Liaqat Ali VS Zarafat Ali, etc.

FAO No.85 of 2007

FORM NO.HCJDIC

JTJDGMEffT SHDDT

IN THE ISLAMABAD HIGH COURT'

ISLAMABAD

JUDICIAL DEPARTMENT

CASE NO.F.A.O. No.85 of 2OO7

Llaqat All Versus Zatafat Ali etc

Date of hearins: 28.10.2008

Appellant bv: Mr. Muhammad Asad Raipoot' Advocate' Respondenfs bY;' Mls Shehzad ShaukSt. Ailvocate & Mian lshtiaq Hussain. Advocate'

' :- The resPondents filed a Authority and Director' suit against the petitioner, capital Development for declaration, Estate Management, capital Development Authority cancellation of documents, possession, recovery of mense profit and After permanent injunction in the court of civil Judge, lslamabad' before the service of summons, defendants for the first time appeared Advocate Trial Court on 19.10'2006, Mr. Muhammad Asad Rajpoot, Learned Trail filed his power of attorney on behalf of the petitioner' Judge adjourned the case for 27.11.2007, for filing the written Presiding officer of statement by the defendants. on 27.11.2007, the by the Reader of the court was on leave and the case was adjourned Trial Judge the court to 16.01 .2007. On 16.01 .2007, the learned it would be the adjourned the case for 17.02.2007 with a warning that last opportunity for filing the written statement. on 17 '02'2007, an

of the plaint was application under order 7 Rule 11 CPC for rejection for filing filed by the petitioner. The case was adjourned to 28.03'2007 shows that cDA reply to the application. The order dated 28.03.2007

filed written statement and written reply to the injunction application'

TheplaintifffiledanapplicationunderorderlRulel0cPc'Thecase adjourned to 09.05.2007 tor filing replies to applications under was 11 CPC' The order dated Order 1 Rule 10 CPC and Order 7 Rule

og.os.2ooTshowsthatthereplytoapplicationunderorderTRulell CPCwasfiledbytheplaintiff.Sometimewassoughtbythepetitioner forfilingwrittenstatement'LearnedTrialJudgeadjournedthecasefor 05.06.200Twithawarningthatitwouldbethelastopportunity.on 05.06.2007, the case was adjourned lo 24.07.2007 for filing the written

statementandargumentsontheapplication'on24.07.2007,the the written statement' petitioner requested for some more time for filing however, the learned rrial Judge declined the request, struck off the case for 02'10'2007 defence under order 8 rule 10 cPc and fixed for arguments on application under Order 7 Rule 11 CPC' The through present petitioner challenged the said order dated 24.07 '2007

FAO

2.lhaveheardlearnedcounselforthepetitioneraswellasMr Shehzad Shaukat, Advocate who rePresented the respondents/P lai ntiffs.

3.Learned counser for the respondents raised a preliminary objection that the appeal is not competent' as no judgment was

pronounced against the petitioner. I have held in case reported as

,,Kiran Arif Mian Vs. Kinza Khalid" PLD'2008/11 lslamabad;

"Under Order XLlll, Rule 1(b), the order is appealable only if the iudgment is pronounced against a party failing to file the written statement' ln this case, learned trial iudge, after striking off defence of the petitioner, fixed the case for ex parte evidence of the plaintifflrespondent' Since the iudgment was not pronounced against the petitioner, the appeal is not competent' The

petitioner, therefore, rightly filed the revision petition t,

the appeal could I agree with learned counsel for the respondents that as civil not have been filed. However, r will treat present FAo Revision.

Learned counsel for the petitioner submits that order Vlll Rule

because the 10 cPc could not have been invoked by the trial court in terms of court never required the petitioner to file written statement & 3 0thers Vs' order Vlll Rule I cPc, relies on sardar sakhawatuddin Muhammad Younas Muhammad lqbal & 4 others (1987 SGMR 1365), Vs. Muhammad lqbal & 11 others (2004 CLC 1198), The secretary'

Ahmed Khan Board of Revenue Punjab, Lahore & another Vs. Khalid (1991scMR2527\,WAKorientPowerandLightLtd'Vs. 1954) and westinghouse Electric corporation & others (2002 SCMR Mst. Najma Yasmin and another Vs. Mst. Firdous Khalid and 2 others

(2002 cLc 1085).

on the other hand it is submitted by the learned counsel for the

petitioner to file respondents that learned Trial Judge required the written statement within the meaning of order vlll Rule I CPC when a number of adjournments were granted by the court for the said

purpose, relies on Muhammad waris Vs. Addl' District Judge Limited vs' others (2008 CLC 580), wak orient Power and Light westinghouse Electric corporation & others (2002 SCMR

