P L D 1997 Lahore 722 (PLP)

AMIR ALAM KHAN, J.

This judgment will dispose of R.F.A. No.94 of 1995 and R.F.A. No.88 of 1995 as common questions of fact and law are involved therein.

2. Both the regular first appeals noted above are directed against the judgment and decree dated 18-12-1994 passed by learned Civil Judge, Lahore, whereby the suit filed by Sh. Abdul Ghafoor & Company i.e. sole respondent in R.F.A. No.94/95 and respondent No. 1 in R.F.A. No.88/95 was decreed with costs.

3. The plaint in the suit filed by S. Abdul Ghafoor & Company (hereinafter referred to as plaintiff-company) proceeded on the ground that the said Company being an approved contractor of the respondent-department was awarded a contract for constructing Raiwind Distributory No.2 from MBL Road 359520 to feed tail reach RD 92569-102580-tail through acceptance letter No.1386/35-M/PDK dated 25-3-1990 issued, by defendant No.2 and it was in consequence thereof that the plaintiff-company executed the work at the site as is evident from the entries in the measurement book No.318-L contained on pages 28 to 36 entered in relation to 7th running bill of the plaintiff-company. It was submitted that an amount of Rs.19,22,668 is shown to be payable to the plaintiff-company after making all relevant deduction and that the bill regard to aforenoted amount had also been preaudited and checked yet the payment thereof was not made because of the non-availability of funds. The cause for filing the suit was described to be the inability of the defendant to pay the amount of bail even in spite of repeated. requests of the plaintiff-company as' also the legal notice issued in this behalf, hence the suit for recovery of the abovesaid amount alongwith compensation at the rate of 20 per cent. per annum payable from 18-12-1992 till the date of decree amounting to Rs.5,76,800.

4. The suit was registered on 29-6-1993 and the usual process was issued for 24-7-1993. The appellant department having been served entered appearance in the case on the date fixed and asked for time to file written statement. The said written statement was however, not filed even in spite of six opportunities given in this behalf spreading over a period of six months including one adjournment, which was occasioned because of the learned Civil Judge being on leave. Since the last of the aforenoted six opportunities was allowed subject to costs of Rs.200 with the rider that this would absolutely be the last opportunity, therefore the learned trial Court proceeded to strike off the defence of the appellants department vide its order dated 4-1-1994 and at the same time directing the plaintiff/respondent company. to produce its ex parte evidence. The said evidence was recorded on the very next date i.e. 4-2-1994 whereafter the case was adjourned for quite many dates for hearing arguments in the case which were finally. heard on 11-4-1994 and the case was fixed for 17-4-1994 for announcement of the orders. It appears that the learned trial Court, while perusing the file for the purpose of rendering judgment in the case noticed that the learned A.D:A. while cross-examining the Record Keeper of the appellant department had suggested to him that he had not brought the original record on purpose and that he had withheld the same because the defendant No.2 i.e. appellant in R.F.A. No.88/95 had colluded with the plaintiff/respondent Company and this was the reason that the written statement could not be filed in the case. Consequent thereupon the learned trial Court proceeded to summon defendant No.2 i.e. appellant No.2 in R.F.A. No.94 of 1995 and appellant in R.F.A. 88 of 1995 as a Court-witness with the direction that he should bring the original record alongwith him. The statement of the said Court-witness was recorded on 4-5-1994 in the absence of the A.D.A. with the result that no cross examination could be conducted on him. The case was thereafter adjourned for many dates because in the meanwhile the A.D.A. filed three miscellaneous applications i.e. one seeking review, the other seeking impleadment of the Superintending Engineer and the third with the prayer that appellant No.2 in R.F.A. No.94/95 and appellant in R.F.A. No.88/95 be resummoned for the purposes of cross-examination. They said applications were however, dismissed on 12-7-1994 and it appears that the case thereafter continued to be adjourned for hearing arguments. till 16-11-1994 when the learned trial Court having once again studied the file ordered that the appellant No.1 i.e. the Secretary should appear as a Court witness to make a statement in regard to the stand point of the plaintiff/respondent-company. The matter was adjourned to 29-11-1994 and thereafter to 12-12-1994 when the Court was on leave. The duty Civil Judge adjourned the case to 16-12-1994 for proper orders when the suit of the respondent-company was decreed without adverting to the previous orders whereby the Secretary of the appellant department was summoned as a Court-witness.

5. The abovesaid judgment and decree has been assailed in the present appeals i.e. one filed by the Province of Punjab alongwith the Executive Engineer i.e. appellant No.2 while the other filed by appellant No.2 in his personal capacity as also in the capacity of his being the Executive Engineer of appellant No. 1.

