MUHAMMAD MUKHTAR Versus KOHITEX (PVT.) LTD.

Brief facts of the instant Civil Revision are that the respondent Kohitex (Pvt.) Limited filed a suit for specific performance of a receipt (alleged to be an agreement to sell), dated 13‑5‑1991 allegedly executed by the son of the petitioner for sale of petitioner's property bearing No. 113‑A, Tufail Road, Lahore. The petitioner being owner of the property contested the said suit. At that time the petitioner had left for U.S.A. for a period of two years. Prior to the filing of the instant suit an ejectment petition under section 17 of the Cantonments Rent Restriction Act was filed by the petitioner which was pending adjudication before the learned Additional Rent Controller, Lahore titled "Muhammad Mukhtar v. Kohitex (Pvt.) Limited". This ejectment petition was contested by the respondent who later on, on the basis of a receipt instituted a suit for specific performance on 17‑4‑1995. After about two years of the institution of ejectment proceedings the titled suit was fixed for hearing on 18‑10‑1995. Mr. Nayyer Abbas Rizvi, learned counsel for the petitioner appeared before the Court on the date of hearing. The petitioner was not available at Pakistan. He had left for U.S.A. in connection with. some business on 9‑9‑1995 and returned to Pakistan on 6‑11‑1995, The learned Trial Court vide order, dated 18‑10‑1995 struck off the written statement of the petitioner defendant. He filed a review application which was also dismissed on 9‑1‑1996 in view of Order VIII, Rule 1 of the C. P. C

2. It is submitted by the learned counsel for the petitioner that the impugned order is bad at law and suffers from material irregularity for denying the petitioner's right to submit written statement in view of the fact of absence of the petitioner No. l the owner of the property, from Pakistan, The denial of such right suffers from arbitrariness, is contrary to law and passed in wrongful exercise of jurisdiction vested in the learned Trial Court. He has further submitted that the impugned order suffers from non‑application of judicial mind. As the petitioner No. 1, who was the owner of the property, was away from Pakistan he had engaged Mr. Nayyer Abbas Rizvi, Advocate to appear on behalf of the petitioner/defendant in the suit and to file the requisite written statement and necessary documents supplied to him which he failed to do so. Therefore, the petitioner sitting at U.S.A. could do nothing except to engage a new counsel and instruct him to seek an adjournment till second week of November and these circumstances were in the knowledge of the learned Trial Court who was not willing to accept the memorandum of appearance of the newly engaged counsel and also turned down the request for adjournment to a date in the second week of November when the petitioner No.1 was returning to Pakistan. The learned Trial Court recorded the appearance of Mr. Mueen Qamar, Advocate on behalf of Mr. Nayyer Abbas Rizvi. Advocate and granted an adjournment till 18‑10‑1995. It is further submitted that the petitioner during this short period could not take away the brief from the previous counsel and entrust the same to newly engaged counsel nor instruct him to prepare and file the written statement alongwith necessary documents and on that day the learned Court without looking into the fact whether the petitioner had made out a case for further adjournment or not; struck off the written statement of the petitioner, although it was very much in the knowledge of the learned Court that an eviction petition relating to the same property was pending before the learned Rent Controller and it was two years prior to the filing of the instant suit and in that petition the relationship of landlord and tenant was astonished. Moreover, there is nothing on record to show that the Court in absolute terms has required the written stateme6t from the petitioner and in this way the learned Trial Court did not fulfil the requirement of law. He has also submitted that the instant, Civil Revision was regularly admitted by this Court on 21‑4‑1996 and on Civil Miscellaneous No.1 of 1996 Mr. Justice Ch. Mushtaq Ahmad suspended the operation of the impugned order and permitted the petitioner to file a written statement within a fortnight subject to the decision of this Civil Miscellaneous and allowed the learned Trial Court to continue the proceedings and restrained the learned Trial Court to pass a final judgment, Even the order of regular admission as well as allowing the petitioner to file a written statement within a fortnight was not challenged by the respondent.

3. The learned counsel for the respondent has submitted that decision in the Civil Miscellaneous would tantamount to be a case decided without affording the opportunity of hearing to other side. He submitted that Order VIII, Rule 1 of the C.P.C. is very much clear, where it is provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days. The petitioner was negligent in filing the written statement even after the expiry of the abovesaid period, therefore, he cannot take the benefit of filing the written statement at belated stage. He also submitted that the instant civil revision is also time‑barred as the impugned order was passed on 18‑10‑1995 and the civil revision was filed on 11‑4‑1996.

