GHULAM QADIR vs Haji KHUDA BAKHSH and 6 others

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a plaintiff; against the acceptance by the High Court, of respondents' civil revision. The defence of the respondents/defendants side was struck off on account of their failure to submit a memo. Of address as provided under Order VIII, Rule 12, C.P.C.

2. ' The High Court in a very elaborate judgment after taking into consideration relevant case-law held as follows:-- "In the instant case even though in the "form of address" full particulars were not given but complete addresses of the petitioners were already available on record. It will be pertinent to note that in the application under Order I, Rule 10, C.P.C. Filed by the petitioners for impleading them as defendants' addresses of the six defendants had been mentioned and provided. Thus on the record full addresses of the petitioners were available. The intent and purpose of law thus stood achieved. For this reason no justification in law existed for the learned trial Court to direct the filing of fresh "form of address". Even if the learned trial Court found it fit to direct filing of fresh "form of address" still on 3-5-1982 no justification existed for striking out the defence as it was shown to the Court that the counsel was bed-ridden on account of paralysis. The discretion was thus exercised by the learned trial Court in an illegal manner with the result that the proceedings conducted thereafter excluding the petitioners to defend the suit were illegal. The judgment and decree resultantly passed, cannot, therefore, be sustained."

3. Learned counsel while pressing this petition remained unable to find any error in the impugned judgment in so far as the merits with regard to the plea of striking off of the defence is concerned.

4. He, however, relied on Saghir Ahmed and others v. Begum Akhtar Akhlaq Hussain and others (1987 SCMR 1923) for grant of leave to appeal; because, as he contended leave to appeal has been granted in the said case also and further that one of the points involved was the striking off of defendant's plea under Order VIII, Rule 12, C.P.C.

5. ' The perusal of the judgment in the case of Saghir Ahmad shows that it is distinguishable. The main question for grant of leave to appeal related to the competency of the High Court to grant relief in that case in its writ jurisdiction. In the present case the High Court exercised its revisional jurisdiction. On the question of discretion also we find that the provision of the C.P.C. In question makes the party, "liable to have his defence, if any, struck out". The proper and beneficial interpretation of this punitive provision relating to a procedural step would permit the word "liable", to be construed as creating only a possibility and not a mandate. That being so, as adjudged by the High Court, the learned Court below had committed such error which needed to be corrected by the High Court in its revisional jurisdiction. Leave to appeal, accordingly, is refused.