P L D 1983 Lahore 448 (PLP)

MUHAMMAD ILYAS, J.-The facts giving rise to this appeal are that respondents Nos. 1 and 2, namely, Muhammad Iqbal and another, filed a suit against appellants Nos. 1 and 2, namely, Sardar Sakhawat-ud-Din and another, and respondent No. 3, Shah Nawaz, for specific performance of an agreement to sell certain land. The defendants in the suit filed separate written statements. In their written statements, respondent No. 3 had confessed judgment but appellants Nos. 1 and 2 bad resisted the suit. Thereafter, it was learnt by the plaintiffs that some of the disputed land bad been sold to appellants Nos. 3 to 6, namely, Abdul Latif and others. Therefore, with the permission of the Senior Civil Judge, Rahimyar Khan, who was seized of the suit, they amended the plaint and impleaded respondents Nos. 3 to 6 as additional defendants. Then the original defendants were asked to file amended written statement while the additional defendants were required to put in written statement. This was, however, not done by them although several opportunities were afford.-d to them for so doing. As a result, the learned Senior Civil Judge pronounced judgment against the defendants and decreed the suit by invoking the provisions of Order VIII, rule 10 of the Code of Civil Procedure. The appellants have, therefore, come up in appeal to this Court. ..

2. The appellants had presented this appeal as an appeal from an order (F.A.O. No. 36 of 1978/BWP). It was, however, treated as a Regular First Appeal (R.F.A. No. 62 of 1978/BWPj by Munawar Elahi Rana J., vide his order, dated the Ist February, 1978, which reads as follows: "Ch. Masood Ahmad Bajwa, Advocate. States that he has paid full court-fee as payable in a regular first appeal. The impugned order, being a decree, is appealable under section

96. C. 'P. C. also. The-appeal is thus treated as an R.F.A." By the same order, the appeal was admitted to a regular hearing and interim order staying execution proceedings, subject to notice, was also issued. The stay order was objected to by the respondents on the ground that the memorandum of appeal was not properly stamped. The Court fee paid 'by the appellants on their appeal was of Rs. 1,

409. While confirming the interim order staying execution proceedings a Division Bench of this Court consisting of our learned brother Muhammad Afzal Lone, J. and Dilawar Mahmood, J., as he then was, made the following order, on 25th March, 1979:- "The appeal was admitted to regular hearing on 1-2-1978 and execution of the decree stayed, subject to notice to the respondents. They have put in appearance and objected to the confirmation of the interlocutory order on the ground that the memorandum of appeal is not properly stamped. Apparently the submission is not well-founded, because, the impugned order was passed under Order VIII, rule 10, C. P. C. which is appealable under Order XLIII, rule

1. For the purpose of disposal of the application for interlocutory relief, at the present stage, we need not go into the controversy as to what will be the effect of the order dated 1-2-1978, treating the F. A. O. as R.S.A. This point can be agitated by the respondents at the time of hearing of the main case." Thereafter, the appellants made a miscellaneous petition (C.M. No. 72 of -1983/BWP) praying that "the R.F.A. may be treated as F.A.O. which is decidable by a learned Single Bench." This petition was disposed of by a Division Bench consisting of one of us (Muhammad Sharif; J.) and our learned brother, Kamal Mustafa Bokhary; J., vide order dated 6th February, 1983, which is the following effect: "This appeal was admitted as a D.B. case. The parties can argue the point whether it is appealable under section 96, C. P. C. or under Order XL1JI, rule 1, C. P. C. at the time of hearing of the appeal. This application is disposed of.

2. The office will re-list the main appeal before the D.B. within this month."

3. Today, when we took up the present appeal for regular hearing a preliminary objection was raised by learned counsel for the respondents that this appeal was directed against a decree and should, therefore, be treated and decided as an R.F.A. In this connection, he made reference to concluding paragraph of the impugned order which makes the following reading: "The upshot of what has been stated above is that the suit of the plaintiffs is decreed leaving the parties to bear their own costs." The detailed order made by the learned Senior Civil Judge was in English. It was also briefly recorded in Urdu in the following words: It was further submitted by learned counsel for the respondents that in rule 10 of Order VIII of the Code of Civil Procedure where under the suit was decided; the word used was "judgment" and not "order" and, therefore, the decision of the learned Senior Civil Judge could not be treated as an order especially when he had also drawn up a decree sheet in terms of the judgment.