(PLD 2002

col.(Retd.) Ayub Ali Rana vs. Dr. Carlites Pune & another sc 630), M/s Allied Group Ventures Ltd. Vs. Quality Vision (Pvt') Forest operation Limited & others (PLD 2oo2 Lahore 274), Manager,

(PLD 1992

(Malakand circle) Vs. Muhammad zaman and others peshawa r 173), Azad Hussain vs. Haji Muhammad Hussain (PLD

(PLD 1987

1994 SC 874), Mst. Hakumat Bibi Vs. lmam Din & others

sc 22), Muhammad Munshi Vs. Shahamand (PLJ 1981 Lahore 511)' Addl. Ghief Engineer (Army), okara cantt. Vs. M/s Nasim co' (Pvt')

Ltd. (1991 CLG 1476), Azad Hussain Vs. Haji Muhammad Hussain (1994 CLC 1817), Muhammad Salim Vs. Abdul shakoor (1994 CLC 1911), Muhammad Fayyaz Butt vs. Metropolitan corporation Ltd',

Lahore (1997 CLC 55) and Lahore Development Authority Vs' Haji

Abdul Qadoos (2004 MLD 923).

6.After the Punjab amendment, order Vlll Rule 1 CPC reads as under:-

"Written Statement.

The defendant shall, at or before the first hearing or within such time as the court may permit, present a written statement of his defence;

Provided that the period allowed for filing the written statement shall not ordinarily exceed thirty days' Provided further that no more than two adjournments shall be granted for presenting the written statement".

7.After the amendment, the defendant is under legal obligation to file written statement of his defence at or before first hearing or within such time as the court may permit. The court can require the defendant to file the written statement under Order Vlll Rule I CPC' However, Order Vlll Rule 10 CPC can only be invoked, if the defendant has failed to file the written statement required by the Court in terms of Order Vlll Rule 9 CPC. ln the present case, the Trial Court never required the plaintiff to file the written statement. The adjournments it were being granted by the Trail court for filing written statement but were for the written statement required to be filed under Order Vlll Rule 1 CPC. The phrase, "so required" necessarily refers to order vlll

Rule 9 CPC. !t was held by the Hon'ble Supreme Court in the case reported as 1987 SCMR 1370 which reads as under:- "There is another very important aspect of the matter. All the three types of written statement mentioned earlier do not entail penal consequences. Therefore, it should always be absolutely clear from the proceedings that the written statement on account of which penalty is sought to be imposed was "required", bY he Court. lt was neither as of right (Rute 1) nor as result of permission (Rule 9). The use of word "required" is not without signifiGance. lt does not permit a routine order without application of mind to the "requirement" and/or the need.

Therefore, it is essential that whenever a written statement is to be made subiect of the penal rule 10, there should be proof on record that the Court had "required" it by application of mind to the need and that too in a speaking order. Without the same, many innocent parties would be trapped in a technicality without fully realizing the implications".

8.No speaking order having been passed by the Trail Court after application of mind requiring the defendant to file written statement in terms of Order Vlll Rule I CPC, an order under Order Vlll Rule 10 CPC could not have been passed. The order dated 24.07.2007 passed by the trial court is, therefore, set aside.

9.However, the matter does not end here. Order Vlll Rule 1 CPC provides that no more than two adjournments shall be granted for presenting the written statement. ln this case, the defendant failed to present the written statement although he was granted 415 opportunities. He, therefore, cannot now be permitted to file the written statement.

10.Let me now examine the effect of non-filing of the written statement. Non-filing of the written statement does not amount to t!tra.rtr'^ r'q;Z"

-6- FAO No.85 of 2007

of facts contained in the plaint. Order Vlll Rule 2 CPC provides as under:-

"New fact must be specifically pleaded:- The defendant must raise by his pleading all matters, which show the suit not to be maintainable, or that the transaction is either void or voidable in point of !aw, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing the illegality.

11.Similarly Order Vlll Rule 6 reads as under:- Particulars of set-off to be given in written statement.

(1)Where in a suit for the recovery of money the defendant claims to set-off against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fi!! in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.

Effect of set-off.

(2)The written statement shall have the same effect as a plaint in a cross-suit so as enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shal! not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

(3)The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.

12.ln the absence of the written statement, the defendanUpetitioner will have no right to lead evidence to prove facts not arising out of the

plaint. Similarly, the defendant cannot lead evidence to claim set-off against the plaintiff. However, he has a right to cross-examine the witnesses produced by the plaintiff and he can also lead evidence to disprove the facts stated in the plaint. The FAO (it was treated as Civil Revision) stands disposed of in the above terms.

(Muhammad Judge

Altaf Maltk

Announced in the oPe n Court on: 13

Judge

Approved for reporting.

Judge

Uploaded By : Engr. Umer Rasheed Dar