PROJECT DIRECTOR, GADOON AMAZAI AREA DEVELOPMENT PROJECT, SWABI, MARDAN Versus LITAF GUL
MUHAMMAD BASHIR JEHANGIRI, J.‑ This is a Regular First Appeal against the order dated 12‑5‑1985 of the learned Senior Civil Judge, Mardan, whereby he passed order in terms of Order VII, rule 10 read with Order IX, rule 6 of the Civil Procedure Code; 1908 and without taking any evidence granted an ex parte decree against the defendant/appellant for recovery of Rs. 26,540.96 representing sale price of fertilizers supplied by the former to the latter and Rs.28,459.04 as damages for mental torture and reputation of the former.
2. The relevant facts are: The respondent filed a suit for recovery of aforementioned amount on 7‑2‑1985, in the Court of Senior Civil Judge, Mardan. The Court summoned the defendant/appellant for 13‑3‑1985 on which date Jamshed Khan, his representative attended the Court and produced the letter of authority. The case was adjourned to 15‑4‑1985 for filing the written statement. The representative aforesaid of the defendant/appellant ' again sought an adjournment for putting in written statement which was accordingly granted for 22‑4‑1985. On the last mentioned date again an adjournment was sought for the same purpose. Last chance was, therefore, afforded to the defendant/appellant to file written statement on 12‑5‑1985 to which the suit was adjourned. Even on this date, the representative sought an adjournment for 15 minutes for doing the needful. The learned trial Judge waited until close of the day but neme came forward op behalf of the defendant. Left with no alternative, the learned trial Judge decreed the suit ex parte in toto without recording any ex parte evidence.
3. The plaintiff‑respondent despite acknowledgement of process issued by the office failed to attend the Court and had been placed ex parte.
4. Mr. Muhammad Azam Khan, learned Additional Advocate‑General, contends that the learned trial Judge has erred in granting ex parte decree for recovery of money both as sale price of the Fertilizer and damages to the tune of Rs.55,000 without recording any evidence either on one count or on the other.
5. No doubt the basis of provisions of rule 10 of Order VIII, C.P.C. are that the defendant is required to file written statement and he failed to do so, it can be reasonably implied that he has nothing to controvert what is stated in the plaint. It may not be technically necessary for the Court in most of the cases to record any evidence if the material placed on the file is sufficient to substantiate the claim of the plaintiff. The failure of the defendant/appellant to file written statement when `so required', as rightly held in Abdul Saboor and Brothers v. General Flour Mills Co. Ltd. (PLD 1967 Lahore 779) is not necessarily to result into a judgment against him under Order VIII, rule 10, C.P.C. The power conferred on the Court by this Rule to pronounce judgment is to be exercised only in its discretion. Since the Courts are exercising judicial functions, they are to exercise discretion also judiciously and have to take into consideration the facts and circumstances of each case. It is precisely for this reason that an appeal has been provided under Order XLIII, rule 1 against the decision taken under rule 10 of Order VIII. In case where this power is exercised arbitrarily or without any substantial basis, the appellate Courts always intervene.
6. In the present case, as stated earlier, the suit was for the recovery of Rs.55,000 (Rs. 26,540.96 as a sale price of the 'fertilizer supplied tinder a contract to the defendant/appellant and Rs. 28,459.04 representing the damages for mental torture and loss of reputation). No doubt the defendant/appellant has been grossly delinquent in his conduct to file written statement. But the perusal of the file would show that on both counts the suit could not have been justifiably decreed without recording evidence. The material placed on the file was deficient to sustain the claim of the plaintiff‑, respondent both under the head of price as also of damages. In the case of damages particularly on the ground of mental torture and defamation, cogent evidence was required to substantiate the claim of Rs. 28,459.04. The evidence in this category was also not made available to the Court to enable it to decree the suit ex parte. After proceeding ex parte, as observed earlier, the learned trial ,fudge ought to have recorded the evidence of the plaintiff in support of his claim and thereafter if the claim had been decreed the consequence would l have met the ends of justice because the relief claimed against the appellant involved an enormous amount. In our opinion, therefore, the, learned lower Court has not exercised its discretion under Order VIII, rule 10,; C.P.C. properly and also not acted justly in passing the impugned ex parte, decree.
7. 1n this view of the matter, while accepting the appeal, the impugned judgment of the learned Senior Civil Judge, Mardan dated 12‑5‑1985 is set aside. Since the appellant was seeking an adjournment for filing written statement, he can now do so on payment of Rs.1,000 as costs to the respondent. The costs are directed to be paid by the appellant and thereafter shall be recovered from the person who has been found responsible for failure to file written statement in time notwithstanding adjournments of the case for the purpose. Since the respondent has not come up, therefore, there shall be no order as to costs.
A.A./1390/P Appeal accepted.