MAULVI ANWARUL HAQ, J.--- For the order we purpose to pass in this case, we will not be referring the pleaded facts in detail. Suffice it to say that on 19.1.1995 the plaintiffs/respondents Nos. 1 to 6 filed a suit against the appellants and the remaining respondents for separate possession through partition of their 2/13 shares in the suit property mentioned in the plaint. We may further note here that the present appellants were respectively defendants Nos. 1 and 3 in the suit before learned Trial Court. On 21.3.1995 the appellants put in appearance and were directed to file their written statement on 11.4.1995. It was also noted that the copies of the plaint have been delivered. It was further noted that some of the defendants are still to be served and summons were issued. On 11.4.1995 it was stated that the written statement is not ready. More proceedings regarding the presence of other defendants were noted and appellants were directed to file written statement in any case on 27.4.1995. On this date against written statement was not ready and the learned Trial Court warned the appellants that they should file the written statement on 18.5.1995 and that this will be last opportunity. On 18.5.1995 some detailed proceedings regarding the statement made by one of the defendants and service of some others were recorded.. The appellants were directed to file written statement on 31.5.1995. It appears that this was a holiday and case came-up on 1.6.1995 when it was adjourned to 13.5.1995. On this date it was noted that he learned Presiding Officer is on leave. The case was adjourned to 20.6.1995 for filing of written statement. On 20.6.1995 while the learned Trial Court was about to adjourn the case for reasons recorded the learned counsel for the plaintiffs/respondents appeared within an application for striking off the defence of the appellants.
Now the learned Trial Court adjourned the case to 6.7.1995 for argument on the said application with note that in case the written statement is filed on said date the decision will be given in accordance with law. On 6.7.1995 separate written statements were filed by the appellants. These were taken on record subject to objection of the plaintiffs. The case was adjourned to 23.7.1995 for written reply of the said application and argument. These were heard on 23.7.1995 and case was adjourned for orders on 30.7.1995. Now on this date it was noted by the learned Trial Court that order could not be recorded and the case was adjourned to 14.9.1995 for orders. On this date the learned Trial Court proceeded to strike off the defence of the appellants and to pass a preliminary decree in the suit. The case of course was adjourned for further proceedings for final decree. This appeal in the first instance was filed in the Court of learned District Judge, Rawalpindi, and was returned by the learned District Judge for lack of pecuniary jurisdiction. It was presented before this Court with application for condonation of delay. This application was taken upon 19.6.1996 and after hearing the learned counsel for the parties the delay was condoned and appeal was admitted to regular hearing.
2. Learned counsel for the appellants contends that the impugned preliminary decree having been passed as a result of striking off defence of the appellants is not only illegal but without jurisdiction.
According to the learned counsel the orders striking off defence are not warranted by law. Learned counsel for the plaintiffs/respondents, on the other hand, argues that a perusal of the record would show the persistent conduct of the appellants in trying to delay the proceedings by not filing the written statement despite several opportunities and in terms of provisions of Orders VIII, Rule 1, CPC the defence has been lawfully struck off.
3. We have gone through the Trial Court record with the assistance of the learned counsel for the parties. We have already narrated above the detail of the proceedings that took place before the learned Trial Court. Now Order VIII, Rule 10, CPC authorities a Court to pronounce judgment against any party from whom the written statement is so required and who fails to present the 'same within time fixed by the Court. The learned Trial Court has purportedly acted under the said provision of law.
4. Now it will be seen that there is nothing on record to suggest that a written statement was required by the learned Trial Court in terms of the dictum of the Hon'ble Supreme Court of Pakistan in the case of Sardar Sakhawat-ud-Din and others v. Muhammad Iqbal and 4 others (PLJ 1987 SC 537) and confirmed in the case of The Secretary, Board of Revenue v. Kha/id Ahmad. Khan (1991 SCMR 2527). Besides, it is an admitted position that the written statement had in fact been filed by the appellants and is present on record.
5. Now coming to the provisions 'of Order VIII, Rule 1, CPC being relied upon by the learned counsel for the respondents and of curse the learned Trial Court in the impugned preliminary decree. After the amendment made by this Court vide Notification dated 22.10.2001 the said provision of law reads that defendant shall at or before first hearing or within such time as the Court may permit, present a written statement of his defence. First proviso added by Law Reforms Ordnance, 1972, provides that the period allowed for Wing the written statement shall not ordinarily exceed 30 days.
Second proviso added by this Court provides that not more than two adjournments shall be granted for presenting the written statement. A plain reading of the said provision would show that same restricts the powers of the Court in the matter of time to be allowed for filing the written statement and further the number of adjournment's that can be granted for presenting the written statement. Both the provisos are relatable exclusively to the Court and its acts. Now no, consequence has been provided where the Court proceeds to grant time in excess of 30 days or grant more than 2 adjournments. This being so, the only provisions to be resorted to and the circumstances warranting striking off the defence are provided for only in the said Rule 10 of Order VIII, CPC which unlike Rule 1 speaks of requirement of the Court which is not existing in the present case as observed by us above.
6. We, therefore, do hold that the written statement having been filed by the appellants and there having no order requiring written statement within the Meaning of law, the impugned order of the learned Trial Court striking off the defence and pronouncing the judgment against the appellants are illegal and void. The RFA is accordingly allowed. The impugned order and preliminary decree are set aside. The result would be that the suit filed by the plaintiffs/respondents shall be deemed to be pending before the learned Senior.
Civil Judge, ,Rawalpindi, where the parties shall appear on 9.3.2004. Records of the learned Trial Court shall be immediately remitted back to. The learned Senior Civil Judge alongwith a copy of this judgment. He shall frame issues arising out of the pleadings of the parties and proceeded to record evidence and decide the suit before the commencement of summer vacation 2004. No order as to costs. .