1994 PLP 1817 (CLC)

Afrasiab Khan for Appellant. Zamir Hussain for Respondent. Date of hearing: 5th April, 1994. IHSAN‑UL‑HAQ CHAUDHRY, J.‑This appeal is directed against the judgment and decree dated 12-12‑1992 passed by the Senior Civil Judge, Chakwal. 2. . .The brief background of the matter is that the respondent filed a suit for recovery of Rs.5,24,200 against the appellant who appeared iii the trial Court on 22‑11‑1992 and the suit was adjourned to 28‑11‑1992 for filing of the written statement and reply to the application for attachment before judgment and for grant of interim stay against alienation of his property. On 2&11‑1992 the appellant requested for time for filing the written statement as well as the reply: The adjournment was allowed subject to the payment of Rs.50 as costs but it was made last opportunity and the suit was posted for 12‑12‑1992. The appellant failed to avail this opportunity too. The result was that trial Court invoked the provisions of Order VIII, Rule 10, C.P.C., and decreed the suit with costs vide judgment and decree dated 12‑12‑1992. The defendant has now filed the present appeal and prayed for setting aside the judgment and decree. The appeal was admitted to hearing and notice was issued to the respondent, who has appeared and contested the appeal.

3. The learned counsel for the appellant in support of the appeal argued that the trial Court proceeded in a hasty manner while pressing into service Order VIII, Rule 10, C.P.C. It is added that, in fact, the written statement was ready and the, appellant informed the trial Court that his learned counsel was coming and would file the same but the trial Court did not wait. It is added that in any case it was not a fit case for decree and the trial Court should have proceeded under the second part of Rule 10 and hence, recorded evidence in the suit. The arguments are concluded with the submission that the trial Court has not exercised the discretion legally and properly. The learned counsel for the appellant in support of his argument has referred to the judgment in the case reported as Muhammad Hussain v. Allah Dad and 13 others (PLD 1991 SC 1104).

4. On the other hand, the learned counsel for the respondent argued that the appellant for the first time appeared before the trial Court on 22‑11‑1992 when his statement was recorded by the trial Court wherein he admitted his signatures on the photo copies of the pronote as well as two agreements appended with the plaint. He also produced photo copy of his National Identity Card. The statement was also countersigned by the learned counsel for the appellant. It is added that thereafter the suit was adjourned to 28‑I1‑1992 and the appellant was directed to file the written statement as well as reply to the E application under Order XXXVIII, Rule 5, C.P.C. The appellant neither filed the reply to the application nor the written statement and requested for adjournment. The adjournment was allowed subject to the payment of Rs.50 as costs and it was made clear that no further adjournment shall be granted, and the suit was adjourned to 12‑12‑1992 for filing of written statement but the appellant failed to avail of the opportunity. He neither filed the reply to the application nor the written statement. It is added that the trial Court rightly I decreed the suit in view of the warning given on the last date and clear admission of the liability to the extent of Rs.3,99,

000. The plaintiff claimed the amount which was actually due and did not lodge inflated claim. On the legal plan it is argued that Rule 10 of Order VIII, C.P.C., can be pressed into service even in the cases covered by Rule 1 of the said Order. It is maintained that Rule 10. covers the cases falling under Rule 9 as well as Rule 1 of, the said Order. The )earned counsel in this behalf has referred to the case reported as Mst. Hakumat Bibi v. Imam Din (PLD 1987 SC 22).

5. We have given our anxious considerations to the arguments of the learned counsel for the parties and gone through the record and the precedent cases. We propose, in the first instance, to deal with the scope of Rule 10 of Order VIII, C.P.C. Whether it covers the cases where the written statement is required under Rule 9 only or it is applicable to Rule 1 as well? There is no doubt that there was a view prevalent that Rule 10 is only applicable in the cases covered by Rule

9. In, this behalf, the judgment reported as Nagaratnam v: ‑Kamalathammal (AIR 1945 Mad. 299) can be referred. But this view has not been approved by the Courts of our own country. 1n this behalf, reference can be made to the case reported as Ghulam Muhammad v. Mst. Sahiban (PLD 1957 (W.P) Lahore 24) wherein it was held that the words "so required" means required under Rule 9 or Rule

