2005 PLP 506 (CLC)
RAFAQAT ALI ‑‑‑Appellant Versus MUHAMMAD BASHIR KHAN and another‑‑‑Respondents
| Citation | 2005 PLP 506 (CLC) |
| Forum / Court | Lahore |
| Bench Members | Muhammad Akhtar Shabbir, J |
| Parties | RAFAQAT ALI ‑‑‑Appellant Versus MUHAMMAD BASHIR KHAN and another‑‑‑Respondents |
| Primary Law | Civil Procedure Code (V of 1908)‑‑‑ |
Q1: What are the key laws and sections cited in 2005 PLP 506 (CLC)?
This judgment primarily cites: Civil Procedure Code (V of 1908)‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 506 (CLC)?
The case was heard and decided by the Lahore bench comprising: Muhammad Akhtar Shabbir, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 506 (CLC) (RAFAQAT ALI ‑‑‑Appellant Versus MUHAMMAD BASHIR KHAN and another‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Raja Ikram Amin Minhas for Petitioner.
Headnotes / Summary
‑‑‑‑S. 104, O. VIII, R.1 & O.XLII, R.1 (b)‑‑‑Written statement, non‑filing of‑‑‑Striking off defence‑‑‑Defendant being defaulter in filing the written statement despite two opportunities given by Trial Court his defence was struck off under O.VIII, R.1, C.P.C.‑‑‑Validity‑‑‑Two adjournments had been granted by Trial Court for filing of written statement but the defendant did not file the same‑‑‑Trial Court had only struck off the defence and not pronounced the judgment, therefore, appeal under O.XLIII, R. 1(b), C.P.C. was not competent‑‑‑Defendant failed to point out any illegality in the order passed by Trial Court‑‑‑Order passed by Trial Court was neither without lawful authority nor without jurisdiction and the same was rightly passed by Trial Court‑‑‑Appeal was dismissed in limine.
Judgment & Decree
Raja Ikram Amin Minhas for Petitioner. This appeal has been filed to call in question the order, dated 20‑10‑2004 passed by learned Civil judge 1st Class, Islamabad whereby, the defence of the defendant/appellant was struck off, failing to file written statement on the given date i.e. 20‑10‑2004 by the trial Court.
2. This F.A.O. has been filed by the appellant which is incompetent and not maintainable as Order 43, rule 1‑B, C.P.C. has provided appeal only against if the order is passed under rule 10, Order 8, C.P.C., pronouncing the judgment against a party. Here in this case, the judgment has not been pronounced against appellant and the Court has only struck off the right of defence of the appellant, hence, the appeal being incompetent is liable to be dismissed on this sole ground.
3. The suit for specific performance of the contract has been filed by Muhammad Bashir Khan plaintiff‑respondent (herein) against present appellant. The appellant was served who appeared in Court on 15‑9‑2004 through counsel and he was directed to file written statement and reply to the application. The case was adjourned to 5‑10‑2004 and on the said date neither written statement nor reply to the application was filed and an adjournment was sought to file the same. The request was acceded to and the Court granted last opportunity to the appellant and adjourned the case to 20‑10‑2004.
4. Learned counsel for the appellant argued that neither the plaintiff nor his counsel was present on 20‑10‑2004 and ex parte order was passed. Further argued that plaintiff and his counsel understood the date as 30‑10‑2004. This argument of learned counsel for the appellant is misconceived as on 5‑10‑2004 when the case was adjourned to 20‑10‑2004, the counsel for the parties were present as is evident from the order‑sheet annexed with this appeal. The appellant is defaulter in filing the written statement the direction of Court despite last opportunity granted to him.
5. Learned counsel when confronted with the amendment made in rule 1 of Order 8, C.P.C. that "(ii) provided further that not more than two adjournments shall be granted for presenting the written statement", could not respond and failed to point out any illegality in the impugned order and that the same has been passed without lawful authority and without jurisdiction. The Court has rightly passed the impugned order by strucking off the defence of defendant‑appellant.
6. For the foregoing reasons, this F.A.O. being devoid of merit is dismissed in limine. M.H./R‑104/L Appeal dismissed.