This is a petition against the order dated 8-11-1977 passed by the learned trial Court striking off the defence of the petitioners under Order VIII, rule 12, C. P. C. For their failure to file their form of address after their service in the suit.
2. The relevant facts are that a suit for specific performance of contract of sale was filed by Sh.
Abdul Rashid on the Ist of September 1977 against the petitioners and respondent No. 2.
Respondent No. 2 was added since he had purchased the property in dispute from petitioner No. 1 by a registered sale-deed before the institution of the suit. Along with the suit an application for temporary injunction was also submitted. Both the matters came up before the Court for consideration on the 4th of September 1977. The learned trial Court directed issuance of summonses on the suit by ordinary process as well as by registered post for the 10th of September 1977. He also passed an order of maintenance of status quo subject to notice to the defendants (petitioners and respondent No. 3) for the same date. The summonses issued to the petitioners are not on the record. However, the notices issued on the application for temporary injunction are there. It appears that these notices were served and copies of the plaint were given to the petitioners. Respondent No. 3 could not, however, be served for the 10th of September, 1977.
3. Mr. Abdul Hayee Mansoor Ahmad counsel for Me. Nazir Begum, defendant No. 2 appeared before the Court on the 10th of September though the learned trial Court incorrectly recorded his presence for defendant No. 3 also. The suit was adjourned to the 20th of September, 1977 for filing of written statement as well as the reply to the application for temporary injunction. On the 20th of September 1977 Mr. Abdul Hayee Mansoor Ahmad appeared for defendant No. 2 and Mr. Arshad Mahmood Advocate appeared for defendant No. 3 (respondent No. 2) while defendant No. 1 appeared in person. The matter was again adjourned to 2-10-1977 to enable the defendants to file their written statement as also the reply to the application for temporary injunction. On this latter date separate written statements were filed by the three defendants. The suit was then adjourned to the 10th of October, 1977 for replication of the plaintiff and arguments on the application for temporary injunction. The interim injunction order was extended. On the 10th of October, the plaintiff filed the replication after which the Court heard arguments on the application for injunction and adjourned the case to the 12th October, 1977 for orders.
4. Out of the three defendants only defendant No. 3 had filed his address form in compliance with the provisions of Order VIII, rule 11, C. P. C. Since defendants Nos. I and 2 had not filed their forms of address. An application for striking off their defence under Order, VIII, rule 12 was filed by the plaintiff on the 12th of October, 1977.
5. Reply to this application was submitted by the present petitioners on the 13th of October, 1977.
The case was adjourned to 27-10-1977 since the Presiding Officer was on leave. It was again adjourned to the 7th of November 1977 for the same reason. Arguments were heard on this date.
Thereafter by the impugned order dated 8-I1-1977 the defence of the two defendants was struck off.
6. It was argued before the learned trial Court that since no summonses in the suit had been served upon these defendants, it was not necessary for them to file their forms of address. The learned trial Court did not agree with this argument in view of the facts stated above. Since the petitioners had neither filed their form of address despite an application under Order VIII, rule 12, C.
P. C. Nor had given any justification or excuse but on the other hand had raised a false plea of want of service of summons, the learned trial Court considered it a fit case for exercise of discretion against them.
7. The learned counsel for the petitioners urged the same argument before me. He also added that n-) summonses were served upon the defendants even by registered post. He further argued that Order VIII, rule 11 is not attracted to the case of a pardanashin lady. He referred to section 132, Order III, rule 5 and Order VII, rule 11(3) in support of this argument. Since none of these provisions are severally helpful to the petitioners, he submitted that their cumulative effect would lead to this conclusion.
8. The provisions about the obligation of the parties to suit or other proceedings to file addresses are not new. Several High Courts, the Sind Chief Court and the Judicial Commissioners' Court at Peshawar had added Rules to Orders VII and VIII, C. P. C. To compel the plaintiff or petitioner and the defendant or respondent respectively to file address with the plaint or application in the case of plaintiff or petitioner and before or on the date of hearing recorded in the summons, notice or any other process in the case of the defendant or respondent. The Lahore High Court had added rules 19 to 25 to Order VII and rules 1 I and 12 to Order VIII.
