Messrs ALLIED GROUP VENTURES

ORDER

This revision petition impugns an order dated 17‑1‑2002 passed by Mr. Abdul Qayyum, learned Civil Judge 1st Class, Islamabad granting opportunity to the respondents to file their written statements on 27‑2‑2001 while also extending temporary injunction previously granted by the trial Court.

2. According to the learned counsel, this order violated the second proviso to Order VIII, Rule 1 of the C.P.C. which was inserted vide Notification of 2‑10‑2001 and which reads as follows:‑‑

"Provided further that not more than two adjournments shall be granted for presenting the written statement."

3. The amended Order VIII of the C.P.C. in its entirety reads as follows:‑‑

"1. Written statement.‑‑ The defendant shall present a written statement of his defence and with such written statement, or if there is no written statement, at the first hearing shall produce in Court all documents in his possession power on which. he bases his defence or any claim for set‑off.

2. Where he relies on any other documents as evidence in support of his defence or claim for set‑off he shall enter such documents in a list to be added or annexed to the written statement, or where there is no such written statement to be presented at the first hearing. If no such list is annexed or presented, the defendant shall be allowed a further period of ten days to file the list of documents.

3. A document that ought to be entered into the list referred to in sub‑clause (2) but which has not been so entered, shall not, without the leave of the Court, be received in evidence on the defendant's behalf at the hearing of the suit.

4. Nothing in this rule shall apply to documents produced for cross- examination of the plaintiff's witnesses or handed to a witness to refresh his memory.

Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days:

Provided further that not more than two adjournments shall be granted for presenting the written statement."

4. According to the learned counsel, the Court had no choice but to strike off the defence of the respondents they having failed to file the written statement in accordance with the latest proviso to Order VIII.

5. This is a suit filed by the petitioner for the recovery of US$ 57,675,386 which equals to Pakistani Rs.3,518,198,546. While petitioner also asked for recovery of profit at the rate of Rs.18 per cent. per annum.

6. A copy of the order‑sheet is attached and a reference to it is essential for the disposal of this case. On 10‑11‑2001 it was ordered that this be entered as a fresh suit and notices/summons be issued for service of the defendants for 13‑11‑2001. On 13‑11‑2001 memo. of appearance was filed on behalf of respondent No.2 while no one appeared on behalf of respondent No. 1. An injunctive order was also issued against the defendants. It was further ordered that fresh summon/notice be issued to the defendant. The case was posted for 21‑11.2001 when the following order was passed:‑‑

Urdu

7. On 20‑12‑2001 the following order was passed:‑‑

Urdu and the case was posted for 17‑1‑2002 when the following impugned order was passed:‑‑

"Learned counsel for the defendants have submitted an application or adjournment of case on the ground that a heavy amount has been alleged in the plaint and they have to collect documents from Karachi for written statement, therefore, defendants be granted opportunity. Therefore, in view of the grounds mentioned in the application and in the interest of justice one opportunity is granted to the defendants. Come up for filing of written statement on 27‑2‑2002. Till the next date of hearing temporary injunction already granted by this Court is hereby extended."

8. It is apparent from the orders that after completing the presence of the parties, it was ordered for the first time that the written statement be filed on 20‑12‑2001. On this date, the written statement was not filed, therefore, adjournment was sought which was allowed and the case was posted for 17‑1‑2002 for filing of the written statement. When on 17‑1‑2002 the written statement was not filed, a second adjournment for 27‑2‑2002 was allowed. So, there have been only two adjournments on the dates 20‑12‑2001 and 17‑1‑2002 which are covered by the second proviso. The appearance on 13‑11‑2001 of respondent No.2 could not be counted as an adjournment for filing of the written statement by respondent No.2. Because for the appearance of respondent No. 1, the case had been adjourned and who had put in appearance on 21‑11‑2001, when the first order for filing of the written statement was passed.

