1997 PLP 55 (CLC)

This civil revision is directed against the judgment/order dated 24‑10‑1995 passed by the learned Additional District Judge, Lahore, whereby the appeal of the respondent was accepted and the judgment and decree dated 5‑12‑1994 passed after striking off the defence of the respondent by the learned Civil Judge, Lahore, was set aside with the direction that the respondent be allowed to file written statement in the suit filed by the petitioner.

2. The relevant facts are that the petitioner filed a suit for permanent injunction against the respondent by alleging therein that he had constructed a hotel/restaurant situate 28‑Allama Iqbal Road, Lahore in accordance with the construction plan duly sanctioned by the respondent and that the town planner of the respondent had also issued the requisite no‑objection certificate in regard to the construction raised at the site. It was submitted that certain officials of the respondent came to the premises of the hotel and started raising objections to the construction thereof and persisted in their objections even in spite of the fact that they were apprised that the construction raised at the site was in accordance with the sanction plan. Since the officials of the respondent made illegal and uncalled for demands, therefore, the petitioner filed a suit thereby seeking to restrain the defendant/respondent from interfering in the business of the petitioner being run in the disputed hotel /restaurant. 2‑A. The suit was registered on 25‑4‑1994 when notices were issued to the respondent for 27‑4‑1994. On the adjourned date Muhammad Siddique representative of the respondent appeared and prayed 'for time so as to file written statement. This request was accordingly granted and the suit was adjourned to 10‑5‑1994. On the adjourned date another request for adjournment was made whereupon the learned trial Court adjourned the case to 7‑6‑1994 and directed that no further adjournment in that regard shall be given. The respondent did not file the written statement even on the said date i.e. 7‑6‑1994, therefore, the case was adjourned to 13‑6‑1994 and it was observed in this order that this would be the last opportunity for filing the written statement. The respondent did not care to file written statement even on 13‑6‑1994 with the result that their defence was struck off and the case was adjourned for recording evidence : of the petitioner. The evidence of the petitioner was ultimately recorded on 21‑11‑1994 and the suit was decreed in his favour on 5‑12-1994.

3. The respondent filed an appeal in the Court of District Judge at Lahore against the abovesaid judgment and decree of the learned trial Court which came to be assigned to a learned Additional District Judge of the same District. The said appeal was, however, accepted mainly on the ground that the respondent was not allowed'90 days' period to file written statement as provided in Rule 1 of Order VIII, C.P.C. Consequent upon the conclusion noted above the judgment and decree passed by the learned trial Court was set aside and the case was remanded to the learned trial Court for deciding the same afresh after allowing the respondent opportunity to file written statement in the case as also to contest the same on the basis of pleas to be grounded therein.

4. It was argued with reference to the proviso attached to Rule 1 of Order VIII, C.P.C. that the period allowed for filing written statement being 30 days, (having been substituted from 90 days to 30 days by Act XIV of 1994), the learned lower Appellate Court proceeded on erroneous assumption of law that the outer limit of the period for filing written statement was 90 days, therefore, the defence of the respondent could not be struck off without first exhausting the said period. Learned counsel for the petitioner also relied on the judgment reported as Mst. Nabila Parveen v. Roshan Din (1989 MLD 110) to contend that no doubt the words "30 days" are prefixed with the word "ordinarily exceed" yet it does not mean that the said period must always be given to the party failing to file written statement within the repeated period of time fixed by the Court. Learned counsel for the respondent on the other hand having conceded that the outer limit for filing the written statement had been reduced to 30 days by Act XIV of 1994, argued that still the learned trial Court proceeded with unearthly haste in striking off the defence of the respondent. It was submitted that the respondent being a Municipal Corporation had to collect and consult all relevant documents before filing the written statement, therefore, in the case of Municipal Corporation the word "ordinarily" ought to have been interpreted in favour of the respondent so as to give them some more time than the period fixed in Rule 1 of Order VIII, C:P.C.

