' MUHAMMAD RAZA KHAN, J.--- In this Constitutional petition the decisions of the learned Additional District Judge-I, D.I. Khan, dated 15-7-2002 and that of the learned Civil Judge-III, D.I. Khan, dated 23-1-2001 have been challenged on the grounds that the law permitted the amendment of pleadings at any stage and the refusal to do so was illegal.
2. A suit was filed by Nek Badshah, plaintiff (respondent No,3) for recovery of Rs,50,000 on the basis of an agreement dated 2-6-1997 whereby a motorcycle was sold by the plaintiff to Allah Bakhsh defendant (petitioner) for Rs,68,000 and a sum of Rs,25,000 was paid by the defendant while the remaining amount was payable in two instalments i,e, on 21-6-1997 and 30-3-1998. There was a further stipulation in the agreement that if the balance amount is not paid by 30-3-1998, the defendant shall be liable to pay Rs,50,000 in lump sum. Since the said amount was not paid by the due date, therefore, the suit for recovery of Rs,50,000 was filed. The defendant/petitioner submitted written statement on 26-5-2000 through his counsel Wherein the execution of agreement dated 2- 6-1997 was admitted and the payment of Rs,25,000 was also admitted. The defendant further confirmed that the date for the payment of balance amount was 30-3-1998, however, it was averred that since the plaintiff had already received the balance amount, therefore, the plaintiff was not entitled to recover either the amount due or the sum of Rs,50,000 as claimed.
3. On 27-7-2000 the defendant/petitioner filed an application for amendment of the written statement for raising a counter-claim that the defendant had sold a tractor to the plaintiff for Rs,3,50,000 and after adjusting the balance amount of Rs,38,000 for the said balance amount of motorcycle, the remaining amount of Rs,3,12,000 was due from the plaintiff. It was further proposed to be added in the amended written statement that the plaintiff had agreed to transfer his land in lieu of the price of tractor but on verification it was found that the land was merely occupancy tenancy rights and the plaintiff was not the owner of the land.
4. This application was contested by the plaintiff and after getting a reply and hearing arguments, the application for amendment of written statement was rejected by the learned Civil Judge-III, D.I.
Khan vide order, dated 23-1-2001 holding therein that the defendant intended to amend each paragraph of the written statement whereby all the contents thereof shall be changed by the introduction of an altogether different defence. This order was challenged and the learned Additional District Judge-I, D.I. Khan, vide detailed order, dated 15-6-2002, dismissed the revision petition. In the revisional order it was held that the proposed amendment was contrary to the admitted agreement as well as it related to a transaction which had never taken place because the defendant admits that due to defect in the title of land, he had not delivered the tractor to the plaintiff. This decision has been challenged through the present Constitutional petition.
5. The learned counsel for the petitioner argued that the amendment in the pleadings is permissible at any stage of the proceedings and that by way of amendment, the nature of the suit will not be changed. He added that permission to amend the written statement was an established practice and that the request for the amendment was made at the initial stage of hearing of the case when the evidence had not yet been recorded. While explaining the need for amendment, he contended that if certain facts are not allowed to be raised in the written statement, the petitioner would not be allowed to produce evidence with regard to such facts and therefore, he will be deprived of his legal rights.
6. The learned counsel for the respondent objected to the maintainability of the Constitutional petition as well as to the bona fides of requesting for amendment in the written statement.
7. In this case there are three very important issues to be resolved, firstly, is the amendment bona fide and justified? Secondly, should the amendment be allowed and thirdly, whether the Constitutional petition is maintainable?
