MEHMOOD MAQBOOL BAJWA, J.---Calls in question the vires of orders dated 24-3-2010, 27-10-2010 recorded by the learned Civil Judges and judgment dated 24-1-2011 passed by the learned District Judge, Gujranwala.
2. Necessary facts resulting in filing of present writ petition are that the respondent No,1 instituted suit for possession with consequential relief against the petitioner before the learned Civil. Court, Gujranwala in which the present petitioner entered his appearance on 26-1-2010 and lis was posted for submission of written statement and written reply on 15-2-2010. On failure to submit written statement and written reply, the right of the present petitioner to file written statement was closed by the learned trial Court vide order dated 24-3-2010. An application was made at the instance of the present petitioner for recalling the said order which was dismissed by the learned trial Court vide order dated 27-10-2010. Both the orders were called in question by filing Revision Petition before the learned District judge, Gujranwala which also met with the same fate vide judgment dated 24-1-2011.
3. Heard.
The learned counsel for the petitioner maintained that the petitioner was not provided fair opportunities to submit written statement and as such the order dated 24-3-2010 regarding striking off the defence of the petitioner, order dated 27-10-2010 recorded by the learned trial Court dismissing the application for setting aside the orders and judgment dated 24-1-2011 recorded by the learned District Judge, Gujranwala are legally not sustainable. Referring to the provisions of Order VIII, Rules 1, 9 and 10 of The Code of Civil Procedure 1908 (hereinafter called Code) the learned counsel for the petitioner maintained -that the penal provisions of Order VIII, Rule 10 of Code are applicable only to the written statement required to be submitted under Rule 9 of the said order and as such the penal provision of Rule 10 of The Code cannot be applied when written statement is to be submitted under Rule 1. Seeking help from the dictum laid down in "Sardar SAKHAWATUDDIN and 3 others v. MUHAMMAD IQBAL and 4 others" (1987 SCMR 1365), the learned counsel for the petitioner went on saying that since there was no specific order for filing written statement, therefore, the penal consequences highlighted in Order VIII, Rule 10 of the Code of Civil Procedure, 1908 cannot be applied.
Defending the impugned order, the learned counsel for the respondent No,1 maintained that the petitioner availed more than three opportunities to submit written statement but in order to delay the trial, he intentionally did not submit the written statement and as such no exception can be taken to the order impugned. Referring to the contents of the application dated 25-3-2010 made before the learned trial -Court for permission to submit written statement and written reply and contents of Revision Petition, it was argued that the grounds agitated in the petition as well as in the revision cannot be reconciled as the same are contradictory and as such the petition is liable to be dismissed. Seeking help from the dictum laid down in "FAZLUR REHMAN V. THE STATE" [PLD 1981 SC (AJ&K) 10], the learned counsel for the respondent while making an attempt to distinguish the Rule of law relied upon by the learned counsel for the petitioner maintained that each case has to be decided keeping in view its own facts and circumstances.
4. The Hon'ble Supreme Court of Pakistan while dealing with the provision of Order VIII,' Rules 1, 9 and 10 of The Code of Civil Procedure 1908 in case of "Sardar SAKHAWATUDDIN and 3 others v.
MUHAMMAD IQBAL and 4 others" (1987 SCMR 1365), has held at page 1369 as follows:-- "It is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant.
(1) As a right without any formal permission of the Court. (Rule 1).
(2) When it is so required by the Court to file a written statement. (Rule 1 and Rule 9)
(3) When under some circumstances it is by the leave of 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 Nos.1 and 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."
