C. Ms. Nos, 3 and 4 of 2017 JAWAD HASSAN, J.---Through the instant application, the applicant seeks restoration of the main case which was dismissed for non-prosecution on 04.08.2017.
2. For the reasons mentioned in the C.M. which is supported by an affidavit of the Applicant/Petitioner, the same is allowed and main case is restored to its original number.
3. Along with the C.M. for restoration, the Applicant/Petitioner has also filed C.M. No,4/2017 for condonation of delay in filing the C.M. for restoration. For the reasons and grounds mentioned in the C.M. which is supported by an affidavit of the counsel for the Petitioner, the same is also allowed.
MAIN CASE.
1. Through this petition, the Petitioner has prayed to set aside orders dated 17.11.2016 and 15.2.2017, passed respectively by the Respondents Nos, 2 and 3, whereby the Petitioner's right of filing written statement was struck off and the appeal preferred against the same before the Respondent No, 3 was also dismissed. These concurrent findings of facts have been assailed through this constitutional petition.
2. Facts briefly for the disposal of this constitutional petition are that the Respondent No,1 filed a suit for declaration and permanent injunction against the Petitioner regarding eight plots situated in H/1 Block, Johar Town, Lahore. In the suit, the Respondent No,1 sought declaration to the effect that the Petitioner be restrained to interfere in the possession of suit property and it was also prayed in the suit that the Petitioner be directed to reconstruct the files of the plots which were lost. During the pendency of the suit, the learned Civil Judge, Lahore provided various opportunities to file written statement and ultimately the right to file written statement was struck off vide order dated 17.11.2016. Feeling aggrieved thereof, the Petitioner assailed the said order by filing a revision petition, which was dismissed by the learned Additional District Judge, Lahore vide order dated 15.02.2017.
3. Counsel for the Petitioner has argued that no copy of plaint was provided to the Petitioner to file the written statement; that case of the Respondent No,1 was three/four times was transferred from one Court to another on the statement of counsel for the Respondent No,1, just to get an adverse order against the Petitioner; that the interim order sheet reveals that on 7.11.2016, the case was adjourned for 17.11.2016 for reply of application under Order I, Rule 10, C.P.C. and not adjourned for filing of written statement, but the learned Civil Judge stuck off the right of filing of written statement and defence of the Petitioner.
4. On the other hand, the counsel for the Respondent No,1 has supported the impugned orders and argued that both the courts below have rightly closed the Petitioner's right to file written statement as he was provided sufficient opportunities of hearing containing period of almost more than two years, but the Petitioner failed to file the written statement, therefore, both the courts below were justified to pass the impugned orders against the Petitioner.
5. Arguments heard and record perused.
6. It is reflected from perusal of record that the suit was filed by the Respondent No,1 on 25.02.2013.
The Respondent No,2 first time on 03.01.2014 directed the Petitioner to file the written statement and adjourned the case for 15.1.2014. Subsequently, on 15.1.2014, 28.1.2014, 4.2,2014, 8.2.2014, the case was adjourned for filing of written statement, but the Petitioner failed to file the written statement. Again on 24.4.2014 last opportunity was granted for filing of the written statement and case was adjourned for 23.5.2014, 16.7.2014, 25.09.2014, 21.10.2014, 29.11.2014, 6.1.2015, 10.2.2015, 11.03.2015, 11.4.2015, 22.05.2015, 30.5.2015, 10.07.2015, 8.9.2015, 15.10.2015, 26.11.2015 for filing of written statement but the same was not filed. On 6.1.2015, the case was adjourned for filing of the written reply to the application made under Order I, Rule 10, C.P.C. and written statement. On 27.1.2016, when the Lawyers were on strike and the case was adjourned for 7.3.2016 and case was adjourned for 18.04.2016 and absolute last opportunity was granted to the Petitioner filing of written statement.
On 28.4.2016, the application made under Order I, Rule 10, C.P.C. was filed and the case was adjourned for arguments on application. Ultimately, on 25.10.2016, the learned Civil Judge, Lahore granted absolute last opportunity for filing of reply on application under Order I, Rule 10, C.P.C. and written statement on behalf of the LDA and adjourned the case for 27.10.2016. On 27.10.2016, the counsel for the Petitioner gave undertaking that if on the next date of hearing, he fails to file the written statement, he would have no objection if his right to submit written statement be closed. In this regard, his signatures were obtained on margin of order sheet. On 27.10.2016, an application was moved by the Respondent No,1 under Order VIII, Rule 10, C.P.C. praying therein that the Petitioner's right to file written statement be closed and he further made statement that despite granting various opportunities to the Petitioner, the Court seized of the matter could not close the right of the Petitioner to file written statement and to impose cost, therefore, his suit be withdrawn from the court of Ms. Qamar-unNisa, Civil Judge, Lahore and be entrusted to some other Court of competent jurisdiction. Ultimately, the case was referred to the District and Sessions Judge, Lahore, who entrusted the suit to Mr. Dildar Shah, Civil Judge, Lahore, who on 2.11.2016 granted an absolute final opportunity to file the written statement and adjourned the case for 3.11.2016. On 3.11.2016, at the request of counsel for the Respondent No,1, the case was transferred to the District and Sessions Judge, Lahore for entrustment of the suit to any other Civil Judge who entrusted the same to Mr. Ashfaq Ahmad Khan, Civil Judge and case was adjourned for arguments on application under Order I, Rule 10, C.P.C. for 17.11.2016. Resultantly, on 17.11.2016, after elapse of almost 2 years and 10 months, the Judge struck off the right of the Petitioner for filing of written statement and right of defence of the petitioner was closed. The application made by the Respondent No,1 under Order VIII, Rule 10 CPC was allowed. Feeling aggrieved by the said order, the Petitioner filed, revision petition which was dismissed by the learned Additional District Judge, Lahore, vide order dated 15.02.2017.