8. The record indicates that the suit was filed on 19-5-1999 and summonses were issued for 21-6- 1999. On 21-6-1999, the defendant appeared and the case was adjourned for the submission of written statement to 14-7-1999. On that date a request was made for adjournment to enable the defendant to file a written statement. The case was adjourned for two months and on 15-9-1999, instead of submitting a written statement, a miscellaneous petition indicating the non-payment of proper court-fee and for rejection of plaint under Order VII, Rule 11, C.P.C. Was made. On 7-3-2000 the plaintiff was directed to affix the required court-fee within one month. On 8-4-2000 both the parties, including the defendant, were present in person and again a request was made for adjournment to submit a written statement. On 23-5-2000 written statement was again not submitted and the learned Court granted last chance for the production of written statement on 26-5-2000. At last the written statement was presented on 26-5-2000 and the case was adjourned for recording the evidence of the plaintiff. On the next date of hearing, the said application for amendment of written statement was made which is in process till today. This would indicate that initially the defendant took almost eleven months for the submission of written statement and thereafter by moving a frivolous application, the matter was further prolonged for five years. So a simple money suit has been delayed for almost six years and still the process is at square one. This amounts to the gross misuse of the process of law.
9. Rule 1 of Order VIII, C.P.C. Provides for the manner and time of submission of written statement, which reads:-- "(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 thirty days."
This indicates the intention of the Legislature that the written statement shall be filed:--
(a) preferably before the date of first hearing,
(b) positively at the first hearing, or
(c) in extraordinary situations the Court may allow time for the filing of written statement.
(d) however, the Court shall not allow time for this purpose beyond thirty days.
' The term "shall" in the proviso to rule 1 indicates the will of the Legislature that written statement must not be accepted beyond thirty days of the first hearing. If the written statement is not submitted within the said period, "the plaint is to be taken as uncontroverted". PLD 1996 Lah.
523. Although by taking benefit of the term "ordinarily" in the said proviso, one can feel comfortable that it has diluted the mandatory effect of the term 'shall not', but it does not mean that the term "ordinarily" has entirely relaxed the prescription of period of "thirty days". The period may exceed by a couple of days in exceptional circumstances but the delay for several weeks or months was certainly undesirable. By taking shelter of the interpretation that in procedural matter the term "shall" is directory and not obligatory. The Court have unfortunately adopted an unusual attitude of ignoring the real intention of law. If the law has prescribed a time limit in terms of days, it can be relaxed for some days only. The delay of eleven months in the submission of written statement was certainly not permissible by the law and by accepting the written statement at such a belated stage the "proviso" to rule 1 of Order VIII, C.P.C. Was openly violated.
10. Moreover Rule 10 of Order VIII, C.P.C. Also provides that if the party fails to submit written statement within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. There is no possibility of adjourning the matter seven times to afford opportunity and the "last opportunity" for filing written statements. Court delays have become the major ground of criticism against our system of administration of justice.
This can be rectified by a collective effort to plug every leaking point so that the delay can be reduced as far as possible. The delay in submission of written statement, the filing of miscellaneous petitions, the frequent adjournments for the production of evidence, the lack of application of mind for choosing the proper mode of summons, the failure to avail the facility of Rule 10-A of Order V, C.P.C. For the issue of several processes of service simultaneously, the unnecessary insistence of proving certified documents by oral evidence of official witnesses etc. Etc., are some of the areas mainly responsible for causing delay in the disposal of civil suits. The due attention to these issues can certainly curtail the delay.
11. This was a simple suit for recovery of money based on an agreement. Section 128(2)(f) of the C.P.C. Provides, for the summary disposal of certain type of cases which are:- "(f) Summary Procedure--- (i) in suit in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising---on a contract express or implied; or on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only; or on a trust; or
(ii) in suits for the recovery of immovable property, with or without a claim for rent or mesne profits, by a landlord against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such tenant:" (the underlining indicates the provision relevant to the case in hand)
When the law requires a thing to be done in particular manner, it will be lawful only if it is done in the same manner and not otherwise. The spirit of summary procedure is to finalize a matter on the very first day of hearing or at least within a couple of days or weeks thereafter. The delay of 11 months in the submission of written statement cannot be justified in summary trial cases. By the way, such delay is not permissible in normal cases too. The procedure for summary trial of civil matter as required in section 128 of the C.P.C., can be gathered by the cumulative effect of Order V, rule 5, Order X, Order XV and Form No,1 of Appendix "B" of the C.P.C. A mechanism has been prescribed that 'in suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant ... Arising of a contract express or implied (section 128(2)(t)(i), C.P.C.), "the Court shall determine at the time of F issuing the summons whether it should be for ...
