The facts necessary , for adjudication of this controversy are that respondent filed a declaratory suit against Government of the Punjab and District Allotment Committee, Satellite Town Scheme, Gujranwala, seeking declaration that he is legally entitled to the allotment of the quarter in dispute.
Permanent injunction was sought by way of consequential relief restraining the defendants to deny the rights, interests and claim of the plaintiff in respect of the said quarter or to treat the .
Application dated 29-11-1967 of the respondent as rejected. It may be mentioned at this stage that nonce under section 80, C. P. C. Was not sent to the defendants --petitioners before filing the suit.
After registering the suit the learned Trial Court on 3-1-1974 directed issuance of summons to the petitioners for 25-3-1974. The summons issued, however, required the petitioners to appear and file reply on the date fixed. The summon was served on petitioner No. 1, Government of the Punjab through District Collector, Gujranwala on 11-2-1974. On 25-3-1974 representative of petitioner No. 2 appeared, but no one tendered appearance on behalf of Government, petitioner No. 1 and as such petitioner No. 1 was ordered to be proceeded against ex parte. The case was adjourned to 30-4- 1974. Again on request that sanction to engage a counsel has not been received, the case was adjourned to 5-6-1974 on payment of cost of Rs.
10. Two further, adjournments as per request were granted on payment of Rs. 30 and Rs. 40 as costs. Ultimately on 19-9-1974 the trial Court refused to grant further time to petitioner No. 2,'and its defence was then struck off. The trial Court decreed the suit against defendant No. 2 under Order VIII, rule 10, C. P. C. As regards petitioner/defendant No. 1, an ex parte decree as prayed for, was passed. Petitioner No. 2 filed an appeal against the aforesaid decree without joining petitioner No. 1 as appellant or even as respondent. This appeal was dismissed by the learned District Judge vide judgment dated 3-3-1975 as he was of the view that the trial Court was justified in stricking off the defence and announcing judgment against the petitioner-defendants.
The aforesaid judgments are under challenge in the revision petition filed by both the Government of Punjab and the District Allotment Committed Gujranwala. The learned counsel contended that on 25-3-1974 the learned trial Court could not have legally proceeded ex parte against Government of Punjab, petitioner No. 1 as under Proviso to section 80, C. P. C, it is obligatory for the Court to allow not leas than three months time to the Government to submit its written statement.
It was argued that summon dated 9-2-1974 was served on 11-2-1974 and the date when the reply was to be filed being 25-3-1974, the requisite period was thus not allowed. Hence on this date the learned trial Court acted illegally in ordering that petitioner No. 1 be proceeded ex parte.
As regards petitioner No. 2 it was contended that though four oppor--tunities were granted on account of non-receipt of necessary sanction from the solicitor,- yet the learned trial Court acted illegally in striking off the defence and granting the decree without applying its mind to the merits of the case. It was argued that no right vested in the petitioner to obtain allotment of the quarter in dispute, and the Satellite Town Scheme does not create any legal obligation on the Government or its functionaries to be performed in favour of the respondent, and that the permanent injunction could not have been granted against the petitioners in the facts and circum--stances of the case.
Reliance was placed on Ch. Muhammad Ajmal etc. v. Government of West Pakistan PLD 1973 Note 88 at p. 130
4. Learned counsel for the respondent in reply raised a preliminary objection as to the maintainability of the revision petition filed by Govern--ment, petitioner No. 1. It was urged that neither an appeal was filed by the Government against the judgment of the trial Court nor in the appeal filed by Allotment Committee, petitioner No. 2, Government was impleaded as appellant or respondent. Petitioner No. 1 having been dropped out of the scene cannot now be allowed to agitate the matter by filing a revision under section 115, C. P: C. It was also contended by the learned counsel for the respondent that four opportunities extending over a period of almost six months were granted to petitioner No. 2 to file the written statement even on payment of costs and as neither written statement was filed nor costs amounting to Rs. 80 were paid, the learned trial Court was justified in striking off the defence and pronouncing judgment against the petitioners. It was also urged that the plaint as well as copies of correspondence etc. Attached with the plaint were sufficient to establish the case of the respondent. I find from the record that the copies of the correspondence referred to by the learned counsel are not original documents and do not even bear the signatures of the petitioner or a certificate that the same are true copies of the originals.
5. I have considered the arguments of the parties and have also gone through the entire record.
The contention of the learned counsel for the petitioners that the Government, petitioner No. 1, could not be ordered to be proceeded ex parte as the summons issued required the Government to file the reply within less than three months period in violation of the provisions of the proviso to section 80, C. P. C., has much force. This proviso provides that in a suit instituted without such notice, the Court shall allow not less than three months to the Government to submit its written state--ment. The trial Court, therefore, acted illegally in ordering the ex parte proceedings against the Government.
