PLJ 1998
Present: mrs. FAKHAR-UN-NlSA khokhar, J. MUHAMMAD AKHTAR & another-Petitioners
versus
KOHITEX (PRIVATE) LIMITED-Respondent C.R. No. 1194 of 1996, accepted on 23.2.1998.
Civil Procedure Code, 1908 (V of 1908)--
—-O.VIII, R.
l--Specific Relief Act (I of 1877), S. 12-Filing of ejectment petition by petitioner
against respondent and suit for specific performance of agreement to sell by
respondent against petitioner during pendency of ejectment petition-Striking off
defence of petitioner in suit for specific performance-Suspension of operation of
impugned order and permission for filing written statement by High Court
(Single Bench)-Challenge to—When another counsel appeared and requested that he
had been
engaged on same day by petitioner who was not in Pakistan, rather he was
abroad, request could be granted by court as no punative action was called for and
court did not indicate in any order that it is last opportunity for
submission of written statement-In previous order he had written that only
in the interest of justice one opportunity was given- -Moreover, no warning was given in
previous order to petitioner that if he does
not submit written statement and also written reply punitive action will be taken against him-Moreover, eviction
petition is still pending adjudication before Rent Controller and suit
for specific performance also relates to
same subject matter of property and petitioner cannot be deprived from narrating facts in written statement
which enables court to formulate
issues on pleadings of parties-Held : Impugned order being violative of settled proposition of law is hereby
set aside-Petition
accepted-A Division Bench decision. [P. 1087] A
& B
Mr. Shahzad Rabbani & Mr. So hail Raza, Advocates for Petitioners. Mr. M. Shahid Maqbool Sheikh, Advocate for Respondent. Date of hearing : 23.2.1998.
judgment
'Brief facts of the
instant Civil Revision are that the respondent Kohitex (Pvt.) Limited filed a
suit for specific performance of a receipt (alleged to be an agreement to sell) dated
13.5.1991 allegedly executed by the son of the petitioner for sale of petitioner's
property bearing No. 113-A, Tufail Road, Lahore. The petitioner being owner of the
property contested the said
suit. At that time the petitioner had left for U.S.A for a period of two years. Prior to the filing of the instant suit an
ejectment petition under Section 17 of the Cantonment- Rent Restriction Act was
filed by the petitioner which was
pending adjudication before the learned Addl. Rent Controller, Lahore titled "Muhammad
Mukhtar vs. Kohitex (Pvt.) Limited". This ejectment petition was contested by the respondent who later on, on
the basis of a receipt instituted a
suit for specific performance on 17.4.1995. After about two years of the
institution of ejectment proceedings the titled suit was fixed for hearing on
1.10.1995. Mr. Nayyer Abbas Rizvi, learned counsel for the petitioner appeared before the Court on the date of hearing. The petitioner was not available at
2. It is submitted by
the learned counsel for the petitioner that the impugned order is bad at law and
suffers from material irregularity for denying the petitioner's right to submit
written statement in view of the fact of absence of the petitioner No. 1 the owner
of the property, from
Rizvi, Advocate to appear on hehalf of the petitioner/defendant in the suit and to file the requisite written statement and necessary documents supplied to him which he failed to do so. Therefore, the petitioner sitting at U.S.A could do nothing except to engage a new counsel and instruct him to seek an adjournment till second week of November and these circumstances were in the" knowledge of the learned trial Court who was not willing to accept the memorandum of appearance of the newly engaged counsel and also turned down the request for adjournment to a date in the second week of November when the petitioner No. 1 was returning to Pakistan. The learned trial Court recorded the appearance of Mr. Mueen Qamar. Advocate on behalf of Mr. Nayyer Abbas Rizvi, Advocate and granted an adjournment till 18.10.1995. It is further submitted that the petitioner during this short period could not take away the brief from the previous counsel a^d entrust the same to newly engaged counsel for instruct him to prepa»o and file the written statement alongwith necessary documents' and on that day the learned Court without looking into the fact whether the petitioner had made out a case for further adjournment or uot; struck off the written statement of the petitioner, although it was very much in the knowledge of the learned Court that an eviction petition rotating to the same property was pending before the learned Rent Controller and it was two years prior to the filing of the instant suit and in tjiat petition the relationship of landlord and tenant was established. Moreover, there is nothing on record to show that the Court in absolute terms has required the written statement from the petitioner and in this way the learned trial Court did not fulfil the requirement of law. He has also submitted that^the instant Civil Revision was regularly admitted by this Court on 21.4.1996 and on C.M. No. I of 1996 Mr. Justice Ch. Mushtaq Ahmad suspended the operation of the impugned order and permitted the petitioner, to file a written statement within a fortnight subject to the decision of this C.M. and allowed the learned trial Court to continue the proceedings and restrained the learned trial Court to pass a final judgment. Even the order of regular admission as well as allowing the petitioner to file a written statement within a fortnight was not challenged by the respondent.
3. The learned counsel for the respondent has submitted that decision in the C.M would tantamount to be a case decided without affording the opportunity of hearing to other side. He submitted that Order VIII rule 1 of the CPC is very much clear, where it is provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days. The petitioner was negligent in filing the written statement even after the expiry of the above said period, therefore, he cannot take the benefit of filing the written statement at belated stage. He also submitted that the instant civil
revision is also time barred as the impugned order was passed on 18.10.1995 and the civil revision was filed on 11.4.1996.
