P L D 1991 Karachi 299 (PLP)

MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑The petitioner on 25‑7 1984 had filed Suit No.4895/85 for . recovery of Rs.16,800 against respondents Nos.l and 2 before the Senior Civil Judge, Karachi. After service of summons the said , respondents filed application under Order 7, rule 11, C.P.C . which was allowed but on the appeal preferred by the petitioner the order of rejection of the plaint was set aside and the case was remanded for disposal on merits. On 28‑10 1985 the petitioner filed an application under Order 8, rule 10, C.P.C. praying that the judgment be pronounced against the said respondents as they had failed to .file written statement within the prescribed time. The learned Civil Judge by his order dated 10‑4‑1986 accepted the written statement already filed by the said respondents and dismissed the aforesaid application of the petitioner. The petitioner challenged. the said order by Civil Revision No:24/86 which was dismissed by the learned IVth Additional District Judge, Karachi South by his order dated 2‑7‑1986. The learned counsel has challenged the said order in this petition. The learned counsel has contended that respondents Nos.1 and 2 did not file the written statement for more than 17 months and as such the Civil Judge had no jurisdiction to accept the same and ought. to have pronounced the judgment against the said respondents. He has placed reliance on the cases of Muhammad Hanif and 2 others v. Abdul Latif and 2 others 1987 CLC 2393, Mst. Sarwat Kazmi v. State Life Insurance Corporation 1980 CLC 1779 and Ghulam Nabi Lone v.Messrs Lufthansa German Airlines, Lahore 1982 CLC

387. The first two cases cited by the learned counsel are not applicable. to the present case. In the, said cases written statement was not filed at all and consequently the.judgment was pronounced under Order 8, rule 10, C.P.C. So far as the third case is concerned the defendant had failed to file the written statement and when the‑matter, came up before the Court, no application was filed showing .good cause for not filing the written statement within the time allowed by the Court: The excuse advanced was that the learned counsel had advised the defendant to settle the matter out of Court and therefore the written statement was not filed, lest the defendant may advise him (advocate) to,continue with. the suit. It was under, these specific circumstances that the judgment was pronounced under Order 8, rule 10, C,P.C. So far as the present case is concerned the facts ate distinguishable. Respondents Nos* and. 2 had filed application under Order 7, rule 11, C.P:C. Which was .successful. It was only on appeallant the matter was remanded for disposal on merits. The learned counsel of the petitioner has .not placed` necessary particulars like the date when the annlication under Order 7; rule .11, C.P.C. Was riled and decided and. the 'date when the appeal was decided. He has not even placed any record before us to show that the said ‑ respondents were directed by the Court to file written statement during the pendency of the said application. No doubt Order VIII, Rule I provides that the defendant shall, at or before the first hearing or within such time as the Court may permit, present a , written statement of his defence and it is further provided that the period allowed i for filing the written statement shall not ordinarily exceed ninety days. It is a matter of discretion vested in the Court to grant time even after expiry of ninety days. In case the defendant fails to. file the written statement within the time fixed by the Court, it may pass order as provided under Order VIII, Rule 10, C.P.C. In the instant case the Court in exercise of its discretion had accepted the written statement filed by the said respondents in view of the circumstances of the case and dismissed the application under Order VIII, Rule 10, C.P.C. At the time of hearing of this petition the learned counsel on query by us informed that the evidence of the parties has been recorded and the suit is fixed for final arguments. Since the proceedings in the suit are about to concluded, it will not be proper to interfere in the proceedings of the trial Court, in exercise of the Constitutional discretionary jurisdiction. The above are the reasons for the short order ‑of dismissal of petition passed by us on 20‑3‑1991. A.A./A‑1040/K. Petition dismissed.