GHULAM HUSSAIN and others vs NADIR ALI and others
This matter concerns a petition for leave to appeal against a Sindh High Court judgment that dismissed a civil revision application, thereby upholding concurrent findings of lower courts which had decreed a suit against the petitioners under Order VIII, Rule 10 of the Code of Civil Procedure 1908. The petitioners, as defendants, had failed to file a written statement despite being granted opportunities by the trial court, leading to the suit being decreed against them. The core legal question was whether the trial court was justified in invoking the penal consequences of Order VIII, Rule 10, C.P.C., when no specific, speaking order had been passed directing the petitioners to file a parawise written statement. The Supreme Court observed that the petitioners' failure to file the written statement was due to professional fee disputes and that the trial court's order lacked the necessary specificity to trigger the penal provisions. Relying on established precedents, the Court granted leave to appeal, holding that the strict application of Order VIII, Rule 10, C.P.C. requires a clear, positive, and speaking order from the court.
- Can a court invoke the penal consequences of Order VIII, Rule 10, Code of Civil Procedure 1908, without first passing a specific, speaking order directing the defendant to file a written statement?
- Is the failure to file a written statement due to a dispute over professional fees sufficient grounds to justify a decree under Order VIII, Rule 10, Code of Civil Procedure 1908?
- Order VIII Rule 10, Code of Civil Procedure 1908
- Order IX Rule 7, Code of Civil Procedure 1908
ORDER
' RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against Sindh High Court judgment, dated 9-3-2005 dismissing their civil revision application directed against concurrent findings of two Courts whereby suit filed by respondents Nos.1 and 2 was decreed against them under the provisions of order VIII, rule 10, C.P.C.
2. Petitioners are the defendants in a suit for declaration, cancellation of documents and permanent injunction seeking the following reliefs:- "(a) To declare that plaintiffs are owners of S.No,127/3, 127/4, 128/1 and 128/2, 3, 4 of Deh Allah Rakhio Junejo, Taluka Mirokhan and the mutation order of defendant No,5 at the instance of defendants Nos.6 and 7 is illegal, mala fide, without lawful jurisdiction.
(b) To cancel the record of rights, which have been changed in favour of the defendants Nos.1 to 3 in respect of the suit property.
(c) To restrain the defendants from taking the possession of the suit property to plaintiffs."
3. After the service of summons, they moved an application for filing written statement, which was granted. Official respondents being least interested were proceeded ex parte on their failure to submit any written statement. Trial Court having allowed the petitioners to file written statement, on their failure closed their side. An application for setting aside the order in terms of Order IX, rule 7, C.P.C. Was moved dismissed for default and restored subject to payment of costs of Rs,200 with direction to file the written statement within 15 days. Petitioners asked for another adjournment, which was allowed but without any positive response, leading to the decree in the suit, as aforesaid. Appeal against the decree and civil revision against the appellate order having failed they now seek leave to appeal against the impugned judgment of the High Court.
4. Learned counsel for the petitioners urged that there was no positive and speaking order passed by the trial Court requiring the petitioners to file a parawise written statement, therefore, penal consequences within the contemplation of Order VIII, rule 10, C.P.C. Would not follow. According to the learned counsel, this was a case of pure and simple adjournment owing to inability of the petitioners to persuade their counsel to prepare a written statement without the receipt of professional fee. There appears to be some force in the submission. We may refer to the law declared by this Court in Sakhawatuddin v. Muhammad Iqbal 1987 SCM R 1365, Ayub Ali Rana v.
Carlite S. Pune PLD 2002 SC 630 and Pehalwan v. Ali Ahmad 2005 SCM R 1044, which undoubtedly supports the proposition of law advanced at the Bar.
5. We, would, therefore, grant leave to appeal against the impugned judgment of the High Court. As a short question of law is involved in this appeal, office is directed to list the appeal for hearing within six months from today.
C.M.A. No,455-K of 2006
6. Notice.