' Facts relevant for the decision of the present revision petition are that the respondents filed the suit for possession through pre-emption, against the petitioners, in respect of the land measuring 378 Kanals, 7 Marlas, which was contested by the petitioners through filing the written statement.
The parties to the suit filed different applications before the learned trial Court, which are reportedly pending before it. Besides, the respondents filed an application under Order VIII, rule 12, C.P.C. For striking off the defence of the petitioners, on account of non-filing of their addresses for service and the list of legal representatives along with the written statement. The said application was resisted by the petitioners, who in turn, filed an application under Order VIII, rules 12 and 13, C.P.0 with a request to allow them to file the addresses for service and the list of legal representatives, which documents were attached with the latter application. This application was resisted by the respondents. Ultimately, the learned trial Court accepted respondents' application, dismissed petitioners' application and consequently struck off their defence, vide composite order, dated 22-10-2004, hence the present petition.
2. Learned counsel for the petitioners has contended that although the petitioners/ defendants furnished their addresses for service and also filed the list of their legal representatives before passing the impugned order, yet the learned trial Court proceeded to strike off petitioners' defence without appreciating the law on the subject. He has further submitted that provisions of Order VIII, rule 12, C.P.C. Are procedure and directory provisions of law, as held in the cases of Mirza Ali Khan v.
Mst. Shahida Parveen and others (1992 SCM R 2112) and Ghulam Qadir v. Haji Khuda Bakhsh and 6 others (1990 SCM R 675). Conversely the learned counsel for the respondents, while acknowledging that the provisions of Order VIII, rule 12, C.P.C. Are directory in nature, has submitted that the learned trial Court, in exercise of its discretionary powers, passed the impugned order, therefore, the same cannot be interfered in exercise of the revisional jurisdiction of this Court.
3. In view of the arguments of the learned counsel, I have examined the impugned order and find that the argument of the learned counsel for the respondents goes counter to the findings of the learned trial Court, who has held that the provisions of Order VIII, rule 12, C.P.C. Are mandatory and that the Court cannot exercise any discretion in this regard. It would be appropriate to reproduce the concluding portion of the impugned order, - which reads as follows:-- "After hearing the arguments and perusal of the record, it reveals that the defendants/petitioners have filed the present application for submission of address and list of legal representative which was duly contested by the plaintiffs/ respondents. Order VIII, rule 12(1) of C.P.C. Says that if any party fails to provide the address for service as provided in the proceedings rule, he shall be liable to have his defence if not struck out and to be placed in the same position as if he had not defended.
Order VIII, rule 12, C.P.C. Is mandatory provision as word "shall" was being used. In these circumstances, the Court cannot use discretion of any kind and defendant has to fulfil pre- requisite of the Order VIII, rule 12 of C.P.C. The defendants/ petitioners have not submitted address as well as list of legal representative which were mandatory to be attached, so, they cannot be allowed to submit the same at this stage. Application has no merits and the same is hereby dismissed and the defence is struck off. File to come up for arguments on remaining application i.e, on application under Order VI, rule 17 of C.P.C. And under Order VII, rule 11 of C.P.C. On 27-11-2004 . "
'It flows from the above that the learned trial Court, deeming the provisions of Order VIII, rule 12, C.P.C. As mandatory, passed the impugned order and struck off the defence of the petitioners. It has been held in the case of Mirza Ali Khan, ibid, that provision of Order VIII, rule 12, C.P.C. Is directory in nature and an omission by the defendants by not filing address could be rectified at the initial stage and such technical defect could be corrected at any time, when it was pointed out. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Qadir, supra, has taken the view that the Court below committed error by striking off defence under Order VIII, rule 12, C.P.C., which was rightly corrected by High Court in revisional jurisdiction.
4. It is evident from the above resume that the provisions of Order VIII, rule 12 are held to be directory and not mandatory. It is thus clear that the learned trial Court has passed the impugned order under the misconceived notions of law and has in fact decided the matter in violation of "law declared" on the subject, thus, the impugned order cannot be allowed to be sustained.
5. When the respondents filed the application for striking off the defence of the petitioners, they immediately filed the application seeking permission to rectify the said irregularity. Not only this but along with that application, they also placed on record the addresses for service and the list of their legal representatives. Even if any error was committed, that stood rectified with the filing of the said documents. It has been held in the case of Mirza Ali Khan that proper course for trial Court was to have allowed the defendants to furnish their addresses and such rectification would not have Caused any prejudice to the plaintiff nor would have impeded the progress of the suit. In this case, despite the rectification of the error, the learned trial Court, in complete oblivion of the facts of the case and law on the subject persisted in dismissing petitioners' application and accepting respondents' application.
6. Seeing from any angle, the learned trial Court, while passing the impugned order, has definitely comitted illegality and material irregularity and while invoking the revisional jurisdiction of this Court, I am inclined to set the same aside.
7. Upshot of the above discussion is that the present- revision is allowed and the impugned order, dated 22-10-2004 is set aside with no order as to costs. Resultantly petitioners' application, under Order VIII, rules 12 and 13, C.P.C., is accepted and the addresses for service and list of legal representatives, attached with the said application, are permitted to form part of the record, while the application, filed by the respondents/plaintiffs under Order VIII, rule 12, C.P.C. Stands dismissed.