JUDGMENT ORDER RAUF AHMAD SHEIKH. J.---The petitioner has challenged the vires of order dated 16-2-2010, passed by the learned Civil Judge, Lahore whereby his right to file written statement was struck of in a suit for possession through pre-emption filed by the respondent No.1 in respect of land fully described in para No.1 of the plaint on payment of Rs.79,00,000. It is contended that the defendant/petitioner appeared through his counsel on 7-1-2010 and made a demand for supply of copy of the plaint but it was .Not made available. On subsequent dates of hearing i.e. 30-1-2010 and 8-2-2010 also the copy was not supplied so the order dated 16-2-2010 whereby his right to file written statement was struck of, is illegal and uncalled for. It is contended that he filed an appeal within limitation before the learned District Judge, Lahore, on- 15-3-2010 which was admitted to hearing by the learned Additional District Judge and the same remained pending till 29-9-2010, when it was allowed to be withdrawn for want of pecuniary jurisdiction of the District Court. It is urged that without providing the copy of plaint, penal action under Order VIII Rule 10, C.P.C. Could have not been invoked and as such the impugned order is patently illegal.
2. An application under section 5 read with section 14 of the Limitation Act has also been submitted with the averments reproduced above. Learned counsel for the petitioner has reiterated the contentions and has placed reliance on 1998 SCMR 2296 and PLD 2006 Lahore 18.
3. Controverting these arguments learned counsel for the respondent has contended that the learned trial Court was left with no option but to invoke penal provisions under Order VIII Rule 10, C.P.C. As the petitioner had contumaciously refrained from submission of written statement. It is urged that wrong advice of counsel does not constitute a valid ground for condonation of delay in filing revision petition. In support of contentions raised reliance is placed on PLD 1977 SC 102; 1999 SCMR 1892; 2001 SCMR 1254; 2000 SCMR 1889; PLD 1991 SC 957, 1990 SCMR 635, 1988 SCMR 2, 1985 SCMR 1003, 2006 CLC 1473 and 2007 CLC 1257.
4. The perusal of impugned order reveals that copy was available on record but was not delivered to the defendant/ petitioner. The observation of the Court that petitioner/ defendant did not bother to receive the same could not have been made a ground to pass an order to strike of the right to file written statement because the copy should have been sent along with summons for settlement of issues or should have been delivered at the time of first appearance of the petitioner/defendant because without supply of the copy of the plaint as aforementioned the penal action under Order VIII Rule 10, C.P.C. Cannot be invoked. In these circumstances the impugned order was not called for and material irregularity was committed on its passing. The copy of the memorandum of appeal reveals that the petitioner filed the same on 15-3-2010 and it was admitted for regular hearing on 16-3-2010. The learned Additional District Judge, who lacked the pecuniary jurisdiction committed a mistake in admitting the same to regular hearing. It remained pending before the learned Addl.
District Judge till 29-9-2010 and on an objection of the learned counsel for the respondent/plaintiff about lack of pecuniary jurisdiction by the learned Addl. District Judge, learned counsel for the petitioner withdrew the same. This shows that the petitioner was ill advised and filed the appeal before wrong forum although it was not maintainable under Order XLIII Rule 1(b), C.P.C. As no judgment against the petitioner was pronounced. The said appeal remained pending from 16-3- 2010 to 29-9-2010. A litigant cannot be made to suffer due to unwarranted orders or mistakes committed by the Courts. Firstly the learned trial Court proceeded on to strike of the right to file written statement without supplying the copy of plaint and then the learned Additional District Judge admitted the appeal for regular hearing, which was not competent and even otherwise was beyond the pecuniary jurisdiction of the District Court. Had he not admitted the appeal on 16-3- 2010, the petitioner would have not spent the period from 16-3-2010 to 29-9-2010 before the learned Additional District Judge. Valuable rights of the parties are involved in this suit and the defendant/petitioner should not be deprived of the right to defend the lis. The case law cited at the bar by the learned counsel for the respondent/plaintiff is not applicable on the peculiar and distinguishable facts of the present revision.
5. For the reasons supra, the revision petition is accepted and the impugned order is hereby set aside. The learned trial Court will afford one opportunity to the defendant/petitioner to file written statement and thereafter would proceed further in accordance with law.