1998 PLP 1399 (CLC)

‑‑‑‑O. VIII, R.1‑‑‑Sindh Chief Court Rules (O.S.), R. 159‑‑‑Non‑filing of written statement within 30 days‑‑ ‑Defendant was debarred from appearing and defending suit‑‑‑Validity‑‑‑Defendant's application that they should be allowed opportunity to contest suit on merits and filing of written statement was granted and suit was directed to be proceeded in accordance with law. PLD 1957 Kar. 54 and 1990 MLD 171 ref, Yousuf Kassim for Plaintiff. Amjad Hussain for Defendant. Dates of hearing: 25th November and 12th December, 1997 This Civil Miscellaneous Application No.5115 of 1997 under Rule 159 of Sindh Chief Court Rules (SCCR) has been filed by the Defendants praying that they may be allowed to file the annexed Written Statement which could not be filed earlier due to want of instruction as all the Directors of the Company were out of Pakistan. They have not mentioned it in the application but impliedly it is an application against the Order passed by the Additional Registrar on 27‑5‑1997 debarring them from appearing and defending the Suit. The brief facts relating to this application are as follows:‑‑‑

It appears that on 12‑11‑1996 the Plaintiffs filed a suit against the Defendants for recovery of Rs.2,659,661.80 for goods supplied by them to the Defendants. In response to the summons, according to the Additional Registrar's Diary of 2‑4‑1997 Mr. Mohsin Tayebaly filed an Undertaking on behalf of the Defendants and the matter was adjourned to 27‑5‑1997. It transpires that infect Miss Sofia Saeed, Advocate filed such an undertaking before the Additional Registrar on 2‑4‑1997 and not Mr. Tayebaly. On 27‑5‑1997 neither any person was present on behalf of Defendants nor any application was filed for extension of time for filing the written statement or a Vakalatnama before the Addition4l Registrar. The counsel for the Plaintiffs stated that the prescribed period of 30 days for filing of Written Statement had already expired and consequently, the Additional Registrar debarred the Defendants from appearing and defending the suit and ordered final disposal in due course. It also appears from the Court file that on 29‑5‑1997 Mr. Syed Amjad Hussain, Advocate, filed his Vakalatnama in the Suit. On 16‑8‑1997, the Defendants filed the present application under Rule 159 SCCR for setting aside the Additional Registrar's Order dated 27‑5‑1997 debarring them from appearing and defending the Suit. The main grounds taken in the application for non‑appearance on 27‑5‑1997 and delay in filing the written statement are that on 2‑4‑1997 the Defendants' counsel had inadvertently noted the next date as 29‑5‑1995 for filing of Written Statement when in fact the date was 27‑5‑1997 and that all the Directors of the Company were out of station. The application is opposed by the Plaintiffs on the ground that the prescribed period of 30 days specified in Order 8, Rule 1, C.P.C. had lapsed on 2‑5‑1997 and that the Defendants have been negligent in pursuing the matter. The application was heard on 25‑11‑1997 and 12‑12‑1997 when both learned counsels advanced detail arguments in support of and against the grant of application. Mr. Amjad Hussain, learned counsel for the Defendant has submitted that there has not been any negligence on the part of the Defendants as the Written Statement could not be prepared because all the Directors of the Company were out of station. He added that he could have first filed an Application under Rule 159 of Sindh Chief Court Rules (SCCR) for setting aside the Additional Registrar's Order and after the said application had been allowed by the Court, he could have filed the Written Statement but instead of doing so he has filed the Written Statement alongwith the Application under Rule 159, SCCR. He has further argued that the 30 days period provided in Order 8, Rule 1, C.P.C. is not a mandatory, requirement and the Court has the Power to condone the delay and extend the period in the interest of justice and has relied upon 1989 CLC 625 and 1985 MLD 1440. Mr. Yousuf Kasim, learned counsel for the Plaintiffs has contended that according to the Defendants counsel's own showing he came to know about the Additional Registrar's Order, dated 27‑5‑1997 on 29‑5‑1997 when he filed his Vakalatnama and should have immediately filed an Application under Rule 159 SCCR for setting aside the impugned order. He has further contended that under Order 8, Rule 1, C.P.C. (as amended) the Defendants were required to file their Written Statement within 30 days which was not done and instead the Written Statement was filed on 16‑8‑1997 which was far beyond the period prescribed by law. According to him, the Defendants have been negligent in pursuing the matter and accordingly the Application should be dismissed and the Suit proceeded ex parte against them. He has relied upon PLD 1957 Karachi 54 and 1990 MLD 171 in support of his contention. It is well‑established that the time provided in Order 8, Rule 1 is not absolute and the Court has complete discretion to extend the time to file a Written Statement which might event exceed 30 days as provided 'in the Rule (1989 CLC 625). The Supreme Court of Pakistan, in 1970 SCMR 251 has clearly observed that the rules of procedure laid down in C.P.C., are principally, intended for advancing justice and not for retarding it on bare technicalities. It is also an accepted principle of law that claims must be decided on merits and passing ex parte judgments on technical grounds should be avoided. It can reasonably be said that a counsel cannot draft a Written Statement on behalf of a company unless authorized officers of the company who are familiar with the facts of the case and in possession of relevant documents instruct him in the matter. In the present case all the directors of the company were out of Pakistan. The Written Statement was drafted as soon as they were available. The application under Rule 159 SCCR was filed before the Suit was listed in Court for final disposal and the Written Statement‑was filed with it. In my opinion there has not been such excessive delay on the part of the Defendants so as to warrant a harsh treatment and deny them the valuable right to defend the Suit on merits. Learned counsel for the Defendants has relied upon PLD 1957 Karachi 54 in support of his contention. In the said Suit the Defendants were debarred because they had failed to file their Written Statement after the Additional Registrar had twice granted them time for filing their Written Statement. In. the present Suit the Additional Registrar debarred the Defendants from filing the Written Statement on 27‑5‑1997 which was the first date to which the matter had been adjourned. The facts of the present case are different and distinguishable from the facts of the cited case. In 1990 MLD 171 referred to by the learned counsel for the Plaintiffs, four opportunities were given to the Defendants to file their Written Statement before they were debarred. Accordingly the principle of this case also cannot be applied to facts of the present Suit. In any case, assuming that the Written Statement was filed within time provided by the Additional Registrar, the Suit would ordinarily come up for recording of evidence of the parties after several years on account of the huge back‑log of cases in the High Court. The Suits filed from 1977 to 1987 are still being listed for recording of evidence in 1997. Therefore, if two and one‑half months additional time is allowed to the Defendants to file their Written Statement, it would not cause any grave injustice to the Plaintiffs. In view of the above discussion, I am of the view that Defendant' Application should be allowed and an opportunity be given to them to contest the Suit on merits. Accordingly, I allow the Application, set aside the Additional Registrar's Order, dated 27‑5‑1997 and permit the Defendants to file their Written Statement on payment of costs of Rs.100 only (Rupees One Hundred only) to the Plaintiffs. The Defendants have already filed their Written Statement on 16‑9‑1997 which should be placed on the file and the Suit proceeded with further in accordance with law. A.A./I‑31/K Application accepted.