2006 PLP 129 (CLC)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts relevant for the disposal of instant revision petition are, that a suit was instituted by the predecessor-in-interest of respondents Nos. 11 to 15 against respondents Nos.1 to 10 in the Court of Civil Judge, Swabi for declaration to the effect that they were owners in possession of suit land, detailed in the plaint; that they had not mortgaged the suit-land and that entry in favour of defendant was void, illegal and ineffective on the rights of the plaintiffs/respondents Nos. 11 to

15. A prayer for possession of suit-land and in alternative for redemption on payment of Rs.500 was also made. The defendants/respondents 1 to 7 submitted their written statement, raising various legal and factual objections to the contents of the plaint. At this juncture, an application was moved by Faqir Rehman petitioner for impleading him as party to the suit. The application was rejected by the trial Court as well as the Appellate Court. Feeling aggrieved, the petitioner filed a writ petition before this Court, which was accepted vide order, dated 17-10-2001 and the petitioner was ordered to be impleaded as party to the suit. After his impleadment as party, the petitioner submitted an application for transposition from defendant to plaintiff, which was rejected by the trial Court, vide order, dated 6-1-2002 with direction to the plaintiff to submit written statement on 12-2-2002. The written statement was not submitted and defence of the petitioner was struck off under Order XVII, rule 3, C.P.C., vide order, dated 20-2-2002. An appeal was preferred there against, which was dismissed by consolidated judgment, dated 21-3-2003. Hence instant revision petition under section 115 of the Code of Civil Procedure (Act V of 1908).

2. I have heard Mr.' Muhammad Aman Khan, Advocate for the petitioner and Mr. Muzammil Khan, Advocate for the respondents in the light of the material on record.

3. A written statement is the statement filed by the defendant in answer to the plaint and constitutes his defence. The defendant has a right to file a written statement without a formal order of the Court, at any stage prior to the first hearing, but he cannot subsequently do so without the order or leave of the Court. Where the required written statement had not been filed, there are two alternatives namely, the pronouncement of judgment forthwith or the making of such other order. Though it is discretionary with the Court to apply the penal provisions of rule 10, and judgment can be pronounced even without recording evidence, yet the judgment it pronounces should be on the basis of facts before it. Punitive action should only be taken in severe circumstances. The Court may in the alternative award costs and grant an adjournment, or proceed to record evidence ex parte and then pronounce judgment. Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 and Mst. Najma Yasmin and another v. Mst. Firdous Khalid and 2 others 2002 CLC 1085. In the instant case provisions of Order VIII, rule 1, C.P.C. have not been strictly adhered to and punitive action has been taken without any justifiable reason. The impugned orders seem to have been passed in haste without application of judicial mind and as such are not sustainable in the eye of law. The first prayer of the petitioner regarding submission of written statement is accepted, whereas the second prayer for transposition from the panel of defendant to the panel of plaintiff cannot be granted in view of the order of this Court which still holds the field. The revision petition partially succeeds and disposed of in the above terms. No order as to costs. H.B.T./541/P Order accordingly.