PLJ 2006
Present: Muhammad Moosa K. Leghari, J.
ALLAH DINO--Applicant
versus
HAJI AHMED through LEGAL HEIRS and 3
others--Respondents
Revision Appl. No. 98 of 1995, decided on
2.12.2005.
Civil Procedure Code, 1908 (V of 1908)--
----O. VIII. R. 10--Suit for declaration
and permanent injunction--On failure of party to file written statement within
the time fixed by the Court--Effect--Court may pronounce judgment against such
party, or make such order in relation to the suit as. it thinks fit--Order
VIII, R. 10, C.P.C. clearly demonstrates that in every case in which written
statement is not filed, the Court is not bound or required to pronounce the
judgment as it is not stipulated by the law--By using word "may" in
O.VIII, R.10, C.P.C., it has been left open to the Court, that on consideration
of the material annexed with the plaint, either it should pronounce the
judgment or may make such other order it deems fit--Court has to take into
consideration the facts and circumstances of each case and keeping in view the circumstances
the Court may make such order as it thinks fit. [Pp.
304 & 306] A & B
1987 SCMR 1365 and SCMR
2527 ref.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 55--Civil Procedure
Code, (V of 1908), O. VIII, R. 10--Suit for declaration and permanent
injunction--Ex-parte proceedings against defendants--Plaintiff filed
application wherein he requested the Court to dispose of the suit under O.VIII,
R.10, C.P.C. and reason stated in the application for passing the judgment by
trial Court was that the plaint was verified on oath--Application further
stated that plaintiff was ill and, as such, ex parte proof could not be
filed--Plaintiff did not request for extension of time--Validity--Prudent view
which could be taken was that the applicant/plaintiff himself did not want to
file affidavit in ex-parte proof and wanted his suit to be disposed of under
O.VIII, R.10, C.P.C.--When the plaintiff himself prayed the Court to proceed to
pronounce the judgment without producing any evidence or documents, the trial
Court was justified in arriving at a conclusion that the documents placed on
record were inadmissible in evidence--Plaintiff, who approached the Court had
to succeed on the strength of his own case and not on the weakness of the other
side--Merely because the defendants were proceeded ex parte, ipso facto, would
not be legal and valid ground to decree the suit of the plaintiff as it was the
plaintiff who had to prove his case. [P.
307] C
Limitation Act, 1908 (IX of 1908)--
----S. 5--Specific Relief Act (I of
1877), Ss. 42 & 55--Civil Procedure Code (V of 1908), S. 96--Suit for
declaration and mandatory injunction--Condonation of delay in filing appeal was
claimed on medical grounds--Validity--If condonation of delay was claimed on
medical grounds, the medical certificate must disclose that the person
concerned was bedridden and was unable to move--Medical certificate produced by
the appellant alongwith the application for condonation of delay did not
contain the address of the doctor or that of his clinic, reading of the
certificate showed that according to the doctor the patient had recovered and
was able to "join his duty" and certificate did not disclose that the
appellant, who was allegedly suffering from Sciatica was bedridden for the
entire period and that he was unable to move or even communicate the
instructions to the advocate to prefer an appeal--Jurisdiction exercised by the
appellate Court in not condoning the delay in circumstances, was neither
illegal nor arbitrary thus no interference was called for. [Pp. 307 & 308] D & E
1980 SCMR 722 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction of
High Court--Scope and object--Revisional jurisdiction of High Court is always
discretionary and equitable in nature and no party is entitled to it as of
right. [P. 308] F
Mr. Aijaz Ali Hakro, Advocate for
Applicant.
Mr. Naimatullah Soomro, Advocate for
Respondents.
Date of hearing: 2.12.2005.
Judgment
Through this Revision Application the
applicant has called in question the judgment dated 6-4-1995 and decree dated
14-5-1995 passed by District Judge, Hyderabad, in Civil Appeal No. 288 of 1994,
whereby the judgment dated 27-4-1994 and decree dated 24-5-1994, passed in F.C.
Suit No. 108 of 1992, by Ill-Senior Civil Judge, Hyderabad, was maintained.
2. The facts of the case in brief are
that the applicant had filed a, Suit for declaration and permanent injunction
against the respondent/defendant with the following prayer:--
(a) It
may be declared that Entry No. 35 Ann:P. dated
21-3-1990 in respect of S. No. 106/1-2-5 admeasuring 9-01 acres Deh Bhanoki
Taluka Matiari of plaintiff in favour of Defendant No. 1 and orders dated
16-3-1992 passed on application 16-3-1992 of Defendant No. 2 by Defendant No. 3
are illegal ab initio, void in excess of jurisdiction without lawful authority
based on mala fide and they may be set aside.
