' MUHAMMAD JEHANGIR ARSHAD, J.---With the concurrence of learned counsel for the parties, this case is being treated as a Pacca case and decided as such.
2. The petitioner who is defendant before the learned trial Court in a suit filed by the respondent for specific performance of agreement to sell dated 1-11-2004, is aggrieved of the order, dated 7-6- 2005 whereby petitioner's right of filing written statement was closed/struck down by the learned trial Court in terms of amended proviso of Order VIII, rule 1, C.P.C.
3. The facts discernable from the record, briefly stated are that the respondent who is real brother of the petitioner filed a suit for specific performance of agreement to sell dated 1-11-2004 against the petitioner on 20-4-2005. The learned trial Court issued notice to the petitioner on the same day i.e. 20-4-2005 for 27-4-2005. The petitioner entered his appearance before the trial Court along with his counsel on 27-4-2005 and case was adjourned to 5-5-2005 for filing written statement as well reply to the application for interim relief. On 5-5-2005, written statement was not filed and sought an adjournment which was granted till 12-5-2005. Again on 12-5-2005 at the request of the petitioner/defendant for filing written statement, the case was adjourned to 21-5-2005 and then to 28-5-2005 for the said purpose, as the last opportunity. The record reveals that on 28-5-2005, the learned Presiding Officer was on leave and the case was adjourned by the Reader to 7-6-2005 and on 7-6-2005 the learned trial Court closed petitioner's right of filing the written statement in terms of amended proviso (I) to Order VIII, rule 1, C.P.C. At the expiry of thirty days from appearance of the petitioner/defendant before the trial Court. It is the said order of the learned trial Court, dated 7-6- 2005, which has now been sought to be annulled through this civil revision.
4. Learned counsel for the petitioner has argued that on 28-5-2005 the case was adjourned in routine and also by the Reader of the Court who had no authority to fix the next dated i.e. 7-6-2005 for the purpose of filing written statement. According to the learned counsel, even the tenor of the impugned order shows that no serious attempt was made by the learned trial Court for obtaining written statement from the petitioner and his right of filing the written statement was closed in a mechanical manner and without application of mind to the fact that the requirement of maximum period of thirty days for filing written statement in terms of proviso (I) to Order VIII, rule 1, C.P.C., is neither mandatory nor can be invoked in every case and by using the word "ordinarily" in the said proviso the Legislature still reserved the authority of the trial Court to allow further opportunity to the defendant, before closing down the defence. Learned counsel argued that if by grant of more than two adjournment by the learned trial Court itself in violation of proviso (2) of Order VIII, rule 1, C.P.C., no prejudice was caused to the respondent, then by allowing one more opportunity to the petitioner for submission of his written statement even by burdening him with costs, the respondent/plaintiff would not have been deprived of any legal right, whereas the same would have promoted the cause of justice, which is the ultimate object of Civil Procedure Code. Learned counsel has contended that proviso (I)__ as amended in the year 2002 is meant only for accelerated hearing of the suit and not to be used as a trap for knocking down the defendant by applying it invariably in every case. It is next submitted that the rules framed under Civil Procedure Code are for the advancement of justice and not to defeat the justice. Reliance has been placed on the case Factory Manager, Burewala Textile Mills and others v. Asghar Ali and another 2005 SCM R 1144. It is lastly argued that as held by this Court in Liaqat Ali v. Mst. Bashiran Bibi and others 2005 CLC 11 the rules of procedure are intended to foster justice and technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master.
5. On the other hand, learned counsel for the respondent/plaintiff has not only supported the impugned order of the learned trial Court but has vehemently argued that conduct of the petitioner being contumacious, hence, the impugned order was rightly passed and by passing the said order, the learned trial Court neither committed any illegality or irregularity nor the same suffers from jurisdictional defect.
