MUHAMMAD ANWAR KHAN and 5 others vs Chaudhry RIAZ AHMAD and 5

1. TANVIR AHMED KHAN, J.---Leave to appeal is sought against the order dated 11-10-2000 passed by Lahore High Court, Rawalpindi Bench, whereby F.A.O. No,89 of 2000 filed by the petitioners was dismissed. Facts briefly narrated for the disposal of this petition are that respondent No,1 Ch. Riaz Ahmed filed a suit for damages of Rupees 50 crores against 12 persons before the Senior Civil Judge, Chakwal, on 25-2-1999. A routine order was passed for the first time on 25-2-1999 and notices were issued for 10-4-1999. On 10-4-1999 defendants No s.1 to 7 and 9 to 12, except defendant No,8, entered appearance and a routine order was passed for submission of written statement. The case was accordingly adjourned to 3-5-1999. On the said date, the learned trial Judge was again on leave and the case was adjourned to 17-5-1999. On 17-5-1999 written statement was filed on behalf of petitioners-defendants. An application was filed on 12-6-1999 for striking off defence of the petitioners-defendants as the written statement was not filed by them within a period of one month. Reply to this application was filed by the petitioners-defendants. The learned trial Court vide order dated 4-3-2000 accepted the application for striking the defence of the petitioners on the ground that they had not bothered to sign the written statement. The petitioners filed F.A.O. No,89 of 2000 before the High Court, which has been dismissed through the impugned order.

2. We have considered the contentions of the learned counsel appearing for the petitioners. None has appeared for the respondents despite notice and as such they have been proceeded ex parte. We have noticed that the learned Single Judge has dismissed F.A.O. On the ground that the petitioners-defendants neither signed their written statement on their behalf nor any request was made by them asking the trial Court to permit them to sign the same. Since they did not sign written statement, as such learned Judge was of the view that no indulgence should be shown to them and discretion exercised by the learned trial Court was apt and proper. We are sorry to hold that this sort of approach to determine the lis is not appreciated. The duty of the Court is to do substantial justice and in this case the petitioners have been made to suffer simply on a technical ground. The learned trial Court could have passed an order asking them to sign the written statement when they were represented by a lawyer. Even otherwise, we have noticed that there was only a routine order for filing of written statement and for such a routine order consequences as envisaged under Order 8, rule 10, C.P.C. Are not attracted. It has been repeatedly held that penal consequences of this provision should only be applied in respect of cases where the written statement was required by the Court through a speaking order. Reliance in this respect is placed upon Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others PU 1987 SC1537 equivalent to 1987 SCM R 1365; Mst. Hakumat Bibi v. Imam Din and !Others PLD 1987 SC 22; Azad Hussain v. Haji Muhammad Hussain PLD 1994 SC 874; The Secretary, Board of Revenue. Punjab.

3. Lahore and another v. Khalid Ahmad Khan 1991 SCMR 2527: Lahore Municipal Corporation v. Messrs Awan Contractors and others 1989 SCM R 107 and Shafi Muhammad v. Muzaffar-ud-Din and others 1990 SCM R 530. The petitioners-defendants were never required by the trial Court in that sense to file this statement.

4. Apart from this, it is time and again stated by this Court that rules and regulations are only meant to streamline the procedure and administer the course of justice. They are not there to thwart the same. The Courts have always preferred a decision of a cne on merits and technical knock-out has always been discouraged. In this case much of the time of the Courts has been wasted on a very trivial issue which could have been resolved simply by passing an order calling upon the petitioners-defendants to sign their written statement. Reliance in this respect is placed upon Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 where it was held that mere technicality unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. A F learned Full Bench of the Lahore High Court while dealing with technical objection stated as under:-- "The proposition could hardly be disputed that the principal objection behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.

5. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fide." After observing this the learned Judges reproduced the following paragraph from the judgment of Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382: "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."

6. Reference is also made to Nazir Ahmed and another v. Muhammad Din and another 2000 SCM R 440 and Imran Ashraf and 7 others v. The State 2001 SCM R 424.

7. Accordingly, we convert this petition into appeal and accept the same; set aside the orders dated 4-3-2000 and 11-10-2000 and the case is I remitted to the trial Court to be decided on merits.