Ch. Muhammad Masood Jahanzir ,J: Although suit for recovery of damages of Rs.500 million on account of malicious prosecution was instituted by the respondents/ plaintiffs on 12.07.2012, but without affixation of court fee. Learned Trial Court time and again required them to make up the said deficiency, which was ultimately made good on 15.05.2013. No doubt, prior to 15.05.2013, learned Trial Court had directed the petitioner/defendant to submit written statement, but neither prior to that date nor thereafter till 09.07.2013 it was filed, whereupon by applying penal consequences of Order VIII rule 10 of the Code,1908, the right of submission of written statement of petitioner/defendant was struck off. Initially, the petitioner/defendant assailed the said order well within time before the learned District Court by filing Civil Revision, which was entertained and process was issued for summoning of respondents/plaintiffs, who appeared as well and when it was fixed for final arguments, the Revision Petition being beyond its pecuniary jurisdiction was returned by learned Addl. District Judge vide order dated 28.06.2016 for its presentation before this Court, resultantly it was filed before this Court along with an application under section 14 of the Limitation Act, 1908 for condonation of delay.
2. Arguments heard and record perused.
3. The learned Addl. District Judge became contributory to cause delay for the presentation of instant Civil Revision before this Court. Had he objected at very first point of time while realizing that the said Court lacked jurisdiction to entertain the same, then the same might be filed by the petitioner/defendant well within time before this Court. The respondents/plaintif fs also raised no objection that learned District Court had no pecuniary jurisdiction to proceed any further for a considerable time despite their appearance, hence, C.M No.1/C-2016 for condonation of delay is allowed.
4. It is an admitted fact that suit was instituted by the respondents/plaintiffs without affixation of court fee on the plaint, which was furnished on 15.05.2013 after almost ten months of its institution and prior to it the suit was not competent to be proceeded any further, what to talk to direct the petitioner/defendant to submit his written statement. The case diary maintained by learned Trial Court further reveals that no doubt on 15.05.2013 when the deficiency of the court fee was made good, the case was adjourned to 12.06.2013 for filing of written statement, but on the said day the file was placed before some other Judicial Officer being transferred on Administrative side and it was further adjourned by the Transferee Court in routine to 05.07.2017 without specifically requiring the filing of written statement, whereas on 05.07.2013 without delivering copy of plaint, the case file was adjourned to 09.07.2013, while providing only four days' time to the petitioner to file his written statement and on his failure, the right of defence was struck off through the impugned order passed on that very day. The appreciation of case diary of the learned Trial Court left no doubt in mind that after the suit when it was made competent neither any sufficient time was afforded to the petitioner nor learned Trial Court while delivering the copy of the plaint had specifically required it from him. The apex Court in the judgment reported as Sardar Sakhawatuddin and 3 others Vs. Muhammad Iqbal and 4 others (1987 SCMR 1365) while dealing with the provisions of Order VIII, rules 1, 9 and 10 of the Code of Civil Procedure, 1908 has held as under:- It is clear from the combined reading of Rules 1 and 9 that amongst others three types of written statements can be filed by a defendant.
1. As a right without any formal permission of the Court. (Rule 1).
2. When it is so required by the Court to file a written statement (Rule 1 and Rule 9).
3. When under some circumstances it is by the leave of the Court (Rule 9).
It is obvious from Rule 10 that no adverse results under these Rules are to follow on failure to file written statement in cases mentioned in items Nos.1 and 3 above. But penal consequences of "pronouncement of judgment against" him when the defendant fails to file written statement when "so required"- - -as is indicated in item No.2 above, would follow .
As it is a penal provision it will have to be strictly construed. Hence wherever a reasonable doubt arises regarding its interpretation or implementation, it shall have to be resolved in favour of the victim of its application. Otherwise too, its requirements would have to be established like those of Order XVII, Rule 3 which is similarly penal in nature. See Industrial Sales and Service, Karachi and another V. Archifar Opal Laboratories Ltd., Karachi PLD 1969 Kar .418.
This Court having perused the order sheet is satisfied that the rule laid down by the apex Court in the afore-noted judgment as well as in cases reported as The Secretary, Board of Revenue, Punjab, Lahore and another Vs. Khalid Ahmad Khan(1991 SCMR 2527), Col. Retd. Ayub Ali Rana Vs. Dr. Carlite S. Pune and another (PLD 2002 SC 630), Ghulam Hussain Vs. Shahzada Khurram Nazir (2011 YLR 763) and Adil Textile Mills through Chief Executive and another Vs. Sui Northern Gas Pipeline Limited through Authorized Officer (PLD 2012 Lahore 300) regarding the "requirement" of the Court was not complied with and a speaking order after handing over copy of the plaint to the defaulting party is lacking in this case. Moreover, almost a period of 10 months was allowed to the respondents to furnish the court fee to make their suit competent, hence there would be no injustice, if one more chance is afforded to the petitioner to submit his written statement, whereas law also favours adjudication on merits. Although learned counsel for respondent has placed reliance on judgments reported as Chief Secretary/Provincial Government G.B.Gilgit and 3 others Vs. Abdur Raziq (2017 YLR 863) and Riaz ul Haq and others Vs. Muhammad Asghar and others (2017 SCMR 1841), but with all compliments, those run on different aspects and cannot be stricto sensu applied to support the impugned order.
6. For what has been discussed above, instant Civil Revision is allowed and subject to payment of costs of Rs.15000/-, which shall be paid by the petitioner/defendant to the respondents/pla intiffs before learned Trial Court, impugned order is set aside and learned Trial Court will proceed with the suit immediately before the stage when defence of the petitioner was struck off. The parties are directed to appear before learned Trial Court on 26.03.2018 for further proceedings, which will afford one fair opportunity to petitioner/defendant spreading over not more than twenty days to file his written statement, failing which law will take its own course.