9. Rule 19 of Order VII made it obligatory upon the plaintiff to file address at which service .Of notice, summons or other process may be made on him. Rule 20 clarified that the address for service should be within the local limits of the district Court within which the party ordinarily resides. Rule 21 dealt with the penalty leviable on the plaintiff for his failure to file the required address. This penalty in the case of the plaintiff was the dismissal of his suit either suo motu or on application of a party.
Rule 22 provided for the procedure of effective service of the plaintiff on the address supplied by him if he could not be served personally or through agent or any adult member of the family. This rule laid down that first the notice would be affixed on the outer door of the house and if the plaintiff failed to appear on the date fixed process would be sent to him again on the same address by registered post and such service would be effectual as if the plaintiff had been personally served. Rule 23 reiterated another alternative method of service prescribed by Order III rule 5 through the pleader of the plaintiff but left it to the discretion of the Court to adopt the method detailed in Rule 22. Rule 25 vested the Court with a further discretion to direct the service in any other manner. Rule 24 provided for the procedure for change of address filed under rule 19.
10. Rules 11 and 12 which were added by the Lahore High Court to Order 8 were as follows : "11. Every party, whether original, added or substituted, who appeared in any suit or other proceeding shall on or before the date fixed in the summons, notice or other process served on him as the date of hearing, file in Court a proceeding stating his address for service, and, if he fails to do so he shall be liable to have his defence, if any, struck out and to be placed in the same position as if he had not defended. In this respect the Court may act suo motu or on the application of any party for an order to such effect and the Court may make such order as it thinks just.
12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be to addresses for service filed under the preceding rule."
11. Thus the newly-added rules of Order VII providing for the address to be within the local limits of either the district Court where the suit is filed or within the limits of the district Court where the party ordinarily resides (rule 20) for the procedure of effective service on the said address (rule 22), for the procedure of change of the address (rule 24) and for the Court's jurisdiction to adopt any other alternative mode of service of the party (rules 23 and 25), were made applicable mutatis mutandis to defendants also.
12. The Law Reforms Ordinance, 1972 in order to create uniformity in laws made these provisions applicable to the entire country by adding rules 19 to 25 to Order VII and rules 11 and 12 to Order VIII Rules 11 and 12 to Order VIII are as follows : "11. Address for service.-(I) Every party- whether original, added, or who appears substituted, in any suit or other proceeding, shall, on or before the date fixed in the summons, notice or other process served on him, file in Court a proceeding stating his address for service.
(2) Such address shall be entered in the register of suits to be maintained under Order IV, rule 2.
(3) Rules 20, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses for service filed under this rule.
12. Consequences of failure to file address.-(I) Where a party fails to file an address for service as provided by the preceding rule he shall be liable to have his defence if any, struck out and to be placed in the same position as if be had not defended.
(2) The Court may pass an order under sub-rule (1) suo motu or on the application of any party."
13. It will be seen that the language of the rules framed by the Lahore High Court and the rules added by the Law Reforms Ordinance is practically the same.
14. The first argument of the learned counsel for the petitioners is that rule 11 applies only to a person who appears in any suit in response to service of summons. He argued that it is only when the appearance is as a result of actual service of summons that the defendant is required to file in Court a proceeding stating his address for service. It must follow that the penalty given in rule 12 can be imposed upon him in default, only if there is so compliance with rule 11. He submitted that since the petitioners had not been served with any summonses their service would not be a service as required by rule 11, even though they appeared in Court suo motu, no question of any default under that rule would arise.
15, This argument is clearly untenable. Rule 11 does not concern itself with the mode of service of summons. It emphasises that wherever a party appears in any suit or other proceedings, he shall file on or before the date fixed in the process, whether summons, notice or any other process, his address for service. What is important is his appearance as a defendant or as a respondent in the suit or any other proceedings and not any particluar mode of service. The reference to the summons, notice or other process is only for the purpose of verification of date on or before which the address shall be filed. The language does not warrant any such inference that the summons bearing the date of hearing should be actually served upon the defendant to attract the penalty clause. In fact according to law if a person appears before the Court in the suit and agrees to file the written statement, it will be implied from his conduct that he has accepted service of the summons even though the same may not have been actually served upon him.
