1998 PLP 824 (CLC)

3. The learned counsel for the respondent has submitted that decision in the Civil Miscellaneous would tantamount to be a case decided without affording the opportunity of hearing to other side. He submitted that Order VIII, Rule 1 of the C.P.C. is very much clear, where it is provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days. The petitioner was negligent in filing the written statement even after the expiry of the abovesaid period, therefore, he cannot take the benefit of filing the written statement at belated stage. He also submitted that the instant civil revision is also time‑barred as the impugned order was passed on 18‑10‑1995 and the civil revision was filed on 11‑4‑1996.

4. I have heard the learned counsel for the parties and have carefully perused the record.

5. This Civil Revision was admitted to regular hearing on 21‑4‑1996 and on the same date in Civil Miscellaneous No.1 of 1996 the operation of the impugned order was suspended and the petitioner was permitted to file a written statement within a fortnight subject to the decision of the Civil Miscellaneous and even the proceedings before the lower Court were allowed to continue but the final judgment was restrained. The written statement according to the learned counsel for the parties has been submitted by the petitioner/defendant in the Trial Court and the issues have been formulated on the basis of the pleadings in the suit. The order of regular admission of the instant civil revision as well as Civil Miscellaneous No. l of 1996 was not challenged by the respondent. The respondent had appeared on 18‑2‑1998 to contest the instant civil revision. The impugned order pertains to 18‑10‑1995.

6. The remedy of revision is available for correction of an order of the subordinate Court where no appeal would lie to a revisional Court and error of jurisdiction of subordinate Court is apparent in the impugned judgment.

7. At the time of preliminary hearing of any petition, the Court, while hearing a party, impliedly or indirectly is safeguarding the interest of an absentee adverse party and cannot decide the subject‑matter of any case without affording an opportunity of hearing to the other side, Therefore, the instant case is opened to a fresh hearing on merits, without keeping in view the submission of the written statement by virtue of an order of this Court.

8. So far as the question of limitation is concerned the office on 14‑4‑1996 put an objection No. 1 that the revision is time‑barred. The learned counsel for the petitioner filed a chart mentioning the calculation period of limitation. The chart showed the impugned order', dated 18‑10‑1995, application for issuance of certified copies, dated 22‑10‑1995 with the difference of three days and certified copies issued on 21‑1‑1996 with the difference of 92 days and delay in filing the application for copies 3 days and benefit for limitation purposes after excluding the period spent between application and issuance of copies, net benefit 89 days and showed the same to be filed in time. This chart was accepted by the office and this petition was placed before the Hon'ble Judge of this Court and was regularly admitted. Therefore, I am not convinced by the arguments advanced by the learned counsel for the respondent that the instant civil revision is time barred.

9. The Order VIII, Rule 1 of the C.P.C. is concerned the language of this order is reproduced below:‑‑‑ "Written statement. ‑‑‑The defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. (Provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days.)"

10. Order VIII, Rule 10, C.P.C. is also reproduced below:‑‑‑ "Procedure when part v fails to present written statement called for by Court. ‑‑‑Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. "

11. This order deals with a speaking order passed by the Court specifically asking a written statement from the party concerned. As the period for submission of written statement should not, ordinarily, exceed 90 days and when the required written statement has not been filed there are two alternatives available to the Court for pronouncement of order or making of such other order. The punitive action should only be taken in very extreme circumstances. The rationale behind the provision of this order is that the defendant should not be deprived from putting forward his summary of defence. In Sardar Sakhawatuddin and others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 at page 1370 it is held:‑‑‑ "Therefore, it is essential that whenever a written statement is to be made subject to the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. "

12. I am convinced by the arguments advanced by the learned counsel for the petitioner that the order, dated 1‑10‑1995 is not a Speaking Order for submission of the written statement. A counsel on behalf of the learned counsel for defendant appeared and requested for adjournment for filing the written statement as he submitted that the written statement and the written reply are not prepared. In fact the real counsel Mr. Nayyer Abbas Rizvi, Advocate was not present. The learned Court adjourned the case and directed for presenting the written statement as well as the written reply. On 18‑10‑1995 the power of attorney was submitted by Mr. Mueen Qamar, Advocate and he submitted that the written statement is not ready and requested for an adjournment as he was engaged as a counsel on the same day and could not file the written statement without getting instructions from his client. The learned Court recorded that:

13. In the order, dated 1‑10‑1995 I have not found out that the last opportunity was given to the learned counsel for the defendant to file the written statement and written reply. One adjournment is given. Therefore, when another counsel appeared and requested that he had been engaged on the same day by the petitioner who was not in Pakistan, rather he was abroad, the request could be granted by the Court as no punitive action was called for and the Court did not indicate in any order that it is the last opportunity for submission of the written statement. In the previous order he had written that only in the interest of justice one opportunity was given. Moreover, no warning was given in the previous order, dated 1‑10‑1995 to the petitioner that if he does not submit the written statement and also the written reply the punitive action will be taken against him.

14. Moreover, the eviction petition is still pending adjudication before the learned Rent Controller and the suit for specific performance also relates to the same subject‑matter of the property and the petitioner cannot be deprived from narrating the facts in the written statement which enables the Court to formulate the issues on the pleadings of the parties. Legislature has intentionally given a discretion to the Trial Court to make an order keeping in view the facts and circumstances of each case. In the present case, in revision in circumstances the impugned order being violative of settled proposition of law is hereby set aside. The petitioner's written statement already submitted in the Trial Court is hereby accepted. A.A./M‑587/1 Revision accepted