(b) The
permanent injunction be issued against the defendant
restraining them through themselves, their servants subordinates, agents, and
assigns from interfering with the proprietary rights of the plaintiff and his
lessee Kodoo Solangi and from implementing the order dated
(c) The
cost of the suit be borne by the defendants and any
other relief deemed just and proper be granted to the plaintiff.
3. Despite service the
respondents/defendants failed to appear before the trial Court and did not file
any written statement, therefore, they were declared ex parte. The
applicant/appellant/plaintiff was directed to file his affidavit in ex parte
proof. The applicant/plaintiff instead prayed the Court for passing appropriate
judgment on consideration of the material placed on the record. Learned trial
Court, however, dismissed the suit.
4. Being dissatisfied with the said judgment
and Decree the applicant/plaintiff preferred an appeal. The appeal was heard by
District Judge,
5. Learned counsel for the applicant has
attacked the judgments passed by the two Courts below. It is contended that the
plaint in the suit filed by the applicant/plaintiff was verified on oath. It
was supported by photostat copies of the documents. Since the defendants in the
suit were ex parte and no written statement in rebuttal of the claim of the
plaintiff was filed, therefore, in all circumstances the trial Court ought to
have decreed the suit of the plaintiff as provided under Order VIII Rule 10
C.P.C. He further contended that the affidavit in ex parte proof could not be
filed due to continuous illness of the plaintiff as the plaintiff was suffering
from Sciatica. Thus the judgment dismissing the suit was untenable.
6. It was further contended that on
account of continuous illness, the applicant could not file the appeal in time
but moved an application under Section 5 of the Limitation Act, which was
supported by Medical Certificate of a qualified Medical Officer. The
applicant/appellant had shown a sufficient cause for delay in filing of the
appeal which appellate Court ought to have considered more particularly when
there was no counter-affidavit. It was submitted that in the affidavit filed in
support of application for condonation of delay the applicant/appellant has
explained the delay of each day. Thus the dismissal of appeal on the point of
limitation was unwarranted. On the above premises it was contended that the
Judgments passed by both the courts below being without jurisdiction were
untenable.
7. On the other hand it was contended on
behalf, of the respondents that it was not the requirement of Order VIII Rule
10 C.P.C. that in all circumstances, the Court was required to decree the suit
of the plaintiff. In the present case the plaintiff was directed by the trial
Court to file an affidavit in ex parte proof which he failed to file without
assigning any reason. The trial Court after proper discussion dismissed the
suit of the plaintiff as the photostat copies of the documents were
inadmissible in evidence. It was further contended that the appeal was
hopelessly time-barred and that the Medical Certificate was improper and thus
was rightly not believed by the appellate Court. If was further contended that
the limitation had created the vested right in favour of the
respondents/defendants and that the applicant has failed to account for delay
of each and every day. It was pleaded that the judgments passed by courts below
were legal and proper.
8. In support of their contentions both
the learned counsel had referred to certain case-law.
9. The contentions put forward by learned
counsel for the parties have been given due and proper consideration,
the judgments passed by the two courts below have been examined in light of the
relevant case-law and the material available on the record.
10. In order to properly appreciate the
contention raised by learned counsel for the applicant with regard to
applicability of Order VIII Rule 10 C.P.C. it will be pertinent to reproduce
the same which is as under:
"10. Procedure when party fails to
present written statement called for by Court.--Where any party from whom a
written statement is so required failed to present the same within the time
fixed by Court, the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit."
11. The bare perusal of Rule 10 of Order
VIII C.P.C. will show that on failure of a party to file the written statement
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. This clearly
demonstrates that in every case in which written statement is not filed, the
Court is not bound or required to pronounce the judgment as it is not
stipulated by the law. By using the word 'may' in the said rule, it has been
left open to the Court, that on consideration of the material annexed with the
plaint, either it should pronounce the judgment or may make such other order as
it deems fit. Evidently, the Court has to take into consideration the facts and
circumstances of each case and keeping in view the circumstances the Court may
make such order as it thinks fit.
It will be pertinent to reproduce
hereunder the rule laid down by the apex Court in the case of Sakhawatuddin v.
Muhammad Iqbal (1987 SCMR 1365) which reads as follows:
"Rule 10 is in two parts. No doubt
under the first part a judgment can be pronounced against the defendant, but it
will be pronounced only if it can be so done under the law. For example, if the
suit is for enforcing a contract or obtaining any other relief which is
prohibited by law expressly or impliedly, the judgment could not be pronounced.