6. The preliminary objection that the revision petition on behalf of the Government is incompetent as the Government did not file any appeal against the decree of the trial Court, cannot succeed in the circumstances of this case in view of the rule laid down in Municipal Committee, Bahawalpur v.
Sh. Aziz Elahi (1). The precise question before the Supreme Court was as to whether the expression "in which no appeal lies thereto" occurring in section 115 of the C. P. C. Meant that the appeal must lie directly to the High Court, or also included a second appeal as held by the High Court in its order under appeal. It was observed as follows;-- "Even in cases where the order or a decision sought to be challenged does not amount to a decree, the question will arise as to whether the High Court will, in the exercise of its discretion under section 115 of the Code of Civil Procedure, favour interference if another remedy. Which was open to a party, has not b; en pursued by him. The words used in section 115 are that the "High Court may call for the record" and, as such, it is not incumbent upon the High Court to call for the record in every case. As a general rule the principle to be followed in all such discretionary matters is that special and extraordinary powers ought not to be exercised in favour of an applicant who has been negligent in pursuing the normal remedies open to him. Thus where an appeal lay to some other Court and could have been filed if the applicant was diligent but he has not done so, then the High Court should not ordinarily entertain a revision even if the order or decision complained of does not amount to a decree. Similarly, where an aggrieved party could have brought a separate suit to challenge the order sought to be revised, the High Court will not as a rule, interfere in revision. T!:us an order under Order XXI, rule 52 of the Code Civil Procedure, determining the priority between the decree-holder and a third person or a decision under section 9 of the Specific Relief Act, which could have been challenged by a separate suit, will not ordinarily be interfered with in revision. This rule is not, however, an inflexible one and it will, no doubt, depend upon the special circumstances of each case whether it will be followed or not. Normally, where the applicant has no other remedy left, the High Courts are inclined to take a liberal view, but where the case is one which does not clearly fall under the terms of section 115, no revision can be entertained in any event."
7. These observations quoted were relied upon in the case of Manager, Jammu and Kashmir State Property v. Fida Yar and another (2), and the revision petition was held to be competent observing that it would be indeed difficult for the appellant to plead before the appellate Court that its order was without jurisdiction having been passed in a perfunctory manner without consciousness of the fact that service had not been effected on the respondent, or even that of its own discretion not to dismiss the appeal in default.
8. In the instant case the situation is similar as the Government could not have been proceeded against ex parte on 25-3-1974 and as the learned trial Court while striking off the defence on 19-9- 1974 failed to consider that despite the default in not filing the written statement, proper course in the circumstances was to fall back upon the latter part of rule 10 of Order VIII, Civil Procedure Code i.e. the Court may make such order in relation to the suit as it thinks fit.
(1) PLD 1970 SC 506(2) PLD 1975 SC 678
9. Even otherwise the trial Court after striking off the defence failed to apply its mind to the merits of the case and proceeded to pronounce judgment against the petitioners without there being any evidence or material on the record. Copies of the documents attached to the plaint were neither attested to be true copies nor were the original ones. This aspect of the matter was completely ignored by the trial Court as well as the lower Appellate Court.
10. In Mst. Bilqees Begum v. Syed Ali Turab and another1980 CLC 930, it was held after surveying various pronouncements that "the pronouncement of judg--ment in the absence of evidence to support the plaintiff's case was improper. Moreover a party is not bound to put in a written statement and if he does not do so, he is taken to have admitted the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint, for instance that the plaint discloses no cause of action or, that the claim is time barred, or that even on the basis 'of the fact alleged in the plaint, no right in law vests entitling the plaintiff to get the decree. In this case it was urged that such a plea was available to petitioner No. 2 as under the Satellite Town Scheme no right vests in the plaintiff-- respondent to get allotment of the quarter in dispute and the functionaries under the Scheme can refuse to make allotment on any application, if they decided to call fresh applications because they are not bound by any Statute or any Rule having statutory force. The learned counsel for the petitioners relied upon the case of Muhammad Ajmal in support of the above plea.
11. In the circumstances it is apparent that the learned trial Court was not justified in decreeing the suit straightaway and therefore the revision petition filed on behalf of the Government is held to be competent especially when Allotment Committee, petitioner No. 2 has filed this revision petition.
The impugned judgments passed by the two Courts below are, therefore, set aside. The trial Court is directed to proceed with the suit in accordance with law. No order as to costs.