ABDUR RASHEED Versus RAFEEQ MUHAMMAD
ABDUL LATIF KHAN, J.--- Through the instant petition, the petitioner has called in question the order dated 29.4.2009 of the learned District Judge, D.I. Khan vide which he dismissed the appeal of petitioner in limine and maintained the order dated 25.3.2009 passed by the learned trial court.
2. Short facts of the instant revision petition are that the respondent No.1/plaintiff filed a suit for declaration against the petitioner and other respondents detailed in the heading of the plaint. On 25.3.2009, the learned trial court struck of the defence of the petitioner. The petitioner aggrieved from the order of learned trial court preferred an appeal before the learned appellate court, which was dismissed on 29.4.2009 in limine, hence the present revision petition.
3. Learned counsel for the petitioner contended that the learned lower courts below have committed illegality while appreciating the law relating to the issue involved in the instant matter. He contended that the petitioner was wrongly placed ex parte and was under the impression of proceedings adjourned for the attendance of defendant No.2. He contended that the learned trial court was under obligation to pass a specific order for filing written statement before striking of the defence which is lacking in the instant case. He contended that the learned appellate court has not afforded opportunity of hearing to the petitioner. He prayed for reversal of both the judgments and decrees passed by the learned courts blow and prayed for permission to defend the case by filing his written statement.
4. As against that, the learned counsel for the respondent No. 1/plaintiff contended that the defendant remained lethargic during the entire proceedings. He contended that the petitioner was given ample opportunity for filing written statement with imposition of fine for more than months but kept on obtaining adjournment and was not serious to file written statement and has not cooperative for smooth running of the matter has come to the court with unexplained delay for the reversal of the order of the learned lower courts. He argued that the instant petition being misconceived, be dismissed with cost.
5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.
6. Perusal of the record shows that the defendant No.2 was placed ex parte on 04.11.2008 and on the date fixed written statement was not filed by defendant No.1 and the case was relisted for 18.12.2008, which was again adjourned to 19.01.2009 for written statement. On 19.01.2009 once again the case was adjourned to 04.2.2009. Though on both the dates in proceedings before the learned trial court, petitioner attended the court but could not filed written statement as ordered by the court, however, on 04.02.2009 once again adjournment sought for filing written statement which was allowed with last chance and the case was relisted for 23.2.2009. On 23.02.2009 once again adjournment sought for filing written statement, which was allowed on the payment of cost of Rs.200/- and the case was adjourned to 11.3.2009. On 11.03.2009 once again written statement was not filed and adjournment was granted on the payment of cost of Rs.300/-and the matter was relisted for 25.3.2009. On 25.3.2009 again written statement was not filed despite numerous adjournment and thereafter the court was left no option but to struck off the defence of petitioner/defendant No.1. Against that order, the petitioner filed appeal which was also dismissed in limine on 29.4.2009. Order VIII, rule 10, C.P.C. provides period of thirty days for filing written statement falling which the defence of the defendant shall be struck off forthwith. In the instant case numerous adjournment was given to the petitioner but no serious effort has been made by the petitioner/defendant No.1 for filing written statement. Order VIII, rule 10, C.P.C. is reproduced below:‑
10. Procedure when party fails to present written statement called 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 ."
7. Order VIII, rule 10, C.P.C. provides mechanism where party failed to file written statement called for by the court. The court has to pronounce the judgment against him forthwith or make such other order. It is discretionary with the court to apply these penal provision, when written statement has not been filed despite specific order to this effect, apart from imposition of cost and last chance given in this regard. The right to file written statement has been struck off but right to appear in proceedings remains intact and party who has failed to file written statement, can join the proceedings at any stage and even cross-examine the evidence produced by the plaintiff. The learned trial court being acquainted of facts, has observed the conduct of petitioner/defendant No.1 and has rightly exercised the power to struck off the defence of the petitioner/defendant No.1 and the same has been upheld by the learned appellate court to which no illegality or infirmity has been pointed out by the learned counsel for the petitioner.
8. For the foregoing reasons, the present revision petition being without any substance, is hereby dismissed.
ZC/423/P Revision dismissed.