Mukhtar Ahmed Butt Vs Asghar Lon etc

FORM No. HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

W.P. No. 33436 of 2022 Mukhtar Ahmad Butt Vs. Addl. District Judge, etc. Sr. No. of Date of Order with signature of Judge, and that of order/ order/ Parties’ counsel, where necessary proceedings Proceeding 23.11.2022 Petitioner Mukhtar Ahmad Butt in person.

Through this constitutional petition, petitioner has called in question order dated 27.07.2021 passed by learned Senior Civil Judge (Civil Division), Gujranwala whereby while allowing application of the respondents (Asghar Lone and his family members) “the respondents” for framing of additional issues, request of the petitioner to discard the written statement filed by the respondents, on the ground of having been filed after delay of 53 days, has been declined. Petitioner has also called in question order dated 10.08.2021 passed by Addl. District Judge, Gujranwala whereby appeal filed by the petitioner against the afore-referred order has also been dismissed.

2.It is contended by the petitioner, who is appearing in person, that in terms of the proviso to rule 1 of Order VIII C.P.C. maximum period of thirty days is provided for filing written statement, therefore, written statement filed by respondents/ defendants after the said time period is liable to be discarded, which aspect of the matter had not been given due consideration by the Courts below while rejecting the said claim of the petitioner and allowing application of the respondents for framing additional issues.

3.Perusal of the record shows that respondents filed an application before the trial court to the effect that they had filed their written statement wherein they had raised certain objections upon which while framing issues, certain issues had not been framed and requested for framing of additional issues in terms of objections raised in the written statement. In response to the said application, petitioner who was plaintiff in the suit, had stated that written statement had been filed after 53 days, therefore, respondents had lost their right of defence and issues earlier framed on 17.03.2021 were illegal and finally prayed for dismissal of application filed by the respondents for framing of additional issues.

4.The application for framing additional issues filed by the respondents was allowed on 27.07.2021 by impliedly disallowing the petitioner”s plea of discarding belatedly filed written statement and amended issues were framed with direction to the parties to submit list of witnesses. The petitioner filed appeal against the said order which was dismissed on 10.08.2021. Said order was challenged by the petitioner by filing review application, which was also dismissed on 17.08.2021 and all the afore-referred orders are under challenge through this constitution petition, however, order dated 17.08.2021 has not been appended with this petition but during arguments copy of said order was produced in the Court.

5.In order to appreciate contentions of the petitioner reference to proviso to rule 1 of Order

VIII C.P.C. is necessary, which is reproduced as under:

“1. Written statement. The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court any permit, present a written statement of his defence and with such written statement, or if there is no written statement, at the first hearing shall produce in Court all documents in his possession or power on which he bases his defence or any claim for set-off.

Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days.”

6.The main ground raised by the petitioner to disallow application for additional issues filed by the respondents was that as written statement had been belatedly filed, the same was required to be discarded, hence, by treating that no written statement had been filed, the Court may observe that the issues (i.e. original issues and additional issues) could not be framed, therefore, the said application merited to be dismissed. The defect in the said issues has not been pointed out except the plea of belatedly filed written statement. Although, proviso to rule 1 of Order VIII C.P.C. provides that written statement is to be filed within period not ordinarily exceeding thirty days but the said rule does not provide that written statement filed subsequent to the said period of thirty days is to be discarded. The words used in the proviso are “that the period allowed for filing the written statement shall not ordinarily exceed thirty days”. The phrase “shall not ordinarily exceed” cannot be read as “shall not exceed’ by treating the word ‘ordinarily” as redundant as the same is not permissible under the law as no word in a law could be treated as superfluous or redundant and has to be given effect

to in letter and spirit. Reliance in this behalf may be placed upon judgments reported as “Waqar Zafar Bakhtawari and 6 others Vs. Haji Mazhar Hussain Shah and others” (PLD 2018 SC 81), “Syed Mushahid Shah and others Vs. Federal Investment Agency and others” (2017 SCMR 1218) and “Dr. Zahid Javed Vs. Dr. Tahir Riaz Chaudhary and others” (PLD 2016 SC 637). Reliance may also be placed on the case of “Engineer Zafar Iqbal Jhagra and others Vs. Federation of Pakistan and others” (PLD 2013 SC 224) wherein it is provided that general principle of statutory interpretation was that the language of legislature must not be rendered superfluous. The phrase “shall not ordinary exceed thirty days” gives discretion to the Court to allow a party to file written statement even beyond period of thirty days and when such a discretion is exercised by allowing time to the other party to file written statement which is availed by the said party and written statement is filed within timeframe provided by the Court, the other party cannot raise objection against the said written statement by asking the Court to discard the same as having been belatedly filed. In the present case, the Court had permitted the respondents to file written statement beyond period of thirty days, which the Court was empowered to do in terms of rule 1 of Order VIII C.P.C. which had been availed and the written statement was filed within time provided by the Court. The power of the Court provided under rule 1 of Order VIII C.P.C. to permit a party to file written statement within specified or extended time, as is evident from the phrase “if so

required by the Court, shall, at or before the first hearing or within such time as the Court may permit”, cannot be curtailed by the proviso as a proviso is ordinarily an exception to the general rule and cannot be so interpreted to render the provision of main Section as redundant or ineffective or without any legal effect. Reliance in this behalf may be placed on judgments reported as “Federal Land Commission through Chairman Vs. Rais Habib Ahmed and others” (PLD 2011 SC 842) and “Enmay Zed Publications (Pvt.) through Director General Vs. Sindh Labour Appellate Tribunal through Chairman and 2 others” (2001 SCMR 565) wherein it is provided that proviso to a section operates as an exception and cannot render redundant or ineffective the substantial provisions of the main section. Needless to add that even otherwise the proviso to rule 1 of Order VIII C.P.C. provides discretion to Court to bind defendants to file written statement within thirty days or permit them to file the same beyond the said time period but the same does not curtail, in any manner, the power of the Court to allow a party to file written statement beyond thirty days, therefore, the written statement filed by the respondents in the present case could not be discarded on the ground of having been belatedly filed and the learned Courts below have rightly declined to entertain the said objections raised by the petitioner while allowing application for framing of additional issues and dismissing the appeal as well as review application filed by the petitioner.

7.It is settled by now that discretionary orders passed by the Courts below are not ordinarily interfered with by this Court and order allowing the respondents to file written statement beyond thirty days was a discretionary order and this Court is not inclined to interfere in the said order on that account as well. Reliance in this behalf is placed upon judgments reported as “Malik Hadayat Ullah and 2 others Vs. Murad Ali Khan” (PLD 1972 SC 69), “Shehzada Muhammad Umar Beg Vs. Sultan Mahmood Khan and another” (PLD 1970 SC 139), “Human Right Case No.5818 of 2006 in Re: (action on Press Clipping)” (2008 SCMR 531) and “S. Zafar Ahmad Vs. Abdul Khaliq” (PLD 1964 Karachi 149).

8.As no other objection relating to issues framed by the Court has been raised by the petitioner except delay in filing the written statement, therefore, this Court has restrained itself from commenting upon the legality of issues framed by the Court below, lest it may prejudice the case of either of the parties.

9.In view of what has been discussed above, the impugned orders are well-reasoned and do not suffer from any illegality or jurisdictional defect for this Court to warrant interference in the same, hence, this constitution petition, being devoid of merits, is dismissed.

(MUZAMIL AKHTAR SHABIR)

Judge MuzamilMohsin*

Approved for reporting.