7. The above said history of interim orders demonstrate that the Respondent No,1 earlier moved an application under Order VIII, Rule 10 of C.P.C. before the learned trial Court for the implementation of the order of the learned trial Court, wherein it had directed the Petitioner to submit written statement as well as written reply by stating, "last opportunity" and "absolute last opportunity". By way of which, the learned trial court decided the application of the Respondent No,1 under Order VIII, Rule 10 of C.P.C. through the impugned order and on failure on the part of the Petitioner to file written statement and written reply despite elapse of 2 years and 10 months, struck off the right of the Petitioner to submit written statement as well as written reply.
As per Order VIII, Rule 1 C.P.C., through it is directory and not mandatory a period of 30-days is granted to file written statement and thereafter delay can be condoned upto 90-days. However, the delay beyond 90-days is also condoned not as a routine, but only in certain acceptable circumstances of the reasons of the delay. In spite of the fact that the provision of Order VIII, Rule 1, C.P.C. is only directory, however, the same does not mean that the spirit-of introducing this provision can be done away with. The facts and circumstances narrated above clearly demonstrate the laxity and gross negligence on the part of the Petitioner and his counsel for not filing the written statement within the statutory period of 90-days or even beyond that till the defence was struck off on 17.11.2016. In such situation, the trial court was justified to strike off the right of the Petitioner to file written statement. Reliance in this respect is placed upon "Muhammad Salim v. Abdul Shakoor" (1994 CLC 1911) wherein it has been held as under:-- "Defendant failed to file written statement despite many dates were given to him by Court to file written statement. Some dates were fixed by Court in routine whereas others were given to defendant on his own request. On last date of hearing defendant failed to appear and file written statement despite case was kept in waiting. Defendant having failed to comply with order of Court according to which he was directed to file written statement,. Court was justified to struck off defence of defendant for such noncompliance even without recording evidence as facts of case were almost admitted."
The same principle was also highlighted in the case of Abdur Rasheed v. Rafeeq Muhammad (2016 CLC 21). In case titled "Raja Rehmat Khan v. Muhammad Aamir Tastee and 2 others" (2015 YLR (Karachi) 2220) it has been held that:-- "Word "required" used in 0. VIII, R. 1, C.P.C. did not include any routine order passed without application of mind and prior to making a written statement subject to penal provisions of 0. VIII, R.
10, C.P.C. there should be proof on record that court had required the same by application of mind through a "speaking order", Word "ordinarily" used in 0. VIII, R. 1, C.P.C. conveyed that the period of "30 days" could not be adhered to in all situations and vested a discretion in the court to extend the said period whenever it advanced the "cause of justice".- Word "ordinarily" used in 0. VIII, R. 1, C.P. C. therefore, rendered the said provision as directory and not mandatory."
In case titled Muhammad Tabish Naeem Khan v. Additional Distgrict Judge, Lahore and others (2014 SCM R 1365), the Hon'ble Supreme Court of Pakistan has held as under:- "Family Court was a quasi judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principles of fair hearing and trial. Defendant of a family suit, who was duly served, but did not file his written statement within the time allowed to him by the court, the Family Court shall have the inherent power to proceed ex parte against him, to strike off the defence and to pass an ex parte decree in line with the principles enunciated by the Civil Procedure Code, 1908"
8. In the recent judgment of the Supreme Court titled Riaz Ul Haq and others v. Muhammad Asghar and others (2017 SCM R 1841) where the Petitioner failed to file a written statement, it was held that: "Order VIII, Rule 10 of C.P. C. prescribes a time frame for filing a written statement which cannot ordinarily exceed 30 days. A perusal of the record indicates that the petitioners were granted at least four opportunities spread over a period of about five months to file the written statement.
However, despite the time given and indulgence shown by the Court, the petitioners failed to file their written statement without any lawful justification. Where law prescribes a time for doing a certain act, the same should ordinarily be adhered to unless cogent reasons and lawful justification is presented before the Court justifying an extension of such time. No such justification was pleaded before the trial, appellate or revisional Court. Even before us, other than submitting that one more opportunity may be granted against payment of costs, the learned counsel did not furnish any reason or justification for the petitioners' failure to file their written statement despite repeated adjournments granted by the Court."
9. Both the Courts below have passed concurrent findings against the Petitioner through their impugned orders and it is settled proposition of law that this Court should not interfere with the findings of facts arrived at by the primary Courts when it is satisfied that the findings of both the learned Courts below are reasonable and were not arrived at by disregarding any of the provisions of law or any accepted principle concerning appreciation of evidence. Learned counsel for the Petitioner could not point out that the findings of fact recorded by both the learned Courts below, on the face of it, are against law or were patently improper or perverse that to accept it could amount to perpetuating a grave miscarriage of justice. The constitutional jurisdiction is ordinarily discretionary in character. In my view, in the instant case, there is no satisfactory ground for setting aside the concurrent findings recorded by two Courts below. No infirmity or illegality has been pointed out in both the orders of the learned Courts below, which are in accordance with law and the same are hereby maintained. The writ petition, being devoid of any force, is hereby dismissed.