ABDUL RAHMAN AURANGZEB, J. This Constitutional petition arising out from the impugned order of learned Trial Court dated 25.07.2016 which was further endorsed by the learned Revisional Court dated 20.11.2016 whereby the right of submission of written reply of the petitioners was closed.
2. Brief facts of the case are that respondent No, 1 Raja Sher Afzal Jasmin Micheela Khan Bahee filed an application for grant of succession certificate under Section 372 of Succession Act, 1925 against present petitioners namely Raja Muhammad Amir Khan and Sarah Maliha Khan and two others.
The present petitioners appeared before the learned Trial Court as respondents No, 2 & 3 and filed application under Section 151, CPC for the dismissal of succession application on the ground that respondent No, 1 Raja Sher Afzal Jasmin Micheela Khan Bahee was not the son of deceased Raja Muhammad Afzal Khan. This application was decided on 30.03.2016 and the petitioner's case was fixed for 25.07.2016 with one last and final opportunity for filing of written reply on behalf of petitioners on 16.05.2016. On the fateful date i,e, 25.07.2016, the petitioners failed to file written reply, hence, their right to submit written reply was closed vide impugned order dated 25.07.2016. Feeling aggrieved, the petitioners filed appeal against the said order which also met the same fate vide judgment dated 20.11.2016 passed by learned Additional District Judge, Lahore. Hence, this petition.
3. Learned counsel for the petitioners has argued that the proceedings remained pending before the learned Trial Court upon the application filed under Section 151, CPC and it was abruptly on 16.05.2016 the Trial Court while reverting to the main proceedings ordered for filing of written reply with last and final opportunity; that unfortunately counsel for the petitioners was not present on 25.07.2016 due to his professional assignments at Gawadar, therefore, he was unable to file written reply on behalf of the petitioners; that the order was very harsh in nature and the petitioners have been deprived from their valuable rights; that law favours adjudication on merits especially when the circumstance of the succession certificate are controversial in nature, therefore, it is in the interest of justice that the order of striking down the written reply be recalled.
4. Learned counsel for the respondents has submitted his written arguments and also vehemently opposed the arguments advanced by learned counsel for the petitioners.
5. I have heard learned counsel for the parties and perused the available record.
6. Perusal of record shows that the petitioners appeared in the learned Trial Court on 13.03.2014 and memo of appearance was submitted. On 08.05.2014, only power-of-attorney on behalf of petitioner No, 2 was submitted and the Court in routine asked to submit the reply of application on the next date of hearing. On 02.12.2014 the petitioners filed an application under Section 151, CPC which was dismissed on 30.03.2016 on the ground that the evidence in the main application for the grant of succession certificate has yet to be recorded. During this intervening period i,e, from 02.12.2014 to 30.03.2016 order regarding filing of written reply was not passed and the proceedings on the objection petition was taken up by the learned Trial Court. However, on 16.05.2016 it was for the first time the learned Trial Court observed that the further proceedings in the application cannot be moved on due to non-submission of written reply, and suddenly a threatening order was passed by the Court with last and final opportunity to submit the written reply. Unfortunately, on the said date the written reply was not tendered due to non-availability of the petitioner's counsel who was statedly not available in Lahore on that day. This fact has been rebutted by the learned counsel for the respondents that it is a lame excuse. In this regard the travel history of learned counsel annexed with the petition belied their version according to which at that time he was at Karachi instead of Gawadar.
7. The main thrust of arguments of learned counsel for the respondents/applicants is that the petitioners/respondents No, 2 and 3, appeared on 13.03.2014 and their right to file written reply was struck off on 25.07.2016. Meaning thereby they have availed 02 years, 04 months and 12 days period in which they could not submit their written reply. The contention raised by learned counsel for the respondents is not plausible and also against the myth of provision envisaged under Order VIII, Rules 1, 9 & 10, C.P.C. The provisions are reproduced below for ready reference:-- O. VIII, Rule 1: "Written statement---The defendant may, and, if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. [Provided that the period allowed for filing the written statement shall not ordinarily exceed [thirty] days].
