1999 PLP 1268 (CLC)

6. 1 have heard the arguments of the parties and perused the record with great care., H 7 The questions calling for the consideration are:‑‑ (i) Whether the Court is bound to decree the suit under Rule 10 of Order VIII, C.P.C. when the Court declines to grant adjournment to the defaulting defendant and proceeds to strike off the defence straightaway without recording evidence, and (ii) Whether the Court can proceed and record the evidence of the plaintiff in such a circumstance and decide the case on merits.

8. In order to resolve the controversy it appears advantageous to examine Rule 10 of Order VIII, C.P.C., which is as follows:‑‑ "10 Procedure when party fails to present written statement called for by the Court.‑‑‑ Where any party from whom a written statement is so requisitioned fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. " 9 A plain reading of the rule indicates that whenever a defendant fails to file the written statement in consonance with the mandate of the Court, the Court has two alternatives; it may pronounce the judgment against the defaulting defendant or may make such order in relation to suit as it thinks fit. Therefore, the contention of the learned counsel for the petitioner that the Court had only one option i.e. to decree the suit is totally misconceived and deserves to be A rejected. Such a contention would simply be destructive of Rule 10 of Order VIII, C.P.C.

10. The Rule 10 (ibid) came up for consideration before the Superior Judiciary in a number of cases. It will be appropriate to notice a few of them.

11. The aforesaid proposition came up for consideration in the case, Nisar Ahmad and others v. Habib Bank Ltd. 1980 CLC 981 in which it was held that:‑‑ "The provision of striking off defence requires greater care on the part of a Court, as it shuts out one party to defend itself and point out defects in the case of the other party, leaving the Court virtually at the mercy of the latter to do justice between the two parties. In the present case, after striking out the defence of the defendants‑appellants, the learned trial Court purported to act under Order VIII, Rule 10 and decreed the suit of the plaintiff‑Bank. No doubt, the latter provision allows that when one party fails to file written statement after having been required to do so, the Court may pronounce judgment against him but the important point to note is that the Court may pronounce 'judgment' , and judgment does not mean decreeing the suit ipsi dixit without any proof whatsoever."

12. Rule 10, Order VIII, C.P.C. came up for consideration in Haji Muhammad Moosa and another v. Provincial Government of Balochistan 1986 CLC 2951 in which it has been observed that:‑‑ "It may be seen that in the event of defendant's failure to file written statement within specified time the trial Court enjoys jurisdiction either to pronounce judgment or to make such order as it deems fit. In this matter it appears that trial Court was inclined to pronounce judgment. But factually no comments on the merits of the case were at all made. Evidently without giving any reasoning or even indicating application of mind the suit has been decreed. Word 'decree' has been defined in section 2(2) of Civil Procedure Code, whereas procedure for passing judgment is explained in Order XX of C.P.C. Obviously, for a proper judgment and decree there has to be formal expression of the Court conclusively determining matter in controversy which should be essentially based on sound judicial grounds in the light of available record." 13 The rules laid down in Bilqis Begum v. Syed Ali Turab and others 1980 CLC 930 were examined in Malik Muhammad Saeed v. Mian Muhammad Sadiq 1985 MLD 1440 where it was observed as follows:‑‑ "

15. After giving our anxious consideration to the matter in the above light, we are of the opinion that it is inherent in the very process of dispensation of justice that the judicial conscience of the Court must be satisfied about the genuineness of the case set up by the plaintiff approaching the Civil Court in the proceedings for discovery truth and in order to obviate chances of unscrupulous litigants getting away with ill‑merited judgments or decrees which would amount to negation of justice and defeat the very purpose of law. It follows that a judgment that is based on no evidence whatsoever on the merits of the case would be illegal. It cannot also be overlooked that there are no words to be found in Order VIII, Rule 10, C.R.C. doing away with absolute requirement of the Evidence Act. 16. ................................................................................. 17. .................................................................................

18. We are also not oblivious of the principle that Courts favour adjudication on merits while construing the provisions under examination. Reference may be made to Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1976 SC 159 and Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382. "

14. The same rule was propounded in India Cases XII Volume No.

215. The relevant portion is as under:‑‑ "Nanhe v. Saiyad Tasadduq Hussain 212: It is urged on behalf of the applicant that the Munsif acted with material irregularity because under Order VIII, Rule 10 he was only empowered to pronounce judgment against the defendants and in this case there is no judgment, but merely an order decreeing the plaintiff's claim. A, judgment is defined in section 2(9) of the Code as the statement given by the Judge of the grounds of a decree or order. Therefore, the law contemplates that the Court should go into the case and pronounce a decision upon the facts so far as they are before it. If the learned Munsif had examined the plaintiff anti considered the documents produced before him and written a decision stating that he believed the plaintiff's evidence that would have been a judgment within the meaning of Order VIII, Rule 10 but I cannot hold that the order of the Munsif in this case was a judgment. I am therefore, of opinion, that there was a material irregularity. The learned pleader for the respondent refers to the case of Kristanmma v. Chapa Naidu, where it is said that material irregularity, within the meaning of section 622 of the old Code of Civil Procedure, means, perverse decision on a question of law or procedure, a decision being perverse where it is a conscious departure from some rule of law or procedure in this case, I must assume that the learned Munsif knew what the meaning of a judgment is. A judgment certainly means some kind of decision upon the merits, but there is none in this case. " 15‑ The upshot of the above discussion is that when a party from whom a written statement is required fails to present the same, the Court may pronounce ,judgment or make such order as it thinks fit. The very language of Order VIII clearly evinces that it is not mandatory for the Court to pronounce judgment if B the other party fails to submit written statement within the time fixed by the Court and that is why the words "may pronounce" has been used. There appears logic behind this phraseology as there may be suits in which no further evidence can be required and which can be decreed on the basis of averments contained in the plaint as well as documents annexed thereto. But there may be cases in which it may not be safe and possible to pronounce judgment without recording evidence. It is to meet the second eventuality that the words "may pronounce" has been used. In the instant case the petitioner has filed a suit for recovery of Rs.3 crore on‑ account of cost of land and damages. He has also prayed for permanent injunction directing them to denotify the notification in which his land has been acquired for establishment of Kachi Abadi. Petitioner now seeks that his suit be decreed merely on the basis of his averments contained in the plaint and without requiring him to adduce any tangible evidence to support his claim. He further, wants the Court to issue a direction to the respondents to denotify the notification acquiring his land and that too without brining any evidence on the record. All these three prayers could n %t be granted simply relying on the averments made in the plaint as these had to be substantiated by tangible evidence. The trial Court has rightly dismissed his application under Order VIII, Rule 10, C.P.C. vide order under revision and directed him to produce evidence to substantiate his claim. There is no force in this revision petition and the same is dismissed. Q.M.H./M.A.K./A‑39/L Revision dismissed