Syed Afsar Shah, J.--Through the instant Regular First Appeal, the 'appellants have impugned the order dated 23.11.2005 rendered by learned Civil Judge-VI, Peshawar, whereby striking of right of defence of the petitioners/defendants, suit for the recovery of Rs,3 5,00,000/- was decreed against the respondents/plaintiffs under Order VIII Rule 10 of the Code of Civil Procedure.
2. The facts leading to the filing of the present appeal as deciphered from the record are that on 3.9.2004 Syed Sher Shah and five others, the respondents/plaintiffs filed a suit against the appellants/defendants for the recovery of Rs,35-lacs. They have based their claim mainly on the ground that the petitioners/defendants have backed out from the compromise arrived at between the parties when put on notice by the learned lower Court, Defendants Nos. .1 and 2 moved an application for rejection of the plaint under Order VII Rule 11, C.P.C. The said application was dismissed by the learned lower Court vide its order dated 15.9.2005, whereafter, the case was fixed and posted till 22.9.2005 for submission of the written statement and since the same was not filed till 23.11.2005, therefore, the learned lower Court while adhering to Order VIII Rule 10, C.P.C, struck off right of defence of the petitioners and decreed the suit in favour of the respondents/plaintiffs. The petitioners through the instant Regular First Appeal have challenged the legality and validity of the order dated 23.1.2005.
3. We have heard arguments of learned counsel for the parties, gone through the record of the case and perused the relevant law on the subject as well.
4. It appears from the record available on file that on 15.9.2005 the learned trial Court after rejecting the application of the petitioners/defendants for rejection of the plaint posted the case till 22.9.2005 for submission of the written statement. On the said date, the Presiding Officer was on leave and hence, the case was fixed till 8.10.2005 and on which date the case was again adjourned for submission of the written statement and as such posted till 19.10.2005. On the said date, the Presiding Officer was on leave and the case was fixed till 1.11.2005. Perusal of the order sheets handed down by the learned Civil Judge would show that on 1.11.2005 since written statement was not filed by the petitioners/defendants, therefore, the case was adjourned till 23.11.2005 for filing of written statement but on payment of cost of Rs,200/- . As stated earlier, on 23.11.2005 since the petitioners/defendants failed to file their written statement, therefore, the impugned order was rendered.
5. According to Order VIII Rule 10, C.P.C. Where any party from whom a written statement is so required, fails to present the same within the time fixed by the Court, the Court may pronounced judgment against him or make such order in relation to the suit as it things fit.
6. From plan reading of the above quoted provision, one could reach to an irresistible conclusion that the legislature has used the word may and not shall. Again perusal of the order sheets referred to earlier would show that these are routine orders and the trial Court has not rendered a speaking order requiring the petitioners/defendants to file their written statement. No doubt, the provisions of Order VIII Rule 10, C.P.C. Are penal in nature but by using the word may the issue has been left open for the Court which has to take into consideration the facts and circumstances of each case.
Discretion about the option of the Court to pass order like one (impugned). Without satisfying itself about genuineness of the claim of the plaintiffs is against the natural justice, as the Court may still require the respondents/plaintiffs to satisfy the Court about their claim, which element in the instant case as is evident from the record is missing in toto.
7. It appears from the memorandum of appeal that the appellants have also challenged the order of the learned lower Court dated 15.9.2005 whereby their application for rejection of the plaint was dismissed. Though, the order is not appealable but even then while going through the impugned order one could safely say that in the given circumstances of the case it does not suffer from any illegality. Neither the suit is barred by any specific provision of law nor the plaint is silent regarding the disclosure of cause of action. The learned lower Court in its order herein impugned has attended almost all aspects of the case.
8., In view of the above, the appeal is partially allowed, resultantly, the order dated 23.11.2005 is set aside and as a consequence thereof the case is remitted back to the learned trial Court with the direction to ask for written statement from the petitioners/defendants and thereafter to proceed with the case in accordance with law. Case remanded.
(R.A) .