The final disposal of the suit; and the summons shall contain a direction accordingly" (Order V, rule 5, C.P.C.). The summons contained in Form No,1 Appendix "B" of C.P.C. Should be issued in such cases. At the first hearing of the suit the parties should be heard in compliance with Order X read with Order XV, C.P.C. Had the Court applied the mind and issued the summons for final disposal of the case, the matter would have been decided on 21-6-1999 or immediately thereafter. However, by omitting to comply with the legal provision initially, the matter has already been delayed for six years and is likely to consume considerable more time. In such a situation, one can appreciate the agony of the plaintiff and the depreciation in the value of Rs,50,000 during the period of six years, and more. This provides the justification that certain cases, particularly the money suits, need to be given priority so that the purpose of approaching the Court of law is not defeated. Undoubtedly the parties have incurred much more than the suit money during this lengthy period of litigation when the original matter is still at the stage of written statement only.
12. The written statement submitted on 26-5-2000 contained an admission that the agreement was true, sale of motorcycle was admitted and partial payment of Rs,25,000 was also admitted.
The date of final payment of balance amount i,e, 30-3-1998 was also admitted. However, it was added that the plaintiff had received the balance money before the due date. At this stage the Court had to apply Order X and Order XV of the C.P.C. And the defendant could be asked to prove the payment of the balance amount before 30-3-1998 as stated in para.2 thereof. It is commendable that the learned Civil Judge-III, D.I. Khan did the same and framed two issues in compliance with the provisions of Order XV, C.P.C. However, the defendant, realizing the fate of the matter, filed an application for amendment of written statement and turned the directions of the tide. It also needs to be observed that the application for amendment in the written statement was filed on 27-7-2000, which was decided on 23-1-2001. The learned Court should have imposed cost for causing unnecessary delay through the frivolous application. Neither the learned trial Court nor the learned Appellate Court penalized the defendant for misuse of the process of law, rather the Appellate Court explicitly ordered that the parties are left to bear their own costs. Such mechanical disposal of frivolous proceedings encourages the clever and chronic litigant to prolong the just causes of the plaintiffs for several years.
13. The learned Additional District Judge, while disposing of a revision petition, has clearly analyzed the real intention of the defendant. He wanted to add a ground in the written statement relating to a transaction which had never materialized. Interestingly the petition for amendment itself contains the fact that in addition to the transaction of motorcycle, the parties had entered into a transaction of sale of tractor in lieu of land but neither the land was transferred nor the tractor was delivered, therefore, the alleged adjustment of balance amount of motorcycle in the so-called price of the tractor was merely fictitious, frivolous and meaningless. Hence there is no justification for the amendment of the written statement.
14. Article 199 of the Constitution provides for extraordinary remedy against the State functionary who has trespassed beyond his jurisdiction or failed to exercise the jurisdiction vested in him. In this case the jurisdiction was adequately exercised by both the learned Courts and there was neither any excessive use of jurisdiction nor failure or refusal to exercise of jurisdiction so vested. This petition is a typical example of the misuse of process of law. When the law does not provide a remedy after the decision of the revision petition, the creation of an additional remedy through the Constitutional petition is patently illegal because thereby the intention of Legislature of drawing a line for the termination of litigation is negated. The Constitutional petitions are frequently filed against the revisional orders of the Courts in such a routine manner as if the Constitutional petition was the next available remedy. Such petitions are pursued, as a matter of right, with the same prayer as made in the original proceedings. Thus, an attempt is made that whatever could not be achieved from the original Courts, the same should be achieved through Constitutional process.
This can never be the intention of law or the Constitution. Unless the petitioner points out some serious defects in the exercise of jurisdiction by the judicial fora, the Constitutional petition is not maintainable as a matter of routine. In the case in hand the prayer of the petitioner was self- negating, unreasonable and frivolous, therefore, the Courts had no alternative but to reject the same.
15. With these observations, we hereby dismiss this petition with costs throughout, with the direction to the learned trial Court to require both the parties to produce evidence on the two issues already framed and decide the matter summarily within a month henceforth.