Similarly no decree could be passed if there is no cause of action shown in the
plaint or the material placed before the Court or relied upon by the plaintiff
even if not in the form of evidence will make it a case of no evidence (if the
trial is taken to its logical ends). Hence, in all such cases and other similar
cases it will be impermissible for the Court to proceed under the first alternative.
The proper course then would be to proceed under the second alternative. It
will be in rare cases, when, on account of the material placed on record that
it would not only be legal but also just and fair, on the merits of the case,
that judgment is pronounced it would not be proper to proceed under the first
part. Like Rule 12, Rule 10 also creates a liability and it is not mandatory
for the Court to pronounce judgment or strike off the defence. The matter being
in the discretion of the Court the penalty should not be imposed without a
compelling reasons" but as emphasised above that too not without
satisfying the conditions as are being discussed e.g., even then it is not
mandatory to pronounce judgment without satisfaction of the Court that it is
good case on merits for doing so."
Same principle was reiterate in the case
of The Secretary, Board of Revenue, Punjab, Lahore and another v. Khalid Ahmad
Khan 1991 SCMR 2527.
12. The perusal of the Judgment passed by
the trial Court reveals that an application was filed by Advocate for the
plaintiff/applicant wherein he requested the Court to dispose of the suit under
Order VIII, Rule 10, C.P.C. The reason for passing
such judgment as mentioned in the application was that the plaint was verified
on oath. It appears that in the said application moved on behalf of the
plaintiff/applicant it was stated that the plaintiff was reported to be ill
and, as such, ex parte proof could not be filed. In such situation, the prudent
view which could be taken was that the applicant/plaintiff himself did not want
to file affidavit in ex parte proof and wanted his suit to be disposed of under
Order VIII, Rule 10, C.P.C. It is not the case of the applicant/plaintiff that
he requested the Court for grant of time to file affidavit in ex parte proof
due to illness of the plaintiff/applicant and that his such
prayer was declined. In the circumstances, when the plaintiff/applicant himself
prayed the Court to proceed to pronounce the judgment without producing any
evidence or documents, the trial Court was justified in arriving at a
conclusion that the documents placed on record were inadmissible in evidence.
It is a well-settled proposition of law that the plaintiff who approaches the
Court has to succeed on the strength of his own case and not on the weaknesses
of the other side. Merely because the defendants were ex parte ipso facto would
not be legal and valid ground to decree the suit of the plaintiff as it is the
plaintiff who has to prove his case.
13. Regarding the Judgment passed by the
appellant Court, it must be stated that the appeal filed by the appellant was
admittedly barred by time. As evident from the perusal of the judgment of the
appellate Court, the decree was prepared on
"12. I have gone through the medical
certificate which was issued on
14. Upon the above discussion the
appellate Court refused to condone the delay. Honourable Supreme Court in the
case of Irtiqa Rasool Hashmi v. Water and Power Development Authority 1980 SCMR
722 was pleased to observe as under:
"The question whether limitation
should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be
interfered with unless it has been exercised illegally or arbitrarily. This is
not the case here. The result is that this petition must, therefore, fail which
is dismissed hereby."
15. It is settled proposition of law that
condonation of delay if claimed on medical grounds, the medical certificate
must disclose that the person concerned was bedridden and was unable to move.
As observed by the appellate Court the medical certificate produced by the
appellant alongwith the application did not contain the registration number of
the doctor who treated the applicant, even it did not contain the address of
the doctor or that of his Clinic. The reading of the certificate shows that
according to the doctor the patient had recovered and was able to 'join his
duty'. The certificate does not disclose that the applicant who was allegedly
suffering from Sciatica was bedridden for the entire period, and that he was
unable to move or even communicate the instructions to the Advocate to prefer
an appeal.
16. Above
discussion will lead to the conclusion that the jurisdiction exercised by the
appellate Court in not condoning the limitation was neither illegal nor arbitrary
thus no interference was called for.
17. It needs no emphasis that the
revisional jurisdiction of this Court is always discretionary and equitable in
nature and no party is entitled to it as of right. The object of High Court
while exercising its discretionary jurisdiction has always been to foster the
justice, preserve the rights of the parties and to right a wrong. Precisely the
discretionary revisional jurisdiction is meant to correct the errors and to
check the mistakes and lapses committed by the Courts below so as to ensure
that of the judgment/orders passed by the lower Courts were not marred by lack
of jurisdiction and to present illegal and irregular exercise of jurisdiction.
18. The above discussion adequately shows
that no perversity or illegality, and/or, instance of lack of jurisdiction or
illegal and irregular exercise of jurisdiction has been noticed. The judgments
impugned in the revision application are unexceptionable and thus need no
interference. Consequently the revision application stands dismissed.
(Fouzia Fazal) Application dismissed