FAHIM AHMED SIDDIQUI, J.----The petitioners have challenged the impugned Orders dated 28.10.2017 (FC Suit No.23/2017) and 07.03.2018 (Civil Rev. App. No.23/2017) passed by the learned Senior Civil Judge-II and Additional District Judge, Tando Allahyar respectively whereby the petitioners were debarred from filing their written statement(s).
2. Respondents Nos. 1 to 6 have filed a suit against the petitioners for declaration, cancellation of sale deed and permanent injunction. In the suit, they claimed that they were lawful owners of some agricultural property as such they sought declaration to this effect. They also sought cancellation of a registered sale deed dated 25-6- 2004 in favour of petitioners / the defendants in the suit in respect of the same property by declaring the same as illegal as according to the respondents Nos. 1 to 6 the same is executed fraudulently. They also sought a mandatory injunction against the petitioners in the said suit.
3. The contention of the learned counsel for the petitioners is that there are important and significant rights of the petitioners involved, as such, the impugned orders are apparently harsh. According to him, the proper course was not adopted by the trial Court. He submits that the property in question is an ancestral property and the respondents / plaintiffs and petitioners/defendants are claiming their rights from the same ancestor as his offspring. He relies upon 2019 YLR 602.
4. On the other hand, the learned counsel for the respondents Nos.1 to 6. strongly opposed the present petition.
He submits that the trial Court has provided ample opportunities to the petitioners but they did not avail the same and WS was not filed. He points out that the petitioners have repeatedly sought time but could not honor their words. He further submits that he has filed an 'ex parte proof' before the trial Court and now the matter is going to be decided in his favour. He relied upon the case of Apex Court reported as Riazul Haq and others. v. Muhammad Asghar and others (2017 SCMR 1841).
5. We have heard the arguments advanced and have gone through the record and citations placed before us. In the instant case, the learned counsel for the respondents informs that on the demand of trial Court, he has already filed 'Affidavit in Ex parte Proof', which indicates that the trial Court intends to proceed for pronouncing judgment without affording an opportunity to petitioners to cross-examine the witness under the provision of Order VIII, Rule 10 of Code of Civil Procedure, 1908 (hereinafter referred as 'C.P.C.'). We are of the view that the approach adopted by the trial Court is not proper. The present is not a case of ex parte proceedings; as such, demand of trial Court to file 'affidavit of ex parte proof' is a result of misinterpretation the true spirit of law.
As per provision of Order VIII, Rule 1, C.P.C., the defendant is required to file a written statement, which ordinarily does not exceed 30 days. In the present case, the trial Court has allowed application for extension of time for filing the written statement. It appears from the record, that such extension was allowed in a mechanical manner without giving an observation in respect of consequences if the written statement was not filed within the extending period of time. Although, it is claimed on behalf of the petitioners while seeking leeway in filing written statement on the ground of arranging some, documents, the trial Court never sought a clarification and description of those documents. Nevertheless, since on multiple dates, the requisite written statement was not filed; therefore, the trial Court whimsically passed the impugned order by disallowing or debarring the petitioners from filing a written statement. Subsequently, the trial Court demanded 'affidavit of ex parte proof' meaning thereby the trial Court intends to disposal of suit under Order VIII, Rule 10, C.P.C.
6. It is worth noting that, the word 'debarring from filing written statement' is nowhere used in the C.P.C. The trial Court has derived this ostensible power from the last phrase of Order VIII, Rule 10, C.P.C, which is reproduced as under:- "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 Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit."
As per last portion of above provision of law clarifies that in case of failure to file written statement on such extended period for filing the same, the trial Court may pronounce judgment against defendant Or make such order in relation to the suit as it thinks fit. Usually, such other order is passed in the form of 'debarring the defendant to file a written statement'.
7. It is now clear that as per provision of Order VIII, Rule 10 of C.P.C. that if the trial Court fixed a time for filing written statement but the defendant deliberately avoids to file the same within such extended B time, then trial Court will be justified either to pronounce judgment against the defendant or pass some other order as debarring him to file written statement. Nevertheless, in the present case, the learned trial-Court, instead of adopting the above referred course, has demanded affidavit of ex parte proof, which option is provided under Order IX, Rule-6 of C.P.C. for non-appearance of the defendant after service.
8. It may further he observed that in passing a decree in terms of Order VIII, Rule 10 of the C.P.C., the Court must exercise the same with due care and caution and its discretion must be based on relevant circumstances, before it proceeds to pronounce its judgment without going into the merits of the plaintiff's case. This option may be adopted in a suit of recovery, of amount or similar matters, as the trial Court will be justified to articulate an adverse presumption against the defendant due to non-filing of a written statement on or before the extended time. But in other cases, the plaintiff may not be absolved from his responsibility to establish his burden regarding his claim for which he may be called in witness box and defendant, even if he is debarred from filing written statement, should be given an opportunity to cross examine.
9. It is useful to observe that in the present case, the defendant and plaintiff are claiming their rights over the suit property conveyed to them through the same ancestor. The respondents have also challenged a gift deed executed in favour of the petitioners and the veracity of the said gift deed is to be judged on the touchstone of the evidence. Both the parties in the litigation are claiming their right over the suit property through the erstwhile owner of the property with different approaches and it is not proper to decide such litigation through technicalities instead of merits. In the present case, a gift deed is said to be executed in the past and allegedly on the force of the same, some other transactions have also taken place, as such, multiplicity of litigation is also not out of the question. In the existing position of affairs, the gift deed on which the petitioners are relying has to be ascertained not only from the recital made in the document but also upon the exterior factors like possession, witnesses and time of execution plus intention of the executant of the gift deed. No doubt, rule of construction of a document is amply clear but when clouds are thrown to such document without considering the exterior factors, the validity and veracity of the same as well as rights of other legal heirs will be jeopardized. We have also gone through the judgment cited by the petitioners but the case reported as Riazul Haq and others (supra), pertains to specific performance of the contract, as such, the same is distinguishable. We are of the view that in the present case, it will be appropriate to give a chance to the petitioners/ defendants to file a written statement but since the petitioners have not acted diligently; therefore, they should not be exonerated from their fault. We, therefore, allow the instant petition with cost of Rs.5000/- to be paid to High Court Bar Library with a direction to file written statement within 3 days.