1. ' MUZAFFAR ALI, J.---This appeal assails the decree dated 9-7-2007 passed by the learned Civil Judge, Khaplu, wherein the learned Civil Judge has exercised his discretion under Rule 10 Order VIII, C.P.C. And has penalized the defendants/appellants for non-submission of written statement and passed the impugned decree against the appellants as prayed for, hence this appeal before this Court.
2. ' The facts gave birth to this appeal are as such that, the present respondents filed suit No,15 of 2007, before the learned Civil Court, Khaplu, for unliquidated damages of worth Rs, 2 Crore and Ten Lac, on the basis of malicious prosecution against them by the defendants/appellants. A The learned Civil Judge after completion of process for attendance of the defendants fixed the date for filling of written statement on 9-7-2007 and on the appointed date some defendants, attended the Court some of them were absent and one of the absent defendants sent an application for adjournment of the date which was rejected plainly and the impugned decree was passed A by striking the defense under Order VIII, Rule 10, C.P.C.
3. ' We heard the learned counsel for the parties. The learned counsel for appellants urged that, the learned Judge has misused his discretion and has passed the impugned decree in hurry and in arbitratory manners. The learned counsel for the respondents tried to defend the impugned decree with the contention that, the learned Judge has exercised his discretion properly.
4. ' We considered the points and also have gone through the record of the case, whereby we found that, the defendants in the suit have been impleaded in their representative capacity but no, application for permission to sue the defendants in their representative capacity, has been attached, nor the Court has granted any such permission on its own accord, nor any notice in the name of listed persons has been issued. The learned trial Court, after receiving the plaint and after procuring the attendance of the defendants, has gone to fallow the normal procedure and has called the written statement to submit as routine practice and has violated the pre-requisites of Order I, Rule 8, C.P.C, as such the proceedings are nullity and the impugned decree follows the event, particularly against the persons named in the list attached with the plaint and for representation of whom, the defendants have been impleaded and may be binding on the defendants in their personal capacity if had not been appealed against and set aside in appeal.
5. The next question is, whether the learned trial Court has exercised his discretion under Order VIII, Rule 10, C.P.C. With conscious mind or has buried the justice in hurry, the answer is yes the learned trial Court has not exercised his descretion judiciously and with conscious mind and has berried the justice in hurry, for the reasons that, (a) just after procuring the attendance of the defendants, the next date was fixed for written statement, without understanding the nature of the suit and on the appointed date without giving a second chance and by rejecting the application of one of the defendants for adjournment, passed the impugned decree, which causes the defendants to pay Rs, Two Crore and Ten Lac in execution. (b) the learned trial Court did not bother to look into the averments of the plaint and to the judgment of this Court in the criminal case between the parties to understand that, if the dismissal of the criminal case amounts to malicious prosecution and fulfills the jurisprudential stander of the malicious prosecution and unliquidated damages prayed for in the plaint could be granted declaring the criminal case between the parties to be malicious.
(c) The written statement has been asked to submit as routine practice in lower judiciary in the area and the same seems not specifically required to be submitted, and a routine call for filling written statement, stemming from a rule of procedure is not synonymous to expression "required by Court" in this regard the following case-law is cited.
(1) 1990 CLC 595.
(2) 1987 SCMR Page 1366 Consequent upon the above discussion, the impugned decree is set aside and the case is remanded to the trial Court with the direction to comply Order I rule 8, C.P.C. Ist and to proceed the suit on merits. No order as to cost. File.