SHAMROZ KHAN Versus MUHAMMAD AMIN

ORDER

1. DORAB PETAL, J-----The petitioners filed a suit in the District Courts, Peshawar against the respondents and the first two respondents filed their written statements on 23‑9‑1974. Then, according to the petition for leave, the petitioners filed a replication after which the Court framed issues on s5‑9‑1974. On that date the petitioners filed an application that the defence of the first two respondents should be struck off under Order VIII, rule l2 of the Civil Procedure Code because they had failed to supply their addresses to the Courts as required under role I1. Order VIII. These respondents to whom we will refer as the said respondents immediately supplied their addresses and contested the application against them on the ground that the provisions of role I1 of Order VIII wore not mandatory. However, the trial Court took the view that these provisions were mandatory and struck off the defence of the said respondents, and therefore, it decreed the suit ex parts against them and against the other defendants by its order dated 15‑12‑1974.

2. The said respondents challenged this order in an appeal in the District Court but the learned District Judge agreed with the construction placed on rule 12 of Order VIII by the trial Court, and to reaching .his conclusion, he relied on the difference between the language of role 12 of Order VIII and that of rule 21 of Order VU. Accordingly, he dismissed the appeal by his order dated 10.5‑1975, and it would appear from this order that the learned District lodge was of the view that a suit had to be decreed against a defendant if his defence was struck off.

3. The petitioners challenged the dismissal of their appeal in a revision in the Peshawar High Court. The learned Judge examined the provisions of rule I2 of Order VIII and held that they were not mandatory, and that the Courts below had exercised their jurisdiction erroneously in decreeing the suit of the petitioners against the said respondents. Accordingly, by his well‑considered order dated 29‑10‑1977, he allowed the revision, set aside the orders of the Courts below, and as the said respondents had furnished their addresses, he remanded the case to the trial Court with a direction that it should be heard and decided according to law on merits. Hence this petition for leave.

4. The petition turns on the proper construction of rule 12 of Order VIII, and, at the outset, we would point out that provisions imposing an obligation on litigants to disclose their addressee were inserted in the Civil Procedure Code by the Law Reforms Ordinance, 1972. but repealed later. However, these provisions were re‑enacted with considerable modulations in Orders VU and VIII (which deal with plaints and written statements respectively) by the Law Reforms Ordinance, 1972, and it is sufficient to observe here that according to rule 19 of Order VII, every plaint or original petition "shall be accompanied by a proceeding giving an address at which service of notice, summons or other process may be made on the plaintiff or petitioner".

5. Rule 21 then reads

6. "Where plaintiff or petitioner fails to Me an address for service, he shall be liable to have his suit dismissed or his petition rejected by Court biro roots or any party may apply for as order to that effect, and the Court may make such order as it thinks just."

7. Order VIII deals with written statements and set‑offs and rates 11 ins 12, which were inserted by the Law Reforms Ordinance, 1972 read :

8. "11. Address for service.‑(1) Every Party, whether original, added or substituted, who appears in any suit or other proceeding, shall on or before the date fixed is the summons, notice or other proem serves! on him, file in Court a proceeding stating his address for service.

9. (2)

10. (3)

12. Consequences of failure to file address.‑(1) Where a party fails to 8k an address for service as provided in the preceding rule, he shall be liable to have his defence, if any. struck out and to be placed in the same position as if he had not defended."

11. The question is of the meaning of the words "he shall be liable to have his defence, if any, struck out", and according to Mr. Inayat Elahi Khan, these words made it incumbent on the Court to strike o9' the defence of a defendant who had failed to supply his address. But according to the Oxford Dictionary the word 'liable' means :‑

12. "(1) Bound or obliged by law or equity l answerable legally subject or amenable.

(2) (a) Exposed or subject to or likely to suffer from (some thing prejudicial)I in older use with wider sense, subject to (any agency or change).

(b) Subject to the possibility of (doing or undergoing something undesirable).

(4) Subject or subservient to.

