PEHALWAN and others vs ALI AHMAD

ORDER

' FAQIR MUHAMMAD KHOKHAR, J.-- This petition for leave to appeal is directed against the judgment, dated 28-6-1999 passed by the Lahore High Court, Multan Bench, in F.A.O. No,60 of 1999.

2. The respondent filed, before the Civil Judge, Mian Channu, District Khanewal, a suit for specific performance of agreement, dated 12-1-19991 for the sale of the suit property. The trial Court, by order, dated 2-12-1998, struck off the defence of the petitioners for failure to file an amended written statement in the civil suit. The petitioners filed F.A.O. No,60 of 1999 which was dismissed by the Lahore High Court, Multan Bench, by the impugned order, dated 28-6-1999. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the adjournment granted by the trial Court for filing the written statement could not be treated to be the last one. The trial Court had not made it clear that no further opportunity would be granted. It was further submitted that it was not a case where the filing of a written statement had been required by the trial Court in terms of Order VIII, rules, 1, 9 and 10 of the Civil Procedure Code, 1908. The learned counsel lastly contended that the impugned judgment was not sustainable in view of the law laid down by this Court in the case of Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630.

4. On the other hand the learned counsel for the respondent submitted that on 21-10-1998 the trial Court had directed the petitioners to file a written statement on 25-11-1998 but they failed to do so.

Then the case was adjourned for the same purpose and was fixed for hearing for 2-2-1998. Since the petitioners had failed to comply with the order of the Court, therefore, their defence was rightly struck off under Order VIII, rule 10, C.P.C.

5. We have heard the learned counsel for the parties at length. In our view the trial Court acted in oblivion of the factual position in directing the petitioners to file an amended written statement as if a written statement had already been filed. Even otherwise the orders dated 21-10-1998 and 25- 11-1998 do not spell out clearly that the filing of a written statement was positively required by the Court. In the facts and circumstances of the present case, the provisions of Order VIII, rule 10, C.P.C.

Were not attracted to strike off the defence of the petitioners by the trial Court. The impugned judgment is not conformity with the law laid down by this Court in the case of Col. (Retd.) Ayub Ali Rana (supra).

6. For the foregoing reasons, this petition is converted into appeal, the impugned judgment, dated 28-6-1999 is set aside and the appeal is allowed with no order as to costs. Resultantly, the petitioners shall be permitted to file a written statement within such time as may be fixed by the trial Court.