1. The same view was approved in the case IA reported as Muhammad Sharif v. Qhularn Gilani (PLD 1961 (W.P.) Lahore 609). In this judgment the view of the Madras High Court in the case of Nagaratnam (supra) was also examined. These judgments were relied in the later decision of this Court reported as Abdul Saboor and Brothers v. Ganesh Flour Mills Co. Ltd. (PLD 1967 Lahore 779). We can also refer to the case reported as Walayat Hussain v. Jalal Din and 3 others (1990 MLD 171), Hassan Aqdas. v. Mir Muhammad and others (1990 CLC 1362), Muhammad Hussain v. Allah Dad and.13 others (PLD 1991 SC 1104), Fazal Elahi and 5 others v. Alam Din PLD 1979 SC (AJ&K)' 109). and Mst: Sarwat Kazmi v.. State Life Insurance Corporation (1980 CLC 1779). In this behalf, the judgments in the cases of Muhammad Ishaque and others v. Muhammad Ismail and others (PLD 1989 Lahore 193), Mst. Bilqees Begum v. Syed Ali Turab 1980 CLC 930, Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89), Additional Chief Engineer (Army), Okara Cantt. and others v. Messrs Nasim Co. (Pvt) Ltd. (1991 CLC 1476), Secretary, B & R, Government of East Pakistan v. Fazal Ali Khan (PLD 1971 Karachi 625), Muhammad Javed Khan v. Mst. Nousheen Bhatti and another (1991 CLC 1268), Muhammad Nawaz v. Allah Diwaya and 3 others (1990 CLC 15W), Lahore Municipal Corporation v. Muhammad Sarwar (1990 CLC 379), Haji Muhammad Musa and another v. The Provincial Government of Balochistan (1986 CLC 2951), Kamran Co. and others v. The Messrs Modern Motors and another (PLD 1990 SC 713), Ghulam Nabi v. M/s. Lufthansa German Airlines (1982 CLC 387), Muhammad Shafi v. Muhammad Bashir (PLD 1982 Lah. 576), Muhammad Munshi v. Shahamand 1981 CLC 1184, Sadar Ali Khan Syal v. District Judge/Election Tribunal, Zila Council, Jhang and 2 others (PLD 1982 Lahore 63) and Abdul Qadoos v. Abdur Rehman (PLD 1970 Azad J&K 21) have also been considered by us.

6. Now coming to the judgments of the Supreme Court of Pakistan. The leading judgments are in the case of Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365) besides the cases of Sh. Abdul Hamid v. Khurshid Ahmad (1993 SCMR 1071) and. Mst: Hakumat Bibi (supra). We would refer to the case of "Sakhawatuddin and 3 others", because in this ease the question was examined at depth. It was held in this case that the rule is applicable when the defendant is `required' to submit the written statement either under Rule how 9, C.P.C. It was further held that the Rule 10 is in two parts. It is the discretion of the Court under the first part of this rule to pronounce the judgment against the defendant but it should ensure that:‑‑ Firstly, that the suit is not barred expressly or inipliedly by law; secondly, when the plaint does not disclose cause; of action; and thirdly, even if the averments in the plaint are taken as correct the same would make it a case of no evidence. In such a situation the proper course would be to proceed under the second i part of the rules. It was further held that:‑‑ "There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was `required', by the Court. It was neither as of right (Rule 1), nor as result of permission (Rule 9). The use of word `required' is not without significance. It does not permit a routine order without application of mind to the `requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be, made subject of the penal rule 10; there should be proof on record that the Court had `required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a techclicality without fully realising the implications. Whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under Rule 9, that would not satisfy the law, regarding the `requirement' of the Court. It is only the written statement which is `required' and that too by `the Court' by a speaking order, which would entail the penal consequences of Rule

10. In these two cases it had been admitted before us that `these requirements have not been fulfilled'." Now coming to the case of Sh. Abdul Hamid. The above judgment in the case of Sardar Sakhawatuddin and 3 others was relied in this case while in the case of Mst. Hakumat Bibi the defendant was allowed two opportunities to submit the written statement and on the third date the suit was decreed under Order VIII, Rule 10, C.P.C. The judgment and decree of the trial Court was maintained and it was held that the Court had the discretion undoubtedly but 'while exercising its discretion the Court should take into consideration all the facts and circumstances of each case. The view of this Court in "Sh. Abdul Saboor and brothers" was approved.

7. Now coming to the case in hand, there is no 'Merit in the argument that since it was not an additional written statement required to be filed under Rule 9 of Order X, C.P.C., therefore, Rule 10 was not attracted and suit could not have been legally decreed. The argument does not merit any serious consideration in view of the judgments of the Supreme Court in the cases of Sardar Sakhawatuddin and 3 others, Sh. Abdul Hamid and Mst. Hakumat Bibi. It is also not the case where plaint was liable to be rejected under Order VII, Rule 11, Clauses (a) and (d), C.P.C., therefore, the decree is legal, valid and sustainable. This is not .all. The appellant was not taken by surprise. The suit was adjourned from 22‑11‑1992 to 28‑11‑1992 for submission of the written statement and reply to the application for attachment before judgment. The appellant requested for adjournment to file written statement and reply. The request was allowed subject to payment of Rs.50 costs and it was made clear that no further adjournment shall be granted. This also complied with the requirement as noted by the Hon'ble Supreme Court in the case Sardar Saichawatuddin, therefore, this was a fit case for invoking first part of Rule 10 of Order VIII, C.P.C.