4. While replying to the above objection of learned counsel for the respondents, learned counsel for the appellants invited our attention to clause (b) of rule 1 of Order XLIII of the Code of Civil Procedure and contended that the order under challenge was an appealable order and not a decree. He also placed reliance on The Province of Punjab and others v. Muhammad Yousaf Khan- (1981SCMR590) to support his plea.

5. In clause (2) of section 2 of the Code of Civil .Procedure "decree" has been defined as follows: "(2) `decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint .(determination of any question within section 144, and an order under rule 60, 98, 99, 101 or 103 of Order XXI but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:" According to this definition, only an order rejecting a plaint or determining any question under section 144 and an order under rules 60, 98, 99, 101 or A 103 of Order XXI is a decree but any other order cannot be treated as such even though it is appealable. The order assailed in the present appeal was made under Order VIII, rule 10 of the Code of Civil Procedure and it is not included in the definition of decree. It is no doubt an appealable order by virtue of the provisions of clause (b) of sub-rule (1) of Order XLIII of the Code of Civil Procedure and is, therefore, one of the orders contemplated by sub-clause (a) of clause (2) of section 2 of the said Code which are excluded from the purview of the definition of decree. It has also been ruled by the Supreme Court in case of The Province of the Punjab and others, cited by learned counsel for the appellants, that an order pronouncing judgment against defendants for failure to file written statement is an appealable order but not a decree and that second appeal from the same is not competent. The use of the word "judgment" in rule 10 of Order VIII of the Code of Civil Procedure is of little avail to the respondents because according to the definition of "judgment" as given in clause (9) of section 2 of the above Code, a decree as well as an order is a judgment. It is, therefore, not correct to say that only that adjudication of the Court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment. Accordingly, we accept the plea of learned counsel for the appellants that this appeal is directed against an order, and with due deference to our learned brother who had treated it an R.F.A.. we take it as an F.A.O., as originally .presented by the appellants, and would decide it as such. .

6. Another preliminary objection advanced by learned counsel for the .respondents was that the. appeal was not properly stamped. As indicated above, the appellant bad paid a court-fee of Rs. 1,409. - The plea of learned counsel for the respondents was that if this appeal was treated as an R.F.A. it was deficiently stamped but if it was considered to be an F.A.O. there was no deficiency in court-fee. We have already decided that this appeal is an F.A.O. Admittedly, it, is not deficiently stamped as such. We, therefore, hold that there is no deficiency in the court-fee paid on this appeal.

7. The third and the last preliminary objection put forth by learned counsel for the respondents was that the appeal was not properly constituted inasmuch as it was not accompanied by a copy of the decree and a copy of the English version of the impugned order. In this regard, it was also pointed out by him that after making the impugned order the learned Senior Civil 'Judge had drawn up a decree sheet as well. It was perhaps 'through e inadvertence that the decree sheet was prepared because, as held above, the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. No action can, therefore, be taken against the appellants for not filing a copy of the decree alongwith their memorandum of appeal.

8. As for the failure of the appellants to annex a copy of the impugned order as recorded in English, it was submitted by learned counsel for the appellants that the appellants had applied for a copy of the judgment whereupon they were supplied a copy of the order made in Urdu which they had appended to the memorandum of. appeal. In the order passed in Urdu there is also a mention of the order made in English. In view of :his, the appellants ought to have asked for a copy of the English order also which they had perhaps not applied for. Their lapse in this behalf is, however, of .little consequence because while presenting their appeal the C had made a petition (C. M. No. 659/C of 1978). requesting that the requirement) of the filing of the copy of the judgment written in English may b dispensed with. No order was passed on the said petition. Their request will, therefore, be deemed to have been impliedly acceded to by this Court. The latest authority in point is the case reported as All Haider Shah v. Ghulam Mohammad (1981 C L C 359).

9. We are, therefore, unable to agree with learned counsel for the respondents that the appeal presented by the appellants was not .properly constituted.

