1990 PLP 1078 (CLC)

This application under rule 159 of Sind Chief Court Rules (O.S.) has been filed by the defendant No.2 praying for recalling the order dated 12‑4‑1989 passed by the Additional Registrar of this Court and to take on record the written statement already filed by him. In the accompanying affidavit filed by the defendant's counsel Mr. Mohammad Ashraf Oureshi it is stated that on 22‑3‑1989 he had filed an application under section 148 CPC for extension of time for filing written statement which was opposed by the plaintiffs' counsel and the Additional Registrar was pleased to order issuance of notice for 3‑4‑1989, on which date written statement was filed copy of which was supplied to the plaintiffs' counsel who received the same without any objection. It is thus contended by him that since written statement has been filed by him of which copy was received by the plaintiffs' counsel without any objection he was under the bona fide impression that no notice was required to be issued and cost was to be paid by him. Hence under the circumstances the order dated 12‑4‑1989 passed by the Additional Registrar was without any justification and liable to be set aside. The orders of the Additional Registrar dated 3‑4‑1989 and 12‑4‑1989 respectively are reproduced as under: "3‑4‑1989 Notice of application under section 148 C.P.C. to plaintiffs' Advocate not issued as cost not paid, since 22‑3‑1989. Written statement not filed since 31‑10‑1988. Written statement filed today. Application under section 148 C.P.C. struck off. Office to put note on written statement by defendant No.2. Adjourned to 12‑4‑1989. Sd/ Additional Registrar 12‑4‑1989. Written statement filed on 3‑4‑1989, by defendant No.2, is not in time and cannot be taken on record. None present. Defendant No.2 is debarred from filing written statement. For direction. Adjourned to 26‑4‑1989. Sd/ Additional Registrar" This application has been vehemently opposed by the plaintiffs stating that service on defendant No.2 namely Dr. Khalid Umar Siddiqui was effected through his duly constituted general attorney on 12‑12‑1989, on which date two weeks' time was granted to the defendant No.2 for filing written statement and the matter was adjourned to 9‑1‑1989. On the said date the defendant No.2 did not file his written statement nor did he file his written statement on other adjourned dates, viz. 6‑2‑1989, 27‑2‑1989 and 8‑3‑1989. However on 8‑3‑1989 the defendant No.2 filed an application under section 148 C.P.C. for filing his written statement, whereupon time was allowed and the case was adjourned to 22‑3‑1989 for filing written statement. The Additional Registrar, as stated, had ordered that this was the last chance given to defendant No.2 for filing his written statement. However, on 22‑3‑1989 the defendant No.2 failed to file his written statement and again an application under section 148 C.P.C. for extension of time for filing his written statement was made by the defendant No.2. Thereafter the matter was adjourned to 3‑4‑1989 for hearing of the said application, notice of which was ordered to be issued to the plaintiffs. It is admitted that on 3‑4‑1989 the defendant No.2 had filed his written statement, copy of which was also received by the counsel for the plaintiffs the same day. It is contended by learned counsel for the plaintiffs that although the defendant No.2 was served on 12‑12‑1988 he had failed to file his written statement on 9‑1‑1989, 6‑2‑1989, 27‑2‑1989, 8‑3‑1989, 22‑3‑1989 and as such on 3‑4‑1989 when written statement was filed by the defendant No.2, statutory period of 90 days for filing the same had already expired under Order 8 Rule 1 C.P.C. Further it is contended that the defendant IVo.2 had failed to obtain extension of time on his application dated 22‑3‑1989 under section 148 C.P.C. and therefore filing of written statement is of no consequence within the meaning of Order 8 Rule 1 C.P.C. It is therefore urged by him that the order dated 12‑4‑1989 debarring the defendant No.2 from riling written statement was justified and otherwise in accordance with law and now the Court must proceed to pronounce judgment against the defendant No.2 under Order 8 Rule 10 C.P.C. as was held by the Supreme Court of Pakistan in Hakumat Bibi v. Imam Din reported in P L D 1987 S C 22, that in case the defendant fails to file written statement, the Court may exercise its discretion and pronounce judgment under Order VIII Rule 10 C.P.C. and that where the discretion has been exercised judicially, the same will be a valid and legal judgment even though it has been passed without recording any evidence whatsoever. Learned counsel then refers to a number of cases where after the failure of the defendant,to file written statement, the Court had proceeded to pronounce judgment against him under the provisions of Order 8 Rule 10 C.P.C. Reliance is placed upon Mst. Sarwat Kazmi v. State Life Insurance Corporation 1980 C L C 1779; Jamal v. Rai Naeemullah Khan P L D 1986 Lahore 48, and Karachi Metropolitan Corporation and another v. Jannat Ali Notta 1987 CLC 2190. In the first named case the defendants had failed to file written statement although 6 months had passed and at least four opportunities for filing the same were provided to them. The defendants had also failed to show good cause for not filing written statement within time allowed. The Court on the basis of the plaint verified on oath, decreed the suit under Order 8 Rule 10 C.P.C. In the second case also the defendant had failed to file written statement although six adjournments were granted by the Court for filing written statement. No explanation was offered by him as to why written statement was not filed as ordered by the Court. It was held that the defendants did not deserve any indulgence specially due to his gross negligence and contumacy. In the last mentioned case, the defendants had failed to file written statement within a period 9 months and instead of filing written statement on the last date, an application for further adjournment was moved by him, which was rejected and the trial Court proceeded to pass judgment under Rule 10 of Order 8 C.P.C. In the above‑cited case of Hakumat Bibi v. Imam Din P L D 1987 S C 22 the Supreme Court of Pakistan had held that the Court must exercise its discretion judicially while pronouncing judgment under Order 8 Rule 10 C.P.C. The learned Additional Registrar did not apply his mind and take into consideration the fact that although there had been a delay in filing written statement, it was in the interest of justice that the written statement which was placed on record by the defendant No.2 should have been accepted and the matter be allowed to proceed on merits. Although there was delay of 25 days beyond the statutory period of 90 days in filing the written statement, the cases cited above, by the learned counsel for the plaintiffs are not applicable. In none of these cases; the written statement was filed by the defendants. Besides, there had been inordinate delay and gross negligence on the part of the defendants to file the written statement. In this case however the defendant No.2 has fully explained B the circumstances leading to the misunderstanding on the part of his counsel which appears to be satisfactory. The defendant No.2 is admittedly living outside Pakistan. There is a general concensus that it is in the interest of justice that as far as possible within the permissible limits, the Court should resort to adjudication of cases on merit and refrain from passing judgments and orders against parties without affording opportunity to them to defend themselves. In case a plausible reason is shown an order debarring the defendant from filing written statement should be set aside. The contention of the learned counsel for the plaintiff for pronouncement of judgment against the defendant No.2 under Order 8 Rule 10 C.P.C. does not appeal to me as I am satisfied that the defendant No.2 has made out a case for setting aside the order dated 12‑4‑1989. Accordingly I set aside the order dated 12‑4‑1989 with no order as to costs and direct that the written statement filed by the defendant No.2 may be placed on record. A.A./N‑250/K Order accordingly.