9. If we look at the amended Order VIII, rule 1, C.P.C., a defendant has not to file a written statement on being asked by the Court but has to I present a written statement before the first hearing or within such time as the Court may permit. In this connection, the discretion of the Court to allow more than two adjournments has been curtailed. The first proviso had also curtailed the powers of the Court allowing the period for filing of the written statement beyond 30 days ordinarily.

10. The first question which comes up for determination is as to what is the first date of hearing. While answering this question, we may look at the provisions to Order V, C.P.C. whereby the defendant side is issued summon for appearance before a Court.

11. According to Order V, rule 1, summon may be issued to a defendant to appear and answer the claim on a date to be therein specified. Order V, Rule 2, C.P.C. requires a copy of the plaint to accompany the summons. Order V, rule 3 requires the Court to mention the reasons for the personal appearance of the defendant in case the Court requires presence. Order V, rule 4 provided protection to a defendant from personal appearance if he is not living within a certain area. While Order V, rule 5, C.P.C. requires the Court to mention in the summon whether the defendant was being asked to appear for the settlement of issues or for the final disposal of the suit. Order V, Rule 5, C.P.C. being important in this connection, is reproduced below in extenso:‑‑

"Summons to be either to settle issues or for final disposal.‑‑ The Court shall determine, at the time of issuing the summons, whether it shall be for the settlement of issues only, or for the final disposal of the suit; and the summons shall contain a direction accordingly:

Provided that, in every suit heard by a Court of Small Causes, the summons shall be for the final disposal of the suit."

12. Photocopies of summons have been shown to this Court. These are proto‑types and printed which are used for omnibus purposes in a mechanical way. After the information about the Court and parties, the said, summons reflect the following direction of the Court:‑‑

Urdu

The purpose is determined in the summons and the summons do not reflect any explicit terms as per requirements of Order V, ‑rule 5. So as to indicate whether the summons were being issued for settlement of the issues or for disposal of ‑the case finally, Of course the word "hearing" has not been defined in the Civil Procedure Code. The expression is defined in the Wharton's Law Lexicon as 'investigation of a controversy'. This word, however, has been used at several places in the Civil Procedure Code. If the summons indicate that the case is fixed for first day of hearing, it would be taken as the first day of hearing according to the provisions of Order IX, rule 6. But if there is no indication, this indication of hearing in the summons obviously would indicate that a case has not been fixed for the first date of hearing but for something else, and the Court has to proceed for other business. Where a case is fixed for first hearing of a suit and it appears that the parties are not at issue, which obviously‑ will be gathered from their written statement or otherwise when they appear in the Court, a judgment can be pronounced, otherwise issues are to be framed under the requirements of Order XIV and the suit proceeds further.

13. The word hearing as indicated in Order IX, rule 1 has also connection with what tray have been reflected in the summons under Order V, rule 5. Therefore, when a suit is not fixed for hearing, it can neither be dismissed nor an ex pane order passed against a defendant, because both in Order IX, rule 3 and Order X, rule 6, C.P.C. the requirement is the fixation of the suit for hearing. The argument from the petitioner's side, therefore, that 21‑11‑2001 would be considered as the adjournment and 20‑11‑2001 the second adjournment, is not based on the', requirements of Order VIII, Rule 1, C.P.C. and, therefore, the provisions of proviso 2 were not attracted.

14. It will be useful if we look at Appendix V of the Civil Procedure Code, it provides us with samples of the summons which are to be issued for disposal of a suit and for settlement of issues as well as under Order IX, rule 6 fixing the case for final disposal even where a defendant had failed to appear because of inefficient notice.

15. Incidentally, it may be mentioned that the Courts while issuing surntnons under Order 5V, C.P.C. do not apply their conscious minds as to for what purposes they were summoning the defendant. If the provisions of the second proviso are to be strictly applied which is also the intention of law and for speedy disposal of cases at the initial stage of the suit, the Civil Courts shall have to spell out the purpose for which they were calling the defendant before the Court, while ensuring that a defendant gets all of his documents for filing a written statement within the periphery of second proviso to Order VIII: Consequently, this revision petition has no merits. It is dismissed.

Q.M.H./M.A.K./A‑435/L Revision dismissed.