METROPOLITAN CORPORATION OF LAHORE Versus LEASE PAK LIMITED

1. The brief facts out of which the present revision petition arises are that the respondent filed suit for damages against the petitioners in the Court of Civil Judge, Lahore claiming a sum of Rs.1,54,29,730 for illegal retention of his money. The petitioners received the summons in the office without a copy of the plaint on 10‑12‑1999 for appearance on 6‑1‑2000. Deputy Director representative of the petitioners entered appearance before the Court on 6‑1‑2000. The case was adjourned to 3‑2‑2000 as the Presiding Officer was on leave. On 3‑2‑2000 the case was adjourned for 7‑3‑2000 for tiling of the written statement by the present petitioners/defendants. On 7‑3‑2000 the case was adjourned for 21‑3‑2000 for filing of the written statement on payment of Rs.100 as cost. On 21‑3‑2000 the written statement was not ready and the case was adjourned to 24‑3‑2000 for filing of the written statement on payment of cost of Rs.200. The trial Court struck off the defence of the petitioners under Order VIII, Rule 10, C.P.C. and adjourned the case to 28‑6‑2000 for ex parte evidence, hence the present revision petition.

2. The learned counsel of the petitioners submits that trial Court struck off the defence of the petitioners vide impugned order, dated 24‑3‑2000 under Order VIII, Rule 10, C.P.C. without any justification in violation of the mandatory provisions of the C.P.C. and the law laid down by the superior Courts as the copy of the plaint was received on 7‑3‑2000 by the Court attendant respective of the petitioner namely Babar coupled with the fact that the huge amount of more than 1‑1/2 crores of public exchequer is involved and the learned trial Court without adverting to this aspect of the case passed the impugned order. In support of his contention he relied upon the following judgments:‑‑

2. Sardar Sakhawat‑ud‑Din v. Muhammad Iqbal 1987 SCMR 1365; Province of Punjab v. Ch. Pervaiz Ahmad 1993 CLC 660; Deputy Collector of Customs and 2 others v. Muhammad Tahir and another PLD 1989 SC 627 and Manager, Forest Operation (Malakand Circle v. Muhammad Zaman and another PLD 1992 Peshawar 173.

3. The learned counsel of the respondent has raised a preliminary objection that revision 'petition under section 115(1) of the C.P.C. is not maintainable as the petitioners have right to file appeal against the impugned order by virtue of Order 43, Rule (1)(b), C.P.C. In support of his contention he relied upon the following judgments:‑‑

3. Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506 and Cantonment Board, Rawalpindi v. Muhammad Sharif PLD 1995 SC 472.

4. He further submits that several opportunities were granted to the petitioners to file written statement but the petitioners failed to avail the opportunities. He further submits that trial Court adjourned the case for the said purpose on two counts by imposing costs to the petitioners in spite of the aforesaid orders; the petitioners failed to file written statement arid the trial Court has no other alternative except to strike off defence of the petitioners. He summed up his arguments that the trial Court has passed the impugned order with reasons and the learned counsel of the petitioners failed to point out any material irregularity or illegality committed by the trial Court, therefore, revision petition is not maintainable even on merits.

5. The learned counsel of the petitioners in rebuttal submits that revision petition is competent as no judgment has been passed by the trial Court against the petitioners under Order VIII, Rule 10, C.P.C. He further submits that copy of the plaint was not sent by the Court alongwith the summons and the same was not supplied on the date of hearing to the petitioners and the Reader adjourned the case as the Presiding Officer was on leave. The petitioners received copy of the plaint on 7‑3‑2000 and the impugned order was passed against the petitioners without adverting to the fact that there is still statutory period available to the petitioners to tile written statement. The judgments cited by the learned counsel of the respondents are distinguished on facts and law and the revision petition is maintainable.

4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. I would like to decide preliminary objection first which was raised by respondent's counsel that revision petition is not maintainable by virtue of Order 43, Rule 1(b). It is better and appropriate to reproduce aforesaid rule to resolve the controversy between the parties:‑‑ "an order under Rule '10 of Order 8, C.P.C. pronouncing judgment against a party."

6. Mere reading of aforesaid provision reveals that petitioners have no right to file appeal against order passed by the trial Court in which defence of petitioners struck off as the impugned order does not fall in the category of judgment. The aforesaid rule was interpreted by this Court in Jagat Singh's case AIR 1931 Lah. 77 and laid down the following principle:‑‑---

7. "Order under 43 Rule 1(b) an order, refusing to pronounce judgment, has not been made an appealable, but only an order pronouncing judgment."

8. This Court has considered the aforesaid preliminary objection and after considering the principle laid down by Honourable Supreme Court in M.C. Bahawalpur's case PLD 1970 SC 506 and held that revision petition is competent in Government of Punjab v. Shah Muhammad 1981 Law Notes 648. I aril also fortified by Muhammad Yousuf Khan's case 1981 SCMR 590. The judgments cited by respondent's counsel are distinguished on facts and law as in the cited judgments, the judgments and decrees were passed against defendants whereas in the present case no judgment and decree had been passed by the trial Court against present petitioners/defendants. In this view of the matter, the preliminary objection has no force.

