ATIR MAHMOOD, J.---Brief facts of the case are that on 23.01.2014, respondent No,1-plaintiff filed a suit for declaration, possession through partition, mesne profits, permanent injunction and consequential relief against the petitioners-defendants and respondents Nos,2 to 5. Since the petitioners did not file written statement despite specific order dated 16.05.2016, their right to file written statement was struck off by learned trial court vide order dated 25.07.2016. Hence this civil revision has been filed by the petitioners-defendants.
2. Learned counsel for the petitioners inter alia contends that the petitioners were given only one opportunity to file the written statement when their counsel was out of station, therefore, it is justified to give them at least one opportunity to file the written statement; that copy of the plaint was not provided to the petitioners; that law favours adjudication on merit rather than on technicalities; that if opportunity to file written statement is not given to the petitioners, they will suffer irreparable loss; that the impugned order is harsh one, therefore, the same be set aside by way of allowing the instant civil revision and at least one opportunity be granted to the petitioners to file the written statement.
3. On the other hand, learned counsel for the respondents have vehemently opposed this civil revision and fully supported the impugned order.
4. Arguments heard. Record perused.
5. Perusal of record reveals that the suit was filed by respondent No,1 on 23.01.2014. Summons were issued to the defendants including the petitioners. Petitioner No,1 appeared on 04.02.2014 through his counsel namely Mr. Shahid Ali, Advocate. Petitioner No,2 appeared through the same counsel on 25.02.2014 when application under Order VII, Rule 11, C.P.C. was filed by both the petitioners by one and the same counsel, i,e, Mr. Shahid Ali, Advocate. The proceedings continued in the said application which was ultimately dismissed on 30.03.2016. Thereafter, the case was fixed for arguments on application for permanent injunction for 16.05.2016 when the court noticed that the petitioners had not filed the written statement as well as the written reply to application, therefore, the court provided one and the last opportunity to the petitioners to do the needful while warning the petitioners that no further time will be given for this purpose. The case was fixed for 25.07.2016 when the right to file written statement was struck off as the petitioners failed to file the written statement.
6. This is a suit for partition wherein the provisions of the Punjab Partition of Immovable Property Act 2012 (hereinafter called "the Act") are applicable. Section 6 of the Act being relevant in this case is reproduced below:
6. Written statement.---(1) Subject to section 5, a defendant in a suit for partition of immovable property shall file the written statement within thirty days of his first appearance in the Court and shall attach with the written statement copies of all the relevant documents in his reach or possession.
(2) If a defendant fails to file the written statement within the period mentioned in subsection (1), the Court shall strike off his defence and in that event he shall not be entitled to lead any evidence."
(Underline is mine)
Perusal of above provision of law makes it crystal clear that a defendant in a partition suit is required to file written statement within 30 days commencing from the date of his first appearance in the court which, as per Section 5 of the Act, is subject to receipt of notice/summon. In this case, petitioner No,1 appeared on 04.02.2014 whereas petitioner No,2 put appearance before the court on 25.02.2014 through one and the same learned counsel, i,e, Mr. Shahid Ali, Advocate. Both the petitioners are inter se real brother and sister. As per said provision of law, petitioner No, 1 and Petitioner No,2 were required to file written statement by 06.03.2014 and 27.03.2014 respectively but they did not file the written statement despite specific direction and warning that no further opportunity will be granted to them for filing written statement till 25.07.2016, i,e, after about two years and four months of their first appearance before the court. Needless to observe that provision given under subsection (1) of section 6 of the Act is mandatory and not directory in nature as the very next subsection, i.e, subsection (2) of Section 6, provides penal consequences of closure of right of defence for non-filing of the written statement within the prescribed period of 30. days. In my view, when a timeframe for doing something is prescribed by law, it should be followed strict() sensu and no time extension should be given unless there is some lawful justification or cogent reason is given to the court for the same. No plausible reason or justification could be produced by the petitioners for extension of time for filing the written statement, therefore, the time for filing the written statement cannot be extended.
7. The only contentions of learned counsel for the petitioners for granting opportunity to file the written statement are that the petitioner's counsel was out of station on the fateful day, i,e, 25.07.2016 and that copy of plaint was not provided to the petitioners, therefore, the petitioners could not file the written statement. In support of first contention of learned counsel for the petitioner that learned counsel for the petitioners was out of station, a travel history issued by a travel company, namely The Travel Company, Lahore, has been annexed with this revision petition.
Although the said document being a private document has no sanctity in the eye of law and cannot be relied upon, yet it reads that Mr. Shahid Ali, Advocate had to travel from Lahore to Karachi on 20.07.2016 and come back on 30.07.2016. This entry of the history sheet is not supported by any travel ticket of the petitioners' counsel to establish that he in fact travelled on the said dates and that he was present in Karachi from 20.07.2017 to 30.07.2016. Interestingly, the said entry is in contradiction to para 5 of the civil revision which reflects that the petitioners' counsel was in Gawadar on 25.07.2016 when the right to file written statement was closed. Both the said versions are proved false from the record of the trial court which clearly marks attendance of the counsel for the plaintiff as well as that of the defendants. In the circumstances, the judicial record having legal sanctity will prevail over the verbal assertions of the petitioners as nothing to disprove the same could be brought on record by the petitioners.
8. The other contention of learned counsel for the petitioners that copy of the plaint was not supplied to petitioners-defendants is also not in line with the record of the trial court. Order dated 04.02.2014 reads that copy of the plaint was supplied to learned counsel for the petitioners when he appeared before the court. Though at that time, he had filed power of attorney on behalf of petitioner No,1 but after few days, he also filed power of attorney on behalf of petitioner No,2.
Therefore, it cannot be said that learned counsel for the petitioners was not having copy of the plaint. Furthermore, contents of application under Order VII, Rule 11, C.P.C. filed by the petitioners also suggest that the petitioners were having copy of the plaint. The contention of learned counsel for the petitioners is accordingly repelled.
9. Since the petitioners did not comply with the mandatory provisions of law as well as the order of the court, their right to file written statement was rightly closed. Respectful reliance is placed on the dictums laid down by the Hon'ble Supreme Court of Pakistan in case reported as Riaz ul Haq and others v. Muhammad Asghar and others (2017 SCM R 1841).
10. For what has been discussed above, this revision petition is bereft of any merit, hence dismissed. The order of learned trial Court is accordingly maintained.