(6) U. S. likely."

13. Webster's New International Dictionary, Second Edition, defines liable as : ‑

14. "(1) Bound or obliged in law or equity; responsible; answerable; as, the surety b liable for the debt of his principle; also, now rarely; with to; as, all his property is liable to pay his debts and to taxes.

(2) Exposed to a certain contingency or casualty of an undesired character; as, liable to slip; liable to be injured."

15. Similarly; according to Corpus Juris Socundum, the word "liable" ha been variously defined as meaning "bound or obliged in law of equity; answerable; likely or probable; obligated responsible accountable for, or chargeable with; justly or legally responsible bound or obliged Qualified; responsible answerable; or compellable to make satisfaction, compensation, or restitution."

16. Finally Jewitt in his dictionary of English Law, 1959 Edition defines liability "the condition of being actually or potentially subject to an obligation, either generally, as including every kind of obligation, or, in a more special sense, to denote inchoate, future, unascertained or imperfect obligation, as opposed to debts, the essence of which is that they are ascertained and certain. Thus when a person becomes surety for another, he makes himself liable, though it is unascertained in what obligation or debt the liability may ultimately result."

17. Now if in the words of Jewitt a person liable to perform an obligation is potentially subject to that obligation, it means that the obligation may be enforced against him, not that It must be. Similarly, if a person is liable to auger a penalty he is potentially subject to that penalty and this means that the penalty may be enforced against him at the discretion of the authority entitled to enforce the penalty. Therefore, the ordinary and natural meaning of the words "shall be liable . , . . . to have his defence struck off" is that the Court may strike off the dafence of a defendant in a appropriate case, otherwise the Legislature would have used the words "shall be struck of", at it did in subsection (6) of section 13 of the Wash Mstan Urban Raw Restriction Ordinance, 1959.

18. Mr. Inayat Mshi Khan however, submitted that ac departure from the ordinary and natural messing of the words "hall be liable" (to which we will refer a the said words) was required in the instant came because similarly words (namely "shall be liable to have his suit dismissed or his petition rejected") were to be found in rule 21 of Order VU, yet that rule further stated that "the Court may make such order as it thinks just". And as redundancy is not to be lightly attributed to the Legislature, learned counsel submitted that the absence in rule 12 of Order VIII, of any words expressly conferring discretion on the Courts in the matter of striking off the defendant's defence meant and implied that it was incumbent on the Courts to strike off the defence of a defendant the moment his case fell within the mischief of the rule. The absence of any words expressly conferring discretion on the Courts similar to those is rule 21 of Order VII is a circumstance in support of Warned counsel's submission became of the presumption that redundancy is not to be lightly attributed M the Legislature. But the cardinal principle of construction is that the Courts must first try and ascertain the ordinary and natural meaning of the words in a statute and give effect to them, if there is no ambiguity about the words and as there is no ambiguity about the aid words, i.e our humble opinion, the words "the Court may make such order a it thinks just" rule 21 of Order VII are redundant, and the absence of similar words in rule 12 of Order VIII is not sufficient to justify a departure from the ordinary and natural meaning of the said words.

19. We may with advantage reproduce here a passage from Maxwell's Interpretation of Statutes. The learned author observe, at page 3 (Eleventh Edition) :‑

20. "The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning and the second, that the phrases and sentences are to be construed according 1o the rules of grammar. "It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them that sense which is their natural import in the order in which they an placed." From these presumptions It is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another meaning, unless adequate grounds are found, either in the history or cause of the enactment or in the contest or in the for concluding that that interpretation does not give the real interpretation, of the Legislature. If there is nothing to modify nothing to alter, nothing to qualify the language which the statute contains, it must be construed tin the ordinary and natural meaning of the words and sentences"

21. As we will presently show the view taken by the learned Judge is supported by the construction placed by the High Courts of sub‑continent on the words "hall be liable" for a very long period of years. However, we would first examine the question whether there is anything in the objects or history of the Statute which would justify a departure from the ordinary and natural meaning of then words.