9. It is admitted fact that respondent filed suit for damages more than Rs.l‑1/2 crore against the petitioners; the learned trial Court had struck off of defence of the petitioner in haste without realising the amount involved in the suit. In case the suit of respondent decrees then amount shall be paid to the respondent from the public exchequer. It is settled law that Order 8, Rule 10, C.P.C. is a penal provision which will have to be strictly construed; the Honourable Supreme. Court interpreted the aforesaid provisions of law in Sardar Sakhawat‑ud‑Din's case 1987 SCMR 1365 and observed as under:‑‑

10. "Whenever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application otherwise too, its requirements would 'have to be established like those of Order 17, Rule 3 which is similarly penal in nature."

11. The Honourable Supreme Court further observed in the said case as under:‑‑----

12. "The use of word 'required' is not without significance. It does not permit a routine order without application of mind to the requirement' and/or the need. Therefore, it is essential that whenever a written statement is to be made subject of 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."

13. To find out whether trial Court has passed the impugned orders against the petitioners in terms of law laid down by the Honourable Supreme Court in the aforesaid judgment, it is better and appropriate to reproduce the orders of trial Court which are as under:‑‑---

14. The aforesaid orders reveal that same are not speaking orders and trial Court did not direct the petitioners to file written statement. The case was adjourned on each date on the request of petitioners to file written statement, therefore, impugned order is not in accord with the law laid down by the Honourable Supreme Court in the aforesaid judgment. The word "required" as used in Rule 10, Order 8, C.P.C. fell for interpretation in the case reported as Sardar Sakhawat‑ud‑Din's case 1987 SCMR 1365 which was reiterated in the case reported as Secretary, Board of Revenue Punjab v. ' Khalid Ahmed 1991 SCMR 2587. It is settled proposition of law that Rule 10 of Order 8, C.P.C. applies only to a specific requirement by the Court to the filing of a written statement and not a general direction in the summons that such a written statement may be filed as per principle laid down in Thakurain Dhiraj Kuwar's case 1925 Oudh 567. The petitioners have taken a stand that copy of plaint was not sent to the petitioners through the summons and the same had been received by the representative of petitioners namely Babar on 7‑3‑2000. The previous orders do not contain any word that the petitioners received copy of plaint, therefore, petitioners have still time to file written statement within the specified period under the provisions of ` C.P.C. but this fact was not considered by the trial Court at all, therefore, trial Court passed the order without applying its independent mind. In arriving to this conclusion, I am fortified by the following judgments:‑‑---

15. Islamic Republic of Pakistan v. Babar & Company 1984 CLC 1535

16. The Honourable Supreme Court has again considered this aspect in Sh. Abdul Hamid's case 1993 SCMR 1071 and observed as under:‑‑----

17. "When called upon to argue the main appeal the learned counsel relied on the case of Sardar Sakhawat‑ud‑Din and stated that filing of the written statement could not be denied in this case notwithstanding the adverse comment on the conduct of the appellant. For the same reason the learned counsel contended the defence of the appellant could not be struck off without recording the evidence and the decree could not be passed in favour of the respondent. There is considerable force in the argument of the learned counsel. "

18. Order 8, Rule 10, C.P.C. was also interpreted by Delhi High Court in AIR 1976 Delhi 97 and laid down the following principle:‑‑-----

19. "However, allowing the defendant merely time to file a written statement which he wants to file on his own does not amount to ‑an order by the Court requiring the defendant to file the written statement. This legal position is not disputed by either of the counsel and it is amply supported by authorities. Rule 10 of Order 8, therefore, does not apply to the circumstances of the instant case.

20. The Court had, therefore, no jurisdiction to pronounce the judgment against the defendant. "

21. It is a suit for damages that claim of more than 1‑1/2 crore rupees and the petitioners is Metropolitan Corporation must be afforded adequate opportunity to put defence and contest the claim of respondent/plaintiff. Nevertheless in the circumstances of this case I find that sufficient cause has been put forth by the petitioners and which had been duly supported by an affidavit against which there is nothing in rebuttal, coupled with the facts that trial Court has struck off defence of petitioner in violation of law laid down by the superior Courts. The Honourable Supreme Court has laid down a principle in Khuda Yar's case PLD 1975 SC 678 that technicalities should not be hindrance in the way of justice and followed the principle laid down by the Honourable Supreme Court in Imtiaz Ahmad's case PLD 1963 SC 382. The relevant observation is as follows:‑‑--

22. "Mere technicalities unless over the insurmountable hurdle should not be allowed to defeat the ends of justice."

23. The Honourable Supreme Court has also laid down principle after addition of Article 2A in the Constitution that cases must be decided on merits instead of technicalities in Said Muhammad's case PLD 1989 SC 532. This Court has ample jurisdiction to set aside the order of trial Court as the principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case 1998 SCMR 851.

24. In view of what has been discussed above, in the larger interest of justice, therefore, I would exercise my discretionary powers under section 115, C.P.C. and set aside the impugned order, dated 24‑3‑2000 by accepting this revision petition. The petition succeeds and is allowed with no order as to costs. The petitioners are directed to file written statement within 20 days before the trial Court from today. The parties are directed to appear before trial Court on 13‑10‑2000.

25. Q.M.H./M.A.K./M‑334/L Petition allowed.