1995 PLP 468 (MLD)

Ch. Muhammad Ashraf Azeem for Petitioner. The petition is directed against the order dated 19‑3‑1994. The relevant facts are that the respondent filed a suit on 1‑3‑1992 for specific performance of the agreement with consequential relief. The petitioners in the first instance avoided the service and ultimately they were served through publication of notice in newspaper for 11‑1‑1993. The Presiding Officer was on leave, therefore, the suit was posted for 19‑1‑1993. The petitioners appeared through Mr. Muhammad Hanif Chaudhry, Advocate. They were given copy of the plaint and the suit was adjourned to 11‑2‑1993 for the written statement. Thereafter it was successively adjourned to 28‑2‑1993, 20‑3‑1993,12‑4‑1993 and 3‑5‑1993. The petitioners on the last date moved an application under Order VII, Rule 14, C.P.C. for production of document. The respondent filed the reply to the application and produced certified copy of the same on 9‑6‑1993. The petitioners then insisted for inspection of the original document. This controversy ultimately was concluded on 16‑1‑1994. The suit was thereafter adjourned to 22‑1‑1994 and it was made last opportunity for the submission of the written statement but the petitioners again requested for adjournment on the pretext that one of the defendants is residing in America and he would be coming back on 15‑2‑1994. This application was granted and suit was adjourned to 17‑2‑1994 and it was made absolutely last opportunity for submission of written statement. Again there was as application for adjournment. It was pleaded that the said Bashir Ahmad is now coming on 7‑3‑1994. The suit was adjourned to 10‑3‑1994 subject to payment of Rs.300 as costs. The counsel for the defendant No. 3 on this date moved a miscellaneous application and the suit was adjourned to 12‑3‑1994 but as the Courts remained close from 12‑3‑1994 to 15‑3‑1994 on account of Eid holidays, therefore, the file was put up on 19‑3‑1994. The written statement still not filed, therefore, the trial Court invoking the second part of Rule 10 of Order 8, C.P.C. struck off the defence of the petitioners and adjourned the suit for ex parte evidence for 10‑4‑1994.

2. The learned counsel for the petitioners in support of the petition argued that since the defendant No. 7 was abroad for treatment, therefore, the opportunity should have been granted. It is added that the trial Court proceeded arbitrarily and capriciously while striking off the defence and fixing the suit for recording of the ex parte evidence.

3. I have given my anxious considerations to the arguments of the learned counsel for the petitioners and gone through the record. The petitioners have been granted more than a year to submit the written statement. This is beside the period of about one year for which they successively avoided the service in the suit. The petitioners were afforded at least eight clear opportunities out of which on four occasions it was made clear to the petitioners that no further opportunity shall be granted for the submission of the written statement. This is sufficient compliance with the provisions of Order VIII, Rule 10, C.P.C. and the dictum of the Hon'ble Supreme Court laid down in Mst. Hakumat Bibi v. Imam Din and others (PLD 1987 SC 22), and Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365). This is not all. The trial Court was too generous with the petitioners to grant them opportunity after opportunity and dates of their own choice at least on two occasions. There were seven defendants which included his wife; daughters and sons. There was no difficulty for the defendants Nos. 1 to 5 to file the written statement while the defendants Nos. 6 and 7 could have appointed one of their sons or daughters as attorney for the defence of this suit.

4. The trial Court has acted fairly and judiciously rather it has been unfair to the plaintiff while granting numerous adjournments to the petitioners. The petitioners are lucky that the trial Court did not proceed under first part of the Rule 10, Order VIII, C.P.C., which was fully attracted. The trial Court has exercised its jurisdiction and discretion in accordance with law. The petitioners have failed to make out a case for interference in revisional jurisdiction'.

5. The learned counsel in the end requested that the office be directed to return the original documents appended at pages 39 to

44. The documents be returned in accordance with the rules after the petitioners have placed on record the certified copies of these documents.

6. The result is that there is not merit in this petition. The same is dismissed in limine. A.A./T‑92/L Revision dismissed.