1984 PLP 820 (MLD)

Syed Hassan Asghar for Applicant. S.M. Muslim Naqvi for Respondent. Date of hearing: 5th April, 1984. The applicant's suit for declaration was decreed by Vth Senior Civil Judge, Karachi by his order dated 30th April, 1976. This decree was passed under Order VIII, rule 10 read with sections 12(1) and (2) C.P.C. on the ground of not filing of written statement by the respondent. Against this decree an appeal was filed by the respondent, which was heard by Ist Additional District Judge, Karachi, who by his order dated 7-10-1976 set aside the judgment and decree of the trial Court and remanded the case to that Court for disposal according to law. The applicant has not challenged the said order of the learned 1st Additional District Judge by this revision application.

2. From perusal of the Order of the trial Court, it appears that several adjournments were granted to the respondent for filing written statement. On 30th April, 1976, when the suit was decreed under Order VIII, rule 10 read with sections 11 and 12(2), C.P.C. there was an application for adjournment on behalf of the respondent. It appears that the learned trial Court struck off the defence of the respondent on the ground that no adjournment application was made. Thereafter he proceeded to pronounce judgment in terms of rule 10 of Order VIII, C. P. C.

3. The learned appellate Court set aside the order of the trial Court inter alia, on the ground that the trial Court had wrongly stated in the impugned order that no application for adjournment was made on behalf of the respondent. On the contrary, there was such an application which, according to the first appellate Court's order, was at page 23 of the lower Court's record. According to this application, the respondent had requested for two weeks more time for filing written statement.

4. It appears that in disregard of this adjournment application, the trial Court proceeded to dispose of the suit under Order VIII, rule 10, C.P.C. According to the appellate Court, the learned trial Court had not exercised his discretion properly in applying the provisions of the rule 10, Order VIII. The trial Court had two options under the above Rule. First either he could pronounce judgment and Second, he could have proceeded further as he deemed fit. The present case, being a service matter, in which the allegation of the K.M.C. was that the applicant was dismissed from service after disciplinary proceedings, the proper course for the learned trial Judge would have been to have exercised the discretion in proceeding according to the second alternative provided in rule 10, Order VIII, C.P.C. rather than to proceed to announce judgment. In a similar case of Muhammad Anwar Rahat v. WAPDA 1983 C L C 307 it was held that a penal provision under rules 10 and 9 or Order VIII, cannot be invoked unless the defendant specifically required by the Court, to file written statement fails to do so and in case of his failure to do so pronouncement of judgment would not be the only measure but making any other order as trial Court thinks that would have been appropriate. Mr.Syed Hassan Asghar, learned counsel for the applicant has also relied on 1983 M L R. (C) 37, 1982 C L C 387 and 1983 C L C 3076. In these cases the Court have not held that the trial Courts have unfettered discretion to pronounce judgment on the failure of the defendant to file written statement, nor it has been held that the discretion improperly exercised by the trial Court cannot be interfered with in appeal. These decisions do not advance the case of the applicants. I have perused the order of the learned Additional District Judge, and do not find any illegality on material irregularity so as to justify interference in exercise of power under section 115, C.P.C. No legal infirmity or jurisdictional defect has been pointed out in the order. The revision application, is, therefore, dismissed with cost. M.A.K.??????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.