2009 PLP 239 (MLD)

ALI AKBAR QURESHI, J.

Petitioner through this civil revision has sought the invalidation of an order, dated 8-1-2008, whereby the right of filing written statement of the petitioner was struck off by the learned trial Court.

2. The respondents in the instant petition filed suit for specific performance of an agreement to sell pertaining to suit property against the petitioner, which is, as reported by the learned counsel for the petitioner is still pending adjudication before the learned trial Court.

3. The learned trial Court after procuring the presence of the petitioner/defendant adjourned the case for filing the written statement. The petitioner instead of filing the written statement, filed an application under Order VII rule 11, C.P.C. on the said date i.e. 20-3-2006, but on the objection of the learned counsel for the respondents, the learned trial Court also directed the petitioner/defendant to file written statement along with application. The learned trial Court after providing many opportunities to the petitioner to address the arguments on the application under Order VII rule 11 C.P.C., finally aforesaid application was dismissed on 4-9-2007. The learned trial Court, thereafter adjourned the case for filing the written statement and reply of the application for interim relief but the petitioner despite availing last and final opportunity on two occasions did not file the written statement. On 5-1-2008, one learned counsel appeared on behalf of the petitioner before the learned trial Court and stated that if on the next date of hearing the written statement is not filed the petitioner would have no objection if his right of filing written statement is struck off. On the next date i.e. 8-1-2008, the petitioner did not file the written statement and the learned trial Court having no option in law passed the order impugned herein. The record further reveals, that after passing the aforesaid order, the petitioner appeared on the two subsequent dates, but thereafter disappeared and the learned trial Court had to initiate ex prate proceedings.

4. Learned counsel for the petitioner contended that the petitioner has not engaged the counsel, who appeared on 5-1-2008 before the learned trial Court and it was all managed by the respondents/plaintiff. Next contended that as the respondents/plaintiff did not provide the copy of the plaint, so the petitioner could not have been non-suited. Reliance is placed on Shabbir Hussain and 2 others v. Sh. Abdul Jabbar (PLD 2006 Lahore 18).

5. Conversely the learned counsel for the respondents submitted that the conduct of the petitioner from the very beginning is contumacious. The petitioner instead of filing written statement filed an application under Order VII rule 11, C.P.C. but for a long time did not argue the same. Thereafter the petitioner deliberately did not file written statement, therefore, the learned trial Court having no option in law had to struck off the defence, of the petitioner. Learned counsel on the question of limitation submitted that their civil revision is hopelessly barred by time as the impugned order was passed on 8-1-2008, whereas the petitioner applied for certified copy on 20-9-2008. The certified copy was provided to the petitioner on the same day whereas the petitioner filed civil revision before this Court on 30-6-2008, which is on the face of it hopelessly barred by time. Learned counsel also questioned the maintainability of the application filed under section 5 of the Limitation Act along with the instant civil revision. Reliance is placed on Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286). Learned counsel also submitted that earlier to this the petitioner filed a civil revision before the learned Additional Sessions Judge on 29-5-2008 and the same was withdrawn on 18-6-2008 and thereafter obtained another certified copy of the impugned judgment to file the instant petition.

6. To reply the contentions of the petitioner as regards to non-supplying of the copy of the plaint before the learned trial Court, the learned counsel for the respondent has placed reliance on Muhammad Ramzan and 9 others v. Farhat Hussain and 3 others (1980 CLC 1449), the learned counsel during the course of arguments also referred para.2 of the application filed under section 5 of the Limitation Act and the ex parte proceedings initiated by the learned trial Court on 21-3-2008.

7. Heard. Perused the record.

8. The record reveals and not denied by the petitioner that the order impugned herein was passed on 8-1-2008. The petitioner obtained certified copy soon thereafter and filed civil revision before the learned Additional District Judge on 29-5-2008 but the same was withdrawn on 8-6-2008. The second certified copy of the order impugned herein was obtained by the petitioner on 20-6-2008, whereas the civil revision filed on 30-6-2008, which is on the face of it hopelessly barred by time. As regards the application under section 5 of the Limitation Act the Hon'ble Supreme Court has already been dealt with in the judgment supra and finally observed as under:-- "S.115

Limitation Act (IX of 1908), Sections 5 and 29

Constitution of Pakistan (1973), Art. 185(3)

Revision

Provisions of section 5, Limitation Act, 1908

Applicability

Revision was dismissed by High Court as being time-barred and delay was not condoned

High Court refused to condone the delay for the reasons that the provisions of section 5 of Limitation Act, 1908, were not applicable to the proceedings under section 115, C.P.C. in view of the provision of section 29(2) of Limitation Act, 1908

Validity

Where the statute governing the proceedings did not prescribe period of limitation, the proceedings instituted thereunder would be controlled by Limitation Act, 1908, as a whole

Where the law under which proceedings had been launched had itself prescribed a period of limitation as under section 115, C.P.C. then the benefits of section 5 of the Limitation Act, 1908, could not be availed unless the same had been made applicable as per section 39(2) of Limitation Act, 1908

No flaw in the judgment of High Court relating to interpretation of section 5 of, the Limitation Act, 1908 qua section 115(2), C.P.C. having been found leave to appeal was refused.

9. On merits the conduct of the petitioner is very much relevant in this case because the petitioner from the very first day tried to linger on the matter and frustrate the proceedings of the learned trial Court firstly by filing the application under Order VII rule, 11 C.P.C. and thereafter taking many adjournments for filing the written statement. The contentions raised by the learned counsel of non-supplying the copy of the plaint has already been dealt with by this Court in Muhammad Ramzan and 9 others v. Farhat Hussain and 3 others (1980 CLC 1449), wherein it was observed that such contentions if not raised earlier cannot be raised before this Court. Even otherwise the learned counsel for the petitioner has failed to point out any jurisdictional defect, legal infirmity and material irregularity with the order impugned herein, so there is hardly any reason to interfere therewith while exercising the revisional jurisdiction under 115, C.P.C. For the foregoing reasons this petition has no force and the same is dismissed in limine. M.H./M-444/L Revision dismissed.