1. ' Through this application, the learned counsel for the plaintiff seeks an order, striking off the defence of the defendants arid pronouncing of judgment under Order VIII, rule 10, C. P . C .
2. ' The relevant facts contained in the affidavit sworn by one Yousaf Raza partner of plaintiff are that, in this case summons were served on the defendants on 25-5-2001. The Additional Registrar (O.S.) held service good and allowed four weeks' time for filing of written statement. According to the plaintiff none appeared on behalf of defendants on 25-5-2001. It is further contended that according to proviso to Order VIII, rule 1, C.P.C., the period allowed for filing the written statement shall not ordinarily exceed 30 days. 22 days have already passed to the service of summons on 25- 5-2001 but the Additional Registrar allowed four weeks time. It is further contended that under Rule 157 of Sindh Chief Court Rules (O.S.) one extension only is to be allowed by the Additional Registrar.
3. The second or any further extension can be allowed on an application stating sufficient grounds for extension. No such application was submitted. On 11-7-2001, the defendants 1, 2 and 3 were represented by their counsel for the first time and learned counsel undertook to file Power of Attorney on behalf of defendants and acknowledged the receipt of plaint. On 6-3-2001 the plaintiff submitted the present application seeking pronouncement of judgment against the defendants on account of their failure to file their written statement within four weeks as per order dated 25-5- 2001. On 13-9-2001 written statement was filed on behalf of defendants Nos: 1 and 2. The written statement on behalf of defendant No,3 was filed on 13-11-2001. Objections have been filed on behalf of defendants Nos.1 and 2 to the effect that the Court had not passed any order on 11-7-2001 when the learned counsel for the defendants appeared before the Court therefore, the provisions contained in Order VIII, rule 10, C.P.C., are not attracted.
4. ' Heard learned Advocates for the parties. The learned advocates have addressed very lengthy arguments. I am of the opinion that the point in issue already stands decided conclusively by the Hon'ble Supreme Court in the case of Sardar Sakhawatuddin v. Muhammadd Iqbal, 1987 SCM R 1365 and has been followed in the case, of Secretary, Board of Revenue, Punjab v. Khalid Ahmed Khan, 1991 SCMR 2527.
5. ' The facts in the case of Sakhawatuddin (supra) were that the defendants were required to put in written statement, which they failed to do so in spite of several opportunities and therefore, the learned Senior Civil Judge pronounced the judgment against the defendants and decreed the suit under the provisions of Order VII, Rules 10, C.P.C. The defendants preferred appeal before the learned Additional District Judge, Lahore, who dismissed the appeal. The appellant then filed Civil Revision in the Lahore High Court which was also dismissed. A contention was raised before the Hon'ble Supreme Court that the date was fixed for filing of written statement on the request of the appellant and the. Court had passed no order for compulsory filing written statement so as to invoke the provisions contained in Order VIII, rule 10, C.P.C. And, therefore, the pronouncement of judgment was not justified. The Hon'ble Supreme Court held as follows:-- "Order VIII, Rules 1, 9 and 10 read as follows:--
(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 may permit, present a written statement of his defence: Provided that the period allowed for filing the written statement shall not ordinarily exceed ninety days.
9. Subsequent pleadings.---No pleading subsequent to the written statement of the defendant other than by way of defence to set off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
10. Procedure when party fails to present written statement called for by Court. ----Where any party from whom a written statement is so required fails to present the same within the time fixed by Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
6. ' It is clear from the combined reading of Rules 1 and 9 that amongst other three types of written statements can be filed by a defendants:
(1) As a right without any formal permission of the Court (Rule 1).
(2) When it is so required by the Court to file a written statement, (Rule 1 and Rule 9).
(3) When under some circumstances it is by the leave of the Court (Rule 9).
7. ' It is obvious from Rule 10 that no adverse results under these rules are to follow on failure to file written statement in cases mentioned in Items Nos.1 and 3 above. But penal consequences of "pronouncement of judgment against him" when the defendant fails to file written statement when "so required" -- as is indicated in Item No,2 above, would follow.
8. ' As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, rule 3 which is similarly penal in nature. See Industrial Sales and Services, Karachi and another v. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar.
9. 418.
10. 'Rule 10 is in two parts. No doubt under the first part a judgment can be pronounced against the defendant, but it will be pronounced only if it can be so done under the law. For example, if the suit is for enforcing a contract or obtaining any other relief which is prohibited by law expressly or impliedly, the judgment could not be pronounced. Similarly no decree, could be passed if there is no cause of action shown in the plaint or the material placed before the Court or relied upon by the plaintiff even if not in the form of evidence will make it a case of no evidence (if the trial is taken its logical ends). Hence, in all such cases and other similar cases it will be impermissible for the Court to proceed under the first alternative. The proper course then would be to proceed under the second alternative. It will be in rare cases, when, on account of the material placed on record that it would not only be legal but also just and fair, on the merits of the case, that judgment is pronounced under the first part. Otherwise, in the cases like the two before us it would not be proper to prpceed under the first part. Like rule 12, rule 10 also creates a liability and it is not mandatory for the Court to pronounce judgment or strike off the defence. The matter being in the discretion of the Court the penalty should not be imposed without a compelling reason but as emphasized above that too not without satisfying the conditions as are being discussed e.g., even then it is not mandatory to pronounce judgment without satisfaction of the Court that it is good case on merits for doing so.
11. ' 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 were "required", by the Court. It was neither as of right (rule 1) nor as result of permission (rule 9). The use of word "required" is not without significance. It 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 subject 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. In this connection, it is made clear that whenever adjournments are granted for production of a written statement which can be filed as of right under rule 1 or which is permitted to be filed under rule 9, that would, not satisfy the law regarding the "requirement" of the Court: "It is only the written statement which is 'required' and that too by the Court' by a speaking order, which would entail the penal consequences of rule 10. In these two cases it has been admitted before us that these requirements have not been fulfilled."
12. ' The order was set aside and the case was remanded to the trial Court for further proceedings.
13. ' The narration of facts contained in the affidavit sworn on behalf of plaintiff shows that the requirements for pronouncement of judgment under Order VIII, rule 10, C.P.C. Have not been fulfilled in this case and consequently, I am of the opinion that it is not a fit case in which the discretion for pronouncement of judgment against the defendants under Order VIII, rule 10, C.P.C. May be exercised. The application stands dismissed accordingly. The defendants have already filed the written statements and, therefore, the office is directed to fix the case for framing of issues.