ABDUL MALIK Versus MEHBOOBUR REHMAN

The facts leading to this Civil Revision, in substance, are that the respondents sought the assistance of the learned trial Court against the petitioner for a perpetual injunction restraining him from interfering in their possession of the land in dispute measuring about 40 kanals situate in village Kot Kammon Shah, Tehsil and District Rahimyar Khan. The petitioner did not appear despite his due service and was proceeded against ex parte on 25‑4‑1984. An ex parte decree was passed against the petitioner who moved an application for the cancellation of ex parte decree on 26‑7‑1984 which was dismissed. The petitioner lodged a successful appeal before the learned Additional District Judge and the case was remanded to the learned trial Court on 22‑7‑1986. Both the parties were ordered to appear before the learned lower Court on 3‑9‑1986. Ordinarily, the petitioner should have filed the written statement on 3‑9‑1986 but he did not do so and the written statement was ordered to be filed on 18‑9‑1986. The petitioner defaulted in filing the written statement and the suit was adjourned to 2‑10‑1986 for the receipt of the written statement conditional on payment of Rs.20 as costs. On 2‑10‑1986, the petitioner again failed to file the written statement and the suit was again proscrastinated to 15‑10‑1986 for filing the written statement. The petitioner was directed to pay Rs.25 as costs. On 15‑10‑1986, the written statement was not filed nor any further adjournment for filing the same was sought. The costs outstanding against the petitioner were also not paid. The learned trial Court decreed the suit on 15‑10‑1986 under Order VIII, Rule 10, C.P.C. The petitioner lodged an appeal which was dismissed on 19‑7‑1987. The petitioner has now filed this civil revision seeking quashment of both the orders of the learned lower Courts dated 15‑10‑1986 and 19‑7‑1987 respectively.

2. The learned counsel for the petitioner has referred to Mst. Bilqees Begum v. Syed Ali Turab etc. 1980 C L C 930; Malik Muhammad Saeed v . Mian Muhammad Siddique 1985 M L D 1440 and Haji Muhammad Moosa and another v. Provincial Government of Baluchistan 1986 CLC 2951. In all these precedents, it has been adjudicated that before pronouncing the judgment under Order VIII, 'Rule 10, C. P.C., the facts and circumstances of the case should be considered preferably by recording evidence. Shamroz Khan and another v. Muhammad Amin and others P L D 1978 Supreme Court 89 has also been quoted which deals with the suits under Order VIII, Rules 11 and 12, C.P.C. and not an order under Order VIII, Rule 10 of the C.P.C. Order VIII, Rule 10, C.P.C. reads as under:‑

"O. VIII,

10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is so required fails to present the same 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 fits."

3. The intent of the legislature in enacting Order VIII, Rule 10 appears to be that two courses are open to a Court when the written statement is not filed despite clear direction of the Court. The first course is that the Court can pronounce judgment and the second course is that it can make such an order in relation to the suit as it thinks fit. In Jamal v. Rai Naeemullah Khan P L D 1986 Lahore 48 and Ghulam Nabi Lone v. Messrs Lufthansa German Airlines, Lahore 1982 C L C 387, it has been adjudicated that the Court can pronounce judgment without recording evidence. The principle enunciated in both these rulings was endorsed in a Division Bench Authority, namely, Sardar Sakhawat‑ud‑Din and 5 others v. Muhammad Iqbal and 2 others .P L D 1983 Lahore 448. This is a Division Bench authority and it must have precedence over the single Bench precedents quoted on behalf of the petitioner. It may be observed that the evidence is to~ be recorded if the latter course suggested in Order VIII, Rule 10, C.P.C. is adopted and in case the evidence is to be recorded before pronouncing judgment, then there was no necessity of enacting two distinct courses to be adhered to by the Courts at their option.

4. Further more, it may be noted that in this case, the evidence was recorded and an ex parte decree was passed against the petitioner and it was subsequently set aside in appeal. The suit is for perpetual injunction and that relief is more or less discretionary. This being so, the learned trial Court was not expected to go into further details of the case when it chose to pronounce judgment under Order VIII, Rule 10, C.P.C. I, therefore, see no illegality or material irregularity committed in the exercise of jurisdiction by the learned lower Courts and dismiss this Civil Revision with costs.

A.A. / A‑200 / L Revision dismissed.