1. This is a suit for .Declaration and injunction and for recovery of Rs. 60,000 against 3 defendants.
2. Defendants Nos. I and 3 though served, did not put in any written statement. The Additional Registrar debarred defendant No. 1 from filing the written statement by an order dated 29-8-1974, and whereas defendant No. 3 was debarred by an order dated 18-9-1974. The above defendants filed two applications, namely Civil Miscellaneous Appeal No. 329 of 1975 and Civil Miscellaneous Appeal No. 757 of 1975 for setting aside the aforesaid orders of debarring them for filing the written statement, but the same were dismissed on 17-3-1975 and 18-8-1975 in default respectively. At the stage of the evidence, learned counsel for defendants Nos. 1 and 3 Mr. Fani was permitted to X- examine the witnesses produced by the plaintiff as well as by defendant No. 2 who were not ex parte, keeping in view the case of Laique Ahmed Siddiqui v. The Federation of Pakistan PLD 1957 Kar. 54When the evidence of defendant No. 2 was closed on 10-10-1979 Mr. Fani learned counsel for defendants Nos. 1 and 3 requested that the above defen--dants may be permitted to produce evidence in rebuttal. 1, therefore, adjourned the case for the hearing of the arguments of the learned counsel for the parties on the question, as to whether a party who has not filed any written statement and has not raised any plea and who has been debarred from filing a written statement can be permitted to lead any evidence. The case has come up today for hearing on the above point.
2. (a) Mr. Fani has urged that there is no provision in the C. P. C. Obliging a defendant to file a written statement unless he is directed by the Court to file the same. In support of his above submission, he has referred to Order V, rule 5, Order VIII, rules 1, 9 and 10, C. P. C. And also the provisions of Order X, rule 1 and order XIV, rule 3, C. P. C. Whereas it has been urged by Mr. Liaquat Merchant, learned counsel for the plaintiff that the provisions of C. P. C. Are to be read with the Sind Chief Court Rules (O. S.) framed by the Late Sind Chief Court. He has particularly invited my attention to rules 14, 155, 156 and 159 of the aforesaid Rules. He has also drawn my attention to the provisions of Order XVIII, rule 2, C. P. C. In support of his contention that a party who has not raised any plea cannot be permitted to lead any evidence.
(b) Reverting to the first contention to Mr. Fani, it may be pertinent to refer to the provisions of C. P.
3. C. Relied upon by him. Order V, rule 5, C. P. C. Provides that the Court shall determine at the time of issuing the summons whether it shall be for the settlement of issues only or for the final disposal of the suit and the summons shall contain direction accordingly. Whereas Order VIII, rule 1 lays down that the defendant may, and if so required by the Court, shall on or before the first hearing or within such time as the Court may permit present the written statement of his defence. Rule 9 of Order VIII, provides that no plea subsequent to the written state--ment of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit and that the Court may at any time require a written statement or additional written statement from any of the parties and may fix time for presenting the same ; and whereas rule 10 of the above order provides that where any party from whom written statement is so required fails to present the same within time fixed by the Court, the Court may pronounce the judgment against him, or make such order in rela--tion to the suit as it thinks fit. Furthermore, Order X, rule 1 provides that on the first hearing of the suit Court shall ascertain from each party or his pleader whether he admits or denies such allegation of fact as are made in the plaint or written statement (if any) of the opposite-party, and are not expressly or by necessary implication admitted or denied by the party against whom they are made and that the Court shall record such admission and denial. Whereas Order XIV, rule 3, C. P. C. Provides that a Court may frame issues from all or any of the following materials.
(a) Allegations made on oath by the parties or by any person present on their behalf, or made by the pleaders of such parties ;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit.
(c) The contents of documents produced by either parties.
(c) On the basis of the above provisions, it has been urged by Mr. Fani, learned counsel for defendants Nos. 1 and 3 that when the summon was issued to defendants Nos. 1 and 3 in the instant case under Order V, rule 5, no direction was given for the filing of the written statement. His further submission was that under rule 1 of Order VIII the defendants had the option to file or not to file a written statement and that option could be taken away by the Court by expressly directing the said defendants to file a written statement. His further submission was that even at a subsequent stage, the Court could direct the above defendants under Order VIII, rule 9, C. P. C. To file written statement or additional written statement and in case of default in compliance of the aforesaid direction, the consequence provided for in rule 10 of the aforesaid order could be pressed into service, namely, that the Court could pronounce the judgment against them or could have passed any other order, which it would have thought fit. In furtherance of his above contention that a defendant is not obliged .Under the provisions of the C. P. C. To file a written statement unless expressly directed, he has also referred to rule 1, Order X, C. P. C. Whereby the Court has been empowered to ascertain from each of the party or his pleader admission and denial of the facts and against the word `written statement' the words `if any' have been used. According to Mr. Fani the use of the words, `if any' after the words `written statement' clearly indicates that there is no compul--sion on the part of a defendant to file a written statement. It was also urged by him that in view of Order XIV, rule 3, C. P. C. For framing of issues written statement is not must. Mr. Fani also referred to the case of Ram Rakhan and another v. Mohani Govinddas AIR 1945 All. 352the case of Abdul' Qaddoos v. Abdul Rehman PLD 1970 Azad J & K 21and the case of Mst. Bilqis Begum v. Syed Turab 1980 CLC 930. In the first case it has been held that the provisions of rule 10 of Order VIII is not attracted to, in case a defendant does not file a written statement in terms of Order VIII, rule 1, C.
