2011 PLP 1025 (YLR)

MIAN SHAHID IQBAL, J.--Learned counsel submits that both the courts below while passing orders dated 21-7-2010 and 2-8-2010 have fallen in error while striking off defence of the petitioners qua their written statement. Learned counsel further submits that as there was no plaint before the court, hence order for tiling written statement could not have been passed. Further submits that under Order VIII, Rule 1, C.P.C. period of 30 days is not mandatory for the reason that the word "ordinarily" is used, as such it does not attract the penal clause; further submits that no direction or warning was issued by the learned trial court before applying the said provisions.

2. I have heard the learned counsel for the petitioners and have gone through the record.

3. Instant suit was filed by respondent No.3 on 6-9-2008. After service of present petitioners one Amir Nadeem Malik, Advocate filed power of attorney on 17-2-2009 and then subsequently on 2-3-2009 another Advocate namely Waseem Khalid Hashmi tiled his power of attorney on their behalf, thereafter vide order dated 3-4-2009 defendants were directed to file written statement and the case was adjourned for 7-4-2009. On 7-4-2009 no written statement was filed, rather reply to application was filed by the present petitioners and the case was adjourned for arguments, to be held on 6-5-2009. From this date the case was adjourned for at least 38 dates on different grounds in respect of tiling miscellaneous applications. Later on, on 1-7-2010 again the learned court passed an order directing the petitioners to file written statement and fixed the case for 13-7-2010 but the order was not complied with. On 13-7-2010 last opportunity was granted to the petitioners with a direction to file written statement but unluckily this written statement was again not ready, thus on the faithful day the defence was struck down.

4. Feeling aggrieved by this order petitioner filed civil revision on 29-7-2010 C which was dismissed on 2-8-2010.

5. The contention of learned counsel that in Order VIII Rule 1, C.P.C. though period of 30 days have been provided but the same cannot be construed to be mandatory in the light of construction of word used in the rule "ordinarily". According to the interpretation of the learned counsel the use of the word "ordinarily" would 'dilute the effect of mandatory approach of the provision, thus negating its penal affect.

6. I might have agreed with the learned counsel for the petitioner that use of the word "ordinarily" would dilute the effect of the mandatory approach of Rule 1, C.P.C. but nevertheless mere use of the word "ordinarily" would not dilute the effect of the period provided under the said provisions i.e. 30 days. The legislature was conscious of the fact while determining a certain period for filing of written statement. The word "ordinarily when seen in the light of the days fixed in the said provision, would mean that in case of certain difficulties or eventualities if a reasonable explanation is extended by the parties to whom the time was given by the Court, the time could be extended which was done in the present case, but even then they failed to comply with the order. The court can allow some space to those persons who have shown circumstances beyond their control and as such could not comply with the orders.

7. In the instant case the petitioner has availed earlier two dates for tiling written statement i.e. from 18-3-2009 case was adjourned for 3-4-2009 for filing written statement which was not tiled, case was then adjourned for 7-4-2009, even on the said date written statement was not filed but reply to application was tiled thus order dated 7-4-2009 was not complied with. Thereafter in spite of the knowledge of the directions of the court for filing of the written statement they kept on pursuing applications which were filed in the court and as a result of that a number of dates were granted to them, though for a different purpose. Later on, on 1-7-2010 the court being conscious of the fact regarding constructions of words in the said rule and liberally construing it, directed the respondents vide order dated 13-7-2010 to file written statement thereby giving the petitioners a last and final opportunity. Order dated 13-7-2010 was passed keeping in mind the conduct and the period already consumed in the proceedings the court passed a conscious order directing the party that a final opportunity is being given to them for filing the written statement. This order was specific in nature showing that a last opportunity has been given to them and in case they failed to avail even this opportunity the only way left with the court would be to apply the penal effects, thus in absence of non-compliance of order of the court, through an order dated 21-7-2010 their defence was struck off to file written statement.

8. The other aspect of the matter is that in Order VIII Rule 1, C.P.C. though in the proviso the word used is "ordinarily" but before the said word the rule contains the word "if so required by the Court". In this contest of the matter the only interpretation given to the word ordinarily" would mean that no infinite time can be allowed on the basis of the said word rather it is for the court to see and require as to what time is to be provided after the fall of the period of 30 days. The use of the word "required" makes it abundantly clear that the court in the given circumstances if feels even after expiry of 30 days that there are reasonable, justifiable and condonable circumstances exist which did not allow in spite of best efforts on behalf of the defendants to file written statement, the court may give some reasonable time. Otherwise they would not be entitled to if the delay on the part of the defendant is conscious one.

9. Learned counsel has not been able to convince me as to how the delay on the part of petitioners does not amount to contumacious/contemptuous default while not complying with the orders of the Court when they were directed specifically to do so. Moreover, since initially the case was fixed for 7-4-2009 for written statement and the defence was struck down on 21-7-2009, enough period has been consumed by the petitioners but without any justification or reason as to why written statement was not filed.

10. No illegality or jurisdictional error has been pointed out by the petitioners in the impugned order. This being so, I am not inclined to interfere in the orders passed by both the courts below as no illegality has been shown to be committed while striking off the defence of the petitioners.

11. In this view of the matte, the writ If petition fails and is dismissed-in-limine. M.U.Y./G-2/L Petition dismissed.