1999 PLP 1856 (CLC)

After filing of the suit the trial Court issued process. Respondents were served but did not file written statement with the result that trial Court on 7‑3‑1991 decreed the suit of the applicant under Order 8,'Rule 10, C.P.C., which was challenged before the learned District Judge. Karachi East. who was pleased to allow the appeal filed by the respondents. Hence this revision. Mr. Abdul Sattar Moughal, learned counsel for the applicant, has contended that the respondents failed to submit written statement on the specific date viz. 22‑10‑1990 on which date the respondents did not file any application for extension of time for filing written statement. That the respondents even again failed to submit written statement in respect of the suit within the statutory period of,90 days which expired on or about 20‑12‑1.990. That the respondents in between this period even did not file application for extension of time for filing written statement. However, the respondents filed counter‑affidavit in respect of the application under Order 39, Rules, 1 and 2, C.P.C., filed by the appellant alongwith the suit and also filed application under Order

7. Rule

11. C.P.C. for rejection of the suit. That the applicant on 15‑1‑1991 withdrew the suit against the defendants 2 and 3 viz. Civil Aviation Authority and Manager Airport, Karachi Airport. The application under Order 7, Rule 11, C.R.C. filed by the respondents for rejection of the suit was dismissed on 27‑1‑1991 and the matter was fixed on 25‑2‑1991 for filing of the written statement and for hearing of application under Order 39, Rules 1 and 2, C.P.C. That respondent on 25‑2‑1991 for the first time filed application under Order 148, C.P.C. for extension of time for filing written statement, which was allowed by the learned 1Vth Senior Civil Judge on the payment of cost of Rs.100 and specifically directed the respondents to file written statement on the date of hearing viz. 3‑3‑1991. That on 3‑3‑1991 respondent again failed to file written statement specifically directed for. Moreover, the respondent dill not pay cost of Rs.100 imposed by the Court on the previous date of hearing. Respondent neither filed any application for setting aside the order of the trial Court imposing cost on 25‑2‑1991. Respondent also did not file any application under section 148, C. P. C, or any other provisions of law for extension of time for filing the written statement. Or. 3‑3‑1991 the trial Judge was on leave and thereafter, the matter was adjourned for 7‑3‑1991. Again on this date the respondent did not file written statement not made payment of costs imposed on him vide order, dated 25‑2‑1991. Respondent also did not file any application for extension of time for filing written statement and submitted application for adjournment under Order 17, Rule 1, C p .C, on the ground that her counsel was busy before this Court in F.R.A, No.668 of 1989. That adjournment application was dismissed by the trial Court. That applicant had submitted application under Order 8, Rule 10, read with section 151, C.P.C., submitting therein the violation of the clear direction issued by the trial Court for filing the written statement. The trial Court on account of non‑compliance o; the order, dated 25‑2‑1991 passed the judgment and decree under Order 8, Rule 10, C.P.C., which wits agitated in Civil Miscellaneous Appeal which way allowed by the learned District Judge, East Karachi. He leas referred Mst. Hakumat Bibi v. Imam Din and others case PLD 1987 SC

22. Wherein their Lordships of Supreme Court while discussing the scope of Rule 10 of Order A, C.P.C. have observed that undoubtedly while exercising its discretion the Court while taking into consideration all facts and circumstances of case has exercised discretion and announced judgment, the same is not normally to be interfered with. Messrs Jholey Lal Cotton Factory v. Tanveer Ahmad 1989 CLC