4. P. C. And that the above rule 10 can be pressed into service if a defendant fails to file a written statement or additional written statement in compliance of direction of the Court under rule 9 of Order VIII, C. P. C. The same view found favour with the High Court of Azad Jammu & Kashmir in the aforesaid case, but whereas in the aforesaid Lahore case 1980, it was held that the provisions of rule 10 of Order VIII, C. P. C. Are attracted to, when a defendant does not file a written statement either under rule 1 or rule 9 of Order VIII, C. P. C.
5. In my view the aforesaid orders and the rules of the C. P. C. Relied upon by Mr. Fani have no relevancy to the point in issue. The only point in issue before me is, as to whether a party who has defaulted and has chosen not to file a written statement, can be permitted to lead evidence in rebuttal to the evidence produced by the plaintiff. In this regard reference may be made to the provisions of Order XVIII, rule 2, C. P. C., which provides that on a day fixed for the hearing of the suit or any day to which the hearing is adjourned, the party having the right to begin shall state his case and reproduce his evidence in support of the issues which he is bound to prove. Whereas sub-clause (2) to rule 2 of Order XVIII, provides that the other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. From the above provision of Order XVIII, it is evident that the party is permitted to lead evidence in order to discharge the burden of proof which lies on him in respect of certain issues. In the instant case, as defendants Nos. 1 and have not filed any written statement there is no plea raised by them and in my view they are not entitled to lead any evidence.
(d) It may be observed that Mr. Liaquat Merchant has urged that as a matter of fact Additional Registrar (O. S.) has directed defendants Nos.1 and 2 to file written statements under rule 156(2) of the Sind Chief Court Rules (O. S.) and that as they had failed to carry out the above direction, the were debarred from filing written statements as per rule 159 of the aforesaid rules and that, thereafter the matter proceeded ex parte against them. It will suffice to observe that above contention factually seems to be correct, as the orders of debarring defendants Nos. 1 and 3 from filing written statements were proceeded with the orders directing the above defendants to file written statements. Mr. Merchant has also referred to the case of Syed Mushtak and others v.
6. Master Khushi Muhammad PLD 1961 Lah. 792the case of Ghulam Mohammad and others v. Mst.
7. Irshad Begum and others PLD 1964 Lah. 782the case of Laiqrre Ahmed Siddiqui v. The Federation of Pakistan the case of Hariram Rewa--chand v. Pribhdas Mulchand and others AIR 1945 Sind 98the case of (Gakarakonda) Venkatasubbiah v. Daliparthi Lakshminarasimhas AIR 1925 Mad.
8. 1274, the case of Habib Ismail Bajwa v. Khwaja Ghulam Mohyuddin (PLD 1970 Lah. 28and the case of Government Telephone Board v. Hormusji Maneckji and others AIR 1943 Bom. 352In the first case it has been held that after the ex parte order the party against whom such an order has been passed, has no right to participate in the proceedings unless he gets the ex parte order set aside.
9. Whereas in the second case of 1964 Lahore, it has been held that even a party against whom ex parse order has been passed can participate in the proceeding from the stage when he appears.
10. The above Lahore case concurred with the view found favour with Inamullah, J. In the aforesaid Karachi case of 1957.
11. Reverting to 1945 Sind, it may be observed that inter alia the question before Sullivan, J. Was, as to whether the defendant who was ex parte could be permitted to participate in the proceeding from the stage, when he appeared without getting ex parse order set aside. The defendant in the aforesaid case had relied upon the aforesaid case of 1925 Madras, in which it was held that a defendant who was ex parte could lead evidence in rebuttal to the plaintiff's evidence Sullivan, J.
12. Dissented from the above Madras view and held that defendant who was ex parte was not entitled to participate in the proceeding unless the ex parte order was set aside and that the right to proceed ex parte was not to be defeated by the mere physical presence of defendant at a subsequent stage.
13. Whereas in 1970 Lahore case the question in issue before the High Court was as to whether the learned Rent Controller was justified in refusing to permit the tenant (against whom an ex parse order was passed) to cross--examine the landlord. On the basis of the facts of the above case it was held that as the predecessor of the Rent Controller had permitted the tenant to make his statement and also allowed the landlord to make statement. The learned Rent Controller was not justified in declining the tenant's request to cross-examine the landlord and that an ex parse order does not debar a party from participating from the stage when he appears at a subsequent date.
14. Whereas in 1943 Bombay case (a D. B. Comprising of Beumont, C. J. And Kania, J.) it has been held that it is irregular procedure to allow parties to adduce evidence on points nor raised in the pleadings or issues without amending the pleadings.
15. The above Bombay, case supports the contention of Mr. Merchant that a party cannot be permitted to adduce evidence unless he has raised question of facts or the pleas in his pleadings.
16. It is a well settled law that a. Party cannot be permitted to lead evidence contrary to of .Beyond his pleadings. It must follow from it, that if a party has not filed any written statement and thus has not raised any plea, cannot be permitted to lead any evidence. In this view of the matter I see no justification to permit defendants Nos. 1 and 3 to lead any evidence. However, following the aforesaid 1957 Karachi and of 1964 and 1970 Lahore cases. I permit the above defendants to participate in the arguments on the basis .Of the Court record. The case is adjourned to date in office for arguments.