MUHAMMAD ILYAS Versus MANAZAR ALI , Ex parte

MAULVI ANWARUL HAQ, J.--- For purposes of this judgment, reference to pleaded facts would not be necessary. Suffice it to say that in a suit filed by respondents Nos.1 to 4 against the petitioner as well as respondents Nos.5 and 6, to which suit the remaining respondents were added from time to time, for specific performance of an agreement to sell, dated 5-5-1997, the petitioner put in appearance on 7-2-2005. The case was adjourned with reference to an application under Order I, rule 10, C.P.C. and he was directed to file a reply to the said application. The case was being adjourned for the said purpose. Ultimately, the amended plaint was filed on 13-5-2006. Thereafter, yet another application was filed under Order I, rule 10, C.P.C. on 1-6-2006. This application was disposed of on 7-9-2006 and the learned trial Court directed the plaintiffs to file an amended plaint and at the same time directed the petitioner to file a written statement on 2-10-2006. On this date, another application was filed by some party under Order I, rule 10, C.P.C. which was allowed and the plaintiffs were directed to file an amended plaint and simultaneously the petitioner was directed to file a written statement. On 16-10.2006, the following order was passed:---

An application was filed by the petitioner for recalling of the said order, which has been dismissed by the learned trial Court on 18-5-2007.

2. It is being contended by the petitioner that it was not humanly possible for him to file a reply to a plaint, which had not been filed in the Court. The plaintiffs/respondents Nos.1 to 4 have been served personally. None of them appeared despite calls. They are proceeded against ex parte.

3. I have examined the copies of the records. The details have been stated above. It is but apparent that the amended plaint to which the written statement was to be filed was presented in Court on 16-10-2006 and on the same date the defence was struck off. The petitioner is correctly contending that there was no occasion for the learned trial Court to have asked for written statement of a plaint, which had not been filed before it. He could have been called upon to file the written statement only when the plaint had been filed in and entertained by the Court. The civil revision accordingly is allowed and the impugned order, dated 18-5-2007 as well as 16-10-2006 closing the right of defence are set aside. I am told that the written statement has already been filed in compliance with the interim order of this Court. No orders as to costs.

4. A copy of this order be remitted to the learned trial Court.

H.B.T./M-579/L Revision allowed.