing address as required under Order 8, rule 11,. C.P.C. The application of the respondent No.1 was entertained and the case was adjourned to 12‑11‑1983 for the disposal of this application. The case was again adjourned to 5‑1‑1984. On this date, the defendants submitted their application wherein they admitted their' failure to file the address and requested the Court to allow them to file the address with a prayer, for rejection of the plaintiff's application.

3. The learned trial Judge by means of judgment dated 4‑9‑1984 accepted the application of the respondent No.1, ordered the striking off the defence of the appellant and decreed the suit of the respondent No.1 in her favour. The appellant's appeal was dismissed by the High Court.

4. Leave to Appeal was granted to consider whether provisions of Order 8, rule 11, C.P.C. are directory in nature.

5. We have heard the learned counsel for the parties. The learned counsel for the appellant submitted that Order VIII, rule 11, C.P.C. is directory in nature. He further submitted that even if the side of the defendants was closed no decree could be passed in favour of the plaintiff without any proof. The learned counsel has referred to Muhammad Amin v. Shamroz Khan (PLD 1978 Pesh..141) and this judgment was upheld by this Court in Shamroz Khan v. Muhammad Amin (PLD 1978 SC 89). On the other hand, the learned counsel for the respondents has referred to Nazir Begum v. Abdul Rashid (PLD 1979 Lah. 546). The learned Judge in Chamber has also relied upon this judgment.

6. We have considered the respective contentions of the learned counsel. Order 8, rule 11, C.P.C. prescribes that "Every party who appears in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service". The object of this provision is to avoid unnecessary delay in disposal of the suit so that for the purpose of service an address shall be filed in Court. Rules 20, 23, 24 and 25 of Order 7 have been applied by subsection (3) of rule;

11. Where a party fails to file an address for service as provided in the preceding rule (Order 8, rule 11), he shall be liable to have his defence if any, struck out and to be placed in the same position as if he had not defended. (Order 8, rule 12),. The cumulative effect of rules 11 and 12 is that they create a liability but it is not mandatory on the Court to strike off the defence. The Court has not to close the defence in a mechanical manner. It has to examine whether any prejudice has been caused for the non‑compliance of Order 8, rule

11. It is not the requirement of this rule that in each and every default of a. party the consequences as provided in Order 8, rule 12 must follow. If no prejudice has been caused to the opposite‑party then too strict a technical view for striking out the defence in each case should be avoided. Where the law has provided a penalty it has specifically stated so. Order 9, rule 6 contemplates that "where the plaintiff appears and the defendant does not appear when the suit is called for hearing then if it is proved that summons was duly served, the Court may proceed ex parte and pass decree without recording evidence". We are, therefore, of the view that Order 8, rule 12 is directory and not mandatory.

7. Another aspect of the case is that striking out the defence does not necessarily mean that a decree must be passed in favour of the opposite‑party. The Court has to apply its mind to the facts of the case. The striking out the defence does not absolve a plaintiff to prove his case. Where a suit on the face of it is barred by any statute how can a decree in favour of the plaintiff be passed for the non‑compliance of Order 8, rule.11, C.P.C. Justice should not be denied at the altar of the technicalities. In Manager, Jammu & Kashmir State Property v. Khuda Yar (PLD 1975 SC 678), it has been observed that "the principal object behind the legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transaction from justice without law of primitive society to justice in accordance with law of modern society anal the conflict between equity and law in judicial history. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness". In Ghulam, Bibi v: Sarsa Khan (PLD 1985 SC 345), it has been observed that "the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice". It has been further observed that "the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy." In the present case, the written statement has been filed by the appellant. The proper address has been furnished by the plaintiff. The appellant was served on the address given by the respondent. It is not disputed that the address was proper. The case was adjourned for framing of issues but no issues were framed. The respondent had submitted the application under Order 8, rule 12, C.P.C. on 14‑10‑1983. This application was disposed of by the trial Court on 4‑9‑1984. Thus, the trial Court took about a year for the disposal of this application. During this period no progress in the suit was made. The trial Court kept aside the main suit and proceeded to decide the miscellaneous application. Though the appellant in reply to that application sought permission to file the address but this request was not entertained and the decree was passed against him.

8. The proceedings initiated on the application moved by the respondent in the year 1983 terminated on 16‑5‑1992 when this Court passed the judgment. Thus, an omission which could be rectified at the initial stage has taken nine long years for its disposal. Such technical defects could be corrected at the time when it was pointed out. The parties would not have suffered if the Courts below had properly attended to the matter. It would have been proper for the trial Court to have allowed the appellant to furnish the address as required under Order 8, rule 11, C.P.C. Such rectification would not have caused any prejudice to the respondent nor would have impeded the progress of the suit. The provision was enacted to avoid the delay. Order 8, rule 12 cannot be pressed into service to frustrate the real intention for early disposal of the suit. This Court in Ghulam Qadir v. Khuda Bakhsh (1990 SCMR 675) while interpreting Order 8, rule 12, C.P.C. observed as hereunder:‑‑ "On the question of discretion also we find that the provisions of the C.P.C. in question make the party `liable to have his defence, if any, struck out'. The proper and beneficial interpretation of this punitive provision relating to a procedural step would permit the word `liable', to be construed as creating only a possibility and not a mandate. That being so, as adjudged by the High Court, the learned Court below had committed such error which needed to be corrected by the High Court in its revisional jurisdiction:'

9. In the result, we allow this appeal, set aside the judgments of the two Courts below and remand the case to the trial Court for decision on merits. A.A./A‑956/S Case remanded.