2010 PLP 2372 (YLR)

AHMED ALI M. SHAIKH, J.--Through this Civil Revision Application, the applicant Mrs. Nagma Nawab has called in question the judgment dated 27-2-2009 and decree dated 3-3-2009 passed by learned 1-Additional District Judge Karachi (East) in Civil Appeal No.153 of 2008, whereby the judgment and decree dated 28-10-2008 passed in Suit No.986/2008 passed by the learned III-Senior Civil Judge Karachi (East) was maintained. From the pleadings, it appears that on 1-9-2009, respondent/plaintiff had filed the suit for declaration, possession, mesne profit and permanent injunction against the applicant/defendant with following prayers:- (i) Declaring that the plaintiff is lawful owner of the suit property/ House No. R-271, Sector-I, Gulshan-e-Zahoor, KDA Scheme No.35 Karachi vide Sale-deed dated 20-9-2004 and Mutation Letter dated 12-7-2008 issued by the City District Government Karachi (Annexures `A' and `B' hereto). (ii) Decree for possession of first floor portion of said property/House No.R-271 Sector-I, Ghulshan-e-Zahoor, KDA Scheme No.35 Karachi directing the defendant or any body else claiming through or under her to deliver and hand-over the possession thereof to the plaintiff. (iii) Direct the defendant to pay mesne profit at the rate of Rs.7000 (Rupees seven thousands) per month from the date of this suit till handing over possession thereof to the plaintiff. (iv) Permanent injunction restraining the defendant, her men, servants, subordinates and any other person or persons on her behalf from transferring/handing over the first floor portion of the said property/House No.R-271 Sector-I, Gulshan-e-Zahoor, KDA Scheme No.35, Karachi to any other person creating third party interest to achieve her ulterior motives and also restrain her from harassing, blackmailing by using un-parliamentary language/quarrels with the plaintiff in any manner whatsoever nature. (v) Costs of the suit to the plaintiff. It appears that on 10-9-2008, Mr. Sabir Khan learned counsel filed a statement on behalf of petitioner/defendant and on same day copy of the plaint along with annexures was supplied to him and suit was adjourned to 11-9-2008. Subsequently on 11-9-2008, learned counsel for the applicant/defendant was present in the trial Court, but did not file the vakalatnama though he had already filed his statement and the case was adjourned on his request. Again on 7-10-2008 Mr. Muhammad Iqbal Shah and M. Sabir Khan filed a vakalatnama on behalf of the applicant/ defendant along with an application for grant of time and the case was adjourned to 28-10-2008 for filing the written statement and counter affidavit/ objections etc. lastly on 28-10-2008, learned counsel applicant/ defendant moved an application for extension of time but same was dismissed and trial Court passed the judgment under order VIII rule 10 C.P.C. whereby the suit of the respondent/plaintiff was decreed. Being dissatisfied with the aforesaid judgment and decree, the applicant/defendant preferred an appeal. The appeal was heard by the learned I-Additional District Judge (Karachi) East and after hearing the parties he dismissed the same. Learned counsel for the applicant has contended that the impugned judgment and decree passed by the learned lower Court and maintained by the appellate Court are against the requirements of order VIII rule 10 C.P.C. as the trial Court has passed the judgment and decree in mechanical manner and without providing the reasonable opportunity to the applicant/defendant. He further contended that the plaint was filed on 1-9-2008, but the impugned judgment and decree were passed by Trial Court on 28-10-2008 within the span of two months. He lastly contended that on two occasion viz on 7-10-2008 an adjournment application was moved on behalf of the applicant/defendant for filing the written statement and objections etc. and subsequently on 28-10-2008 when an application for extension of the time for filing the written statement was moved then the Trial Court passed the impugned judgment and decree in mechanical manner. While attacking the impugned judgment and decree passed by the appellate Court he contended that same is the result of mis-reading and non reading of record as the learned appellate Court has observed that sufficient time as well as last chance was provided to the applicant/defendant, but neither the sufficient time was provided nor last chance was given to the applicant/defendant. He lastly contended that the impugned judgments have been passed on surmises and conjectures and same are liable to be set aside. Conversely the learned counsel for the respondent has supported impugned judgment and decree passed by the two Courts below. He contended that the applicant/defendant was provided sufficient time by the Trial Court but she could not file the written statement within the time, therefore, learned trial Court had no option except to announce the judgment. He further contended that the impugned judgment and decree passed by the appellate Court are also based on cogent reasons, hence, the same do not warrant any interference. During his arguments when the learned counsel for the respondent was confronted with the observations of the appellate Court's judgment and decree regarding sufficient time and last chance, he could not pin point and explain when sufficient or last chance was given to the applicant. The arguments put forward by the learned counsel for the parties have been given due and proper consideration and examined the judgments passed by the two Courts below. From the pleadings it appears that the suit was filed on 1-9-2008 and on two occasions the learned counsel for the applicant/defendant moved an application for extension of time for filing the written statements/objections etc. In this regard the first application was moved on 7-10-2008 whereas the second application was moved on 28-10-2008 when the same was dismissed and the judgment was passed in favour of the respondent/plaintiff. The whole exercise was completed within 21 days such conduct on the part of trial Court reflects that neither sufficient time nor last chance was provided to the applicant/ defendant. It further reveals that only one adjournment was granted in routine to file the written statement but the trial Court did not use expression that it was the last opportunity given to file the written statement or that no further opportunity would be granted. It is crystal clear that the trial Court erred in law to strike off defence of the applicant/defendant which tantamounts to applying penal clause by trial Court without application of mind and in violation of law, in this regard reference can be made to the case of Lahore Development Authority v. Muhammad Shafi and 3 others (2004 YLR 959-Lahore). The rule 10 of order VIII clearly demonstrates that in every case in which the written statement has not been filed, the Court is not bound or required to pronounce the judgment and decree as it is not supported by the law by using the word "may" in order VIII rule 10 C.P.C. it has been left open to the Court, that on consideration of the material annexed with the plaint pronounce the judgment or may pass such order it deems fit. Before passing the judgment and decree the trial Court was required to see the memo of plaint and documents or record in order to reach at correct conclusion whether they were admissible or inadmissible in evidence and if the trial Court had to reach the conclusion that the plaintiff has good case on merits in that eventuality it has to pass the judgment and decree. The provisions of striking off the defence requires greater care on the part of the trial court as it would shut out one party to defend itself and virtually it would be at the mercy of the other party to do justice between the parties. If party has failed to file written statement, judgment can be pronounced against such party, but that judgment would not mean decreeing the suit ipse dixit without any proof whatsoever. Court is obliged to give reasons indicating application of mind and it is appropriate that cases be decided on merits after recording the evidence. Though there are concurrent findings in the judgments passed by two Courts and the revisional jurisdiction of this Court is always discretionary and equitable in nature and no party is entitled to it as of right. The object of High Court while exercising its discretionary jurisdiction has always been to foster the justice, preserve the rights of the parties and to right a wrong. Precisely the discretionary revisional jurisdiction is meant to correct the errors and to check the mistakes and lapses committed by the Courts below so as to ensure the judgments/orders passed by the lower Courts were not marked by lack of jurisdiction and to prevent the illegal and irregular exercise of jurisdiction. For the foregoing reasons, I allow the instant Revision Application and set aside the impugned judgments and decrees passed by two Courts below and remand back the case to the trial Court to decide afresh on merits, needless to say that after providing reasonable opportunity to the applicant for filing the written statement etc. H.B.T./N-31/K Case remanded.