1987 PLP 2393 (CLC)

‑‑‑O.VII, R.1 & S. 96‑‑Shares of parties specified in plaint‑‑Due to non‑submission of written statement shares specified in plaint not controverted‑ ‑Effect ‑ ‑ Where plaint disclosed a complete detail of respective shares of each one of the plaintiffs and also of defendants, same having not been disputed due to failure to submit written statement, no objection to their accuracy, held, could be raised in appeal‑‑Appeal being devoid of merit was dismissed in circumstances. Hakam Qureshi for Appellants. A.K. Dogar for Respondents. Date of hearing: 21st February, 1987. AKHTAR HASAN, J.‑‑ This Regular First Appeal arises from a preliminary decree dated the 29th of September, 1976, of the learned Civil Judge lst Class, Lahore, whereby a Local Commissioner was appointed to suggest partition of the properties in question.

2. Parties are descendants of late Haji Muhammad Abdullah who was alleged to have left behind various properties mentioned in the plaint on his demise. The respondents‑plain tiffs brought the suit for partition thereof pointing out the respective shares of each one of the parties. There was some detail in the plaint how the deceased had obtained these properties and how the parties were occupying them either jointly and exclusively but for the purposes of disposal of the present appeal, it is no use to reproduce them.

3. The appellants who were defendants 1,2 and 4 in the suit failed to file the written statement and consequently their right in that behalf was struck off by the impugned order resulting straightaway in passing of the preliminary decree against them.

4. In support of the appeal, Mr. Hakam Qureshi, Advocate, stressed that the penal order of denying the appellants of their right to file written statement was unjustified especially when their attention was not directed towards it on many dates. We regret we are not persuaded by the contention because it was a suit in which summons 'for settlement of issues was issued and it should have been known by the appellants that they had to file the same, if possible, on the very first date. The order sheet shows that there had been eight‑nine adjournments which they failed to avail. Finally by order dated the 28th of July, 1976, they were allowed last adjournment till the 29th of September, 1976, for presenting it. They appeared on the last mentioned date and requested the Court to wait till they could prepare it for the purposes of filing. The file was deferred till 11‑30 a.m. only to accommodate them. When the trial Court took it up again, the appellants did not turn up even, what to say of filing the written statement. As a result, Court passed the impugned order.

5. Under Order VIII, rule 1, C.P.C., it is the duty of the defendant to file written statement especially when he is asked to do so. Ordinarily the period of filing it is ninety days. The record reveals that the appellants failed to file it despite knowing the typical nature of the summons, and did not comply with a specific direction of the Court made in this behalf on the 28th of July, 1976. They took time on the 29th of September, 1976, in the morning on the pretext that it was not ready but did not care to turn up when the file was taken up again at 11‑30 a.m. Evidently they appeared to be not minded to comply with the direction of the Court in complete disregard of the obligation imposed upon them by virtue of rule I ibid. Such a neglect had to be visited with a consequence contemplated by Order VIII, rule 10, C.P.C., where under judgment could be pronounced forthwith against the defendants. This is what the trial Court did, and rightly. No exception could be taken to the order on legal plane.

6. Mr. Qureshi further argued that showing the properties to be partiable in the impugned order was unwarranted and, in fact, operated to deny him the right of proving them to be impartible. We feel it open to him to urge before the Local Commissioner. The order under appeal is not that categorical in holding the properties to be partible. It has been left to the Local Commissioner to suggest their partition and the objection could be urged before him. His next argument, though lukewarm, was that shares of the parties were not specified. Para. 10 of the plaint gave a complete detail of respective shares of each one of the plaintiffs as also defendants, and since the same were not disputed on account of failure to present the written statement, no objection to their accuracy could be raised in the present appeal. Lastly, he claimed that no arguments were heard on behalf of the appellants before the impugned decree. was passed They should blame themselves because they had been all along indifferent towards the suit. Absence of the written statement had the effect of suffering judgment against which there may be no argument at all. The tenor of Order VIII, rule 10, C.P.C., referred to above, authorlses the Court to take the extreme step of announcing judgment even without hearing arguments because the action is somewhat penal. The proper course for the appellants was to have avoided that eventuality, and when they by their own conduct attracted its application towards themselves, they had no grouse.

7. Consequently we find no force in the appeal and dismiss the same. No order as to costs. A.A. /M‑249/L Appeal dismissed