2003 PLP 560 (YLR)

6. It is better and appropriate .to reproduce the following material facts in chronological order to resolve the controversy between the parties:‑‑ (i) The petitioner/plaintiff filed suit for declaration and permanent injunction which was presented before the learned trial Court on 23‑9‑1997 and notices/ summons were issued to the respondents for 30‑9‑1997. (ii) On 30‑9‑1997 Mr. Mumtaz Mazhar Naqvi, Advocate entered appearance and submitted his power of attorney and copy of the plaint was handed over to him for filing of the written statement and case was adjourned for 8‑10‑1997. The learned counsel of the respondents/ defendants requested for an adjournment to file written statement which was allowed subject to payment of costs at Rs.25 and case was adjourned for 16‑10‑1997. On 16‑10‑1997, the learned counsel of the respondents/defendants again sought an adjournment to file written statement which was also granted subject to payment of costs at Rs.50 and the case was adjourned for 29‑10‑1997. On 29‑10‑1997, the respondents/ defendants did not file written statement in spite of the last opportunity, granted to them, therefore, the learned trial Court struck off the rights of defence of respondents/ defendants for filing of written statement. The statement of attorney of defendants Nos.3 and 4 was recorded and the case was adjourned for 30‑10‑1997 for ex pane evidence to prove the contents of the plaint. Consequently, the learned trial Court decreed the suit vide judgment and decree dated 30-10‑1997. Thereafter, the respondents/defendants filed an appeal before the learned Additional District Judge; Lahore, which was accepted vide judgment and decree dated 3‑10‑2001 with the following observations:‑‑ "The record shows that L.D.A. was not afforded proper opportunity to submit its written statement and in due haste, defence of respondents/ defendants Nos. 1 and 2 was struck off. No issue in this regard was framed and without framing of issues, evidence of the petitioner/plaintiff was recorded. The impugned judgment and decree, in the circumstances, is not sustainable in the eyes of law as it is not based on the findings of any issue. Even if defendants Nos.3 and 4 had filed consenting written statement, it was necessary to frame the issues regarding contentions as made in the plaint. The impugned judgment and decree is set aside. "

7. It is pertinent to mention here that the order dated 8‑10‑1997 is a routine order. The order dated 16‑10‑1997 reveals that the case was adjourned for filing of written statement by the respondents/defendants with the remarks of last opportunity. ,The Honourable Supreme Court has considered all the case‑law on the subject in Col. (R.) Ayub Ali Rana's case (supra) PLD 2002 SC 630 and laid down the following principle in para. No.8 of judgment:‑‑ "It has also been held in the judgment and relevant provisions of Order VIII, C.P.C. being penal in nature would have to be strictly construed/applied, hence whenever a reasonable doubt would arise regarding its interpretation or implementation, the same would have to be resolved in favour of victim of their application. Otherwise its requirements would have to be established like those of Order XVII, rule 3, C.P.C. which is similarly penal in nature. ‑‑‑And also observed by distinguishing features of the earlier case‑law and laid down the following principle from cases of Hakumat Bibi and Azad have already been highlighted, in that, in the present case, the Court did not pass any order that it would not grant further opportunity to the defendants in case he would fail to file written statement on 1‑6‑2000."

8. It is pertinent to mention here that order dated 16‑10‑1997 does not contain any word that it would not grant further opportunity to the respondents/defendants, in case they would fail to file written statement on 29‑10‑1997. The judgment of the First Appellate Court is in accordance with law laid down by the Honourable Supreme Court in Col. (R.) Ayub Ali Rana's case (supra) PLD 2002 SC

630. The Honourable Supreme has also laid down the following principle in Muhammad Anwar Khan's case (supra) PLD 2002 SC 491:‑‑ "It has also been repeatedly held that penal consequences of this provision should only be applied in respect of cases where the written statement was required by the Court through a speaking order‑‑‑Apart from this, it is time and again stated by this Court that rules and regulations are only meant to streamline the procedure and administer the course of justice. They are not there to thwart the same. The Courts have always preferred a decision of a case on merits and technical knock‑out has always been discouraged."

9. The learned counsel for the petitioner failed to point out any infirmity and illegality in the impugned judgment of the First Appellate Court. The respondents/defendants have taken specific ground in para. No.4 that the case was adjourned for 17‑11‑1997 instead of 19‑10‑1997 which was noted by the counsel of the respondents and affidavit of the counsel was also attached. The property in question consists of measuring 27 Kanals and 2 Marlas which falls in Sabzazar Scheme, Lahore. In fact the judgment of the learned trial Court (Civil Judge) is not in accordance with dictum laid down by the Honourable Supreme Court in the aforesaid cases and Division Bench of this Court in Mst. Najma Yasmin and another v. Mst. Firdaus Khalid and 2 others 2002 CLC 1085.

10. It is pertinent to mention here that it is only the written statement which is required and that too by the Court by a speaking order, which would entail penal consequences of Order VIII, Rule 10, C.P.C. In arriving to this conclusion, I am fortified by Azad Hussain v. Haji Muhammad Hussain 1994 CLC 1817. It is also settled principle of law that lack of these prerequisite would make, judgment liable to be set aside as per principle laid down by the honourable Supreme Court in The Secretary, Board of Revenue, Punjab, Lahore and others v. Khalid Ahmad Khan 1991 SCMR 2527. It is also settled principle of law that provision of striking off defence, requires greater care on the part of the Court, as it shuts out one party to ‑ defend itself and points out defect in the case of other party, leaving the Court virtually at the mercy of latter to do justice between two parties. Party failing to file written statement, the judgment may be pronounced against such party, that judgment does not mean decreeing the suit ipsi dixit without any proof whatsoever as per principle laid down by the D.B. of this Court in Nisar Ahmad and another v. Habib Bank Ltd. 1980 CLC

981. It is the duty and obligation of the Court to give reasons indicating the application of mind. .In arriving to this conclusion, I am fortified by the following judgments:‑‑ Haji Muhammad Moosa and others v. Provincial Government of Balochistan 1986 CLC 2951, Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382, Muhammad Ashraf and others v. Mst. Iqbal Begum and others 1986 MLD

486. It is appropriate that case be decided on merit after recording the evidence. In arriving to this conclusion, I am fortified by the following judgments:‑‑ Sh. Abdul Saboor and Brother v. Ganesh Flour Mills PLD 1976 Lah. 779, Mst. Bushra Bano and v. Muhammad Hassan and others 1992 MLD 1116 and Project Director, Development Area v. Latif Gull 1992 MLD 2026. It is also settled principle of law that Court must be exercised its discretion judicially while pronouncing the judgment under Order VIII, rule 10, C.P.C. It is pertinent to mention here that the learned trial Court decreed the suit in violation of the aforesaid principle of law without applying its independent mind in terms of mandatory provision of law and principle laid down by the superior Courts. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. H.B.T./W‑72/L Revision dismissed.