2004 PLP 1276 (YLR)

O. VIII, R.10 & S.115

Revisional jurisdiction

Procedural impropriety-- Leading evidence without written statement

Trial Court struck off the right of the defendant to f le the written statement after giving certain opportunities-- Appellate Court, on appeal, remanded the case to the Trial Court with the direction to record the evidence of the defendant after giving opportunity of cross-examination to the plaintiff

Plaintiff in revision petition argued that the Appellate Court had allowed the defendant to lead evidence without realizing how evidence was to be led without pleadings of parties and the list of documents that were to be relied in the written statement

Judgment of the Appellate Court was modified by the High Court under revisional jurisdiction to the extent that the Trial Court should give an opportunity to the defendant to file the written statement

Mere technicalities of procedural law, were not be allowed to defeat the ends of justice. Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref. (f) Administration of justice

Procedural law

Mere technicalities of procedural law, unless offering insurmountable hurdles, were not be allowed to defeat the ends of justice. Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678 ref. Ch. Abdul Rashid for Petitioner. Ghulam Hussain Malik for Respondent. Date of hearing: 10th February, 2004. Brief facts in the instant case are that suit for mandatory and permanent injunction was filed to transfer the disputed plot of land measuring 3 Marlas situated on the eastern side of plaintiff's House No.421 in Pak Block, Allama Iqbal Town Scheme, Lahore. The suit was contested by the defendant, who could not file written statement despite opportunities given to him, therefore, the learned trial Court struck off the defence of defendant-L.D.A. under Order VIII, rule 10, C.P.C. as a punitive action and decreed the suit. Being aggrieved an appeal was filed, which was partly accepted and the impugned judgment and decree of the learned trial Court was set aside to the extent of decreeing the suit of respondent and the case was remanded to the learned trial Court with a direction to record the evidence of, respondent after giving opportunity of cross-examination to the appellant.

2. Learned counsel for the petitioner argues that the learned Appellate Court has allowed the respondent to lead evidence without realizing how evidence is led without pleadings of parties and relies on the documents to be produced in evidence. He further argued that procedural law cannot cause impediment on the way of administration of justice. Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678.

3. Learned counsel for the respondent submits that many opportunities were given to the petitioner to file written statement, even final opportunity was given to petitioner for filing written statement but he failed to do so and the learned trial Court has rightly struck off the defence of the petitioner and decreed the suit and no interference at the stage is needed.

4. I have heard the learned counsel for the parties and perused the record. Judgment and decree of the learned trial Court was set aside by the learned Appellate Court. Appeal being continuation of trial the judgment of learned trial Court has been merged into the judgment or learned Appellate Court. The respondent has not challenged the setting aside of judgment and decree passed by the learned trial Court, therefore, in a way the judgment passed by the learned Appellate Court has achieved finality. So far as the perusal of judgments of the learned Courts below is concerned the learned Appellate Court has set aside the judgment and decree of the learned trial Court under the provisions of Order VIII, rule 10, C.P.C., which is a punitive section for non-filing of written statement.

5. A written statement is a statement filed by the defendant in answer to the plaint and constitute his defence. Even the defendant can file the written statement without formal order of the Court at any stage. The written statement is followed by the contents of documents safely relied in the list of reliance. The purpose behind is that in the pleadings all the available objections should be made in the shape on written statement. Provisions of rule

10. C.P.C. are attracted where the defendant fails to file written statement under this rule. Even under Order VI, rule 9, C.P.C wherever the contents of any document are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.

6. Since the learned Appellate Court set aside the judgment and decree of the learned trial Court with a direction to give an opportunity to the respondent to lead evidence without even considering how evidence should be led without pleadings and list of documents duly relied in the written statement. The respondent has not challenged this judgment and he has in a way admitted the findings of the learned trial Court. In Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and others PLD 1975 SC 678, Full Bench judgment, it was held that mere technicalities, unless offering insurmountable hurdles

not to be allowed to defeat ends of justice

logic of words-- to yield to logic of realities. Their Lordship observed "that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors 1 of individual judgment and mala fide. The logic of words should yield to the logic of realities, particularly while dealing with adjustment of conflicting authorities".

7. Therefore, I accept the instant civil revision, modify the judgment passed by the learned Appellate Court to the extent that learned trial Court shall give at least one opportunity to file written statement to the petitioner/defendant within three weeks from the date of appearance of parties subject to all legal formalities and decide this case within eight months from today. Parties are directed to appear before the learned trial Court on 9-3-2004: M.A.W./D-1/L Revision accepted.