22. The provisions of the Civil Procedure Code are of an ameliorative nature, and the construction sought to be placed upon the said words by the petitioners is contrary to the objects of the Code. However, as we pointed out the rule under construction and the other connected rates were inserted in Orders VII and VIII, by the Law Reforms Ordinance, 1972 and as submitted one of the objects of this Ordinance was to reduce the laws delays. therefore, the further submission was that the construction sought to be placed by him on the said words was necessary because a penal construction alone would eliminate of reduce the laws delays. But having given anxious thought to the submission, we are satisfied that the construction sought to be placed on the rule by learned counsel would only divest the Courts of their discretion to administer justice without reducing the laws delays, and that is apparent from the facts of the instant case. As we pointed out the written statements were filed on 23‑7‑1974. There was then adjourned to another date in order to enable the petitioners to file their replications. After they had done so, the cars was adjourned for the second time to 25‑9‑1974 for the framing of issues and it was only on this date that the petitioners moved their application under rule 12 of Order VIII for striking off the defence of the said respondents. But it they had been vigilant, they could have filed this application as soon as they had received the written statement and it they had done so, the addresses could have been supplied to the Court on the that day of bearing, with the result that the hearing of the suit would not have been delayed by a single day. It is true that replications are not always filed but except in the suits under Order XXXVII, after written statements have been filed the case has to be adjourned for discovery and for the framing of issues. Now if a defendant who has failed to supply his address corrects his error before issues are (tamed even though this is in consequence of the application for striking off his defence. his failure to supply his address initially will not have delayed the hearing of the suit by a single day. But it may, if he willfully fails to supply his address. Necessarily this means that a defendant's failure to supply his address may not cause any delay in the hearing of the snit, therefore, the submission that a penal construction of the rule is necessary in order to prevent the laws delays is not correct and there is nothing in the rule or in its history to support this construction.

23. Additionally, the said words are to be found in other Statutes also. Thus, for example the words "shall be liable to pay a fine" are to be found in many sections of the Penal Code and have been construed by the High Courts of the sub‑continent for a very long time. The consistent vie of the Courts was that these words confer discretion on the Courts and do not make it incumbent on the Courts to impose a fine. That was view of the Patna High Court in Alunghan Dass v. Rahim Bux and others (A I R 1921 Pat. 232), of the Calcutta High Court in Muhammad Keshab v. King Emperor (A I R 1925 Cal. 1021), of the Madras High Court In re : G. N. Chakrapany Chettiar & Sons by Managing Member G. N. Chakrapany Chettiaw (A I R 1942 Mad. 724) and of the West Pakistan High Court, Labors In Sutenran v. The State ( P L D 1962 Lah 11). But a Division Bench of the West Pakistan High Court took a different view in The State v. Muhammad Akbar (P L D 199 Lah 1) and as this view was against the concensus of the judicial onion for more than a generation a Poll Bench of the West Pakistan High Court re‑examined this question in Karo v. The State (P L D 1963 .Kar. 256). After reviewing the entire case‑law including judgments of the English Courts, the learned Judges of the Bull Beach overruled the view taken in Muhammad Akbar's ease and held that words "shall be liable to a fins" did not make it incumbent upon the Courts to impose a fine. Whilst we agree wits, then view of the Pull Bench we have referred to this judgment, because it is not disputed that it has bees consistently followed thereafter by the of Now when a legislature uses in a Statute a legal term which has received a judicial interpretation, it is to be presumed that the term has been urea in the tense In which it has been judicially Interpreted, unless a contrary intention appears from the Statute. There is intention to the contrary, it either in Order VII. rule 19 or in Order X11, rule 8 and further nothing turns can the fact that Karo s Case related to the Penal Code whilst the said words era to be found in the Civil Procedure Cods. Accordingly, on this ground also, we agree with the view taken by the High Court.

