' The respondent, Shahamand, filed a suit against the petitioner, Muhammad Munshi. The petitioner, who was defendant in the suit, was required to file written statement on 5th July, 1980 but he had failed to do so. The trial Court, therefore, struck off his defence and decreed the suit under rule 10 of Order VIII of the Code of Civil Procedure.
2. The order of the learned trial Court was challenged by the petitioner by means of an appeal but the same was dismissed for being time barred. He has, therefore, come up in revision to this Court.
3. Learned counsel for the petitioner contended that there was no direction by the trial Court, under rule 9 of Order VIII of the Code of Civil Procedure, for filing of the written statement, and the written statement was required to be filed by the petitioner under rule 1 of Order VIII, and, therefore, the learned trial Court could not decree the suit under rule 10 of Order VIII due to the failure of the petitioner to file the written statement on the date fixed by it for the purpose. In this connection, reliance was placed on Nagaratnam Pillani v. Kamalathammal (1) and Abdul Qadoos v. Abdur Rahman (2).
4. The question raised by the learned counsel was earlier considered by this Court in Ghulam Muhammad v. Mst. Sahiban (3), Sheikh Muhammad Sharif v. Haji Ghulam Gilani (4) and Sh. Abdul Saboor & Brothers v. Ganesh Flour Mills Co. Ltd., Lyallpur (5) and the view expressed therein was that rule 10 applies to rule 1 as well as rule 9 of Order VIII of the Code of Civil Procedure. The said three cases were, unfortunately, not cited before the High Court of Azad Jammu & Kashmir when it was examining the case of Abdul Qadoos, on which reliance was placed by learned counsel for the petitioner. As for the case of Nagaratnam Pillai, which was also cited by him, it was considered by this Court in all the aforementioned cases and the opinion delivered in the case of Nagaratnam Filial was dissented from by this Court. I, with respect, endorse the view expressed by this Court in the {{FOOT NOTE}}
(1) AIR 1945 Mad. 299 (2) PLD 1970 Azad J& K 21
(3) PLD 1957 Lah. 624 (4) PLD 1961 Lah. 609
(5) PLD 1967 Lah. 779 {{FOOT NOTE}} ' case of Ghulam Muhammad, Sheikh Muhammad Sharif and Sh. Abdul Saboor & Brothers and hold that the learned trial Court could decree the suit under rule 10, Order VIII of the Code of Civil Procedure even if the petitioner's default in the matter of filing of the written statement was relatable to rule 1 and not rule 9 of Order VIII.
5. Additionally, it was pointed out by the learned counsel that another suit relating to a matter similar to the one involved in the suit, giving rise to the present petition, was brought by the petitioner and is still pending decision with the trial Court and, therefore, if the impugned decree is upheld, it would have repercussions on his pending suit. In this connection, it was also submitted by him that it was discretionary with the learned trial Court to proceed in terms of rule 10 of Order VIII and since the decree to be passed in the suit giving rise to this petition would have affected the fate of the suit instituted by the petitioner the said Court ought not to have passed the decree in exercise of its discretion.
6. To me mind, it is the petitioner himself who is to blame for the trouble apprehended by him qua the suit filed by him. If he wanted to avoid the consequences of which he is afraid of, he should have taken care in defending the suit brought against him. He was given several opportunities to put up his defence by submitting a written statement but he had failed to do so. I am conscious of the legal position that, under rule 10, it was discretionary with the trial Court to pass the decree in question or make any other order but in view of the negligent and contumacious conduct of the petitioner, it was constrained to exercise its discretion against the petitioner. The exercise of discretion by the learned trial Court is, therefore, not open to any valid exception.
7. It seems that even the decree under challenge did not serve as an eye opener for the petitioner.
This is evident from the fact that the appeal preferred by him against that decree was time-barred.
All this speaks of his gross negligence in the matter of watching his interest. There are no equities in his favour and I am, therefore, not inclined to allow any relief to him.
8. Resultantly, this petition fails and is dismissed in limine.