The respondent Miss Kinza Khalid filed a suit for specific performance of an agreement to sell allegedly executed by the petitioner through her father. The petitioner is a minor and this fact is mentioned in the plaint itself. The suit was placed before the Trial Judge on 8.2.2005. It appears from the order dated 8.2.2005 that Mr. Muhammad Nawaz Bhatti Advocate appeared on behalf of the petitioner and filed his memo of appearance. So far as Defendant No, 2 is concerned, he did not enter appearance. The case was adjourned to 5.3.2005 for summoning Defendant No,
2. On 5.3.2005, a power of attorney was, filed on behalf of Defendant No,
1. Some representative of the Defendant No, 1 appeared and the case was adjourned to 2.4.2005 for filing the written statement and written reply to the application for temporary injunction. On 2.4.2005, a request was made for some time and the case was adjourned to 19.4.2005. It was mentioned in the order sheet that this would be the last opportunity for written statement and written reply to the application, on 19.4.2005, Counsel for the plaintiff appeared. Representative of Defendant No, 2 was also present.
None was present on behalf of Defendant No,
1. The learned Trial Judge struck off the defence of the petitioner and fixed the case for ex-parte evidence on 17.6.2005. On 21.4.2005, an application was filed by the petitioner for setting aside, the ex-parte proceedings. However, this application was dismissed by the Trial Judge, vide order dated 18.11.2005 on the ground that order dated 19.4.2005 has not been passed under Order IX of the C.P.C. but the defence of the petitioner has been struck off for non-filing of the written statement. The petitioner approached the High Court of Lahore, Rawalpindi Bench, Rawalpindi, through the present Revision Petition against the order dated 19.4.2005. The case was admitted to regular hearing.
2. On the establishment of the Islamabad High Court, the case stood transferred to this Court.
3. I have heard learned counsel for the petitioner and the respondent and have gone through the record with their able assistance.
4. Learned counsel for the petitioner submits that Order VIII, Rule 10 C.P.C. could not have been invoked by the Trial Judge in the facts and circumstances of the case. Contrarily the submission of learned counsel for the respondent was that the learned Trial Judge was fully justified in striking off the defence of the petitioner as the petitioner failed to file the written statement, despite the fact that two opportunities were afforded to her by the trial Court for filing the written statement. Apart from contesting the case on merits, learned counsel for the respondents raised two preliminary objections. According to him, the civil revision is not competent as the order passed Under Order VIII, Rule 10 C.P.C. is appealable, under Order XLIII, Rule 1(b) of the Code of Civil Procedure. The other preliminary objections raised by learned counsel was that the revision petition filed by the petitioner is barred by time, the petition having been filed beyond 90 days of the order passed.
5. Let me first deal with the preliminary objections taken by learned counsel for the respondents.
6. Under Order VIII, Rule 10 of the C.P.C, if a party fails to present the written Statement within the time fixed by the Court, the Court can pronounce judgment against him or make such order in relation to the suit as it thinks fit. Under Order XLIII, Rule 1(b), the order is appealable only if the judgment is pronounced against a party failing to file the written statement. In this case, learned Trial Judge, after striking off defence of the petitioner, fixed the case for ex-parte evidence of the plaintiff/respondent. Since the judgment was not pronounced against the petitioner, the appeal is not competent. The petitioner, therefore, rightly filed the revision petition.
7. As to the question that the revision petition is barred by time, I have made the calculations myself and after excluding the period spent in obtaining copies of the orders, the revision petition is within time. I am conscious that there are certain judgments of the different High Courts that time spent in obtaining the copies of the order impugned before the revisional Court cannot be excluded while computing the period of limitation for filing the civil revision. This question is subjudice before the Honourable Supreme Court. Assuming that the revision petition is barred by time, I intend to exercise my suo moto revisional jurisdiction in this case. The reason for my exercising suo moto jurisdiction and whether law permits me to do so would be given in the subsequent part of the judgment.
8. For the present controversy, Rules 9, and 10 of Order VIII of Code of Civil Procedure are relevant.
Order VIII, Rule 1 C.P.C. has been amended from time to time.
Original Order VIII, Rule 1 C.P.C. was as under:-- "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." A proviso was added by the Ordinane XII of 1972 provided that the period allowed for filing the written statement shall not ordinarily exceed Ninety days.
9. In exercise of the powers given to the High Court by Section: 122 of the Code, the Lahore High Court, vide Notification dated 2.10.2001 omitted the word "may and if so required by the Court" Vide the same Notification, second proviso was added in Order VIII, Rule 1, as "provided further that not more than two adjournments shall be granted for presenting the written statement."
10. It is mentionable here that by Act XIV of 1994 the word ninety was substituted by the word 30.
The present Order VIII, Rule 1, C.P.C. for the High Court of Lahore is as under:-- "The defendant 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}: Provided further that no more than two adjournments shall be granted for presenting the written statement."
Order VIII, Rules 9 and 10 C.P.C. read as under:-- 9. "No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court think 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. "Where any party from whom a written statement is so required fails to present the same 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."
11. Order VIII, Rule 1 CPC before the amendments made by the Lahore High Court, Lahore was examined by the Hon'ble Supreme Court, in case reported as "(Sardar Sakhawatuddin and 3 others vs. Muhammad Iqbal & 4 others). 1987 S.C.M.R. 1365".
At pare 1369 of the report, it was 'held by Hon'ble Supreme Court that: -- "It is clear from the combined reading of the Rules 1 & 9 that amongst others 3 type of written statements can be filed by a defendant:--
1. As a right without formal permission of the Court. (Rule 1)
2. When it is so required by the Court to file a written statement (Rules 1 & 9)
3. When under some circumstances, it is by the leave the Court. (rule 9).
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 No, 1 & 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.