625. Mamoon Kazi, present Chief Justice (as he then was) has held "that where the defendant was required by the Court to file written statement, the defendant in spite of service did not file written statement, the Court can announce judgment against him even without recording evidence. Azad Hussain v Haii Muhammad Hussain PLD 1994 SC 874, wherein their Lordships of Supreme Court while discussing the provisions of Order VIII, Rule 10, C.P.C. held that failure of party to present written statement called for by the Court on the date fixed, the Court in ,such situation is empowered to pronounce the judgment Ilahi Bakhsh and others v. Mst. Bilqees Begun PLD 1985 SC 393, wherein their Lordships of the Supreme Court have observed that irrespective of amount at which decree be ultimately passed, appeal to lie to High Court or District Judge. according to value of original suit. Mr. Abdul Sattar Moughal further has contended that the learned District Judge, East Karachi, had no jurisdiction in respect of the appeal arising out of the suit exceeding Rs.25,000 and the same is barred under provisions of West Pakistan Civil Courts Ordinance, 1962 as such the impugned judgment is without jurisdiction and liable to be set aside. Mr. Shahanshah Hussain, learned counsel for the respondent, has contended that notice of application under Order 8, Rule 10, C.P.C. was not issued to the respondent and the learned District Judge has set aside the order of the trial Court, dated 7‑3‑1991 which does not call for any interference. Learned counsel has relied upon Sardar Sakhawat‑ud‑Din and 3 others v. Muhammad Iqbal and 4 others 1983 SCMR 1365. The facts of this matter are that in Civil Appeal No. 177 of 1983 the respondents Nos. l and 2, namely, Muhammad Iqbal and another, filed a' suit against appellants Nos. l and 2, namely Sardar Sakhawat‑ud‑Din and another, and respondent No.3, Shah Nawaz, for specific performance of an agreement to sell certain lands. The defendants in the suit filed separate written statements. In their written statements, respondent No. 3 had confessed judgment but appellants Nos. l and 2 had resisted the suit. Thereafter, it was learnt by the plaintiffs that some of the disputed land had been sold to appellants Nos.3 and 4, namely Abdul Latif and others. Therefore, with the permission of the Senior Civil Judge, Rahimyar Khan, who was seized of the suit, they amended the plaint and impleaded appellants Nos.3 and 4 as additional defendants. Then the original defendants were asked to file amended written statement while the additional defendants were required to put in written statement. This was however, not done by them although several opportunities were afforded to them for so doing. As a result, the learned Senior Civil Judge pronounced judgment against the defendants and decreed the suit by invoking the provisions of Order VIII, Rule 10, of the Code of Civil Procedure. The appellant, therefore, filed appeal before the High Court which was also dismissed. Under the circumstances leave to appeal was granted by the Honourable Supreme Court to examine the question whether a decree could be passed against the defendants under Order.8, Rule 10, C.P.C. if it was a case of no evidence. The facts of Civil Appeal No. 164 of 1986 are that the appellant was married to the respondent on 9‑7‑1980 and dower of Rs.10,000 was fixed at the time of marriage. The couple fell out immediately after marriage and divorce took place on 19‑7‑1980 and amount of dower Rs.10,000 was paid immediately when the respondent filed suit in this respect. The respondent filed a suit for recovery of Rs.25,000 as value of articles of Jehez. The same was pending in the Court of Civil Judge, Lahore. On 24‑3‑1982 power of attorney was filed and adjournment was sought for filing of written statement. On 13‑4‑1982. the appellant No. l at the relevant time was posted as Deputy Chief Planning Commission, Islamabad while respondents Nos.2 to 5 were at Lahore. Without instruction of appellant No. l written statement could not be prepared and that was the reasons for seeking adjournment. Only one opportunity was given and the case was fixed on 13‑4‑1982 when the same was decreed under Order VIII, Rule 10, C.P.C. before the counsel for the appellants could reach the Court. If was done in the. early hours of the day. Written statement was ready and was presented by the clerk and by that time the counsel had reached, the decree had been passed. Thereafter, the appellant filed Civil Revision No.953‑D of 1983 in Lahore High Court which was admitted for regular hearing. After hearing the opposite party at limine stage, when finally the matter was fixed before Mr. Justice Akhtar Hussain and his‑Lordship was pleased to. dismiss the same for non‑prosecution on 16‑10‑1985. Under the circumstances their Lordships of Supreme Court were pleased to set aside the order passed by the Courts blow. I am afraid this authority on the face of it, is not relevant and applicable to the case in hand. In this revision according to the record sufficient time was granted to the respondent for filing written statement which even reflected and was observed by the learned District Judge, Karachi East in the following terms:‑‑ "I am quite mindful of the fact that ample opportunity was given to the appellant/defendant No. 1, to file written statement, but that was not done there is also no undertaking from the appellant side to submit written statement. " For the just decision of the matter it would be pertinent to refer case diaries w.e.f. 25‑2‑1991 upto 7‑3‑1991 which reads as follows:‑‑ "25‑2‑1991. Case called. Advocate for plaintiff is present. Advocate for defendant filed an application under section 148, C.P.C. Order passed on it. 