1991 PLP R2527 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This appeal through leave of the Court is directed against the dismissal of the appellants' Civil Revision by the High Court. It had arisen out of the pronouncement of judgment under Order VIII, Rule 10, C.P.C. on the non‑submission of written statement by the appellants as defendants in a suit for recovery of money. Leave to appeal was granted to examine: "whether, the learned lower Courts acted to accordance with the law declared in Sakhawatuddin v. Muhammad Iqbal (1987 SC M R 1365). The relevant part in the case of Sakhawatuddin reed upon by the learned counsel for the appellants reads as follows:‑‑

"It is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant. (1) As a right without any formal permission of the Court (Rule 1). 2 When it is so required by the Court to file a written statement (Rule 1 and Rule 9). (3) When under some circumstances it is by the leave of the Court (Rule 9). "It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in items Nos.l and 3 above. But penal consequences of `pronouncement of judgment against' him when the defendant fails to file written statement when `so required'‑‑as is indicated in item No. 2 above; would follow

"There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was `required', by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word `required' is not without significance. It does not permit a routine order without application of mind to the `requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of 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. Id this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under Rule 9, that would not satisfy the law regarding the `requirement' of the Court. It is only the written statement which is `required' and that too by `the Court' by a speaking order, which would entail the penal consequences of Rule

10. In these two cases it has been admitted before us that these requirements have not been fulfilled." We having perused the relevant Order‑sheet, are satisfied that the Rule laid down by this Court reproduced above regarding the "requirement" of the Court and a speaking order in that behalf is lacking in this case Accordingly, the impugned judgment merited to be set aside. But the matter does not end here. As is obvious from the facts of this case the amount involved is only Rs.15,

000. The decree passed in respondent's favour is based on the norms of justice. We also noticed that the appellants seems to have already spent much more than what they had to pay from public exchequer to the respondent /decree‑holder, as expenses on this litigation. This, of course, includes the payment of fees to both the learned counsel who have appeared before us. It is strange that instead of paying Rs.15,000 as judgment‑debt to the respondent towards the discharge of the decree in case where substantial justice has been done, the Government has chosen to spend much more on this litigation. Accordingly, although the law point has been decided in favour of the appellants yet in the interest of justice we do not want to inflict further heavy burden on the public exchequer; which would indeed be burdened with more expenses. It is not known how much the appellants would have to spend if the case starts before the trial Court afresh and reaches its logical conclusion. In the light of what has been stated above we are left with no alternative but to withdraw the leave grant order and dispose of the matter accordingly. There shall be no order as to costs. M.BA./S‑643/S Order accordingly.