8. Now coming to the merits .of the claim of the respondent and the defence of the appellant. The learned counsel for the appellant, in the light of the judgment in the case of Sh. Abdul Hamid, was asked as to his defence. He submitted that the stance of his client is that nothing is due and his signatures on the documents were secured fraudulently. He added that the dispute between the parties was reforred to 'the respectables of the locality and they after examining all. the, documents and hearing the parties held that, nothing is due from the appellant to the respondent. We, inquired 'from the `learned counsel about any document/agreement through which arbitrators or mediators, were appointed? The reply was that they were appointed orally. We then inquired from him as to. the copy of the decision and the proceedings. The learned counsel frankly submitted that neither any proceedings were recorded nor the decision. This is no defence especially in view of ‑the admission of the signatures on the pronote and agreements, therefore; no useful purpose would be served by remanding the suit ,to the trial Court. We in this behalf respectfully, follow the judgment of the Hon'ble Supreme Court in the case of The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad Khan (1991 SCMR 2527) and Sh. Abdul Hamid:

9. The learned counsel for the .respondent realizing that there was nothing on record to support the claim of the respondent for the sum of Rs.1,25,000 proceeded to make a statement, of course after consulting his client, that the respondent has decided to give up his claim in. respect of this amount and has no objection to the appeal being accepted and decree being podified accordingly. We accordingly recorded the statement of the' respondent as well as his learned counsel in this behalf. We find that the defendant has no plausible defence to the claim of the respondent for the remaining amount of Rs.3,99,000 after admitting his signatures on the pronote and agreements appended with the plaint. This is not all. It is not out of place to mention here that by introducing the story of Panchayat the appellant‑,has accepted that the dispute was going on between the parties.. The appellant is bound by the statement even under Order XII, Rule 16, C.P.C. and the claim to that extent of Rs.3,99,000 could have been decreed without invoking the provisions of Order VIII, Rule 10, C.P.C.

10. We are least impressed by the plea raised for the first time in the memorandum of appeal to the effect that, when the appellant appeared on 22‑11‑1992,. the trial Court appeared to be an a great haste for finally deciding the suit and forced the appellant to make the statement referred to above. The plea is false on the face of it for the main reasons that the statement was countersigned by the learned counsel for the appellant. Although the suit was decreed much later yet in the meanwhile the plaintiff did not agitate this grievance in any forum. The claim of the respondent was fully supported by the photo copies of the document appended to the plaint, especially the pronote, therefore,, the suit‑was liable to be decreed straightaway in exercise of the power under Order VIII, Rule 10, C.P.C. The remaining part of the claim has since been given up to the respondent, therefore, we do not make any observation in respect of the same. The decree is fully justified. The trial Court has exercised its discretion properly, fairly and justly in accordance with the rules laid by the superior Courts of the country.

11. Now coming to the argument that the written statement was ready and the same was to be submitted by the learned counsel for the appellant, who requested that trial Court to wait for his counsel, who was. coming with the written statement, the same is falsified by the interim order dated 12‑12‑1992 according to which the counsel for both the parties were present. It seems that the whole purpose of the appellant was to delay the adjudication of the suits as far as possible because after admitting the documents the basis of the amount claimed by the respondent, the appellant had no defence to put up. The appellant neither made an application for grant of adjournment, specifying the reason therein nor agitated his grievance as to the recording of his statement in any forum. This ‑completely knocks out the bottom of the plea of the learned counsel for the appellant. Even otherwise, proceedings recorded by a judicial G officer/authority/forum have the presumption of correctness as held in case of Nargis Shaheen v. Federation of Pakistan and 5 others (PLD 1993 Lahore 732) at page

769. Therefore, we have no reason to believe that the proceedings were not correctly recorded by the learned trial Court. Hence, the argument of the learned counsel being unfounded, is repelled. The upshot of this discussion is that this appeal is partially allowed. The result is that the decree passed by the trial Court to the extent of Rs.3,99,000 is upheld with costs while the remaining claim of the plaintiff is dismissed. M.B.A./A‑616/L Order accordingly.