2004 PLP 959 (YLR)

The brief facts out of which the present writ petition arises are that the respondent filed a suit for permanent injunction before Civil Judge, Lahore. The trial Court provided six opportunities to the petitioner‑defendant to file written statement but the petitioner failed to avail the same and failed to file written statement and the trial Court struck off the defence or the petitioner vide order dated 26‑7‑1997. The petitioner being aggrieved filed revision petition before the Additional District Judge, Lahore, who dismissed the same vide judgment dated 27‑2‑2001.

2. The learned counsel of the petitioner submits that the trial Court did not mention in any of the orders that in case the petitioner failed to file written statement then defence of the petitioner would be struck off. He further submits that trial Court granted five adjournments in routine to file written statement without mentioning in any of the orders that the petitioner was granted last opportunity to file written statement. He further submits that superior Courts insisted that the cases be decided on merits instead of technicalities. He further submits that the Director, who has to sign the written statement, was on leave on 26‑7‑1997.

3. The learned counsel' of the respondents submits that both the Courts below have given concurrent findings of fact against the petitioner that the petitioner mala fide did not file written statement. The trial Court granted five opportunities to the petitioner to file written statement but the petitioner failed to avail the same, therefore, writ petition is liable to be dismissed. He further submits that petitioner has filed this writ petition against the judgment of the revisional Court dated 27‑2‑2001 on 5‑10‑2001, therefore, the same may be dismissed on the principle of laches.

4. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

5. The order dated 4‑7‑1997 passed by the trial Court in the present case did not use the expression that it was the last opportunity to file written statement or that no further opportunity would be granted, therefore, trial Court erred in law to struck down the defence of the petitioner vide impugned order dated 26‑7‑1997, which tantamount to apply the penal clause by the trial Court without application of mind and in violation of the law laid down by the superior Courts which was counter‑signed by the revisional Court without applying its judicial mind. The order of the trial Court and the judgment of the revisional Court are not in consonance with the law laid down by the superior Courts in the following judgments:‑‑ Col. Retd. Ayub Ali kana's case PLD 2002 SC

630. Malik Muhammad Saeed's case 1985 MLD 1440. Azad Hussain's case 1994 CLC 1817. Khuda Yaar's case PLD 1975 SC

678. It is pertinent to mention here that the petitioner did not file written statement after securing five adjournments for the said purpose. The revision petition was finally decided by the revisional Court on 27‑2‑2001. The petitioner filed this Constitutional petition on 5‑10‑2001. This fact shows that officials/officers of the petitioner's authority are not vigilant to pursue the matters. Keeping in view the conduct of the petitioner's officers/officials, the writ petition is accepted subject to payment of costs of Rs.10,000 to the respondents in view of the conduct of the petitioner. The Director‑General, L.D.A. is directed to constitute a committee to probe into the matter to fix responsibility qua inaction of officer/official, who is responsible official/officer, who did not file written statement well in time. In case the committee finds any of the official/officer of the petitioner's authority for the said mischief then this costs shall be recovered from him and he is also directed to proceed against him under Efficiency and Discipline Rules. He is directed to complete this process preferably within three months. He is further directed to submit report to the Deputy Registrar (Judicial) of this Court within the stipulated period. It is pertinent to mention here that the cases of the L.D.A. are decided against the L.D.A. on account of the misdeeds and mischief of the officials/officers of the L.D.A., who did not file written statement, parawise comments and also did not appear in the witness‑box in time. This Department has ruined the public exchequer. Keeping in view the conduct of the officers/officials of the Department, it appears that the officials/officers of the L. D. A. are supporting the cause of the other people and not the cause of the L.D.A. from where they receive the salary from the public exchequer. Office is directed to send a copy of the order to the Chief Secretary of the Province who is also directed to send the same to the Chairman of the L.D.A. so that the policy may be formulated for the proper functioning of this Authority otherwise this Authority has put the people of Pakistan in a difficult situation and plots are sold by different persons with the connivance of the officials/officers of the L. D. A. The petitioner is directed to file written statement within one month from today. The trial Court shall proceed in the matter thereafter in accordance with law. H.B.T./L‑85/L Petition accepted accordingly.