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 Service, Karachi and another V Archifar Opal Laboratories Ltd., Karachi PLD :1969 Kar. 418.
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 to 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 proceed under the first part. Like Rules 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.
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 was "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.In the case in hand, it cannot be said that the petitioner was required to file a written statement by the Court in terms of the judgment of the Hon'ble Supreme Court cited above. Order VIII, Rule 10 CPC, therefore, could not have been invoked by the trial Court to strike off the defence of the petitioner. Order VIII, Rule 1 CPC after amendments made by the Lahore High Court, Lahore, has been quoted by me in the earlier part of my judgment. Now it is mandatory for the defendant to file written statement. However, Order VIII, Rule 9 CPC remains unamended. The Court can require a defendant to file a written statement within a time specified by it. Order VIII, Rule 10 CPC can only be invoked if the Court has required the plaintiff to file the written statement as the phrase used is "so required". The phrase "so required" necessarily relates to order passed under Order VIII Rule 9 CPC.
13.I have given my anxious thought as to whether the phrase "so required" can be interpreted to mean as required by Order VIII, Rule 1 CPC. I find no legal justification to place this interpretation.
Had the intention of the legislature been so, the word used would have been "as required by Rule 1 of Order VIII CPC."
14.In view of what has been said above, I am of the considered opinion that the learned Trial Judge was not competent to strike off the defence of the petitioner in the present case.
15.There is another reason for holding that the Order of the Trial Judge is not sustainable and that is that from the Order dated 19.4.2005, it can be gathered that the learned trial Judge was of the opinion that a defendant cannot be allowed to file the written statement after 30 days. The word "ordinarily" used in first proviso to Order VIII, Rule 1 CPC clearly demonstrates that it is directory in nature and the Court has the power to allow time beyond thirty days. It was so held by the Hon'ble Supreme Court in the case reported as "Wak Orient Power and Light Limited Vs. Westing House Electric Corporation (2002 SCM R 1954)."
16.I have already observed in the earlier part of my judgment that the defendant (present petitioner) at the time of the filing of the suit was a minor. The defendant being minor, Order XXXII, Rule 3 C.P.C. would be applicable, which is as under:-- "(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made in any application under this rule-except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guard*, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.
17. Again the High Court of Lahore, substituted sub-rules (3) and (4) and then added sub-rules (6) & (7). Substituted Rules 3 & 4 and added Rules 6 & 7 are as under :-- "(3) The plaintiff shall file with his plaint a list of relative of the minors and other persons with their address; who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute and application by the plaintiff under sub-rule (2) above.
(4) The Court may, at any time after institution of the suit, call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint."
"(6) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor, and that each person proposed is a fit person to be so appointed.
(7) No order shall be made on any application under this rule, except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule; Provided that the Court may if it sees fit, issue notice to the minor also".
18. The reading of the above said Rules of Order XXXII would show that it is the duty of the plaintiff to file alongwith the plaint a list of relatives of the minor and other persons capable of acting as guardian and if no such list is filed, the Court may call upon the plaintiff to furnish such list. The Court has then to pass an order for appointment of the guardian in the suit for the minor defendant. In the case no such order has been passed by the Court. Although in the plaint, the plaintiff has described the petitioner as Miss Kiran Arif Mian daughter of Muhammad Arif Mian through Muhammad Arif Mian, there is no averment in the plaint that the proposed guardian has no interest adverse to that of the minor. At any rate, there is no order of the Court about the appointment of the father of the petitioner, as her guardian for the suit. Even if the guardian is appointed by the Court to defend the minor defendant and the guardian does not fulfill his obligations, the Court is duty bound to replace the guardian. If the father of the minor petitioner was not doing his duty of filing written statement, some other proper person should have been appointed as a guardian like a Court official or a Pleader. The learned Judge without considering all this, struck off the defence of the petitioner. It appears from the record that the learned Trial Judge was not conscious of the fact that the defendant/petitioner was a minor. This is the reason that I have decided to exercise my suo moto jurisdiction under Section 115 of the C.P.C. even if, the revision petition is taken to be barred by time.
19. Now let me examine as to whether law permits me to exercise suo moto revisional jurisdiction.
Sub-section (1) of Section 115 C.P.C. provides "the High Court may call for the record of any case, which has been decided by any Court, sub-ordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
The High Court may make such order in the case as it thinks fit: Provided that Provided further that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days in thereof and the High Court shall dispose of such application within six months".
20. A High Court may exercise its revisional jurisdiction either suo-moto or on an application of a person. But if a person makes an application under Section 115 (1) CPC for invoking the revisional jurisdiction of the High Court, he has to make application within ninety-days of the order sought to be revised. In my opinion, if some glaring illegality comes into the notice of the High Court, although through an application filed by a person beyond 90 days of the orders, the High Court may exercise its revisional jurisdiction. If a glaring mistake comes into the notice of the High Court, the High Court shall not ignore the same merely on the ground that it has come to its notice through an application filed by a person beyond 90 days. The High Court may exercise suo-moto revisional jurisdiction possessed by it in such a situation.
21. In view of what has been said above, I have come to the conclusion that the order dated 19-4- 2005 is patently illegal. The revision petition is therefore, allowed. The above said order dated 19-4- 2005 passed by the trial Court is set aside. However, I will pass an Order under Order VIII, Rule 9 CPC requiring the petitioner, who has now become major to file written statement. The trial Court shall specify a date before which the petitioner is to file the written statement. The revision petition is disposed of with no order as to costs.