6. We propose to dispose of the appeals noted above by this common judgment

7. It was argued and we also noticed that the penal provisions of Order VIII, Rule 10, C.P.C. were not correctly applied to strike off the defence of the appellants inasmuch as no order was ever passed by the learned Trial Court thereby directing that written statement is required by the said Court, therefore, the same be filed. The provisions of Order VIII, C.P.C. provide for three kinds of written statement, which may be filed or required to be filed. The first of its kinds is the one which may be filed by the defendant as of right (First Part of Rule 1), the second of its kind is filed with the leave of the Court when it is so permitted and is commonly known as subsequent pleadings (Rule 9); the third written statement is contemplated in view of the combined reading of Rule 1 and Rule 10 of Order VIII, C.P.C. which is the written statement as required by the Court. It is now well settled that the last mentioned is the only written statement that entails the penal consequences of pronouncement of judgment. The common practice that we have come across while practising at the Bar as also on the Bench is to the effect that the defendant having entered appearance in the case would normally request for time to file written statement in the case which is granted in routine by observing . The same expression is normally repeated in all the orders passed for granting adjournment for filing written statement in a case with the common rider that the party failing to present the written statement is either burdened with costs or it is observed that the adjournment shall be considered to be the last opportunity of filing the same yet an order is passed or seldom passed thereby directing that written statement. is required by the Court to be filed in the case. As a matter of fact this effort should be made by writing a speaking order thereby indicating that the written statement is required by the Court to proceed with the case. This is all the more necessary for Rule 1 of Order VIII prescribes the outer limit for filing written statement. The said outer limit has now been reduced from 90 days to 30 days by way of an amendment by Act XIV of 1994 keeping in view the delay which was normally caused because of adjournments for filing written statement in a case. It is no doubt true that the outer limit so fixed in not absolute in its terms because the word "30 days" precedes with the words "shall not ordinarily exceed" 30 days meaning thereby that a discretion is left with the Court to give time for filing written statement even exceeding 30 days yet the provision relating to outer limit would only be made meaningful if the Court passes the order thereby requiring the defendant to file written statement, therefore, it is all the more necessary that such an order is passed so that the matter may not be delayed unnecessarily. We are benefited in this view by the rule of law laid down in Sardar Sakhawat-ud-Din and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 which was reaffirmed in the case reported as Secretary, Board of Revenue, Punjab, Lahore v. Khalid Ahmad Khan 1991 SCMR 2587 whereby it was held:-- "Rule 10 is in two parts. No doubt under the first part a judgment can be pronounced against the defendant, but it will be pronounced only if it can be so done under the law. For example, if the suit is for enforcing a contract or obtaining any other relief which is prohibited by law expressly or impliedly, the judgment could not be pronounced. Similarly no decree could be passed if there is no cause of action shown in the plaint or the material placed before the Court or relied upon by the plaintiff even if not in the form of evidence will make it a case of no evidence (if the trial Court is taken to its logical ends). Hence, in all such cases and other similar cases it will be permissible for the Court to proceed under the first alternative. The proper course then would be to proceed under the second alternative. It will be in rare cases, when on account of the material placed on record that it would not only be legal but also just and fair, only merits of the case, that judgment is pronounced under the first part. Otherwise, in the cases like the two before us it would not be proper to proceed under the first part. Like Rule 12, Rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike off the defence. The matter being in the discretion of the Court the penalty should not be imposed without a compelling reason

but as emphasised above that too not without satisfying the conditions as are being discussed e.g., even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so. 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. In 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. "

8. In the instant case the adjournments granted by the Court for filing written statement in the case were routine adjournments with the repeated observation that the same are being granted at the request of the defendants. The Court did not pass any order thereby. requiring the defendants to file written statement in the case, therefore, the penal provisions as contained in Rule 10 of Order VIII, C.P.C. were neither rightly invoked nor lawfully applied to strike off the defence of the appellants. Such being the case the total proceedings taken after striking off the defence of the defendants cannot be sustained.

9. Apart from the above there is another aspect of the matter which needs to be attended to. It was at the fag-end of the trial that the learned trial Court having noticed that the appellant No.2 had made a statement as Court-witness thereby conceding the claim of the plaintiff/respondent company had proceeded to pass an order thereby calling upon the Secretary of appellant No. l to appear as Court-witness so as to admit or rebut the statement made by appellant No.2 and for that matter the case was adjourned from 16-11-1994 to 29-11-1994. On the date fixed the said Secretary did not appear with the result that the order was repeated for 12-12-1994 on which date the learned Presiding Officer was on leave with, the result that the case was adjourned to 18-12-1994 for proper orders. On the last-mentioned date the judgment was announced without adverting to the previous orders. Now this could not be done unless the previous orders calling upon the Secretary of appellant No. l had been recalled by any speaking order. The manner in which the said proceedings were taken, to say the least, cannot be approved and is another campelling reason to set aside the judgment and decree passed by the learned trial Court.

10. Coming to the appeal filed by original defendant No.2 i.e. appellant No.2 in R.F.A. No.94 Pf 1995 suffice it to say that the same appears to have beer' filed by the appellant to vindicate his position in regard to the statement made by him whereby he conceded the claim of respondent-company. The memorandum of appeal is replete with the assertion that he was over-awed by the Court to make such a statement and that the same was made at a point of time, when the original record was also not available. The appellant has taken pains to narrate facts and 'circumstances under which he was allegedly compelled to make the statement and has requested that. he should be relieved of the burden of admission as contained in his statement. We have noticed from the record that his statement was recorded in an open Court and is also signed by him yet we refrain from making any observation in regard thereto for the particular reason that the judgment and decree passed in the said suit is being set aside by us in the connected appeal, therefore, as a natural corollary the present appeal would also succeed though not on the grounds taken therein.

11. For the reasons stated above these appeals are accepted and the judgment and decree dated 18-12-1994 passed by the learned Civil Judge, Lahore is set aside, resultantly the case is remanded to the learned District Judge, Lahore where the parties would appear on 23-4-1997 when the appellants/defendants in the case shall tile their written statement whereafter the learned District Judge shall entrust the case to a Court of competent jurisdiction to proceed therewith in accordance with law. The learned trial Court is directed to dispose of the case within six months from the date that the same is entrusted to it. There shall be no order as to costs. A.A./P-22/L Appeal accepted