4. I have heard the learned counsel for the parties and have carefully perused the record.

5. This Civil Revision was admitted to regular hearing on 21‑4‑1996 and on the same date in Civil Miscellaneous No.1 of 1996 the operation of the impugned order was suspended and the petitioner was permitted to file a written statement within a fortnight subject to the decision of the Civil Miscellaneous and even the proceedings before the lower Court were allowed to continue but the final judgment was restrained. The written statement according to the learned counsel for the parties has been submitted by the petitioner/defendant in the Trial Court and the issues have been formulated on the basis of the pleadings in the suit. The order of regular admission of the instant civil revision as well as Civil Miscellaneous No. l of 1996 was not challenged by the respondent. The respondent had appeared on 18‑2‑1998 to contest the instant civil revision. The impugned order pertains to 18‑10‑1995.

6. The remedy of revision is available for correction of an order of the subordinate Court where no appeal would lie to a revisional Court and error of jurisdiction of subordinate Court is apparent in the impugned judgment.

7. At the time of preliminary hearing of any petition, the Court, while hearing a party, impliedly or indirectly is safeguarding the interest of an absentee adverse party and cannot decide the subject‑matter of any case without affording an opportunity of hearing to the other side, Therefore, the instant case is opened to a fresh hearing on merits, without keeping in view the submission of the written statement by virtue of an order of this Court.

8. So far as the question of limitation is concerned the office on 14‑4‑1996 put an objection No. 1 that the revision is time‑barred. The learned counsel for the petitioner filed a chart mentioning the calculation period of limitation. The chart showed the impugned order', dated 18‑10‑1995, application for issuance of certified copies, dated 22‑10‑1995 with the difference of three days and certified copies issued on 21‑1‑1996 with the difference of 92 days and delay in filing the application for copies 3 days and benefit for limitation purposes after excluding the period spent between application and issuance of copies, net benefit 89 days and showed the same to be filed in time. This chart was accepted by the office and this petition was placed before the Hon'ble Judge of this Court and was regularly admitted. Therefore, I am not convinced by the arguments advanced by the learned counsel for the respondent that the instant civil revision is time barred.

9. The Order VIII, Rule 1 of the C.P.C. is concerned the language of this order is reproduced below:‑‑‑

"Written statement. ‑‑‑The defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence.

(Provided that the period allowed for filing the written statement shall not ordinarily exceed 30 days.)"

10. Order VIII, Rule 10, C.P.C. is also reproduced below:‑‑‑

"Procedure when part v 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 fit. "

11. This order deals with a speaking order passed by the Court specifically asking a written statement from the party concerned. As the period for submission of written statement should not, ordinarily, exceed 90 days and when the required written statement has not been filed there are two alternatives available to the Court for pronouncement of order or making of such other order. The punitive action should only be taken in very extreme circumstances. The rationale behind the provision of this order is that the defendant should not be deprived from putting forward his summary of defence. In Sardar Sakhawatuddin and others v. Muhammad Iqbal and 4 others 1987 SCMR 1365 at page 1370 it is held:‑‑‑

"Therefore, it is essential that whenever a written statement is to be made subject to the penal rule 10, there should be proof on record that the Court had 'required' it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realising the implications. "

12. I am convinced by the arguments advanced by the learned counsel for the petitioner that the order, dated 1‑10‑1995 is not a Speaking Order for submission of the written statement. A counsel on behalf of the learned counsel for defendant appeared and requested for adjournment for filing the written statement as he submitted that the written statement and the written reply are not prepared. In fact the real counsel Mr. Nayyer Abbas Rizvi, Advocate was not present. The learned Court adjourned the case and directed for presenting the written statement as well as the written reply. On 18‑10‑1995 the power of attorney was submitted by Mr. Mueen Qamar, Advocate and he submitted that the written statement is not ready and requested for an adjournment as he was engaged as a counsel on the same day and could not file the written statement without getting instructions from his client. The learned Court recorded that:

13. In the order, dated 1‑10‑1995 I have not found out that the last opportunity was given to the learned counsel for the defendant to file the written statement and written reply. One adjournment is given. Therefore, when another counsel appeared and requested that he had been engaged on the same day by the petitioner who was not in Pakistan, rather he was abroad, the request could be granted by the Court as no punitive action was called for and the Court did not indicate in any order that it is the last opportunity for submission of the written statement. In the previous order he had written that only in the interest of justice one opportunity was given. Moreover, no warning was given in the previous order, dated 1‑10‑1995 to the petitioner that if he does not submit the written statement and also the written reply the punitive action will be taken against him.

14. Moreover, the eviction petition is still pending adjudication before the learned Rent Controller and the suit for specific performance also relates to the same subject‑matter of the property and the petitioner cannot be deprived from narrating the facts in the written statement which enables the Court to formulate the issues on the pleadings of the parties. Legislature has intentionally given a discretion to the Trial Court to make an order keeping in view the facts and circumstances of each case. In the present case, in revision in circumstances the impugned order being violative of settled proposition of law is hereby set aside. The petitioner's written statement already submitted in the Trial Court is hereby accepted.

A.A./M‑587/1 Revision accepted