24. Finally, learned counsel relied on a judgment of the Peshawar High Court reported in Gad BAN v. Hamesh Gul (P L D 9776 Pesh. 104). The facts of this case were that a, wait fag: pre‑emption was decreed ex parts against the applicant on two grounds. Thou were that the bad failed to appear on a date bearing in the case and that she had failed to supply her address under rule 19 of Order XVII of the Civil Procedure Code. As her application to let aside the order passed against hot eras dismissed, she filed a revision application in the High Court which was showed. In allowing the revision the learned Judge observed that :--

25. ''It is true that Order VII, rule 21 provides that when a party fails to is: address for service, such party shall be liable to have h s suit dismissed .. but it goes without saying that Counts are always indulgent towards pardanashin ladies and counsel appearing in subordinate Courts ... As a matter of fact all the addressees were there on the record of the snit which had been decided against her ex-parte"

26. As the learned Judge allowed the petitioner's revision with the observation "Courts are always indulgent towards pardanashin ladies'", the submission was that the observations supported the was of the petitioners because admittedly one of the acid respondents was not a pardanashin lady. No exception can be taken to the view that Courts lean in favour of pardanashin ladies but with respect, It was not necessary for the learned judge to fall back upon than principle because the question before him was whether the rule 12 of Order VIII mad, it incumbent upon the Court to decree the claim against the applicant and act under record of his express finding that her address was available under the record the application to Aellte off her defence (which fell under Order X11, rule 8 seed net under Order VII rule 19) should have been dismissed so frivolous because the address was available and nothing turned on the fact that at might not have been supplied 3n the particular manner prescribed under the rule. However, before proceeding to learned counsel s next submission, we are compelled to observe here that we demur to the principle that Courts should be indulgent towards counsel appearing in subordinate, Courts". We are not aware of any such principle and are would only observe that the question wilt always be of the facts and circumstances of each case.

27. We would now examine the vicar taken by both the lower Courts that this snit had to be dial ear parts against the said respondents because their defence had been struck off. Neither of these Court have given any reasons for the sweeping conclusion reached by them, and as it was challenged by Mr. Fazal Elahi, who appeared for the caveator, Mr. Inayat Elahi attempted to defend the view taken by the lower Courts on .the balls of the amendment of rule 6 of Order IX of the Civil Procedure Code by the Law Reforms Ordinance, 1972. Learned counsel's reliance on these ruts assumes that the case of the respondents fell under this rule. It is a moat point whether it does, but it is not necessary for us to go into this question, because even if it is assumed that the case of the said respondents fell under this rule, it will not help the case of the petitioners.

28. Order 1X, rule e in so far as it is "vaunt reads :-

29. "(6) (1).‑Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then‑

(a) If it is proved that the summons ass duly served, the Court may proceed ex Paste (and pass decree without recording evidence"

30. The words "and para decree without recording evidence;" were inserted by the Law Reforms Ordinance, 1972 cad eve would observe here that before this amendment the consistent practice of the Courts was to record wide before decreeing a suit under this rule.

31. This practice of recording evidence could lead to delays and as submitted by Mr. lnayat Blahs the object of the amendment eras to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree suit without recording evidence? If Mr. Inayat Blabi's submission is correct, Courts would be compelled to decree patently time‑barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would ere be justified in doing so because the amended rule now roads

32. ..the Court may proceed ex parte and pass decree without recording evidence"

33. This means that the Court may proceed ex parte and that it may pass decree without recording evidence. The word may here imports discretion and means may, not shall, therefore, when a Court strikes of the defence of a defendant, it has further to decide, in the exercise of discretion, whether it should decree the claim against the defendant after recording evidence of without recording evidence, and like all discretion vested in the Courts. this discretion must be exercised judicially. In the instant case, however, the suit was decreed against the said respondent merely because their defence was struck Off, therefore, on this ground also the suit was illegally decreed against the said respondents.

34. The petition is without merit and is dismissed.

35. S. A. H. Petition Dismissed