Mst. SAT BHARAI Versus Mehar SHER MUHAMMAD

AHMAD NADEEM ARSHAD, J.--- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 , the petitioner has called in question the validity and legality of judgment and memo of cost dated 01.11.2024 pursuant whereto revision petition filed by respondent No.1 was accepted.

2.Tersely, necessary facts forming background of the proceedings in hand are that respondent No.1 instituted a suit for declaration along with consequential relief against the petitioner. During the pendency of the suit, the respondent No.1/plaintiff filed an application for striking off right of defence of the petitioner/defendant on account of filing written statement beyond the period of 30-days. Learned Trial Court, after taking reply from the other side and hearing both sides, dismissed the application vide order dated 17.02.2024. Feeling aggrieved, respondent No.1 preferred a revision petition which was allowed by the learned Revisional Court and findings of the Trial court were accordingly reversed. Being dissatisfied, the petitioner has filed instant Writ Petition.

3.Heard. Record perused.

4.After hearing learned counsel for the parties and going through the record, it has been observed that undoubtedly under Section 26-A of the Code of Civil Procedure, 1908, the petitioner being the defendant was bound to file written statement within a period of 30-days from her first appearance in the Court. The rationale behind this legislation was to cut short the litigation. However, before invoking the penal provision, the conduct of the defendant must be carefully scrutinized. It is essential to assess whether the delay was deliberate, part of a strategy to seek unnecessary adjournments, or aimed at prolonging the litigation. If the record reveals that the defendant had acted with bona fide intent, made efforts to comply with procedural requirements, or was prevented from timely filing the written statement due to genuine and unavoidable circumstances, then strict penal action may not be warranted. On the other hand, if it is found that the defendant consistently sought adjournments without sufficient cause or showed a pattern of disregard for the court s directions, such conduct may rightly attract the consequences contemplated under the law. Therefore, a balanced and contextual approach is necessary, where the overarching goal of ensuring a fair trial and preventing misuse of procedural safeguards is duly maintained.

5.In this particular case, suit was instituted by the respondent No.1 which was first time taken up by the Court on 25.08.2021. The petitioner turned up before the Court in response to her summoning and the proceedings started in the application of the respondent No.1/plaintiff for grant of ad-interim injunction wherein the Court appointed Local Commission to ascertain possession at spot. Thereafter, objections were filed over the report by the petitioner and the proceedings went on. However, on 04.10.2021 the Court observed that so far written statement/written reply has not been submitted on behalf of the defendant and adjourned the case for submission of written statement for 12.10.2021. Petitioner filed written statement and written reply on the date fixed i.e. 12.10.2021 without any delay or further adjournment.

6.The record clearly reveals that the petitioner s conduct throughout the proceedings was neither dilatory nor obstructive. The petitioner did not seek any unwarranted adjournments and complied with every order of the Court in letter and spirit. The timeline of events establishes that the Court itself extended time for filing the written statement by granting a specific date, and the petitioner filed the same within the extended period. Therefore, the Trial Court, while exercising its judicial discretion, rightly dismissed the application for striking off defence filed by respondent No.1 and permitted the suit to proceed on merits.

7.The Revisional Court, however, interfered with this discretionary order and reversed it solely on the premise that the written statement was not filed within the thirty-day period as prescribed under Section 26-A of the Code of Civil Procedure, 1908. While it is true that Section 26-A mandates filing of written statement within thirty days of first appearance, the provision must be interpreted in the context of actual court proceedings, not in a vacuum. In the present case, although the petitioner appeared on 25.08.2021, the matter remained focused on the injunction proceedings, and the issue of filing of written statement was not pressed until 04.10.2021. The Court, on that day, did not impose any penalty for delay but instead adjourned the case to 12.10.2021 specifically for submission of written statement. It is a well-settled principle of law that when a Court grants time for a procedural step, either expressly or by implication, and the party complies within the given time, no penal consequence can follow.

8.The law is equally clear that procedural provisions are intended to advance the cause of justice and not to thwart it. In the absence of mala fide, contumacious conduct, or abuse of process, a party should not be deprived of the right to defend a lis. The Courts must avoid adopting a rigid or overly technical interpretation of procedural rules when such interpretation may defeat substantive justice. The object of Section 26-A, C.P.C. is to curb frivolous delays and abuse of the process of court but not to punish litigants who have complied with court directions and participated in proceedings in good faith.

9.It is settled principle of law that Rules framed in the Code of Civil Procedure/Rules are made for the advancement of justice and they should not, as far as possible, be allowed to defeat the ends of justice. In a case titled S.D.O/A.M., Hasht Nagri Sub-Division, PESCO, Peshawar and others v. Khawazan Zad (PLD 2023 Supreme Court 174) , the apex Court observed that " The courts, thus, always lean in favour of adjudicating the matters on merits rather than stifling the proceedings on procedural formalities. The rules of procedure are meant to facilitate the court proceedings for enforcing the rights of litigants, not to trap them in procedural technicalities for frustrating their rights. They are the tools to advance the cause of justice and cannot be used to cause the miscarriage of justice ."

10.The Hon ble Supreme Court of Pakistan in a case titled Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar (PLD 1975 SC 678) held that mere technicalities, unless offering insurmountable hurdles, not to be allowed to defeat the ends of justice . Same view has been laid down by the Hon ble Supreme Court of Pakistan in a case titled Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) . Reliance is further placed on the case titled Muhammad Sarwar v. Abdul Ghani (1980 CLC 946) .

11.In view of the above, the learned Revisional Court failed to appreciate the discretionary nature of the Trial Court s order and substituted its own judgment without any finding that the Trial Court had acted arbitrarily, illegally, or without jurisdiction. Such substitution of discretion, without pointing out any illegality or perversity, is impermissible in revisional jurisdiction. Furthermore, the impugned order striking off the defence has far-reaching implications on the valuable rights of the parties and should not have been passed in the absence of compelling and conscious disregard of procedural obligations by the petitioner.

12.As an inevitable corollary of above discussion, this petition is allowed . Consequently, impugned order passed by the learned Revisional Court is set-aside and defence of the petitioner is restored.

SA/S-80/L Petition allowed.