Shaikh ABDUL HAMID vs KHURSHID AHMAD
This appeal by leave of the Court arose from a pre-emption suit where the defendant's defense was struck off under Order VIII Rule 10 of the Code of Civil Procedure 1908 and the suit was decreed without recording any evidence. The core legal question examined was whether a suit can be decreed without recording evidence upon the striking off of a defense. The Supreme Court acknowledged that ordinarily a decree cannot be passed without recording evidence under such circumstances. However, upon examining the merits of the case and inquiring into the appellant's actual defense in the pre-emption suit, the appellant's counsel conceded that the respondent possessed an admittedly superior right of pre-emption under the applicable repealed law and that no sustainable defense existed. The Court held that since the appellant had no valid defense on merits, remanding the matter would serve no useful purpose. Consequently, the leave to appeal was withdrawn and the appeal was disposed of without any order as to costs.
- Can a suit be decreed without recording any evidence after striking off the defense of a defendant under Order VIII Rule 10 of the Code of Civil Procedure 1908?
- Will the Supreme Court withdraw leave to appeal and decline to remand a case where the appellant has no valid defense on the merits of the pre-emption suit?
- Order VIII Rule 10, Code of Civil Procedure 1908
1. ' MUHAMMAD AFZAL ZULLAH, C.J.--- In this appeal through leave to the Court the point for examination noted in the order for grant of leave was that "the appellant (defendant) in the suit did not submit the written statement and his defence was struck off under Order VIII, Rule 10, C.P.C. And the suit of the plaintiff decreed without recording any evidence whatsoever. The plea that this cannot be done has the support of this Court's authority in Sardar Sakhawatuddin and others v.
2. Muhammad Iqbal and others (1987 SCM R 1365)".
3. ' The appeal was dismissed for non-prosecution. Today only an application for restoration has been fixed for hearing. For the reasons stated in the application we restore the appeal.
4. ' When called upon to argue the main appeal the learned counsel relied on the case of Sardar Sakhawatuddin and stated that the filing of the written statement could not be denied in this case notwithstanding the adverse comment on the conduct of the appellant. For the same reason the learned counsel contended the defence of the appellant could not be struck off without recording the evidence and the decree could not be passed in favour of the respondent. There is considerable force in the argument of the learned counsel. However, the matter would not end here. When questioned; as to what will be the plea of the appellant in the pre-emption suit filed by the respondent so as to seek its dismissal if the appeal is allowed and the case is remanded (after such a long time) for regular trial, learned counsel very frankly and of course very fairly stated that the appellant might have tried to take some benefit of legal uncertainty regarding the change of the basis of the law of pre-emption in Pakistan through the intervention of the Shariah Forums; namely, Federal Shariat Court and Shariat Appellate Bench of this Court. But now all major controversies have been settled. This is a case in which the repealed law would be applicable and it would not at all be possibe for the appellant to non-suit the respondent. He had admittedly superior right of pre-emption. We, accordingly, finding no force in this case, in so far as the real merits thereof are concerned, the leave to appeal thus in these circumstances is withdrawn and this appeal stands disposed of. There shall be no order as to costs.
Cited by 2 cases
- METROPOLITAN CORPORATION OF LAHORE Versus LEASE PAK LIMITED 2001 CLC 200
- AZAD HUSSAIN Versus MUHAMMAD HUSSAIN 1994 CLC 1817