Khalid Mahmood, J.--The petitioner through this constitutional petition has questioned the legality of judgment dated 13.11.2012 of Civil Judge/Judge Family Court-II, Peshawar whereby application for submission of written statement of the petitioner was dismissed and order dated 17.12.2012 of learned Additional District Judge-III, Peshawar vide which he upheld the said order.
2. Counsel for the petitioner argued that in the written statement, nowhere it is mentioned that the written statement was filed on behalf of Defendant No, 2/petitioner. He referred to the contents of the impugned written statement wherein only Defendant No, 1 has been cited and in the end of the written statement, it has clearly been mentioned that the written statement has been submitted on behalf of Defendant No,
1. He further argued that the rights of the petitioner are directly involved in the present case and valuable property is sub judice and petitioner has been deprived from submitting the written statement through which he can raise so many legal and factual pleas decisive in the present case and also to secure his own rights. He further argued that mere reference has been made in the order sheet wherein counsel for the defendant has stated that the same written statement should be considered also on behalf of Defendant No, 2/petitioner, neither any statement of the counsel nor any statement of the petitioner has been recorded to this effect. To meet the objection raised by the petitioner that against the interlocutory order, no appeal can lie, counsel for the respondent argued that in fact right of the petitioner has been finally decided to deprive the petitioner to submit the statement for protection of his vested right in the suit property.
He further argued that Article 10-A of the Constitution of the Islamic Republic of Pakistan also ensure fair trial to the litigants and no one should be prejudice merely on technical ground.
3. Counsel for the respondent supported the judgments of the Courts below. He referred to power of attorney submitted by the same counsel who filed written statement on behalf of Defendant No, 1 and his statement before the trial Court wherein he categorically stated that the same written statement should be considered as written statement on behalf of Defendant No, 2/petitioner.
4. Arguments of the learned counsel for the parties heard and record of the case gone through with their valuable assistance.
5. It is admitted fact that the written statement clearly indicates that the same has been submitted on behalf of Defendant No, 1 only. The contents of the, said written statement also described that the same has been submitted on behalf of Defendant No,
1. The arguments of the counsel for the respondent that in case of allowing the petitioner to file written statement will change the nature/stance of the petitioner and adversely affect the right of Respondent No, 1 is totally devoid of force as in Para 1 and 2 of the impugned written statement, it has expressly been stated which is as under:- "1. That the contents of Para No, 1 of the plaint are incorrect with the objection that the defendant was not the owner and is not the owner of 'Yassrab CNG", nor has given the same to the plaintiff in lieu of dower. It is pertinent to mention here that the Defendant No, 2 has not transferred his any property or the portion thereof in the name of the plaintiff through any deed. Yassrab CNG and the land attached therewith is owned by Defendant No, 2 independently.
2. That the contents of Para No, 2 of the plaint as narrated are baseless and incorrect, at the time of Rukhsati, 50 Tolas golden ornaments and a sum of Rs, 5,00,000/- dower amount was paid to the plaintiff by the Defendant No, las admitted in Column 14 of the Nikah Nama. It is, however, submitted that the Defendant No, 1 was not the owner of the "Yassrab CNG" or part thereof, nor the Defendant No, 2 has given any such land in lieu of dower to the plaintiff. The Defendant No, 2 is the lawful owner of the suit land vide Mutation No, 3604 attested on 07.10.2003. Beside this the land in dispute is the part and parcel of land measuring 12 Kanal 3 Marlas with other co-owner, co-sharers not divided so far."
6. As valuable rights of the petitioner are directly involved in the present case and petitioner is agitating his plea as mentioned above from the very inception, propriety demands that the lis should be decided on merits rather the parties should be non-suited on the ground of mere technicality. There is no "hurdle if petitioner is allowed to file independent written statement to raise all the available pleas factual as well as legal which he deems fit to save his rights sub judice before the trial Court. In the light of Para 1 and 2 of the impugned written statement submitted by.
Defendant No, 1, the nature of the plea of respondent/defendants including the petitioner will not be changed, rather petitioner will be at liberty to raise as many pleas which he deems fit in his written statement to enable the Court to reach just, proper and correct conclusion. As Respondent No, 1 has been dragged into litigation after filing of written statement of Respondent/Defendant No, 1, hence we deem it proper that let the petitioner be allowed to file written statement on payment of costs of Rs, 10,000/,
7. Accordingly, this writ petition is allowed, the petitioner is allowed to file written statement but at the cost of Rs, 10,000/-.