1983 PLP 3076 (CLC)

2. The facts leading up to this revision in brief are that Muhammad Anwar Rahat was a Junior Law Officer of WAPDA and his services were terminated vide letter dated 28th June, 1980 w. e. f. 1st July, 1980. Muhammad Anwar Rabat filed a suit for declaration to the effect that the order of his termination was illegal and ineffective as having been passed without show‑cause notice and inquiry. This suit was filed on 2nd July, 1980. On 22nd July, 1980 Mr. Ghulam Sarwar, Advocate, Khanewal appeared for WADA/defendant and asked for the copy of the plaint which was supplied to him on 9th September, 1980. He filed written statement without signatures of the defendants The petitioner/plaintiff raised objection that Ghulam Sarwar, Advocate had no authority to file written statement. The case was adjourned to 16th October, 1980 to argue this point. On 16th October, 1980 Ghulam Sarwar, Advocate did not appear and Mazhar Hussain Advocate appear ed on behalf of WAPDA and filed his own Mukhtarnama. He, how ever, did not file any fresh written statement. The case was adjourned to 4th November, 1980, 5th November, 1980 and 27th November, 1980 determine whether the written statement already filed by Gbulam Sarwar Advocate was valid or not. In the meantime on 17th November, 1908 Muhammad Anwar Rahat petitioner/plaintiff filed application under rule 10 of Order VIII, C. P. C. that since the defendant has not filed written statement within 90 days are required under rule I of Order VIII, C. P. C. his defence therefore, should be struck off and the suit be decreed. The application was allowed on 28th January, 1980 decreeing the suit as prayed for. It is to be noted that. on 27th November, 1980 the question as to the validity or the written statement filed by Ghulan Sarwar, Advocate on behalf of defendant was not determined and no finding was given by the trial Court at all. Aggrieved by the judgment and decree dated 28th January, 1981 WAPDA, the defendant filed an appeal which was accepted by the learned District Judge, Multan on 29th November, 1981 remanding the case to the trial Court. Hence this revision.

3. Ch. M. A. Latif Amritsari, the learned counsel for the petitioner has while supporting the judgment and decree of the trial Court vehe mently assailed the correctness and legality of the order of the learned District Judge, M6ltan. The learned counsel argues that since fresh written statement was not put in for 90 days, the time limit fixed under proviso to rule 1 of Order VIII, C. P. C. therefore, there was no alternative for the trial Court but to resort to the penal provision of rule 10 of Order VIII, C. P. C. by which the trial Court was fully competent to follow the first course, i.e. "may pronounce judgment against him". As against this Mr. Tassadaq Hussain Jilani, Assistant Advocate General has in his short but impressive address relied upon the cases, Muhammad Shafa v. Muhammad Bashir, etc. P L D 1982 Lah. 576 Mst. Bilqees Begum v. Syed Ali Turab 1980 C L C 930 and Government of the Punjab v. Shah Muhammad P L D 1982 Lah. 115 to raise the following objections :‑ (a) That since after 9th September, 1930 the trial Court did not require the defendant to file written statement, therefore, the penal provision of rule 10 of Order VIII, C. P. C. could not be invoked. (b) That in any case there was no legal justification for the trial Court to straightaway decree the suit as prayed for without there being any evidence or material on the record. (c) That the WAPDA Employees being public servants, the Civil Court has no jurisdiction to entertain the suit.

4. After hearing the learned counsel and going through the record I find that it is a case of peculiar circumstances inasmuch as on 22nd July, 1980 Mr. Ghulam Sarwar, Advocate entered appearance on behalf of defendant and asked for copy of the plaint to file written statement. Thereafter, on 9th September, 1980 he actually put in the written state ment. It was on the objection raised by the petitioner/plaintiff that Mr. Ghulam Sarwar, Advocate had no authority to file written statement that the case was adjourned to 4th November, 198Q, 5th November, 1980 and 27th November, 1980 for arguments to determine the validity of the written statement filed by Mr. Ghulam Sarwar, Advocate. It so happened that on 17th November, 1980 the petitioner/plaintiff moved application praying that since the respondent/ defendant had failed to file written statement. therefore, the suit be decreed against him. The learned trial Court without evidence or material on the record and without applying its mind to the plaint, etc. straightaway decreed the suit under Order VIII, rule 10, C. P. C. on 2Rth January, 1981. It is worth notice that the trial Court did not care to determine the validity of the written statement already filed by Mr. Ghulam Sarwar, Advocate.

5. The above statement of facts makes crystal clear that in the case in hand, written statement was actually filed on 9th September, 1980 the validity of which was challenged by the petitioner/plaintiff, and there after, the trial Court never required the respondent/ defendant to file fresh written statement and simply adjourned the case from date to date to deter mine the legality of the written statement already placed on the record and then leaving that question unresolved and without specifically requiring the defendant/respondent under rule 1, Order VIII, or under rule 9, Order VIII, C. P. C. to put in the written statement, proceeded to decree the suit without evidence on the record and without applying its mind to the plaint, etc. The relevant provisions of law may be quoted with some advantage. "Order VIII, rule 1.‑The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Rule 9.‑No pleading subsequent to the written statement of a defendant other than by way of defence to a set off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same. Rule 10.‑Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."

6. The plain reading of these legal provisions indicates that penal provision of rule 10, Order VIII, cannot be invoked unless respondent defendant was specifically required by Court to file written statement or fresh/additional written statement and in any case on the failure of the defendant to file written statement, the pronouncement of the judgment is not the ‑only measure. The second course i. e. to make any other order "it thinks fit" was also available to trial Court. To mind, in the circumstances of the case, the .second course was the rightly path inasmuch as the written statement was already on the record and its validity was yet to be determined. Since it was a case relating to service of the plaintiff as ‑Junior Law Officer under WAPDA. I am of the opinion that the trial Court should have applied its mind as to the main tainability of the suit and whether the plaint did or did not disclose cause of action but unfortunately, the trial Court hurriedly without having evidence or material on the record decreed the suit as prayed for. I am afraid if the course as adopted by the trial Court is approved, the same may tantamount to laying down a dangerous rule of appreciation or evidence, that plaint is not only a substantive piece of evidence but also conclusive proof of the averments made therein and it may result in grave injustice in so many cases.

7. For what has been stated above, I do not find any force in the submissions made by the learned counsel for the petitioner, the revision is accordingly dismissed leaving the parties to bear their own costs. M. Y. M. Petition dismissed.