16. The object of this provision is patently clear from rule 11 of Order VIII and rules 20, 22, 23 and 25 of Order VII. It is to evolve a procedure in addition to the procedure for service of a party described in Order III, rule 5 which may be abortive where no counsel is engaged or for example where the counsel is disabled to serve a party during proceedings of a suit... This object would be defeated if the rule is interpreted in the manner in which the learned counsel for the petitioner would wish the Court to interpret it. The clear object of the rule is that if the defendant has put in appearance, he is bound to file his form of address for service. It is for this reason that the language of the rule in relation to address is couched in mandatory terms and is linked with a penalty clause. The peremptory nature of the rule requiring the registration by a party to proceeding of his address was emphatically pointed out in Municipal Committee, Lahore v. Kesho Ram AIR 1929 Lah. 459.
In order to reinforce his argument the learned counsel relied upon Jolt Ram v. Bell Ram-Barkat Ram AIR 1935 Lah. 791 and Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89 but these authorities are not helpful to the petitioners, on the interpretation of these rules. The purport of these two authorities is that it is discretionary with the Court to strike off the defence.
There Lordships of the Supreme Court took note of the words "shall be liable" to have his defence struck off and found that these words have been used to confer a discretion upon the Court. None of these authorities supports the interpretation of rule 11 as urged by the petitioner's learned counsel. The learned trial Court has proceeded on the assumption that filing of address is obligatory upon the party while the imposition of penalty of striking off the defence is discretionary with the Court. The Court then exercised its discretion against the petitioners in view of their contumacious conduct. There is nothing wrong in the order impugned in this Court.
17. The argument that the summonses were not served is also not correct. There is nothing on the record to prove that summonses were not sent to the petitioners. They were in fact ordered to be sent by ordinary process as well as by registered post. There is proof of service of notice of temporary injunction as well as the copies of the plaint which must have been sent with the summons. It is for this reason that the petitioners did not ask for copies of the plaint when they appeared on the 10th September or the 20th September, 1977. This is sufficient proof that they must have accepted service of summons in the suit.
18. The other point about exemption of pardanashin ladies from the applicability of these rules is equally without substance. None of the provisions relied upon by the learned counsel whether considered severally or jointly provides for any such exemption. The learned counsel developed his argument by saying that the cumulative effect of section 132 read with Order III, rule 5 and Order VIII, rule 11 (3) would be that such a result would follow and in any case the purpose of the law would be served by the address of the counsel since a pardanashin lady cannot be compelled to appear in person and has a right to appear before the Court through a counsel. This argument is equally without substance. The rule does not create categories of defendants or respondents. It is a general rule applying to all defendants So far as the power of Court to serve a party through the counsel is concerned, it is repeated in rule 23 of Order VII (which has been made applic--able to defendant by sub-rule (3) of rule 11 of Order VIII). This provision is also of general applicability and is not confined to pardanashin ladies. .An additional discretion is vested in the Court to direct service of notice on the address supplied in compliance with the provisions of Orders VII and VIII which are couched in mandatory terms. It is not for the Court to legislate and thus diminish the generality of these provisions or curtail their mandatory nature.
19. The petitioners are themselves to blame in this case. They did not file the form of address even though this defect was brought to their notice by the plaintiff by his application under Order VIII rule 12, C. P. C. That application was submitted on 10-12-1977 and was decided several weeks later on 8- 11-1977. There was ample time at the disposal of the petitioners to remove the defect and to crave for the indulgence of the Court. But they made a display of extraordinary and uncalled for stubbornness. This attitude is far from commendable. If they had filed at any stage the relevant form of address I have no doubt that the discretion under rule 12 would have been exercised by the learned trial Court in their favour. The exercise of the discretion by the Court in the circumstances of the case cannot be held to be unjudicious or arbitrary. It is not for this Court to interfere with the exercise of such discretion in exercise of the jurisdiction under section 115, C. P. C. This is a course open to the appellate Court only. The order which I propose to pass on this petition will not therefore affect the petitioners' right to challenge the exercise of the discretion in an appeal against the ultimate decree.
20. The petition is dismissed with costs.