SHAKIRA KHATOON Versus MUHAMMAD ASHFAQ

This is an appeal by the defendants against whom judgment has been pronounced under Order VIII, Rule 10 of the Code of Civil Procedure in the suit for specific performance filed by the respondent.

2. Based on the agreement to sell dated 5‑6‑1984, in respect of the property in dispute, which is house, the respondent filed the suit on 16‑3‑1987 initially against appellant No.l, the vendor. She filed written statement on 27‑4‑1987 and took up the position that she had already sold the house to appellant No.2. On the application of the respondent, appellant No.2 was also impleaded to the suit as defendant No.2 but described as Hamida Bano instead of Waheeda Bano. The respondent sought correction of the description of respondent No.2 which was allowed and amended plaint was filed by the respondent. On 5‑9‑1989, appellant No.2 filed written statement to the amended plaint.

3. On 5‑9‑1989, the learned counsel for the appellants made 'a statement before the learned trial Court that he relied on the written statement already filed on behalf of appellant No. 1.

4. After some proceedings, the learned trial Court on 25‑2‑1990, passed the following order:

5. Although this order did not specifically direct that the two appellants should file a joint written statement, yet the learned trial Court meant it. However, on 10‑3‑1990 appellant No l filed a written statement. The learned Presiding Officer was on leave on the said date. On 25‑3‑1990, the learned trial Court observed that the defendants/appellants were directed to file one written statement but it has not been done, The case was posted for 11‑4‑1990 for further 'proceedings. And, on 11‑4‑1990 judgment was pronounced against the appellants. This was followed by a decree. This judgment and the decree are the subject‑matter of this appeal.

6. The learned counsel for the appellant submits that both the appellants had filed written statements to the amended plaint as required by the Court and the order directing a joint written statement was plainly illegal, non‑compliance of which could not have been visited with penal consequences.

7. On the other hand, the learned counsel for the respondent submitted that since the appellants had defaulted in complying with the direction dated, ‑2‑1990, the judgment was rightly pronounced against them.

8. I have considered the submissions made by the learned counsel for the parties. The question for determination is as to whether the learned trial Court could direct the two defendants/appellants to submit a joint written statement. The learned counsel for the parties stated that the question remains uncovered by a judicial precedent.

9. In this case, both the defendants had filed written statements to the amended plaint. On 5‑9-1989, appellant No.2 had filed written statement to the amended plaint while appellant No. l had filed written statement to the amended plaint on 10‑3‑1990. Both the defendants/appellants had an individual right to defend the suit personally or through an agent or a counsel. No provision or principle of law could be invoked to compel the defendants/appellants to file a joint written statement. In some cases, the defendants may have conflicting interests. Right to defend a suit is a valuable right and in case the defendants are called upon to submit a joint written statement, any of the defendant may be prejudiced in his defence. So, the implied direction in the order dated 25‑2‑1990 was uncalled for.

10. The reason recorded by the learned trial Court in the order, dated 25‑2‑1990 to call for a joint written statement was that the stance of the defendants cannot be precisely understood. Even this reason is not sustainable. I have perused the two written statements. The vendor, appellant No. 1, admitted execution of the agreement but pleaded that the plaintiff respondent had failed to perform his part of the contract. Appellant No.2 pleaded that she was a bona fide purchaser for value without notice of the prior agreement. I could not find out the difficulty visualized by the learned trial Court in understanding the stance of the appellants. Therefore, the order dated 25‑2‑1990 is not sustainable on this score as well.

11. Viewed from any angle, the judgment dated 11‑4‑1990 is not sustainable. Accordingly, this appeal is allowed with costs. The impugned judgment and the decree are set aside. The case is remanded to the learned trial Court who will frame the issues and proceed with the trial of the suit in accordance with law.

Q.M.H./M.A.K./S‑466/L Appeal allowed.