10. This brings us to the merits of the case. It was urged by learned counsel for the appellants that the learned Senior Civil Judge could not pronounce judgment in the absence of evidence and since there was no evidence on the record to sustain the impugned order, it was liable to be set aside. According to rule 10 of Order VIII of the Code of Civil Procedure, learned Senior Civil Judge had two courses open to him to deal with the situation arising out of the failure of the appellants Nos. 1 and 2 to file additional written statement (referred to as amended written statements in the order of the learned Senior Civil Judge) and of appellants Nos. 3 to 6 to put in written statement despite their having been allowed several opportunities to do so. One of these courses was to decide the suit forthwith and the alternative course was to male such order in relation to the suit as he G thought fit. If he had decided to adopt the alternative course, he could call upon the plaintiffs (respondent Nos. 1 and 2) to produce ex parte evidence in support of their claim and then decide the suit in the light of that evidence. He, however, chose to adopt the first course and while disposing of the suit accordingly he was not obliged to record evidence. Similar view was taken by one of us (Muhammad Iiyas, J.) in Ghulam Nabi Lone v. Messrs Lufthansa German Airlines, Lahore (1982 C L C 387). Relevant observations made in Ghulam Nabi Lone's case read as under: "

4. It is clear from the provisions of rule 10 that when the defendant fails to put in written statement, two courses are open to the Court. One of these courses is to decide the suit forthwith and the other is to make such order as it thinks fit. If the pronouncing of judgment is to depend on the recording of evidence it would not be possible to pronounce judgment immediately on the failure of the defendant to submit his written statement. Acceptance of argument of the learned counsel would, therefore, have the effect of taking away from the trial Court the power of deciding the suit as soon as there is default on the part of the defendant in the matter of filing his written statement. Needless to say that if the trial Court is divested of that power it would amount to defeating legislative intent in disregard of the established rules of interpretation. 5. 1 am conscious of the position that rule 10 does not stop the trial Court from recording the plaintiff's evidence despite the defendant's failure to present written statement. This, however, the Court can do if it chooses to adopt the second course of making `such order as it thinks fit. It was discretionary with the trial Court to adopt either of two courses referred to above and since it had decided to resort to the first one, that is of pronouncing judgment, it is not possible to hold that even while adopting that course the learned trial Court was obliged to record evidence."

11. It is a matter of common knowledge that evidence is never recorded before calling upon the defendant to file written statement. It is only after he fails to put in written statement, when so required to do, and the Court) decides not to pronounce judgment forthwith but to proceed further with, the case that ex parte evidence. of the plaintiff can be recorded. In case the defendant files written statement to contest the suit, issues are framed and evidence of both sides is taken down. There is thus no occasion for recording of any evidence before the defendant submits or fails to submit written statement after he is directed by the Court to file that statement.

12. The plea of learned counsel for the appellants that the impugned order could not be passed without recording evidence has, therefore, no merit and is repelled.

13. It was also pointed out by learned counsel for the appellants that appellants Nos. 1 and 2 had filed a suit challenging the validity of the agreement which was sought to be specifically enforced by means of the suit giving rise to the instant appeal and that the evidence of the said appellants had been recorded in the suit brought by them. It was further submitted by the learned counsel that the two suits had been consolidated after the recording of the said evidence but even that evidence was not taken into consideration by the learned Senior Civil Judge while deciding the suit instituted by respondents Nos. I and

2. Admittedly, appellants Nos. 3 to 6, who were impleaded as additional defendants in the suit filed by respondents Nos. 1 and 2, were not parties to the suit brought by appellants Nos. 1 and 2 and the evidence recorded in the suit of the said appellants was recorded before the two suits were consolidated. Further, respondents Nos. 1 and 2 had yet to produce evidence in rebuttal of the evidence led by appellants Nos. 1 and 2 when the impugned order was made. It was, therefore, not just and proper to take into consideration the evidence produced in the suit brought by the appellants Nos. 1 and 2.

14. As indicated above, several opportunities were allowed to appellants Nos. 1 and 2 to file additional written statement, referred to in rule 9 of Order VIII of the Code of Civil Procedure, but they did not care to do so. Originally only they were defendants in the suit in which the order under challenge was passed. Appellants Nos. 3 and 6, who were subsequently impleaded as additional defendants, were twice proceeded against ex parse for their absence from the Court but the ex parte proceedings ordered against them were eventually set aside on both the occasions by the trial Court and they were directed to put in written statement. Even then they did not file their written statement, alluded to in rule I of Order VIII of the said Code, although a number of adjournments were allowed to them for the purpose. The learned trial Court had shown utmost indulgence) to the appellants in the matter of securing their additional written statement/written statement but they did not comply with repeated direction given in this regard. Thus, they were not only guilty of gross negligence but also of contumacy. The learned trial Court was, therefore, perfectly justified in pronouncing judgment against them by pressing into service the provisions of rule 10 of Order VIII of the Code of Civil Procedure.

15. In this view of the matter, the order under appeal does not call) for any interference. The appeal is dismissed with costs. M. Y. H. Appeal dismissed.