6. I have considered the arguments of learned counsel for the parties and also perused the available record.
7. To me, one thing is quite clear i.e. Negligent conduct of the petitioner by not filing written statement despite obtaining adjournments as narrated above, but at the same time, I am conscious of the fact that the said negligence cannot be solely attributed to the person of the petitioner, rather it is equally attributable to the conduct of his counsel also, who had been appearing before the trial Court and obtaining adjournments unmindful of the fact that after amendment in Order VIII, rule 1, C.P.C. Obtaining opportunities for filing of written statement in a mechanical manner and withot span of time, is no more rule of law or practice. At the same time, after incorporation of the said amendment, the learned trial Court was also obliged to ensure that the amended provision is followed strictly and adjournment within a period of thirty days not to be granted in a mechanical manner and without putting the defendant at notice about the rigors of penal amended provision of Order VIII, rule 1, C.P.C., which inter alia provide that not more than two adjournments shall be granted for presenting the written statement but in the instant case, the learned trial Court continued adjourning the case for more than two occasions, which encouraged the defendant/petitioner not to comply with the requirement of filing written statement within thirty days, under the impression that another opportunity like the previous ones, would be granted, hence, to this extent, I also hold the trial Court equally responsible for not enforcing the amended provision of Order VIII, rule 1, C.P.C. In strict terms. Had the learned trial Court, while adjourning the case on 21-5-2005 to 28-5-2005, put the petitioner/defendant on notice by striking a warning to him about closure of his right of filing written statement in case of his further default on the said date, definitely the defendant/ petitioner would have filed the written statement on the date, so fixed. The object of narrating the above position is to remind the learned trial Court that instead of passing the impugned order on 7-6-2005, the Court should have granted at least one more opportunity to the petitioner/ defendant with the warning of closing his right of filing written statement. Although the trial Court has now been relieved of its duty of extending such type of warning the omission of the word "if so required by the Court" through similar amendment but the same does not mean that Court should invoke penal provisions of Civil Procedure Code to trap and knock down the defaulting party with immunity. Despite omission of the above words, the object of Civil Procedure Code, as held by Honourable Supreme Court in the case Factory Manager, Burewala Textile Mills and others v. Asghar Ali and another 2005 SCM R 1144 "It is well-settled by now that the rules framed in the C.P.C. Are for the advancement of justice and should not, as far as possible, be allowed to operate so as to defeat the ends of justice". And also the view of this Court in the case Liaqat Ali v. Mst. Bashiran Bibi and others 2005 CLC 11 "Rules of procedure are intended to foster justice, technicalities, unless these offer insurmountable hurdles, cannot be permitted to operate as a tyrant master" still remains the same and while passing the impugned order the learned trial Court shall follow the same. In the instant case, there is another aspect of the matter also i.e. On 28-5-2005, the learned Presiding Officer of the trial Court was on leave and case was adjourned to 7-6-2005 by the Reader of the Court for the purposes of filing written statement and it is doubtful whether Reader of the Court had an authority to adjourn the case for filing written statement, which is usually considered as a date of hearing and as to whether the Reader of the Court while adjourning the case to 7-6-2005 acted in terms of Order XVII, rule 5, C.P.C. Because as held by the Honourable Supreme Court in the case Kamran Co. And others v. Messrs Modern Motors and another PLD 1990 SC 713, "noncompliance of Rule 5 of Order XVII, C.P.C. Renders the proceedings on the day when the Presiding Officer is absent, as illegal and invalid".
8. I am, therefore, satisfied that while passing the impugned order, dated 7-6-2005, the learned trial Court acted in a most harsh manner, resulting in causing prejudice to the petitioner as he was entitled to be granted at least one more opportunity for filing of written statement, especially when the learned Presiding Officer of the trial Court was on leave on 28-5-2005 and the case was adjourned by the Reader to 7-6-2005 without disclosing whether the Reader of the trial Court while adjourning the case to 7-6-2005 followed the procedure of Order XVII, rule 5, C.P.C. And also that he was so authorized to adjourn the case to 7-6-2005 for filing written statement. Before closing this order,. I would also like to point out that in such-like case the trial Court before passing such-like orders, need to stress the learned counsel appearing on behalf of the defendant to file written statement on the very day by administering a warning that in case if the needful was not done, penal provisions of Order VIII, rule 1, C.P.C. Would be invoked and if despite such a written warning the written statement is not filed, the same fact be written on the file and if possible signatures of the defendant or his counsel be also obtained in order to thwart any apprehension that the defendant might not subsequently take the plea that he was not aware of the fact that in case of non-filing of written statement, newly added provision of Order VIII, rule 1, C.P.C. Would be invoked without immunity. Adoption of such a practice by the trial Court becomes more necessary because most of the members of legal profession are riot aware, either of the amendment incorporated in Order VIII, rule 1, C.P.C. Or the consequences ensuing for not strictly adhering to the said amended provisions and it would take some time to put them at the track because till date the practice is to obtain innumerable opportunities without following the span of time provided in the said amended provision and to grant adjournment by the Court in a mechanical manner without taken into consideration the implications of said amendment, that is why, when amended provisions are invoked and the right of filing written statement is closed after span of one month, the said exercise appears to be a bit harsh, although the same is always in accordance with law.
Hence, in order to diminish such an impression, it has been considered necessary to direct the trial Courts to adopt abovementioned practice, as an interregnum arrangement. But, this would never meant that amended provisions of Order VIII, rule 1, C.P.C. Shall not be invoked where the defendant acts in a contumacious manner and adopts a stubborn attitude to unnecessarily delay the trial of a suit.
9. Further it is to be pointed out that incorporation of word "ordinarily" in the amended proviso to Order VIII, rule 1, C.P.C. Also indicates that the Legislature was aware of the situation that invariable application of said provision would cause hardship to the litigant public and in such eventuality the Court can grant opportunity to the defendant for filing of written statement by burdening him with reasonable costs, which would be a source of consolation for the other party.
10. The upshot of above discussion is that this civil revision is allowed, the impugned order dated 7- 6-2005 is set aside and the petitioner/defendant is granted one last opportunity to file the written statement on or before 30-9-2005, subject to payment of Rs.5,000 as costs which shall be a condition precedent, failing which this civil revision shall be deemed to have been dismissed and order dated 7-6-2005 shall automatically stand revived.
11. At this moment, learned counsel for the respondent/plaintiff submits that this being a matter between two brothers, the petitioner is adamant to prolong the proceedings of the suit, it would therefore, be in the interest of justice, if a direction for accelerated hearing of the suit is issued to the trial Court. The learned trial Court shall, therefore, ensure that hearing of the suit is completed as early as possible but not later than 31-3-2006, with a compliance report to the Additional Registrar (Judicial) of this Court.