2019 PLP 2883 (YLR)

MOHAMMAD SHERAZ KIANI, J.

The captioned revision petition has been directed against the order passed by the learned District Judge Sudhnuti, dated 13.03.2017, whereby, the application to struck off the right of defence of defendants/respondents, was rejected.

2. Brief facts forming the background of the instant revision petition are that plaintiff/petitioner herein, filed a suit against the defendants/respondents for recovery of Rs.10,00,00,000/- (100 Millions) before the learned District Judge Sudhnuti/Palandri on 01.04.2016. During pendency of the suit, an application for striking off the defence of defendants/respondents was filed by the plaintiff stating therein that despite availing almost eleven opportunities, the defendants did not file written statement, whereas, as per law only two opportunities can be granted for filing the same. It has been stated that under Order 8 Rule 1 and 10 of the Code of Civil Procedure 1908, the defence of the defendants/respondents, herein, to file the written statements may be closed. The said application was objected by the other side, wherein, it is stated that the application is baseless as the plaintiff previously raised no objections against the defendants to seek time for filing the written statements and they requested for dismissal of application. The learned District Judge after hearing the parties, rejected the application while directing the defendants to file written statement on the next date of hearing vide order dated 13.03.2017, hence, this revision petition to set-aside the order of the Court below.

3. The learned counsel for petitioner while referring Order VIII, Rule 1 of the Code of Civil Procedure, submitted that in the said rule, the period of 30 days has been fixed for filing the written statements and the defendants/respondents were ordered by the Court to file the written statement on 17.06.2016 and various opportunities were provided to them and through the impugned order after elapsing the period of six months, they were again provided opportunity which is not permissible under law. The learned counsel vehemently contended that under the principle of law, it was enjoined upon the defendants to act upon the Court order but the defendants despite availing a lot of adjournments did not file the written statement and the Court below while misdirecting himself illegally observed that the defendants/respondents were not given last and final opportunity whereas, the interim order dated 25.07.2016, is crystal clear in this regard. In support of his version he referred the following authorities:- 1997 CLC 55, 2002 PLC (C.S.) 996, 2002 SCR 476 and 2005 YLR 1041

4. Conversely, the learned counsel for defendants/respondents while defending the impugned order submitted that the Court has discretion to enlarge the time according to peculiar situation of each and every case, although ordinarily the written statements should be filed within the period of 30 days but the Court has jurisdiction to enlarge the time. It is contended that simple grant of adjournments to file written statements does not entail the penal conse-quences mention in the Order VIII, Rule

10. The learned counsel finally requested for dismissal of the revision petition.

5. I have heard the learned counsel for the parties and considered the controversy with due care in the light of the record.

6. It is true that the period of 30 days has been fixed for filing the written statements in Order VIII, Rule 1 of the Code of Civil Procedure 1908, but the word `ordinarily' has been used therein which gives discretion to the Court to enlarge the time according to circumstances of the each case. Furthermore, in my view, the said rule is directory in nature and not mandatory as it does not impose penalty in case of non-filing the written statement within 30 days. Time provided for filing written statement is not absolute, the Court has complete discretion to exceed time which might exceed 30 days. In exceptional circumstances, in cases of failure on the part of defendant to file written statement, trial court in its discretion may extend the time in suitable cases and can grant more time, if it is satisfied that the explanation offered by the defendant is reasonable. Reliance in this regard can be placed on the case reported as 2000 SCMR 1954. However, under Order VIII, Rule 10, if the Court requires the defendant to file the written statements and that is not filed within the period fixed by the Court, definitely, then the defence can be struck off by the Court and a judgment can be passed against the defendant provided the suit does not suffer from any legal infirmity, but in the case in hand the situation is quite different and on the various dates, the Court exercised its discretion on sufficient cause by giving the defendants/ respondents permission to file the written statements.

7. The penal consequences mentioned in the Rule 10 Order VIII, C.P.C., would pursue only when the Court shall require or direct the defendant to file written statement by a speaking order. Simple permission by the Court and adjournment to file written statements would not be a ground to strike off the defence of the defendant and judgment against him. Regarding such like situation, the Hon'ble Supreme Court of Pakistan in the case titled "Sardar Sakhawatuddin and 3 others v. Mohammad Iqbal and 4 others" reported as 1987 SCMR 1365, interpreted the rules 1, 9 and 10 of Order VIII, in the following words:-- "There is another very important aspect of the matter. All the three types of written statements 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 realizing 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." In the above judgment, it has been made clear that if permission is given by the Court as the case is simply adjourned for the purpose, and the order is passed in routine, it would not entail penal consequences of Rule 10 Order VIII of the Code. So, the Courts are required to pass a speaking order after applying the judicial mind, with a direction to the defendant to file written statements and if the direction is not complied obviously, then the defence should be struck off and judgment may be announced against the defendant. However, it is to be noted that the power to pronounce judgment does not imply decreeing the suit ipse dixit without calling for proof. The power is discretionary in nature, if the suit itself suffer from any legal infirmity, that cannot be decreed. Secondly, if the Court consider necessary, it can direct the plaintiff to produce the evidence in support of his claim, though the written statement was not filed. However, in the appropriate cases the Court is fully empowered to pronounce the judgment at once against the defendant by striking off his defence without recording any evidence in the light of material evidence on file. The Court can consider the allegation on oath by the parties too. Reference can be made to the cases reported as [1990 MLD 171] [1989 CLC 1883] [1991 CLC 1476] [1989 CLC 1883].

8. A proviso is inserted in rule 1 that no more than two adjournments shall be granted for presenting the written statements. Although a restriction has been imposed to expedite the cases but in my opinion, if this proviso is violated by any presiding officer negligently and granted adjournments without any sufficient cause, it can entail disciplinary action against the concerned presiding officer of the Court, but on the unjustified act of the Court, a party cannot be penalized unless the direction is issued to the defendant by the Court for the purpose, as discussed earlier by a speaking order. In such cases the Court should be mindful of the consequences of routine adjournments. As the proceedings Ordinarily in Azad Jammu and Kashmir are conducted in Urdu, so, it would be useful to illustrate this important proposition with some instances. For example, if the order is passed in the following words:-- Through the above order only the case has been adjourned, it is not sufficient to invoke the penal consequences of the pronouncement of the judgment against the defendant on the next date on non-filing the written statement. However, if the order is passed in the following manner or in the identical word In the above order, it has been clarified that sufficient opportunities have already been provided to the defendant and he is procrastinating the matter deliberately and he has been directed by the Court to do the needful otherwise the penal consequences will follow. After passing such speaking order and requiring the defendant to file written statement, in case of his default, a judgment can be announced against him forthwith. In the instant case, the earlier adjournments were granted to the respondents in routine without realizing them the consequences. Nobody should be knocked out of the Court merely on the basis of technicalities without alarming him.

9. Even otherwise, under section 148 read with section 151 of the Code, the Court is fully empowered to enlarge the time to do the complete justice and pass an order for the ends of justice or to prevent the abuse of the process of the Court. Therefore, the learned Court below has committed no illegality or perversity while passing the impugned order. The authorities referred by the learned counsel for the petitioner are not helpful to the petitioner due to the peculiar facts of the case in hand. In the light of what has been stated above, finding no force in this revision petition, it is hereby dismissed. The parties shall bear their own costs. ZC/45/HC(AJ&K) Revision dismissed.