'Short adjournment granted subject of Rs.100'. Case is adjourned to 3‑3‑1991 for hearing. 3‑3‑1991. Case called. Advocate for defendant No. l is present. Plaintiff and his Advocate called absent. Presiding Officer is on leave. Case adjourned to 7‑3‑1991 for same purpose. (Sd.) Bench Clerk 3‑3‑1991. Late Diary at 12‑25 p.m. Advocate for the plaintiff is present. . (Sd.) Bench Clerk 7‑3‑1991. Case called. Both the counsel are present. Advocate for defendant No. l filed an application under Order 17, Rule 1, C.P.C. Order passed on application under Order 17, Rule 1, C.P.C. in view of the detailed order, this application is dismissed. Advocate for plaintiff filed an application under Order VIII, Rule 10 read with section 151, C.P.C. Order passed on application. Order passed on separate sheet. The suit of the plaintiff is hereby decreed under Order VIII, Rule 10, C.P.C. (Sd.) Ghulam Sarwar Arain Vth Senior Civil Judge/ Additional Sessions Judge (East), Karachi The respondent was served who filed objections to the application under Order 39, Rules I and 2, C.P.C. and also submitted application under Order 7, Rule 11, C.P.C, and, actually from the very beginning she was in the knowledge of the proceedings of the suit and legally liable to file the written statement. Even after expiry of 9 days period prescribed for filing written statement, the trial Court provided ample opportunity to the respondent to file written statement but the respondent did not file the written statement and was getting adjournment so that the matter may prolong unnecessarily. In the absence of written statement the trial Court has exercised jurisdiction which is vested ‑under Order 8, Rule, l0, C,P,C,, which provides:‑‑ Where any party from whore a written statement is so required, falls to present the same within the time fixed by Court, the Court stay pronounce judgment against him, or make such order in relation to the suit as It thinks fit," The respondent was given final chance by the trial Court for submitting the written statement on 25=2=1991, order as referred hereinabove but even In spite of that the respondent did not file written statement, The trial Court after considering the full facts and pendency of the suit, provided opportunity to the respondent to file written statement on her failure In filing of the written statement final chance on 25-2-1991 was provided to the respondent on payment of Rs.1AA as costs even on the date fixed for submitting the written statement neither cost was paid nor written statement was submitted by the respondent for which she has miserably failed which clearly shows that the respondent has no defence to put In. The trial Court passed order while granting the application as required under Order g, Rule 10, C.P,C, The case=law cited viz, Sardar Sakhawat-ud-Hin and 3 others v, Muhammad foal and 4 others has also been discussed by their Lordships of Honourable Supreme Court as follows:- "There should be proof on record 'that the Court had required written statement by application of mind to need and too in speaking order." The contention of Mr, Abdul gattar Moughal that the learned District Judge had no jurisdiction to pass the order In appeal arising out of the suit exceeding Rs,25,000 which to barred under provisions of West Pakistan Civil Court Ordinance, 1942 and section 14 is not tenable inasmuch as the same objection/plea was nut raised by the appellant before the District Judge. I am fortified, In this matter by the decision reported 1989 CLC 425 by my Lord Mamoon KRA, C,J, (as he then was) of this Court, the plea of lack of jurisdiction raised for the first time in the revision, This plea, having not been raised before the appellate Court. When the plea was not raised by the appellant A before the District Judge and for the first tune it bas been agitated here, under the circumstances the plea is not tenable, I have gone through the material placed with the case and the authorities cited by the learned counsel I am of the opinion that admittedly the respondent did not file written statement before the trial Court even In spite f expiry of 90 days period, final and last chance was provided by the trial Court to the respondent for filing written statement vide order, dated 23-2-1991 oven then the respondent did not file written statement. The ample opportunity was provided to the respondent for filing written statement which is borne out from the record and observation of the learned District Judge, Karachi East in his order referred herelanbove, The respondent on her own accord without any plausible 8 explanation or reason failed to submit written statement or her defence In the suit, there was no other alternative to the trial Court except to decree the suit under Order 8, Rule 10, C,P,C.,The case-law cited by Mr, Abdul gattar Moughal art relevant and helpful to the case of the appellant which I respectfully follow. Consequently the revision .is allowed and the Impugned order of the District Judge, Karachi East, dated 21=3=1991 is hereby set aside. On 9-1A-1997 after hearing f the parties, by short order, the revision was allowed. Above are the reasons for the sate, H,E,T./N=47/K Revision allowed,