Same Rule of law was enunciated in "Col. (Retd) AYUB ALI RANA v. Dr. CARLITE S. PUNE and another"
5. Keeping in view the above yardstick now I will examine the order dated 26-1-2010 when the present petitioner being defendant put his appearance for the first time before the learned trial Court, according to which he shown his appearance in person and lis was adjourned for submission of written statement and written reply for 15-2-2010. Order as laid and framed is nowhere suggestive that either a specific direction was issued or the petitioner being defendant was required to submit written statement and written reply and as such it can be said without any fear of contradiction that the present petitioner got an opportunity to submit written statement as a right falling under item-1 as referred to. Since the petitioner was not "required" to submit a written statement, therefore, the penal provision of Order VIII, Rule 10 of The Code was not attracted to the facts of the case despite expiry of a period of one month as provided in the first proviso of Order VIII, Rule 1 of the Code of Civil Procedure 1908. I am not unmindful that the expression "may and if so required by the Court" used in Rule 1 stands deleted by the amendment made by this Court but even then it cannot be validly pleaded that the provisions of Order VIII, Rule 10 of the Code of Civil Procedure 1908 were applicable to the facts of the present case for the simple reason that the said expression is still intact in Rules 9 and 10 of Order VIII of the Code of Civil Procedure 1908. The provision of Order VIII, Rule 1 of The Code of Civil Procedure 1908 after amendment referred to was examined by this Court in "SHABBIR HUSSAIN and 2 others v. Sh. ABDUL JABBAR" (PLD 2006 Lahore 18) and while making comparison it was held that since the expression "so required" is still intact in Rules 9 and 10 of Order VIII of the Code of Civil Procedure 1908, therefore, penal provision of Rule 10 of the Code of Civil Procedure, 1908 has no applicability to the written statement to be filed under Order VIII, Rule 1. Respectfully following the above dictum, I. am of the considered view that even after amendment in Rule 1, the provision of Order VIII, Rule 10 of The Code of Civil Procedure 1908 could not have been applied in the attending circumstances .
6. No doubt the petitioner was provided more than three opportunities for a period exceeding 30 days but nevertheless in view of the above legal proposition the right of the petitioner being defendant could not have been closed.
7. I have gone through the orders impugned. The learned trial Court while dismissing the application made at the instance of the petitioner vide order dated 27-10-2010 also did not take into consideration this legal proposition who was influenced that the order dated 24-3-2010 closing the right of the petitioner to submit written statement is an appealable in nature and review petition is not maintainable. The said opinion cannot be endorsed for two-fold reasons. Firstly, even if it be presumed that the said order was appealable, even then the application for review was legally maintainable in view of the provisions of Order XLVII Rule 1 (1)(a) of The Code of Civil Procedure 1908, according to which the review petition can be made by an aggrieved person against a decree or order from which an appeal is allowed but from which no appeal has been preferred. The learned trial Court though closed the right of the petitioner to submit written statement but nevertheless the judgment was not pronounced and after closing the right of the petitioner to submit written statement, lis was adjourned for evidence of the respondent being plaintiff. The order dated 24-3-2010 as such was not appealable in view of the provision of Order XLIII Rule 1 of The Code of Civil Procedure 1908 as held in "SECRETARY AGRICULTURE, GOVERNMENT OF THE PUNJAB, LAHORE and 4 others v. Messrs MUHAMMAD ABBAS AND SONS" (2006 CLC 1473).
8. Viewed from which angle, orders assailed before this Court are legally not sustainable. Though I find myself in agreement with the contention of the learned counsel for the respondent that the present petitioner has raised contradictory pleas regarding non-submission of written statement but nevertheless in view of the examination of different provisions of law referred to, this fact by itself is not sufficient to non-suit the petitioner.
Undeniably the conduct of the party is important and relevant but since both the learned Courts below did not appreciate the legal proposition, therefore, conduct of the petitioner by itself is not sufficient to non-suit the petitioner.
9. I have gone through the Rule of law laid down in "FAZLUR REHMAN V. THE STATE" (PLD 1981 SC (AJ&K) 10) relied upon by the learned counsel for the respondent. Suffice it to say that in the said Report Rule of law was enunciated with reference to the section 497 of The Code of Criminal Procedure, 1898 having no bearing with reference to the moot point in the civil administration of justice.
10. Pursuant to above discussion, orders impugned dated 24-3-2010, 27-10-2010 and judgment dated 24-1-2011 are hereby set aside resulting in acceptance of writ petition but subject to payment of Rs,5,000 as costs keeping in view the conduct and behaviour of the present petitioner which undeniably is contumacious. The petitioner shall submit written statement before the learned trial Court on 3-10-2011 and shall also pay costs to the adversary as the order is conditional.