SAGHIR AHMAD And Others vs Begum AKHTAR AKHLAQ HUSSAIN And Other

ORDER

SAAD SAOOD JAN, J--The petitioners filed a suit inter alia for a declaration to the effect that they were owners in possession of a house situate in Gulberg, Lahore. The suit was resisted by respondents Nos.1 and 3. Alongwith their written statement they did not file a statement containing their addresses and the names of their legal heirs as required by Rules 11 and 13 of Order VIII, Civil Procedure Code. The petitioners referred to this omission in their replication and asked the trial Court to strike off the defence of the respondents as provided in Rule 12 of the same Order. However within a fortnight of submission of the replication the said respondents filed the required statement containing their addresses as well as the list of their legal heirs.

2. To begin with, the trial Court framed a number of preliminary issues. Two of the issues dealt with the effect of non-filing of the statement of addresses by the respondents alongwith their written statement. The trial Court held that even though the filing of a statement containing the addresses of the defendants and a list of the legal heirs was a mandatory requirement of law, bit it stood complied with as soon as the respondents when informed about the omission supplied the same.

Accordingly, it declined to strike off the defence of the respondents.

3. From the order of the trial Court the petitioners preferred a revision petition before the Additional District Judge. The learned Additional District Judge took a contrary view of the matter and held that the learned trial Court had not exercised his discretion properly when he declined to strike off the defence of the respondents. In order to give relief to the petitioners he withdrew the suit from the trial Court to his own file, struck off the defence of the respondents and decreed the suit of the petitioners.

4. The respondents challenged the legality of the order of the Additional District Judge in writ jurisdiction in the High Court. A learned Singe Judge set aside the order of the learned Additional District Judge holding that the latter could not interfere with the discretion exercised by the trial Court and that in any event it was not mandatory for the trial Court to have struck off the defence of the respondents merely because they had failed to provide the list containing their addresses and the names of their legal heirs. The learned Single Judge also took the view that the Additional District Judge was not competent to transfer the suit to his own file. Accordingly, he remanded the case to the trial Court for, disposal in accordance with law. The petitioners seeks leave to appeal from this Court from the decision of the learned Single Judge.

5. It is contended on behalf of the petitioners that the decree passed by the Additional District Judge was appeal-able and for that reason the learned Single Judge ought not to have permitted the respondents to invoke the constitutional jurisdiction of the High Court. It is also contended that the learned Single Judge was not right in holding that the Additional District Judge was not competent to withdraw the suit to his own file. In support of this contention reliance has been placed upon the case of Abdul Samad v. Muhammad A.I PLC 1977 Lah. 687.

6. The contentions raised on behalf of the petitioners need examination. Leave to appeal is granted.

Security for costs in the, sum of Rs.2,500. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents. During the pendency of the appeal further proceedings in the trial Court are stayed.