5. It. is no doubt correct that the learned lower Appellate court did proceed on erroneous assumption of law that the outer period fixed for filing written statement is still 90 days and since the order striking off the defence of the said respondent was passed after lapse of period of one month and 16 days, therefore, the same was set aside on the ground that the period fixed for filing the written statement had yet not elapsed The change brought about in Rule 1 of Order VIII, C.P.C. whereby the period for filing the written statement was reduced is not without significance. By this change, the Legislature in its wisdom meant to avoid unusual delay in filing the written statement and is bound to be read as such. It is no doubt correct that the provision relating to striking off defence is penal in nature and should be sparingly invoked yet it depends upon the facts and circumstances of each case to see whether the said provision has been rightly invoked or not. The provisions of Rule 1 if read in conjunction with Rule 10 of the same Order, it becomes clear that the defence of a defendant can only be struck off when the written statement is required by the Court. The word 'required' as used in Rule 10 of Order VIII, C.P.C. fell of interpretation in the case reported as Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others (1987 SCMR 1365) which was reiterated in the case reported as the Secretary, Board of Revenue, Punjab, Lahore v. Khalid Ahmad Khan (1991 SCMR. 2587). The relevant portion of the judgment in Sardar Sakhawatuddin's case may be reproduced as the same is instructive on the subject:‑ "There is another very important aspect of the matter. All the three types of written statements mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was 'required', by the Court. It was neither as of right (Rule 1) nor as result of permission (Rule 9). The use of word 'required' is. not without significance. It does not permit a routine order without application of mind to the 'requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under Rule 1 or which is permitted to be filed under Rule 9, that would not satisfy the law regarding the 'requirement' of the Court. It is only the written statement which is 'required' and that too by 'the Court' by a speaking order, which would entail the penal consequences of Rule

10. In these two cases it has been admitted before us that these requirements have not been fulfilled." In the instant case the suit having been registered on 25‑4‑1994, summonses were ordered to be issued to the respondent for 27‑4‑1994. On the said date the representative of the respondent prayed for time for filing the written statement which was objected to by the other side i.e. the petitioner, who in turn submitted that the respondents are intentionally avoiding to file written statement and if the temporary injunction as prayed for is not granted the petitioner would suffer irreparable loss. It was in these circumstances that the learned trial Court having appreciated then submission of both the parties passed a speaking order whereby the respondent was directed to file the written statement on 10‑5‑1994. The relevant portion of the order in Vernacular may be reproduced to understand the import thereof:‑‑ The words of the order reproduced above are indicative of the fact that it was not a mere permission to file a written statement but was in fact a direction to file the same which was issued by the Court after having heard the learned counsel for the petitioner and the representative of the respondent, therefore, it can be safely concluded that the written statement, in the instant case, was required by the Court to be filed by the date fixed i.e. 10‑5‑1994 but even in spite of the direction noted above the respondent did not care to file the said written statement on 10‑5‑1994 and thereafter on 7‑6‑1994 and 13‑6‑1994 with the result that their defence was struck off on the last‑mentioned date and that too at a time when more than 30 days had already elapsed. Obviously the conduct of the respondent was contumacious. It is matter of record that the respondent continued to seek adjournment for filing written statement without furnishing any explanation in regard to non‑submission thereof, therefore it was eminently a case where the penal provisions were rightly invoked by the learned trial Court. The learned lower Appellate Court had not cared to look into the various orders passed by the trial Court in regard to filing of written statement and had simply proceeded to accept the appeal on the erroneous assumption of law that the outer limit fixed for filing the written statement is still 90 days and that the said period having not elapsed it was not proper to strike off the defence of the respondent, therefore, the order passed by the learned lower Appellate Court cannot be sustained. In result, this civil revision is allowed and the judgment/order dated 24‑10‑1995 passed by the learned Additional District Judge, Lahore is set aside resultantly the judgment and decree passed by the learned Civil Judge, Lahore is upheld. There shall, however, be no order as to costs. A.A./M‑172/L Revision accepted.