4. I have heard the learned counsel for the parties
and have
carefully perused the record.
5.
This
Civil Revision was admitted to regular hearing on 21.4.1996 and on the same date in C.M. No. 1 of 1996 the
operation of the impugned order was
suspended and the petitioner was permitted to file a written statement within a fortnight subject to the
decision of the C.M and even the proceedings
before the lower Court were allowed to continue but the final judgment was restrained. The written statement
according to the learned counsel for the parties has been submitted by the
petitioner/defendant in the trial
Court and the issues have been formulated on the basis of the pleadings in the suit. The order of regular
admission of the instant civil revision
as well as C.M. 1/96 was not challenged by the respondent. The respondent had appeared on 18.2.1998 to contest the
instant civil revision.
The impugned order pertains to 18.10.1995.
6.
The remedy of revision is available for correction of an
order of the
subordinate Court where no appeal would lie to a revisional Court and error of jurisdiction
of subordinate Court to apparent in the impugned judgment.
7.
At the time of preliminary hearing of any petition, the
Court while
hearing a party, impliedly or indirectly is safeguarding the interest of an
absentee adverse party and cannot decide the subject matter of any case without affording an
opportunity of hearing to the other side. Therefore, the instant case is
opened 'to a fresh hearing' on merits, without keeping in view the submission of the
written statement by virtue of an order of this Court.
8.
So far as the question of limitation is concerned the
office on 14.4.1996
put an objection No. 1 that the revision is time barred. The learned counsel for
the petitioner filed a chart mentioning the calculation period of limitations. The
chart showed the
impugned order dated 18.10.1995, application for issuance of
certified copies dated 22.10.1995 with the difference of three days and certified copies issued on
21.1.1996 with the difference of 92 days and delay in filing the application
for copies 3 days and benefit for limitation
purposes after excluding the period spent between application and issuance of copies, net benefit 89
days and showed the same to be filed in time. This chart was accepted by
the office and this petition was placed
before the Hon'ble Judge of this Court and was regularly admitted.
Therefore, I am not convinced by the arguments advanced by the learned counsel for the respondent that the instant civil revision is time barred.
9. Order VIII rule 1 of the CPC is concerned the
language of this
order is reproduced below :--
"Written statement: 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.
(Provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days.)"
10. Order VIII rule 10 CPC is also reproduced below :--
"Procedure when party fails to present written statement called for by Court :--
Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
11. This order deals with a speaking order passed by the Court specifically asking a written statement from the party concerned. As he period for submission of written statement should not ordinarily exceed 90 days and when the required written statement has not been filed there are two alternatives available to the Court for pronouncement of order or making of such other order. The punitive action should only be taken in very extreme circumstances. The rational behind the provision of this order is that the defendant should not be deprived from putting forward his summary of defence. In Sardar Sakhawatuddin & others vs. Muhammad (Iqbal and 4 others) 1987 S.C.M.R. 1365 at page 1370 it is held :--
"Therefore, it is essential that whenever a written statement is to be made subject to 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."
12. I am convinced by the arguments advanced by the learned counsel for the petitioner that the order dated 1.10.1995 is not a Speaking Order for submission of the written statement. A counsel on behalf of the learned counsel for defendant appeared and requested for adjournment for filing the written statement as he submitted that the written statement and the written reply are not prepared. In fact the real counsel Mr. Nayyer Abbas
Rizvi, Advocate was not present.- The learned Court adjourned the case and directed for presenting the written statement as well as the written reply. On 18.10.1995 the power of attorney was submitted by Mr. Mueen Qamar, Advocate and he submitted that the written statement is not ready and requested for an adjournment as he was engaged as a counsel on the same day and could not file the written statement without getting instructions from his client. The learned Court recorded that :
13.
In the order dated 1.10.1995 I have not found out that the
last opportunity
was given to the learned counsel for the defendant to file the written statement and
written reply. One adjournment is given. Therefore when another counsel
appeared and requested that he had been engaged on the same day by the
petitioner who was not in Pakistan, rather he was abroad the request
could be granted by the Court as no punitive action was called for and the
Court did not indicate in any order that it is the last opportunity for
submission of the written statement. In the previous order he had written that
only in the interest of justice one opportunity was given. Moreover, no warning was given in the
previous order dated 1.10.1995 to the petitioner
that if he does not submit the written statement and also the written reply the punitive action will be taken
against him.
14.
Moreover, the eviction petition is still pending adjudication
before
the learned Rent Controller and the suit for specific performance also relates to the same
subject matter of the property and the petitioner cannot be deprived from
narrating the facts in the written statement which enables the Court to formulate
the issues on the pleadings of the parties. Legislature has intentionally
given a discretion to the trial Court to make an order keeping in view the
facts and circumstances of each case. In the present case civil
revision accepted the
impugned order being
violative of settled proposition
of law is hereby set aside. The petitioner's written statement already submitted in the trial Court is hereby
accepted.
(B.T.) Petition accepted.