2006 PLP 566 (CLC)

MUHAMMAD AKHTAR SHABBIR, J.

Facts giving rise to present writ petition are to the effect that Shaukat Ali respondent No.3 had, filed a suit for possession through specific performance of contract against the present petitioner (defendant) who appeared in the Court on 12-12-2001 whereupon the case had been adjourned to 16-1-2002 for filing written statement on 31-1-2002 and 15-2-2002. The written statement had not been submitted on the above said dates and defence has been struck off. The case was adjourned for petitioner's evidence. The order, dated 15-2-2002 had been challenged through a revision petition, which came up for hearing before the learned Additional District Judge, who dismissed the same vide order, dated 9-10-2003.

2. Learned counsel for the petitioner contends that by closing the defence of the petitioner, he has been ousted from the process and deprived of the opportunity of producing his evidence in support of his assertion. Further contends that it is settled principle of superior Courts that the litigant should not be punished mere on technicality of procedure.

3. On the other hand, learned counsel for the respondent vehemently opposed the arguments of the learned counsel for the petitioner contending that the case could not be adjourned beyond the period of 30 days and more than two dates.

4. I have heard the arguments of the learned counsel for the parties and perused the record.

5. The petitioner's right to file written statement had been struck off on the ground that the Court is not competent to grant more than two opportunities to the party beyond 30 days.

6. Whether the provisions of Order VIII, rule 1, C.P.C. is mandatory or directory and what is the effect of the Notification No.300/rules/XI-Y-26, dated 2-10-2001, the provision of Order VIII, rule 1, C.P.C. is reproduced for further ready reference to examine the said provision of law. Written statement.

The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence: Provided that the period allowed for filing the written statement shall not ordinarily exceed (thirty) days. The Lahore High Court has further arrayed a proviso to the effect that "not more than two adjournments" should be granted for presenting a written statement (2-10-2001). While construing the definite intention and purpose of the Legislature putting restriction of 30 days in allowing the time for filing written statement was to curtail inordinate delay and to expedite the trial even at the initial stage of the filing of the written statement. For the purpose the period of 30 days has been fixed and further the High Court has added a proviso that not more than two adjournments shall be granted for the purpose.

7. As per first proviso of Rule 1 of Order VIII, the period allowed for filing written statement shall not ordinarily exceed 30 days and according to the basic principle of the interpretation of the statute, no word in the statute is redundant and has to be given, the specific meaning which it intends to convey. The Legislature has specifically incorporated the word "ordinary" to convey that this period of 30 days cannot be adhered to in all circumstances. The use of the term "ordinarily" gives a discretion to the Court to extend this period in suitable cases.

8. To strengthen this arguments, reference can be made to the period of limitation which is provided either by the Limitation Act or by a Special Statute wherein the period within which a particular act has to be done in unconditionally specified but the Court in suitable cases is empowered to extend the period of limitation provided "sufficient reasons" and special circumstances are advanced. Where doing of an act is bound by time but is qualified by term "ordinarily", it shall necessarily imply that such provision of law is intended to be directory and not mandatory.

9. The superior -Courts have exhaustively dealt with the word "shall" used in the statute and made this distinction whether it indicates the mandatory or directory provisions.

10. The Honourable Supreme Court while in a case of Punjab Pre-emption Act interpreting the word used in section 31 of the Punjab Pre-emption Act, which envisages as under:-- "Notice.

(1) The officer registering the sale-deed or attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation. (2) the notice under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of mosque and on any other public place of the village or place where the property is situated. (3) The charges of the notice under subsection (2) shall be recovered from the vendee by the officer registering the sale or attesting the mutation, as the case may be, at the time of such registration or attestation."

11. The Honourable Judges of the apex Court in case of Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 have observed that admittedly the word "shall" used in section 31 of the said Act does not carry any penal clause in case of non-compliance of the affixation of public notice. Therefore, the word "shall" used in section 31 of the said Act is directory in nature. This observation has been made bases on the judgment of the said Court in case of Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC

134. As a general rule a statute is understood to be directory when it contains matter merely of direction, but it is mandatory when those directions are followed by an express provision that in default of following then the effect shall be null and void. In absence of a penalty for failure to follow the prescribed procedure the provisions are to be taken to be directory and not mandatory. In this context reliance can be placed to the case of Maulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 1305.

12. The instant provision of Order VIII, rule 1, C.P.C. is a procedural and all procedural laws are designed to promote the ends of justice. The Courts of law never take a fetish of technicalities, so as to lose intention or philosophy of administration of justice to decide the lis in accordance with the respective rights of the parties. The second proviso of Order VIII, rule 1, C.P.C. indicates that not more than two adjournments shall be granted also is directory because this direction has been followed by including the period of 30 days in the provision and it is prohibitory command conveyed by the second provision is primarily directed to further the cause of first proviso. If the first provision is a directory, then the second provision shall also be treated as such. It is also a settled principle of interpretation of statute that the different provisions of the statutes should be construed harmoniously, so as to advance the purpose of a substantive provision of law. No provision shall be pressed into service in order to defeat the real object of the main provision.

13. In another case of Muhammad Anwar Khan and 56 others v. Ch. Riaz Ahmad and 5 others PLD 2002 SC 491, the Honourable Judges of the Supreme Court have observed that time and again, it is stated by the superior Courts that rules and regulations are only meant to streamline the procedure and administer the course of justice but not to thwart the same. The Courts have always preferred the decision of cases on merits and technicalities have always been discouraged. By using of the word "ordinarily" in the proviso indicates that period of 30 days cannot be adhered to in all circumstances. Use of term "ordinarily" gives a discretion to the Court to extend the period in suitable cases as laid down in the case of Hassan Usmani, Sole Proprietor and another v. T.F. Pipes Limited through Managing Director 2003 YLR 1075.

14. Another aspect of the case is that the provision of Order VIII, rule 10, C.P.C. would be attracted to a case only where any party from whom the written statement is so required fails to present the same within the time fixed by the Court. The Court may pronounce the judgment or take action as it thinks fit and speaking order should have been passed by the Court. Last opportunity was granted in the proviso only keeping in view the time limit of 30 days. The said provisions are not applicable in the instant case. Both the Courts below have passed the order in violation of settled law by the superior Courts as laid down in the above referred cases. In such-like circumstances, the High Court in exercise of its constitutional jurisdiction would have ample powers to interfere with the orders passed by the revisional Court. 15. (sic) For the foregoing reasons, this writ petition is accepted. Resultantly, the impugned orders passed by the trial Court as well as the learned revisional Court are declared to have been passed illegally hence set aside. M.H./M-16/L Petition allowed.