O.VIII, Rule 9: Subsequent pleadings.---No pleading subsequent to the written statement 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, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
O. VIII, Rule 10: Procedure when party fails to present written statement called for by Court.--- 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 pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
8. In the instant case, the petitioners failed to submit their written reply as desired by the Court but the point in question remain in the field that whether one final and last opportunity granted to the petitioners is reasonable in the peculiar facts of the case. The act of the Court at this stage is seems to be unreasonable, because during the intervening period i,e, from 02.12.2014 to 30.03.2016 no order was ever passed by the learned Trial Court for submission of written reply. In this regard, reliance can be made on the case-law "Col. (Retd.) AYUB ALI RANA v. Dr. CARLITE S. PUNE and another." PLD 2002 Supreme Court 630 where it is held that whenever reasonable doubt would arise regarding interpretation or implementation of the provision referred supra, the same would have to be resolved in favour of the victim of their application. In earlier decision of the Apex Court titled "Mst. Hakumat Bibi v. Imam Din and others" PLD 1987 SC 22 it was held that three types of written statements can be filed by a defendant i,e,:---
(a) As of right without any formal permission of the Court. (Rule 1),
(b) When it is so required by the Court to file a written statement. (Rule 1 and Rule 9); and,
(c) when under some circumstances it is by the leave of the Court. (Rule 9). In the instant case, part (b) of the interpretation attracts the provisions of order VIII, Rule 1 and Rule 9, C.P.C. according to which the Court was required written statement of the petitioners/defendants for the first time on 16.05.2016, when it is observed that:--- "16.05.2016.
Present.Counsel for parties. Defendant No, 4 and 5 are still ex parte.
Today case was fixed for further proceedings at this stage it appears that written reply on behalf of defendants No, 2 and 3 has not been submitted. Hence, in the larger interest of justice only one final last opportunity is granted to defendants No, 2 and 3 for submission of written reply and in case of failure no further opportunity for filing written reply shall be granted. File be placed on 25.07.2016,"
The language couched in the order reflects that the Court required written reply, but at the same time, it was subject to only one last and final opportunity, which is absolutely against the norms of natural justice and equity. I further strengthened my view from the judgment titled "WM ORIENT POWER AND LIGHT LIMITED v. WESTINGHOUSE ELECTRIC CORPORATION and others' 2002 SCM R 1954 where it has been also held that Court in normal cases while taking into consideration the reasons for non-filing of written statement should provide further opportunity to the defendant before invoking the penal provision of law to meet the ends of justice, and it would not be proper to proceed against the petitioners under Order VIII, Rule 10, C.P.C. On the other hand it is also not rebutted by the learned counsel for respondents that the counsel for the petitioners was present either at Gawadar or at Karachi but admittedly he was not present at Lahore to submitted written reply. Therefore, the reasons stated by the petitioners/defendants No, 2 and 3 of their non presence is inevitable.
9. On the strength of above-mentioned reasons I do not feel comfort with the impugned order dated 25.07.2016 whereby the learned Civil Judge struck off the right of the petitioners to file written reply. Similar observation was viewed by the learned Additional District Judge who only relied upon the Provisions of Order VIII, Rule 1, C.P.C., according to which 30 days period of limitation was provided for submission of written reply. But the other enabling provisions i,e, Order VIII, Rules 9 & 10,.
C.P.C. were not viewed according to which the discretion exercised against the defaulting petitioners was exercised very harshly and arbitrarily. The Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obliged to render decision in accordance with law and the law alone. In the case in hand, the orders passed by the learned Trial Court and the learned provisional Court are in violation of express provision of law, therefore, the powers of High Court to interfere in such an order in its constitutional jurisdiction, obviously on the touchstone of the grounds laid down and the parameters set forth in Article 199 of the Constitution, is permissible. In this respect, reliance can be placed on "Muhammad Anwar and others v. Mst. llyas Begum and others". PLC 2013 Supreme Court 255 and "Abdul Majeed Khan through L.Rs, and others v. Ms. Maheen Begum and others" 2014 SCM R 1524.
10. Viewing from another angle it is also manifested in the interest of justice that succession of the predecessor is the moot question revolving around the parties in litigation; hence, it is in the interest of justice that the same shall be addressed after providing fair opportunity to the contestants.
11. In view of above, this writ' petition is allowed. Resultantly impugned order dated 25.07.2016 passed by learned Trial Court and impugned order dated 20.11.2016 passed by learned Additional District Judge are set aside. The learned Trial Court is directed to provide another fair opportunity to the petitioners to file their written reply, It is also further directed that the case of Succession Petition, which already took too much time, should be decided within two months positively, under intimation to this Court through Deputy Registrar (Judicial).